ND Water Law


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Introduction to Water Law


The challenge with water is that it often is "not in the desired place at the desired time in the desired quantity or quality." This oversimplifying statement does not adequately introduce the numerous legal issues associated with this precious natural resource that is vital to life.  This web site provides a general overview of the laws addressing water.  Several observations may help introduce water law.

1. Water law addresses two basic questions with two distinct legal perspectives:  are the persons trying to acquire the right to use water or are the persons trying to rid themselves of unwanted water.  Two distinct bodies of law have developed in answering these questions.

2.  States own the water within their borders; that works fine until gravity and other natural forces move the water to another jurisdiction.  There also are exceptions to this general statement which means that some water is not owned and controlled by state law.

3.  State law primarily addresses the allocation of water rights.

4.  Federal law primarily directs the discharge of low-quality water; state law primarily directs the discharge of large quantities of water.

5.  The "disconnect" between law that allocates water rights and law that regulates the discharge of unwanted water is diminishing.  Is it reasonable to expect that in less than 20 years (e.g., 2030 or 2035) the two primary types of water law will be intertwined?  For example, will the laws for managing storm runoff no longer focus on flowing the water downstream as quickly and safely as possible, but instead focus on how to hold the water so it can be put to use? Alternatively, will persons applying for a water right need to explain how they will dispose of water after its use?

The first section of this web site addresses acquiring the right to use water; the second section addresses the laws pertaining to the discharge of water.  A third section considers how adjacent nations, such as the United States and Canada, attempt to resolve water disputes.




Email:  david.saxowsky@ndsu.edu

This material is intended for educational purposes only. It is not a substitute for competent legal counsel. Seek appropriate professional advice for answers to your specific questions.

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