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North Dakota legislators vote to require state review of rivers, other water bodies

The Red River at Fargo is seen during an annual canoe and kayak race in 2010. Forum News Service file photo

BISMARCK - North Dakota lawmakers voted Tuesday to require the state engineer to review the ownership of rivers and streams in the state, legislation introduced late in the session that two officials say will require significant state resources.

House and Senate members voted in support of House Bill 1202, a bill that requires a state review of “navigable waters,” or waterways that were used for commerce when North Dakota became a state.

Determining that a water body was used for commerce or was capable of being used for commerce at statehood has significance for the ownership of the waterway.

For navigable water bodies, such as the Missouri River, the state owns property up to the ordinary high water mark of the river, including minerals submerged under the water.

The state cannot claim ownership of water bodies that were not navigable for commerce at the time of statehood. For example, a court ruling determined the state did not prove the Little Missouri River was navigable at the time of statehood. In that case, private property owners next to the water have claim to the center of the river.

Courts have the final say about whether a waterway was navigable at statehood. The Missouri River, the James River, Devils Lake, Painted Woods Lake and Sweetwater Lake all have been determined to be navigable by courts.

In addition, the North Dakota state engineer has asserted that 11 water bodies were navigable at the time of statehood.

State Engineer Garland Erbele said those determinations were made using historical research to determine if commerce existed on the waterways at statehood.

Under the new legislation, the state engineer would be required to review the navigability determinations and involve public input in the process.

Sen. Jessica Unruh, R-Beulah, who introduced the legislation, said the bill aims to bring transparency to the process.

“It’s really just protecting those surface owners along those streams so they know what’s theirs and what the state is claiming ownership to,” Unruh said.

The first time the navigable rivers legislation came up during the session was an amendment that is dated April 11, which was the 65th day of the 80-day legislative session.

Unruh said the issue was discussed throughout the session, including during hearings for a different bill that relates to the ordinary high water mark of the Missouri River.

The financial impact of the bill is unclear. Erbele said his office would need to dedicate significant staff time or hire a consultant to do the work.

If the state engineer does not begin a review in the 2019-20 interim, previous determinations of navigability would be vacated, according to the bill.

If there is litigation, a fiscal note prepared by Land Commissioner Jodi Smith in consultation with the state engineer estimates that lawsuits would cost the state $200,000 in legal costs per water body.

If the navigable rivers review affects major water projects, such as the Red River Valley Water Supply Project, the impact to the state to acquire easements could be as much as $20 million, according to the fiscal note.

“The potential exists for some significant fiscal impact,” Erbele said.

The review could also lead to the state losing minerals and being required to repay royalties, Smith wrote in the fiscal note.

Unruh and Rep. Mike Lefor, R-Dickinson, both called the fiscal note “the worst case scenario.”

Senate members voted 45-2 in favor of the bill Tuesday after House members approved it with a 79-13 vote.

Rep. Marvin Nelson, D-Rolla, was among those who voted against the bill. Nelson said he agrees with the concept of providing public input, but said the legislation “isn't’ the solution to anything.”

Nelson said the navigability determination is important for public access.

“If you’re on a navigable lake, you can step foot on the shore,” Nelson said.

The bill now goes to Gov. Doug Burgum for his signature.

Navigable water bodies

These 11 water bodies have been determined to be navigable by the state engineer:

  • Red River of the North*
  • Sheyenne River
  • Pembina River
  • Mouse River
  • Lake Metigoshe
  • Cannonball River
  • Heart River
  • Knife River
  • Long Lake - Bottineau County
  • Bois De Sioux River*
  • Yellowstone River*

* These rivers are also determined to be navigable under a federal determination. For more information, visit