# Title 61 — Waters

## Chapter 61-03 — State Engineer

### § 61-03-01. State engineer - Appointment - Qualifications - Term - Salary - Engaging in

private practice.
Repealed by S.L. 2021, ch. 488, § 225.
### § 61-03-01.1. Department of water resources established - Appointment and salary of

director.
The department of water resources is established and is the primary state water agency.
The governor shall appoint a director of the department subject to approval by a majority of the
members of the state water commission. The director may not engage in any other occupation
or business that may conflict with the statutory duties of the director. The position of director of
the department is not a classified position, and the state water commission shall set the salary
of the director within the limits of legislative appropriations.
### § 61-03-01.2. Definitions.

For purposes of this chapter, unless the context otherwise requires:
1. "Department" means the department of water resources.
2. "Director" means the director of the department.
### § 61-03-01.3. Director - State engineer - Powers and duties.

1. The director shall:
a. Enforce all rules adopted by the department.
b. Hire a state engineer who is a qualified professional engineer, has appropriate
hydrology experience, and will report to the director.
c. Hire other employees as necessary to carry out the duties of the department and
director.
d. Organize the department in an efficient manner.
e. Take any other action necessary and appropriate for administration of the
department.
f. Adopt rules to license water well contractors, water well pump and pitless unit
installers, monitoring well contractors, and geothermal system drillers.
g. Advise the governor and the state water commission regarding operations of
Devils Lake outlets.
h. Recommend an operational plan for the Devils Lake outlet based on Sheyenne
River capacity and water quality considerations.
2. The state engineer is responsible for and shall manage the department's oversight of
dam safety, water appropriations, and construction and drainage permits, and
associated technical duties related to public safety and property protection.
### § 61-03-02. Oath of state engineer.

Repealed by S.L. 2021, ch. 488, § 225.
### § 61-03-03. Approval of claims.

All claims for services rendered, expenses incurred, or materials or supplies furnished
under the direction of the director and which are payable from the funds appropriated for the
work under the director's direction and supervision must be approved by the director before
payment.
### § 61-03-04. Biennial report.

The director may submit a biennial report to the governor and the secretary of state in
accordance with section 54-06-04.

### § 61-03-05. Fees of state engineer.

Repealed by S.L. 2015, ch. 471, § 4.
### § 61-03-05.1. Deposit of certain fees in special fund - Purposes of fund.

Repealed by S.L. 2021, ch. 56, § 15.
### § 61-03-06. Records of the department.

The records of the department are public records. The records must show in full all permits,
certificates of completion of construction, licenses issued, actions taken on permits and
licenses, and actions or decisions of the department affecting any rights or claims to appropriate
water.
### § 61-03-07. Investigations and reports for board of university and school lands.

Repealed by S.L. 1989, ch. 747, § 1.
### § 61-03-08. Duty to cooperate with boards of county commissioners when requested.

When asked by a board of county commissioners, the department shall cooperate with the
board in the engineering work required to lay out, establish, and construct any drain to be used
by any county or portions of a county to divert floodwaters, lakes, or watercourses, and shall
assist counties in making preliminary surveys and establishing systems of drainage.
### § 61-03-09. State engineer's duties in construction of bridges and culverts.

Repealed by S.L. 1989, ch. 747, § 1.
### § 61-03-10. Custodian of government plats.

The department is the custodian of all plats, field notes, and similar records provided to the
state by a federal government entity. Suitable rooms in the capitol building containing vaults for
fireproof protection and the safekeeping of the records must be provided to the department.
### § 61-03-11. Furnishing copies.

Repealed by S.L. 1993, ch. 595, § 2.
### § 61-03-12. Attorney general and state's attorney to provide legal counsel.

The attorney general, and the state's attorney of the county in which legal questions arise,
shall provide legal counsel for the department without compensation other than their salaries as
fixed by law, except when otherwise provided.
### § 61-03-13. Rulemaking authority.

The department may adopt rules necessary to carry out the duties of the department. The
department shall amend rules relating to applications for permits to appropriate water, for the
inspection of works, for the issuance of licenses, and for the determination of rights to the use of
water, if required to do so by a vote of the state water commission.
### § 61-03-14. State water commission votes on modifications of rules.

The state water commission may vote on a modification of a department rule which is
required under section 61-03-13 only on an appeal from a decision of the director.
### § 61-03-15. Hydrographic surveys and investigations made by the department -

Cooperating with federal agencies.
The department shall make hydrographic surveys and investigations of each stream system
and source of water supply in the state, beginning with those most used for irrigation, and shall
obtain and record all available data for the determination, development, and appropriation of the
water supply of the state. The department may cooperate with the agencies of the federal
government engaged in similar surveys, investigations, or the construction of works for the

development and use of the water supply of the state, and may expend funds appropriated to
the department for that purpose.
### § 61-03-16. Suit for adjudication of water rights.

