Union Farmer, Vol. 60, No. 8 – August 2013
The July 2013 edition of the Union Farmer answered common questions on tile drainage in an article entitled, “Focus on Tile Drainage.” As a follow up to that technical piece, this article aims to provide landowners and producers with an explanation of North Dakota’s legal permitting requirements, liability considerations for landowners engaging in tiling drainage, the rights of downstream landowners in a watershed, and other federal laws that farmers should consider when draining wetlands. The purpose of this article is to provide general answers to common legal questions on permitting and liability for installing drain tile systems. Landowners and producers with specific questions should consult with an attorney.
Van Bruggen and Kolb are attorneys at Rinke Noonan, Ltd. law firm of Saint Cloud, Minn. The commentary and opinions expressed in this article are those of the authors and not North Dakota Farmers Union. The questions and answers provided in this article are not substitutes for legal advice. Readers are urged to seek professional counsel for answers to specific and individual questions.
In recent years, North Dakota farmers have become increasingly interested in investigating whether tile drainage systems might benefit their farming operation. A rise in land values and commodity prices has led to more and more producers willing to invest in drain tile as another tool for maximizing yields and land production. As the potential benefits of tile drainage became more and more recognized, producers and water resource districts were left questioning whether state laws requiring permits for drainage of surface waters also applied to subsurface drain tile systems.
In 2008, Attorney General Wayne Stenehjem issued a Letter Opinion stating “It is my opinion that tile drainage systems are subject to the permitting requirements of N.D.C.C. § 61-32-03.” At that time, the Century Code required permits for surface drains serving watersheds greater than 80 acres.
Skeptical of tile drainage, water resource districts were generally denying permits in increasing numbers. In response, the 2011 legislature amended NDCC 61-32-03, adding a separate provision requiring permits for drainage of subsurface waters. As a precursor to the amendment, the legislature adopted Joint Legislative Resolution 4019 in recognition of the benefits of subsurface drain tile projects and urging the State Water Commission, State Engineer, Natural Resources Conservation Service, and water resource districts to recognize the beneficial attributes of drain tile projects in the state.
When is a permit required to install drain tile?
Installation of a drain tile system covering 80 acres of land or more requires a permit from the local water resource district where a majority of the covered land is located. If your tiling system covers less than 80 acres of land, no permit is required. The threshold for permitting is different for drain tile than for surface drainage, which requires a permit if the project drains a watershed of 80 acres or more.
Where can I find a permit application for my drain tile project?
If a permit is required for your drain tile system, an application can be obtained from the local water resource district in which a majority of the covered land for your system is located. Every county in North Dakota has at least one water resource district to cover regulated drainage for that county. Some counties, such as Cass, Bottineau, Morton, and Slope counties, have more than one water resource district within the county. A map of the local water resource districts and a permit application form can be found online at the State Water Commission’s website: http://www.swc.nd.gov.
What is the process for approving a drain tile permit application?
Once the local water resource district receives an application, it will determine if the drainage proposed is of “statewide significance,” which generally means that the system involves more than one local water resource district or impacts state or federal lands. Applications of statewide significance will be forwarded to the State Engineer for consideration and approval which must be made within 30 days. Applications not of statewide significant will be evaluated for approval by the local water resource district.
When must I notify downstream landowners of my proposed drain tile project?
The permitting statute requires that a permit applicant provide thirty-day notice to downstream property owners within one mile of the proposed subsurface drainage. The statute language applies to all permit applicants, regardless of whether the system discharges into an assessment drain, natural watercourse, pond, sough, lake, road ditch, downstream lands, or otherwise. If your subsurface drainage project does not require a permit from the Water Resource Board, then the terms of this statute do not apply and no notice is required. If your subsurface drainage system discharges into an assessment drain, natural watercourse, pond, sough, or lake, the Water Resource Board may not require the applicant obtain permission or a flowage easement from downstream landowners.
Can a downstream landowner object to my proposed drain tile system application?
The law places the burden of investigation on the local water resource district and landowners within one mile downstream of the proposed drain tile system to show that the system will flood or adversely affect those downstream lands. Downstream landowners have 30 days after receiving notice of the project to demonstrate the project’s adverse effects to the local water resource district.
Do I have to obtain easements from downstream landowners?
If an investigation by the local water resource district or a downstream landowner within one mile of the drain tile system outlet demonstrates that the proposed system will flood or adversely affect downstream lands, the water resource district may require the applicant to obtain flowage easements from all affected downstream landowners before issuing the permit. Flowage easements must be recorded in the county where the land is situated. If the system drains directly into an assessment drain, natural watercourse, pond, slough, or lake, a flowage easement may not be required.
What criteria does the local water resource district use when considering a permit application?
