# Title 61 — Waters

## Chapter 61-16.2 — Floodplain Management

### § 61-16.2-01. Legislative intent and purpose.

The legislative assembly finds and declares that a large portion of the state's land resources
is subject to recurrent flooding by overflow of streams and other watercourses causing loss of
life and property, disruption of commerce and governmental services, unsanitary conditions, and
interruption of transportation and communications, all of which are detrimental to the health,
safety, welfare, and property of the occupants of flooded lands and the people of this state. The
legislative assembly further finds that public interest necessitates that the floodplains of this
state be developed in a manner which will alleviate loss of life and threat to health, and reduce
private and public economic loss caused by flooding.
It is the policy of this state and the purpose of this chapter to guide development of the
floodplains of this state in accordance with the enumerated legislative findings, to reduce flood
damages through sound floodplain management, stressing nonstructural measures such as
floodplain zoning and floodproofing, acquisition and relocation, and flood warning practices; and
to ensure as far as practicable that the channels and those portions of the floodplains of
watercourses which are the floodways are not inhabited and are kept free and clear of
interference or obstructions which may cause any undue restriction of the capacity of the
floodways.
It is also the policy of this state and purpose of this chapter to provide state coordination
and assistance to communities in floodplain management activities, to encourage communities
to adopt, administer, and enforce sound floodplain management ordinances, and to provide the
department of water resources the authority necessary to carry out and enforce a floodplain
management program for the state and to coordinate federal, state, and local floodplain
management activities in this state.
### § 61-16.2-02. Definitions.

1. In this chapter, unless the context or subject matter otherwise provides:
a. "Commission" means state water commission.
b. "Community" means any political subdivision that has the authority to zone.
c. "Conveyance" or "hydraulic conveyance" means a geometric characteristic of a
river or watercourse at a given point that determines the flow-carrying capacity at
that point.
d. "Department" means the department of water resources.
e. "District" means a water resource district, as defined in chapter 61-16.1.
f. "Flood fringe" means that portion of a floodplain outside of the floodway.
g. "Floodplain management" means a community-based effort to prevent or reduce
the risk of flooding. Floodplain management may be associated generally with the
national flood insurance program [42 U.S.C. 4001 et seq.].
h. "Floodplain management ordinance" means a building code, zoning, subdivision,
health, or special purpose ordinance, and any other use of police power, which
provide standards for communities to manage known flood hazards in all official
actions relating to land management and use. A floodplain management
ordinance may be associated with the national flood insurance program
[42 U.S.C. 4001 et seq.] to ensure participating communities meet state and
federal minimum standards.
i. "Floodway" or "regulatory floodway" means the channel of a river or other
watercourse and the adjacent land areas that must be reserved in order to
discharge the base flood without cumulatively increasing the water surface
elevation more than one foot [30.48 centimeters].
j. "Person" means any person, firm, partnership, association, corporation, limited
liability company, agency, or any other private or governmental organization,
which includes any agency of the United States, a state agency, or any political
subdivision of the state.

2. For the purposes of this chapter, the department shall follow the definitions in this
section and the definitions under the national flood insurance program [42 U.S.C. 4001
et seq.] and implementing regulations.
### § 61-16.2-03. Duties of the department.

The department shall:
1. Collect and distribute information relating to flooding and floodplain management.
2. Coordinate local, state, and federal floodplain management activities to the greatest
extent possible, and encourage appropriate federal agencies to make their flood
control planning data available to communities and districts for planning purposes, in
order to allow adequate local participation in the planning process and in the selection
of desirable alternatives.
3. Assist communities and districts in their floodplain management activities within the
limits of available appropriations and personnel in cooperation with the division of
homeland security and emergency management.
4. Do all other things, within lawful authority, which are necessary or desirable to manage
the floodplains for uses compatible with the preservation of the capacity of the
floodplain to carry and discharge the base flood. In cooperation with communities and
districts, the department shall conduct, whenever possible, periodic inspections to
determine the effectiveness of local floodplain management programs, including an
evaluation of the enforcement of and compliance with local floodplain management
ordinances.
### § 61-16.2-04. Delineation of floodplains and floodways.