Upon the completion of a hydrographic survey of any stream system, the department shall
deliver a copy of the survey and all data necessary for the determination of all rights to the use
of the waters of the system to the attorney general, who, within sixty days, shall enter suit on
behalf of the state for the determination of all rights to the use of the water and proceed with the
litigation until a final adjudication of the rights. If private parties initiated the suit, the attorney
general shall intervene in the suit if the department notifies the attorney general intervening is
necessary to protect the interests of the state.
### § 61-03-17. Parties to and costs of suit for adjudication of water rights.

In any suit for the determination of a right to the use of the waters of any stream system, all
persons that claim the right to use the waters must be made parties, and the department shall
provide the court a complete hydrographic survey of the stream system. The cost of the suit
including the litigation and survey costs incurred by the state must be charged to each of the
private parties to the suit in proportion to the amount of the water right allotted.
### § 61-03-18. Hydrographic survey fund - Use - Payments.

The hydrographic survey fund, a permanent fund, may be used only for the payment of the
expenses of the surveys required under section 61-03-17. All claims for services rendered,
expenses incurred, or materials or supplies furnished under the direction of the department for
the surveys must be approved by the department. The amounts paid by private parties under
section 61-03-17 for the surveys must be paid to the state treasurer, who shall credit the
payments to the hydrographic survey fund.
### § 61-03-19. Decree adjudicating water rights - Filing - Contents.

Upon the adjudication of the rights to the use of the waters of a stream system, a certified
copy of the decree must be prepared by the clerk of the court at the cost of the parties, and
must be filed in the department. The decree must declare the water right adjudged to each
party, the priority, amount, purpose, and place of use, and, as to water used for irrigation, the
specific tracts of land to which the right is appurtenant, with any other conditions necessary to
define the right and the priority of the right.
### § 61-03-20. Cooperation with United States geological survey in making topographic

maps.
The department may confer with the director of the United States geological survey and
may accept the cooperation of the United States to execute topographic surveys and maps of
this state. The department may arrange with the director or other authorized representative of
the United States geological survey concerning the details of the surveys or maps, the method
of execution, and the order in which the surveys and maps of different parts of the state are
undertaken.
### § 61-03-21. Plans of operation for reservoirs - Adequate structure.

Every water storage reservoir operator in North Dakota shall cooperate with the department
to make all water releases compatible with the best interest of the greatest number of
downstream water users and affected landowners. The department may require the reservoir
operators to maintain adequate structures and operate the structures in a manner to prevent
waste, promote the beneficial use of water, and not endanger the general health and welfare of
affected persons.
### § 61-03-21.1. Inspection by department.

When the department is authorized or mandated by law to inspect or investigate an alleged
violation of a statute under this title, the department may enter upon land to conduct the

inspection or investigation. Except in emergency situations as determined by the department,
the department shall request written permission from the landowner to enter the property. If the
landowner refuses to give written permission, or fails to respond within five days of the request,
the department may request the district court of the district containing the property for an order
authorizing the department to enter the property to inspect or investigate the alleged violation.
### § 61-03-21.2. Removal or modification of unsafe or unauthorized works.

If the department determines works are unsafe or unauthorized, the department shall notify
the landowners by registered mail at the landowner's last-known post-office address of record. A
copy of the notice also must be sent to any tenant, if the department has actual knowledge of
the fact that a tenant exists. The notice must specify the nature and extent of the noncompliance
and the modifications necessary for compliance, and must state if the works are not modified or
removed within the period stated in the notice, but not less than thirty days, the department shall
cause the removal or modification of the works and assess the cost of the removal or
modification, or a portion of the cost as the department determines, against the property of the
landowner responsible. The notice also must state the affected landowner may demand in
writing a hearing on the matter within fifteen days of the date the notice is mailed. The request
for a hearing must state with particularity the issues, facts, and points of law to be presented at
the hearing. If the department determines the issues, facts, and law to be presented are
well-founded and not frivolous, and the request for a hearing was not made merely to interpose
delay, the department shall set a hearing date without undue delay. In an emergency, the
department immediately may apply to the appropriate district court for an injunction prohibiting
the landowner or tenant from constructing or maintaining the works, or ordering the landowner
to remove or modify the works. Any assessments levied under this section must be collected in
the same manner as other assessments authorized by this title. If, in the opinion of the director,
more than one landowner or tenant has been responsible, the costs may be assessed on a pro
rata basis in proportion to the responsibility of the landowners. Any person aggrieved by a
decision of the department under this section may appeal the decision to the district court of the
county in which the land is located in accordance with chapter 28-32. A hearing under this
section is a prerequisite to an appeal unless the hearing was denied by the department.
For purposes of this section, the term "works" includes dams, dikes, wells, or other devices
for water conservation, flood control, regulation, storage, diversion, or carriage of water.
### § 61-03-21.3. Removal, modification, or destruction of dangers in, on the bed of, or

