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September 1, 2020

Request:  Can a water resource district convert an "assessment drain" under N.D.C.C. ch. 61-21 to a "project" under N.D.C.C. ch. 61-16.1 or vice versa?  What is the scope of "maintenance" within the context of N.D.C.C. ch. 61-16.1 and 61-21?  What are the financial and voting limits on assessment drain projects, and who bears the ultimate responsibility for complying with those limits?

Conclusion:  A water resource board may not convert an "assessment drain" under N.C.C.C. ch. 61-21 to a "project" under N.D.C.C. § 61-16.1 or vice versa.  Maintenance under N.C.C.C. § 61-16.1-45, for purposes of drains means "cleaning out and repair of [a] drain," which includes deepening and widening the existing drain, and there is no statutory limit on how much existing drains can be deepened or widened.  New flood control features do not typically constitute maintenance.  Levy funds are calculated on a project-by-project basis, and projects may be completed in phases without a vote as long as a phase does not obligate the district for costs beyond the maximum maintenance levy threshold.  The board of county commissioners has the authority to audit accounts of the water resource district boards.

Opinion 2020-L-04

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