The department shall assist communities in preparing and obtaining data and other
necessary information for the delineation of floodplains and floodways. When the department
determines sufficient technical information is available for the delineation of floodplains and
floodways on a watercourse or lake, the department shall consult with the appropriate district
and each affected community. The department, the affected community, and the appropriate
district shall consider flooding experiences, plans to avoid potential hazards, estimates of
economic impacts of flooding on the community, both historical and prospective, and other data
as the district and community may consider appropriate. Upon obtaining and developing the
necessary information for delineation of the floodplain and floodway, the department and the
affected community shall notify the appropriate federal agency and request that the information
be used to delineate the floodplain and floodway under the national flood insurance program
[42 U.S.C. 4001 et seq.]. The regulatory floodway must be able to carry the waters of the base
flood without cumulatively increasing the water surface elevation of the base flood more than
one foot [30.48 centimeters] at any point.
### § 61-16.2-05. Floodplain management ordinances.

1. Each community shall submit the floodplain management ordinances adopted under
the national flood insurance program [42 U.S.C. 4001 et seq.] to the department for
review.
2. If the department determines there is a failure by a community to comply with the
intent, purposes, and provisions of this chapter and the minimum ordinances adopted
under the national flood insurance program [42 U.S.C. 4001 et seq.], the department
shall notify the appropriate federal agency and the community of those findings. The
department also shall notify the community of the state and federal penalties for such
noncompliance and shall work with the community until such time as the department
determines the community will comply or is complying.
### § 61-16.2-06. Permissible floodway uses.

Upon delineation of the floodway under the national flood insurance program [42 U.S.C.
4001 et seq.], uses shall be permitted within the floodway to the extent that they do not result in
any increase in flood levels during the occurrence of the base flood discharge. Any exception to

the national flood insurance program [42 U.S.C. 4001 et seq.] in implementing regulations
granted by the appropriate federal agency to a community participating in the national flood
insurance program is an approved exception pursuant to this section.
### § 61-16.2-07. Prohibited uses within floodway.

Repealed by S.L. 1983, ch. 682, § 1.
### § 61-16.2-08. Community standards - Permissible uses within flood fringe.

1. Upon delineation of the floodplain or floodway under the national flood insurance
program [42 U.S.C. 4001 et seq.], the following uses must be permitted within the
flood fringe to the extent the uses are not prohibited by any other ordinance,
regulation, or statute:
a. Any use permitted in the regulatory floodway pursuant to section 61-16.2-06.
b. Structures, including residential and nonresidential structures; provided:
(1) Residential structures are constructed so the lowest floor, including
basements, is elevated to at least one foot [30.48 centimeters] above the
base flood elevation unless granted a residential basement floodproof
exception under the national flood insurance program.
(2) Nonresidential structures either are constructed as specified in subdivision a
and elevated to at least one foot [30.48 centimeters] above the base flood
elevation or are floodproofed adequately up to an elevation no lower than
two feet [.61 meter] above the base flood elevation. The floodproofing must
be in accordance with the standards either adopted by the community under
the national flood insurance program [42 U.S.C. 4001 et seq.] or under this
chapter, whichever are more restrictive.
2. Any exception to this section must be approved by the regulatory authority as a
variance, established in local floodplain development ordinances.
3. Any exception to the national flood insurance program [42 U.S.C. 4001 et seq.] in
implementing regulations granted by the appropriate federal agency to a community
participating in the national flood insurance program is an approved exception under
this section.
### § 61-16.2-09. Enforcement and penalties.