adjacent to navigable waters.
1. If the department finds that buildings, structures, boat docks, debris, or other
manmade objects, except a fence or corral, situated in, on the bed of, or adjacent to
waters that have been determined to be navigable by a court are, or are likely to be, a
menace to life or property or public health or safety, the department may issue an
order to the person responsible for the object. If the department issues an order, the
order must specify the nature and extent of the conditions, the action necessary to
alleviate, avert, or minimize the danger, and a date by which that action must be taken.
If the department determines an object covered by flood insurance is likely to be a
menace to life or property or public health or safety, the date specified in the order for
action to be taken may not precede the date on which the person is eligible to receive
flood insurance proceeds. If a building, structure, boat dock, debris, or other manmade
object, except a fence or corral, is partially or completely submerged due to the
expansion of navigable waters, the person responsible is the person who owns or had
control of the property on which the object is located or the person who owned or had
control of the property immediately before it became submerged by water.
2. If the action is not taken by the date specified, but not less than twenty days from the
date of service of the notice, the department may cause the action to be taken. The
department may require the action to be taken in less than twenty days if an
emergency exists.
3. a. The department may bring an action to enforce an order of the department, or if
the department causes the action to be taken, the department may:

(1) Assess the costs of taking the action, or a portion of the costs as the
department determines, against any property of the person responsible; or
(2) Bring a civil action against the person responsible to recover the costs
incurred in taking the action.
b. If the department chooses to recover costs by assessing the cost against
property of the person responsible and the property is insufficient to cover the
costs incurred, the department may bring a civil action to recover any costs not
recovered through the assessment process. Any assessments levied under this
section must be collected in the same manner as other real estate taxes are
collected and paid. Any costs recovered must be deposited in the fund from which
the expenses were paid.
4. A person who receives an order, within ten days of the date of service of the order,
may demand, in writing, a hearing on the matter. The demand for a hearing must state
with particularity the issues, facts, and points of law to be presented at the hearing. If
the department determines the issues, facts, and law to be presented are well-founded
and not frivolous, and the request for a hearing was not made merely to interpose
delay, the department shall set a hearing date without undue delay.
5. In an emergency, the department immediately may apply to the district court of the
county in which the property is located for an injunction ordering the person
responsible to modify, remove, abate, or otherwise eliminate the dangerous condition.
6. Any person aggrieved by the action of the department may appeal the decision to the
district court of the county in which the land is located in accordance with chapter
28-32. A hearing under this section is a prerequisite to an appeal unless the hearing
was denied by the department.
7. If the department has issued an order under this section with regard to a building,
structure, boat dock, debris, or other manmade object the department has determined
is likely to be a menace to life or property or public health or safety, and it later
becomes known the object would not have become a menace, a person who has
taken action required by the order is entitled to compensation in an amount equal to
the value of any property destroyed and reasonable costs incurred as a result of
complying with the notice from the department.
8. Any person claiming compensation for the destruction of property or costs incurred
under subsection 7 must file a claim with the department in the form and manner
required by the department. Unless the amount of compensation is agreed to between
the claimant and the department, the amount of compensation must be calculated in
the same manner as compensation due for taking of property pursuant to the
condemnation laws of this state. In determining compensation, the proceeds of any
flood or other insurance or any other kind of compensatory payments must be
subtracted from the amount paid.
### § 61-03-21.4. Economic analysis process required for certain projects.

The department of water resources shall develop an economic analysis process for water
conveyance projects and flood-related projects expected to cost more than one million dollars,
and a life cycle analysis process for municipal water supply projects. When the state water
commission is considering whether to fund a water conveyance project, flood-related project, or
water supply project, the department of water resources shall review the economic analysis or
life cycle analysis, and inform the state water commission of the findings from the analysis and
review.
### § 61-03-22. Hearing - Appeals from decision of department.

Any person aggrieved by an action or decision of the department under this title has the
right to a hearing. The department must receive a request for a hearing within thirty days after
the aggrieved person knew or reasonably should have known of the action or decision. Once a
hearing has been held or if the hearing request is denied, the person aggrieved has the right to
petition for reconsideration or appeal under chapter 28-32.

