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Published July 04, 2011, 05:45 AM

Regulators say new tile law cuts time, may need a tweak

FARGO, N.D. — Officials who deal with farmers’ applications for drain tile permits are anxious to see the effect of a new North Dakota law that removes a time-consuming step, but they say it may need some tweaking.

By: Mikkel Pates, Agweek

FARGO, N.D. — Officials who deal with farmers’ applications for drain tile permits are anxious to see the effect of a new North Dakota law that removes a time-consuming step, but they say it may need some tweaking.

Max Fuxa and Dustin Lundeby, who market field tile drainage systems for Ellingson Drainage, based in Horace, N.D., are unequivocally happy with it. They say they think the new law should be a positive thing because no permit is required if a project is less than 80 acres. Applications are filed with local water boards and landowners a mile downstream are notified by certified.

“It’s really streamlined,” Fuxa says.

That could be important in an era when commodity prices are high and land is wet.

Mike Schnell, Ellingson Drainage (Ellingson Cos.) is marketing and government affairs manager, based in West Concord, Minn. The company has offices in North Dakota and Minnesota and operates nationwide. The company’s been in the Red River Valley for about a decade.

Schnell says the step at the state water board was to make sure that project didn’t have statewide or inter-district significance, but that fact can almost always be decided at a local level, without a delay.

“You would see a month to a three-month delay before it got to a local water board,” Schnell says.

In some cases, Fuxa says it took six months.

“Now that situation is alleviated,” Schnell says.

He says almost every permit was approved anyway.

“I don’t know if they ever turned a permit down,” he says, adding the change was supported by the Red River Joint Water Resource District.

Improved efficiency

Schnell doesn’t think the change will mean more permits will be approved, but just that they’ll be approved in a more efficient process.

Fuxa says he thinks about 30 percent of the projects Ellingson had historically done already were less than 80 acres, and doesn’t expect that to change.

North Dakota State Sen. Larry Luick, R-Fairmount, isn’t sure how well it will work, but he’s monitoring the new law. A proponent of tiling, he wants to make sure the system always has a warm welcome.

Luick, an excavating contractor, went to his first session of this year’s Legislature and offered a bill that simply would step of sending applications to the North Dakota State Water Board for their approval. Often those permits would take time, but not much review, and then be sent back to the county for approval anyway.

But the Legislature passed a another version of the law that eliminates the State Water Board approval step, but also allows projects of fewer than 80 acres to proceed without a permit at all. The bill also makes sure of downhill acceptance of the project by certified mail notification.

While the decisions back in local hands, neighbors are required only to receive a notice of the plan, including a description on how many approximate gallons would come out. They have up to 30 days to respond to the project — agree or disagree — or the project goes forward.

No longer rare

Don Moffet of Barney, N.D., who chairs the Wahpeton, N.D.-based Richland County Water Resource District, says his organization is getting a tremendous influx of applications for drain tile. On a weekly basis, he thinks it may be more than 12 tile permits, compared with about eight surface drainage applications.

“Five years ago, it was a very rare thing that we got an application,” he says.

Personally — emphasizing he’s not speaking for the board — Moffet says he doesn’t know why any farmer or landowner would do a project without a permit because if the project creates a problem for someone else, the project owner could be liable.

“I think for the fellow that’s got a 30- or 40-acre spot that he needs to drain with tile, it’s probably a good deal,” he says, noting that if it goes right into a river or a drain, it’s the right thing. “If you’re doing 79 acres on a quarter and it has to go into a township road ditch, prior to getting into a natural water course, if they create any problem for someone downstream, it could be a problem.”

Moffet thinks tile drainage is a good thing, generally, but wants to make sure all sides are considered. He thinks that landowners have the right to file a complaint about someone adversely affecting their livelihood and that the bill includes vague language.

“I’d say the landowner certainly has the right to make a complaint about somebody else adversely affecting their livelihood,” he says.

He likens the tile drainage projects to reservoirs that should be drained down so they can have the capacity to hold more water when needed, to avoid flooding. He also thinks it’s good for county water boards to simply know what projects are being installed, small, permitted or not.

“We’d like to know what’s out there so we know who we can contact in an adverse situation, where we’d like them to shut down a system temporarily.”

Luick says there are three or four states that don’t have any drainage permitting process at all, but leave tile drainage among landowners.

Adjustments

He says the North Dakota law may need some “tweaking” in subsequent sessions. He thinks it’s important to make sure landowners are able to comment on projects that may leave their ditches perpetually wet, as an example. He says it is too soon to say whether farmers will split larger project tracts into 79-acre pieces to avoid permits. He says he’s heard projects planned for tiling, just “going with 79-acre” segments. Local boards have the authority to make their requirements stricter than the state.

After seeing how the bill works, it may be that the Legislature will need to cut the no-permit size to as little as 10 acres. Another possibility is requiring permits on 79-acre sites if the projects are adjacent to another one.

“At this point, it’s a major decision that has to be made in the next year or so,” Luick says. “We know (as it is) it’s not going to work the way it should.”

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