AGO 85-05.

CourtNorth Dakota
North Dakota Attorney General Opinions 1985. AGO 85-05. OPINION 85-5Date Issued: January 28, 1985 (AGO 85-5) Requested by: Representative Lyle Hanson- QUESTIONS PRESENTED - Whether a water resource district may adopt rules that modify the provisions of N.D.C.C. section 61-16.1-41. Whether a water resource district may adopt rules requiring a permit for drainage of less than eighty acres.- ATTORNEY GENERAL'S OPINION - It is my opinion that a water resource board may not adopt rules that modify the provisions of N.D.C.C. section 61-16.1-41. It is my further opinion that a water resource board may adopt rules that require the procurement of a permit for drainage of less than eighty acres within their respective districts. - ANALYSES - I. The State Constitution authorizes the Legislature and, through the initiative and referendum processes, the people to legislate. N.D. Constitution Article III, Section 1, (1981) . Generally, the Legislature may not delegate its legislative power. See Nord v. Guy 141 N.W.2d. 395 (N.D. 1966); Wilder v. Murphy 218 N.W. 156 (N.D. 1928) . However, the Legislature may delegate authority to legislate on local matters to local governmental agencies. In Re Garrison Diversion Conservancy District 144 N.W.2d. 82, 92 (N.D. 1966) . This exception is based upon the rationale that the Legislature cannot know all the details and facts applicable to a particular situation. The local entity, on the other hand, is assumed to have knowledge of local facts. See, Ferch v. Housing Authority of Cass County 59 N.W.2d. 849, 861 (N.D. 1953) citing Chapman v. Huntington Housing Authority 3 S.E.2d., 502, 509 (W. Va. 1939) . Thus, the Legislature declares the general policy and legal principles and the local entity applies those policies and principles to the local situation through its rulemaking authority. It is appropriate to delegate powers which are ordinarily exercisable only by the Legislature to counties or county boards. In Re Garrison Diversion Conservancy District at 92 (quoting text now found at 16 Am. Jur.2d., Constitution Law Section 350, p. 894, (1979)). However, in exercising the legislative authority delegated to it, the water resource board (or county board) may not make rules which conflict with the policy and legal principles enunciated by the Legislature. Therefore, it is my opinion that a water resource...

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