David Saxowsky, NDSU Extension Service, Published March 16 2012
Spotlight on Economics: Water lawsFARGO - Water: We often seem to have too much or not enough of this critical resource. It depends on the circumstances. Water also frequently may not have the desired quality or purity we would like.
A fundamental concept of water is the law that all water in North Dakota is owned by the state. The North Dakota constitution states that "all flowing streams and natural watercourses shall forever remain the property of the state for mining, irrigating and manufacturing purposes (North Dakota Constitution Article XI, Section 3).
North Dakota statutory law expands on this concept by stating that "all waters within the limits of the state â€¦ belong to the public and are subject to appropriation â€¦ including waters on the surface of the earth â€¦ waters under the surface of the earth â€¦ all residual waters resulting from beneficial use â€¦ all waters artificially drained â€¦ and all waters, excluding privately owned waters (N.D.C.C. 61-01-01)." It is quite clear from state law that water belongs to the state. "Privately owned" is a narrowly interpreted exception that is beyond the scope of this brief article.
The idea that the state owns the water is common among states. A question that sometimes is posed relates to interstate water, such as the Missouri River. Is that North Dakota water? The general answer is yes. For example, when water enters North Dakota from Montana, it becomes North Dakota water. When it flows into South Dakota, it becomes South Dakota water.
We only use water with the permission of the state. This includes the water in our stock ponds for livestock, as well as the water we use for household purposes from our private well. These water uses do not require an explicit permit from the state, but the use is "only as permitted" by state law.
Other uses of water, however, require an explicit permit. For example, a permit is needed to use water for irrigation, industrial or municipal purposes. A permit also is needed to store more than 12.5 acre-feet of water, even if the water will be used for livestock purposes.
Applications for a water permit are submitted to the North Dakota State Water Commission's state engineer. Landowners, other water users and government units near the planned water use are notified of the application and the opportunity to provide input at a public hearing. One consideration in determining whether to grant a water permit is whether "unappropriated" water is available from the water source.
People intending to use water are urged to seek the appropriate legal counsel because numerous details must be worked through. However, remember that water belongs to the state and we use the water only with the state's permission.
In a future discussion, I will talk about disposing of undesired water.
Saxowsky is an associate professor in the NDSU Agribusiness and Applied Economics Department