1. It is unlawful for any person to establish any use that does not comply with this chapter
within any floodplain without prior written approval of the affected community. Every
use placed in the floodplain in violation of this chapter or a floodplain management
ordinance adopted under or in compliance with the provisions of this chapter, or
adopted under the national flood insurance program [42 U.S.C. 4001 et seq.], is a
public nuisance, and the construction or installation of the use may be enjoined by an
action brought by the department or the appropriate community. The department or
community may obtain a court order directing the removal or elimination of the public
nuisance, or authorizing the department or community to remove the public nuisance
or cause the public nuisance to be removed, at the expense of the owner. A person
who violates any of the provisions of this chapter is guilty of a class B misdemeanor.
2. Any community which fails to adopt or enforce floodplain management ordinances as
required under the national flood insurance program [42 U.S.C. 4001 et seq.] by this
chapter shall not be eligible to receive flood disaster assistance, financial or otherwise,
from this state pursuant to chapter 37-17.1 or other state funds available under any
other authority for flood relief under the national flood insurance program [42 U.S.C.
4001 et seq.] relating to insurable structures located within federal emergency
management agency-identified special flood hazard areas.
### § 61-16.2-10. Exceptions.

This chapter shall not apply to the following actions or construction, as long as the
flood-carrying capacity within the altered or relocated portion of any watercourse is maintained,

and the cumulative effect of any such action or construction will not increase the water surface
elevation of the base flood more than one foot [30.48 centimeters] at any point:
1. Ring dikes around individual farmsteads which are not constructed with tiebacks to
existing roadways or dikes. For the purposes of this section, "ring dike" means an
embankment constructed of earth or other suitable materials for purposes of enclosing
a farmstead consisting of a farm dwelling and associated farm buildings.
2. Agricultural dikes along the Red River of the North and Bois de Sioux River which are
constructed pursuant to and in accordance with any joint and cooperative agreements
between North Dakota and Minnesota for the establishment of criteria for authorizing
dikes and other flood control structures and measures on the Red River of the North
and Bois de Sioux River.
Any exception to the national flood insurance program [42 U.S.C. 4001 et seq.] and
implementing regulations granted by the appropriate federal agency to a community which is
participating in the national flood insurance program [42 U.S.C. 4001 et seq.] shall be an
approved exception pursuant to this section.
### § 61-16.2-11. Authority to enter and investigate lands or waters.

The department or any community must notify all landowners prior to making any entry
upon any lands and waters in the state for the purpose of making an investigation, survey,
removal, or repair contemplated by this chapter. An investigation of a nonconforming use or
existing construction or structure must be made by the department either on the department's
own initiative, on the written request of an owner of land abutting the watercourse involved, or
on the written request of a community.
### § 61-16.2-12. State property.

Notwithstanding any other statute or regulation, all state property and structures on state
property are subject to the provisions of this chapter and any ordinances adopted under this
chapter or the national flood insurance program [42 U.S.C. 4001 et seq.]. The appropriate state
agency or entity having an interest in state property and state structures shall notify the
department when state property or structures are constructed within a special flood hazard area
designated by the federal emergency management agency.
### § 61-16.2-13. Flood insurance.

Communities that have residential and nonresidential structures in areas subject to
excessive flooding, as determined by the department, shall participate in the national flood
insurance program administered by the federal emergency management agency. A community
is not required to participate in the program if all of the land under the jurisdiction of the
community is enrolled as a result of another community's participation in the program.
### § 61-16.2-14. Department review of development in regulatory floodways - Exceptions.

Before issuing a permit or authorization to allow a use in a regulatory floodway, the
community responsible for permitting or authorizing the use shall notify the department of the
proposed use. The department shall determine whether a functioning hydraulic model is needed
to measure the effect of the proposed use. Upon the request of the department, the community
shall submit to the department for review all technical documentation, including a functioning
hydraulic model and other technical information needed for the department's review to analyze
the proposed use and to identify its proposed impact. The department shall complete the review
within thirty days after receiving the technical documentation. Upon completion of the review,
the department shall notify the community whether the proposed use is in compliance with state
and federal law. A community may apply to the department for an exemption on a case-by-case
basis from this section. The department may grant the exemption if the department determines
the community, by using its own technical review, can determine whether the proposed use is in
compliance with state and federal law.

### § 61-16.2-15. Central repository - Floodplain management authority - Accessible to the

public.
The department shall establish, operate, and maintain a publicly accessible electronic
central repository for local floodplain management ordinances, local floodplain management
agreements, and all annual certifications received by the department. The repository must
reflect which cities, townships, and counties have reported undertaking floodplain management
within the state. The department shall update the central repository by May thirty-first of each
year.
