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LETTER OPINION
2015-L-01
January 8, 2015
Mr. Todd Sando
State Engineer
State Water Commission
900 E Boulevard Ave
Bismarck, ND 58506-0850
Dear Mr. Sando:
Thank you for your letter asking whether subsurface drainage projects are drains subject
to processing under N.D.C.C. §§ 61-32-07 and 61-32-08. For the reasons outlined below,
it is my opinion that the enforcement provisions of N.D.C.C. § 61-32-07 and the appeals
process provided by N.D.C.C. § 61-32-08 apply to subsurface drainage projects just as
they would apply to other types of drains.
ANALYSIS
Chapter 61-32, N.D.C.C., governs permitting, enforcement, and appeals for drainage of
wetlands. In order to drain a pond, slough, lake, or sheetwater, or any series thereof,
which has a watershed area comprising eighty acres [32.37 hectares] or more a permit
must be secured.1 A person is liable for resulting damages and is guilty of an infraction if
the required permit is not obtained.2
In 2011 the Legislature added a separate permitting process for subsurface drainage.3
The additional section requires a permit for [i]nstallation of an artificial subsurface
drainage system and charges the state engineer with developing an application form for
a permit for subsurface drainage of water. Although the Legislature added a separate
1 N.D.C.C. § 61-32-03.
2 Id.
3 See N.D.C.C. § 61-32-03.1.
4 Id.](ViewImageLocal?handle=hein.sag/sagnd0092&div=1&collection=&method=preview&ext=.png&size=3)