During the 2021 North Dakota Legislative session, the legislature passed amendments to the state’s drain tile permitting law which are now in effect. The amendments change the scope of what drain tile systems require a permit, what is required of a landowner or producer seeking to install the system, and the obligations of the water resource districts tasked with issuing the permits.
If the new drain tile system comprises 80 acres or more, the system requires a permit under North Dakota Century Code Section 61-32-03.1. The permitting statute no longer makes reference to the drainage coefficient of drain tile systems with surface intakes, which previously would require some systems to be permitted as surface drains. Under the new law, all tile systems will be regulated as tile systems and not as surface drains.
The new law is intended to streamline the process by which a landowner or producer obtains a required permit. The permit application form provides a list of information that must be provided to the water resource district in support of the application. That form is available here. The required information includes a Project Design Map that the water resource district is required to keep confidential. Also required is a Flow Direction Map (separate from the Project Design Map) that details the flow direction from each outlet for one mile downstream, and evidence of ownership taken from the tax rolls for the parcel being tiled and each parcel one mile downstream or between the outlet and the nearest assessment drain, natural watercourse, slough or lake (whichever is closer). The new law also allows the water resource district to charge a permit application fee of up to $500.00, an increase from the previous limit of $150.00.
Upon receipt of the permit application and application fee, the water resource district has three days to certify the application as complete or otherwise provide the applicant with a list of information required to complete the application. If the water resource district does not request additional information within three business days, the application is deemed complete. After receipt of the completed application, the water resource district has 30 days to approve the permit. If the application is not approved by the water resource district within 30 days, the permit is deemed approved without conditions.
The new law does away with the requirement of notifying downstream landowners of the permit application and eliminates the downstream landowners’ opportunity to submit technical evidence demonstrating whether the drain tile system will flood or unreasonably harm downstream properties. Instead, the water resource district is required to approve the application based on its own investigation and the information submitted by the applicant. In approving the application, the water resource district is allowed to attached conditions on the permit to address a limited number of potential issues and is allowed to add the tiled lands to the benefits roll of a legal drain if appropriate. Following approval of the application, the water resource district will send notice of the permit to the downstream landowners required to be identified by the applicant in the application. Any person aggrieved by the decision of the water resource district has an opportunity to appeal the decision to District Court.
The new law also impacts new drain tile system comprised of less than 80 acres. Under North Dakota Century Code Section 61-32-03.2, the law now requires a landowner or producer to provide notice to the water resource district prior to the installation of any new drain tile system comprising less than 80 acres. This is not a permitting requirement, but only a notice requirement. The notice must include the system’s total acreage, the legal description of the land being drained, the location and type of the system’s outlets, and the flow direction from each outlet. The required information is identified on the notification form, available here. The information provided to the water resource district in the notification is to be kept confidential.
If you are planning a drain tile project or are considering challenging a tile permit decision and would like to discuss your options, please contact one of our environmental law attorneys.
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