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Published April 20, 2009, 04:00 AM

Government policies slowing drain tile permit process

FARGO, N.D. — Government policies — one state and one federal — are starting to make it more difficult to receive drain tile permits in the Red River Valley and the rest of North Dakota. Max Fuxa, a salesman for Ellingson Cos. based in Harwood, N.D., says a process that used to take a few months now can take six months to a year. The first issue is that local water boards in the past year have added new requirements that stem from an application for permits from the North Dakota State Water Commission.

By: Mikkel Pates, Agweek

FARGO, N.D. — Government policies — one state and one federal — are starting to make it more difficult to receive drain tile permits in the Red River Valley and the rest of North Dakota.

Max Fuxa, a salesman for Ellingson Cos. based in Harwood, N.D., says a process that used to take a few months now can take six months to a year. The first issue is that local water boards in the past year have added new requirements that stem from an application for permits from the North Dakota State Water Commission.

One of the questions asks if you have downstream flowage easements for one mile from the discharge.

“It’s up to the individual local water boards to issue the permits, but they are interpreting this questionnaire to say that you actually need downstream flowage easement to get a permit for tiling,” Fuxa says.

Then they require it.

Question or mandate?

Up front, any landowner wanting to drain a parcel of land of 80 acres or more first must obtain a drainage permit.

The North Dakota state engineer, who acts as chief engineer for the North Dakota State Water Commission, modified the permit application form in October 2007. After that point, the permit application asked applicants whether they have “downstream flowage easements” in place, for one mile past the drainage outlet. A flowage easement is perceived as permission from other landowners, who can receive water on their field or in a ditch past their fields.

On most field drainage cases, it is the county water board — not the State Water Commission — that actually approves a permits. The state only makes a recommendation, unless the project is of statewide significance or intradistrict significance.

Fuxa says that the vast majority of North Dakota county water boards in the Red River Valley now require the flowage easements before they’ll approve new tile drainage permits. Some even require easements for two miles downstream of a discharge.

“As they decide they want to do a tiling project, farmers are finding out how much more difficult it is,” Fuxa says. “These local water boards have, in effect, turned the control over who gets to tile on farms back to farmers. Farmers will say a neighbor won’t give them a flowage easement. And why not? It can be because one neighbor doesn’t like the other, and the dispute may go back generations. There are thousands of acres in North Dakota we can’t tile because downstream farmers won’t sign the flowage easements — thousands,” Fuxa says.

John Paczkowski, Water Commission chief of regulatory section, says his department requested an state attorney general’s opinion in mid-2008, which verified that farmers indeed to have drainage permits before draining.

Paczkowski acknowledges that the state permit forms were updated because of an increase in tile-drainage permit applications, which now make up about 75 percent of the field drainage applications in the state. Among other things, he says, since tile drainage helps rehabilitate soils that have been come alkaline because of saturation, farmers downstream can be adversely affected by tile drainage discharge water that is high in salts.

The question on the form doesn’t say that the downstream flowage easement is required, and the requirements come from the water boards, Paczkowski says.

And then there’s the federal issue.

NRCS certifications

The U.S. Department of Agriculture’s Natural Resources Conservation Service gets involved if there are “wetlands” on a farmer’s land.

In 1985, the federal farm law for the first time prohibited farmers from receiving federal farm program benefits — price supports, loans, etc. — if they drained a wetland. This so-called “Swampbuster” provision prohibited farmers from draining or manipulating a wetland and then receiving farm program benefits, unless it had been “converted” to farmland prior to 1985.

Three characteristics for wetlands include hydric soils (formed in a wet conditions), support hydrophidic plants (plants that can grow in inundated or saturated conditions), or have hydrology — must be inundated or saturated for various periods during times of “normal” precipitation during the typical growing season.

In the late 1980s, farmers received maps that identified wetlands on their property, and there was an extensive process to prove whether the wetlands were “prior converted.” This was a big issue in the Red River Valley, where virtually the whole area had been the lakebed for ancient Lake Agassiz.

Because of inquiries from North Dakota, Arlen Lancaster, NRCS national director in Washington, wrote a letter in December 2008 that said if a farmer is using an NRCS map “in good faith” to base his drainage actions, he should not be “harmed by following the map that the government had provided to them.”

Lancaster, who left his post with the change in administrations, says that was his policy, but that may have changed.

Nord Lunde, owner of Northern Plains Environmental Inc. in Davenport, N.D., is a professional soil classifier. Farmers often hire him as an expert consultant in wetland certifications or disputes. His partner, Steve Olson, is an expert on native grass seed.

Northern Plains Environmental formed in 2001. It also does soil testing and other consulting as well.

After the 1995 farm bill, the NRCS said the old maps from the late 1980s were insufficient because many of these were done in the office, based on maps, and not certified from on-site field investigation.

Lunde says there is no proof on the old maps of how wetlands were delineated, and most local officials from the 1980s have retired or moved away.

Avoiding wetlands violations

The issue has become important in the past five years as more farmers have wanted to tile-drain land. With their farm program payments at stake, farmers don’t want wetland violations.

Lunde says the impact of that is that farmers who had no wetlands shown on earlier NRCS maps now may have numerous wetlands. Two quarters had three wetlands on it; when the certification was completed, it had 98 wetlands, Lunde says.

“That’s numerous,” he says.

Depending on soil textures, setbacks for tiling away from a delineated wetland can range widely — for example 100 feet for clay soil 600-plus feet for sandy soil. A wetland can be small enough that it fits beneath his Nissan pickup truck, Lunde notes.

One catch is that the current landowner is liable for all of these benefit penalties — anything since the drainage or manipulation — whether the current landowner received the benefits, or whether he conducted or even knew about the manipulation.

After the new landowner pays the penalties, the landowner then could go back to the first landowner-renter to sue for damages, but that is expensive and seldom done, Lunde says.

One of Lunde’s clients who controlled 20,000 acres in central North Dakota was told in 1999 he’d have to repay $3.2 million in government benefits because of potential wetland violations, Lunde says. After three years of struggle with the government, the landowner was found to have improperly filled only two-tenths of an acre. To avoid the loss of benefits while the case was in process, the farmer simply had to promise to restore or mitigate any damage.

But until cases are settled, other farmers can lose benefits for a year or two while the case is in the process.

Lunde says his own company is scheduling two and half years in the future to do wetland certifications. He says the NRCS has told him they’re six to eight years behind on certification projects.

One thing that bothers Lunde is what triggers an audit. If a farmer rents a piece of land that someone else previously rented, the previous operator may use the wetlands regulation as a sort of revenge.

If the previous renter knows about a potential wetland violation on the parcel, they can file an NRCS complaint that triggers an investigation.

“The new renter doesn’t even know who complained,” Lunde says.

He says the NRCS appears to respond more quickly to such complaints than they do to requests for determinations on new tiling projects.