The local water resource district considers the following factors when evaluating a drain tile permit application:
(1) The impact the flow or quantity of water proposed to be drained will have on the watercourse into which it will be drained;
(2) The adverse effects to lands of downstream property owners (i.e. erosion, duration of flooding, impact of sustained flows, and impact on the operation of downstream water control devices);
(3) The engineering design and other physical aspects of the drain;
(4) The project’s impact on flooding problems in the project watershed;
(5) The project’s impact on ponds, sloughs, streams, or lakes having recognized fish and wildlife values;
(6) The project’s impact on agricultural lands;
(7) And whether easements are required.
Do I need to hire a tiling contractor or an engineer to install drain tile?
Nothing in the law requires that drain tile be installed by a tiling contractor or that an applicant hire an engineer to investigate the impact of the proposed drain tile system on downstream land. Applicants may choose to hire a tiling contractor with experience to ensure the system operates as intended and may choose to hire an engineer to prepare a report evaluating the impact of the proposed project downstream. Even though no easement is required for drain tile projects that outlet into an assessment drain, natural watercourse, pond, slough, or lake, an applicant may still be liable to downstream landowners under the “reasonable use” rule if the added drainage causes the natural or constructed outlet to overflow and flood adjoining property. An engineer can assist an applicant in determining whether an adverse impact may occur on downstream landowners and whether a proposed tile system meets the water resource board’s criteria.
What is the “reasonable use” rule and when does it apply?
The “reasonable use” rule is the law that governs the drainage of surface waters between upstream and downstream landowners when a permit is not required or a permit is required but no flowage easements are required. If flowage easements are required for a permit, then those flowage easements protect the applicant from liability for property damage caused by the drain tile downstream. For projects that do not require a permit or do not require the applicant to obtain flowage easements, the applicant may be liable to downstream landowners if the drain tile system violates the “reasonable use” rule.
The “reasonable use” rule states that an upper landowner may drain surface waters from his or her land across a lower landowner, even if such drainage carries with it some waters which otherwise never would have gone that way but would have remained on the upper land until they were absorbed by soil or evaporated into the air. The upper landowner’s drainage complies with the “reasonable use” rule if there is a reasonable necessity for the drainage, if reasonable care is taken to avoid unnecessary injury to the land receiving the drainage, if the benefit accruing to land drained reasonably outweighs gravity of harm resulting to land receiving the burden, and if it is accomplished by reasonably improving and aiding the normal and natural system of drainage.
May my proposed drain tile system outlet into a road ditch or road right-of-way?
The drainage code allows the water resource board to attach “any necessary conditions to an approved permit” but they may not deny an application unless it is of statewide significance or will flood or adversely affect downstream landowners within one mile of the proposed outlet. The water resource district may require you to obtain permission from the appropriate road authority for drain tile projects that outlet through a road ditch or right-of-way.
When a road is constructed or reconstructed, North Dakota law requires that the road authority permit the natural flow and drainage of surface waters to follow the natural drainage pattern according to the natural terrain of the land, provide for any water that might accumulate in the road ditch in order to prevent overflow onto adjoining lands, and determine the best method of finding the natural outlet for surface waters using good engineering practices. Drains may be laid along, within the limits of, or across any public road or highway, but not to the injury of the road.
What laws do I need to consider when installing a tile drainage system that impacts wetlands?
Along with the permitting requirements and “reasonable use” rule discussed in this article, an applicant draining wetlands as part of a proposed tile project must also consider the Swampbuster provisions of the Food Security Act of 1985 (“farm bill”), the federal Clean Water Act, and should also investigate whether the land being drained is subject to any waterfowl production area easements managed by the U.S. Fish and Wildlife Service.
Producers enrolled in the federal farm program should request a certified wetland determination from the Natural Resource and Conservation Service, if there is not already one for that land, before installing a drainage tile system. Converting a wetland to make the production of an agricultural commodity possible jeopardizes the producer’s eligibility for federal farm program benefits.
A Section 404 permit may be required by the Army Corps of Engineers for drain tile systems that require tile to be installed through a wetland covered by the Clean Water Act. The Corps has jurisdiction and may require permits if the installation method results in a discharge of dredge or fill material in a wetland that the Corp has jurisdiction to regulate.
Landowners who wish to install drain tile on land near or where a federal U.S. Fish and Wildlife Service easement might exist should cooperate with the U.S. Fish and Wildlife Service in identifying the scope of wetland acres actually covered by the easement.
By John C. Kolb, Attorney, and Kale R. Van Bruggen, Associate Attorney
Rinke Noonan Law Firm, Ltd., Saint Cloud, Minnesota
© 2013 Rinke Noonan