Would Your Drain and Diversion Practices Hold Water?

The longstanding general principle with regard to drainage of surface waters is that neither the owner of the upper land nor the owner of the lower land may interfere with the natural drainage to the detriment of the other.  This means, for example, that neither you nor your neighbor can divert the stream that floods the yard every spring if it is going to harm the other in any way, either by depriving them of water or flooding them out.

The lower landowner has an obligation to receive only those waters which would naturally flow.  Accordingly, water that generally becomes ponded upon an upper landowner’s property may not be drained by artificial means onto the lower landowner’s property unless the drainage is done in a reasonable manner and flows through an established watercourse.  This means that any drain or diversion cannot cause the water to flow onto the adjacent land in a different quantity or at a different velocity than it naturally would.  Remember to proceed with caution and consult an attorney, however, if you are thinking about creating any artificial drains.  Generally, you must petition the local water board to establish a drain, and there may be prohibitions or special rules that apply, such as in the instance of designated wetlands or large bodies of water.   

If the body of water you are draining is large, a permit may be necessary before any draining can be done.  For any body of water that has a watershed area of 80 acres or more, you must apply to the state engineer for a drainage permit, who will then forward the application to the proper water resource district.  The failure to get a permit before draining can expose you to civil liability for damages and you will likely be required to close the drain eventually, at your own expense.

North Dakota law also specifically protects the flow of “watercourses,” which are considered property of the public and include any waters that flow continuously or periodically from natural causes through a distinct and defined channel.  This probably would include the stream that winds in and out of your calving pasture every spring and dries up by June, as well as the ditch next to the section line that constantly has water flowing during the warm months.  Under the law, unauthorized obstruction of these watercourses or any other ditch or drain (including culverts), or any diversion of the water from its established course will expose you to liability for the damages which result and constitutes a class B misdemeanor.  Although the law does not impose an affirmative duty on the landowner to keep a watercourse free of naturally growing vegetation, it does prohibit deliberate or negligent acts or omissions that stop or divert the water.  So as tempted as you may be to block the nearby culvert to keep the torrential rain away from your basement, if doing so is going to flood your neighbor’s wheat field, I would recommend that you steer clear and invest in a good sump pump.


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