### § 61-03-23. Penalties - Civil.

1. In addition to criminal sanctions that may be imposed pursuant to law, a person who
violates any provision of this title or any rules adopted under this title may be assessed
a civil penalty not to exceed twenty-five thousand dollars for each day the violation
occurred and continues to occur and may be required by the department to forfeit any
right to the use of water. The civil penalty for violation of an irrigation appropriation
permit may not exceed five thousand dollars for each day the violation occurred and
continues to occur. The civil penalty or forfeiture of a right to use water may be
adjudicated by the courts or by the department through an administrative hearing
under chapter 28-32.
2. If a civil penalty levied by the department after an administrative hearing is not paid
within thirty days after a final determination the civil penalty is owed, the civil penalty
may be assessed against the property of the landowner responsible for the violation
leading to the assessment of the penalty. The assessment must be collected as other
assessments made under this title are collected. Notwithstanding section 57-20-22, all
interest and penalties due on the assessment must be paid to the state. Any civil
penalty assessed under this section must be in addition to any costs incurred by the
department for enforcement of the order.
### § 61-03-24. Pending administrative actions and permits.

If an applicant for any permit processed by the department has an unresolved
administrative order or complaint under this title, the permit may not be processed until the order
is complied with or complaint is resolved. At the discretion of the department, the permit may be
processed if issuing the permit would resolve the administrative order or complaint. If an
applicant is not an individual, this section applies if the applicant is at least twenty-five percent
owned by an individual with an unresolved administrative order or complaint under this title.
### § 61-03-25. Emergency action plan - High-hazard or medium-hazard dam.

The owner of a high-hazard or medium-hazard dam shall develop, periodically test, and
update an emergency action plan to be implemented if there is an emergency involving the
dam. The emergency action plan and any subsequent updates must be submitted to the
department for approval.
### § 61-03-26. Water well contractors advisory board.

(Expired effective December 2, 2026)
1. The water well contractors advisory board is established and consists of:
a. The director, or director's designee.
b. Three water well contractors, appointed by the governor.
c. One geothermal system driller or one monitoring well contractor, appointed by the
governor.
d. One water well pump and pitless unit installer, appointed by the governor.
e. One member at large, appointed by the governor.
2. The advisory board:
a. Shall advise the department in the adoption and implementation of rules for the
certification and regulation of water well contractors, water well pump and pitless
unit installers, monitoring well contractors, and geothermal system drillers.
b. May receive reports from the department on the status and activities of the
certification and regulation of water well contractors, water well pump and pitless
unit installers, monitoring well contractors, and geothermal system drillers.
c. May provide recommendations to the department and the legislative
management on the certification and regulation of water well contractors, water
well pump and pitless unit installers, monitoring well contractors, and geothermal
system drillers.
d. Shall collaborate with the department to manage the fiduciary responsibilities of
certification and regulation of water well contractors, water well pump and pitless
unit installers, monitoring well contractors, and geothermal system drillers.

### § 61-03-27. Requirements for firms engaged in water well work, installation of water

well pumps and pitless units, monitoring well work, and drilling of geothermal systems -
Exceptions.
1. A person, partnership, association, corporation, or limited liability company may not
engage in the business of constructing a water well in this state unless at all times a
certified water well contractor, who is responsible for the proper construction or
alteration of a water well, is in charge. This section does not prohibit any person,
partnership, association, corporation, or limited liability company from constructing any
water well on the person's or entity's own premises for the person's or entity's own
use.
2. A person may not engage in the business of installing water well pumps and pitless
units in the state after July 1, 1986, unless a certified installer, who is responsible for
the proper installation of the pump and pitless unit, is in charge of the installation. This
chapter does not prohibit any person from installing water well pumps and pitless units
on that person's own premises for that person's own use.
3. A person may not engage in the business of constructing a monitoring well in this state
unless at all times a certified monitoring well contractor, who is responsible for the
proper construction or alteration of the monitoring well, is in charge. This section does
not prohibit any person from installing a monitoring well on that person's own premises
for that person's own use.
4. A person may not engage in the business of drilling geothermal systems in the state
after July 1, 2008, unless a certified driller, who is responsible for the proper drilling of
the geothermal system, is in charge of the drilling. This section does not prohibit a
person from drilling geothermal systems on that person's own premises for that
person's own use.
5. Within thirty days after the completion of each well, each water well contractor shall
report to the department, on forms provided by the department, any information
required by the department, including a log of formations penetrated, well depth, and
casing size and weight. Each water well contractor shall provide a copy of the report to
the customer. All information submitted to the department must remain the property of
the department.
