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Who Is Responsible For a Road Culvert That Is Holding Back Water In North Dakota

Property damage and crop loss caused by the ponding of water detained by undersized culverts is a common problem in North Dakota. The ND Department of Transportation, county commissioners, and township supervisors often find themselves both downstream and upstream of disputes over the management of water. Navigating the common law cases, statutes, and administrative codes that balance the interests of private property owners with the interest of the public as to drainage can be daunting.

On its face, it may seem that this issue falls within the jurisdiction of the local water resource district board. However, with limited exceptions, only those culverts that are located in and along legal assessment drains or projects (see N.D. Century Code chapters 61-16.1 & 61-21) are within the water board’s jurisdiction. Setting aside those culverts associated with legal drains and projects, The Department of Transportation, county boards, and township boards, all acting as the road authority, have sole jurisdiction over and responsibility for culverts through their respective roadways.

As the road authority, highway department officials, commissioners, and supervisors are responsible for ensuring water is managed when roads are constructed or improved. Proper water management is necessary to accommodate frequent flooding; prevent erosion and sedimentation issues; address the concentration of flow on adjacent properties; and prevent damages to roads, bridges, and other infrastructure all while ensuring property rights respecting drainage are protected.

When a road is constructed, reconstructed, improved, or relocated, the impact of that construction on surface waters must be an important part of the road authority’s design considerations. The road authority is responsible for roadside ditching to protect its roads from flooding and erosion, and to accommodate reasonable improvements to the flow of surface waters toward the roadway. Improper handling of changes in the right-of-way that impact drainage could land the road authority in litigation with affected property owners. In some instances, the road will be located downstream of a natural watercourse or reasonable artificial drainage improvements. In such instances, the road authority must ensure it accommodates that level of drainage which is natural, plus some quantity of reasonable improvement upstream. In some instances, the road authority may find its roadway is enhancing or diverting drainage from upstream. In such instances, the road authority must ensure that any enhancement or diversion of waters downstream is reasonable. If the road authority obstructs, diverts, or enhances drainage in an unreasonable way, compensation from the road authority to the private landowner may be required.

Road authorities must place openings in roadways to permit surface water to escape in its natural course from higher lands to lower lands. The road authority must make proper and adequate provision for passage of waters that can reasonably be anticipated to approach the roadway based on past history, and all facts and circumstances reasonably available to the road authority. If a road does not reasonably accommodate the area’s natural flows, the road authority could be responsible to pay a monetary judgment for property that is damaged, typically in a case that is rooted in a claim for “inverse condemnation.”

Historically, courts would analyze the management of surface water between private property owners and road authorities under a standard of “reasonableness.” The common-law standard of reasonableness provides little certainty respective of liability to adjacent landowners for a road authority designing and constructing its roadway.

In 1953, the state legislature enacted legislation now codified at N.D.C.C. § 24-03-06. In 1953, this statute required all highways constructed or reconstructed thereafter be “designed as to permit the waters running into such ditches to drain into coulees, rivers, and lakes according to the surface and terrain where such highway or highways are constructed in accordance with scientific highway construction and engineering so as to avoid the waters flowing into and accumulating in the ditches to overflow adjacent and adjoining lands.” S.L. 1953, ch. 177, § 58 (emphasis added). The “scientific highway construction and engineering” language provided the road authorities with some measure of what is reasonable.

Effective August 1, 1999, this statute was amended, replacing the phrase “in accordance with scientific highway construction and engineering” with the phrase “in accordance with the stream crossing standards prepared by the department [of transportation] and the state engineer.” S.L. 1999, ch. 248, § 1. In effect, this amendment provided the road authorities with clarity as to the measure of reasonableness, and shifted the burden of the measure of reasonableness to the Department of Transportation and the state engineer, directing those entities to prepare stream crossing standards.

In response to the 1999 amendment, the Department of Transportation, in conjunction with the State Water Commission, developed North Dakota’s stream crossing standards, which became effective May 1, 2001. These standards, found in Section 89-14-01 of the North Dakota Administrative Code, require road authorities ensure every “stream crossing” (defined as “an opening to permit the flow of water under, adjacent to, or because of a highway”) is designed and constructed in such a way as to “avoid the waters flowing into and accumulating in the ditches to overflow adjacent and adjoining lands.”

The stream crossing standards require crossings be designed to withstand peak runoffs from flood events ranging from 10-year events to 50-year events, depending on the roadway. If the crossing is designed and constructed consistent with the applicable stream crossing standard, the North Dakota Century Code shields the responsible road authority from liability for any damages caused by water being detained by that crossing. It follows that if the crossing is undersized and out of compliance with the required stream crossing standard, the road authority may be liable for any damages caused by water being held back by the noncompliant crossing.

The stream crossing standards provide the road authority with objective certainty as to whether its crossing meets the proper measure of reasonableness, and provides additional statutory liability protection. Without the stream crossing standards, the road authority would still be required to protect the property rights of adjacent landowners, but would be required to do so under the much more tenuous and subjective common law standard of “reasonableness.”

While the local water board does not have authority or jurisdiction over these crossings, the water board does play a role in ensuring that the road authority is in compliance with the stream crossing standards. First, whenever a county or township plans to construct, reconstruct, or modify a crossing, the county or township is required to provide the local water board with thirty days notice prior to construction. See N.D.C.C. § 24-06-34. The board may then provide comments to the county or township to ensure compliance with the stream crossing standards. Second, if a landowner believes that a crossing is undersized and out of compliance with the stream crossing standards, the landowner can request the local water board obtain a stream crossing determination from the Office of the State Engineer. The State Engineer will then determine the discharge interval (measured in cubic feet per second) required at the crossing to comply with the applicable stream crossing standard. Once the required discharge interval has been determined, an engineer can properly size the culvert or culverts necessary to ensure that the road authority has complied with the stream crossing standards and has shielded itself from liability.

If an undersized crossing is holding back water and causing damage to your property and you would like to discuss your options, please contact one of our environmental law attorneys.

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