Mini Devils Lake?

DAZEY, N.D. -- Jim and Pat Broten are living with a "mini-Devils Lake," a progressive, rising threat to everybody in Lake Township.

They say they are grateful that the U.S. Department of Agriculture allowed a "temporary minimal effect" permit for emergency drainage last spring, but upset that it had to be filled in the fall.

Mary Podoll, state conservationist and head of the USDA's Natural Resources Conservation Service, says the Ten Mile Lake case has led the agency to end the "temporary" part of its minimal effects policy, mostly because it circumvented more permanent solutions. She says the NRCS will replace it with a different, clearer policy in the next month.

The temporary minimal effects policy had been used in fewer than 15 cases in the past year, but won't be continued, she says. It prevented a larger community conversation to take place, and a process through the state water commission.

The Brotens and others say the NRCS seemed heavy-handed in threatening some 15 area farmers and their neighbors with losses at an estimated $50,000. Their frustration forced them to undo the emergency controls -- potentially costing them a double or triple expense.

"The hazard is still there, and to make us close it late in the fall looks like too much regulation," Broten says.

Ten Mile Lake plus

Like other North Dakota lakes, Ten Mile Lake has often been dry, allowing farmers to hay or even farm parts of it. "I never thought I'd have more crop damage from water than from drought," Broten says.

The lake came up about 6 feet last summer, and the Brotens were among those involved in protecting farmsteads and public safety, as well as land and land access. Today, the lake covers 5,000 to 6,000 acres and sometimes up to 8,000 acres, depending how it's measured. Broten's windshield tour of the area includes inundated pastures, dead trees, imperiled roads, fields that had been planted with $100 an acre corn seed and more spent in fertilizer -- many drowned-out.

"If I didn't have four-wheel-drive, I wouldn't try this," he said many times on the tour, often as he drove on iced over roads he and his neighbors had used to get to fields not long ago.

The lake's inlet is larger than its outlet. Water had been washing out a road bridge on the west side of the lake that runs to the south into Leal, N.D. To preserve the road, Barnes County put in a 48-foot-long concrete bridge that allows a lot of water in, while the exit culvert on the east side of the lake was only 18 inches.

Water at the outlet drops about 10 feet per mile going east about 12 to 14 miles to the Sheyenne River. Water flowing out of Ten Mile Lake on the east encroached on roads to the east, north and south, making them useless for moving equipment to and from fields.

Things came to a head in the spring of 2011, when water came up over the road that a neighbor, Karl Burkhart, then 83, used to get out of his home. His farm eventually was surrounded by water. Burkhart says he was hemmed in from April to August, at times walking in nearly chest-deep waders to get to his car.

Broten, a farmer and owner of a manufacturing company in nearby Cooperstown, N.D., is also a Lake Township supervisor. Lake Township's board decided an emergency action plan was needed. The Broten's home was affected, but not as much as others. The water limited access to the headquarters yard, and equipment had to be moved elsewhere. Some stored fertilizer on his farmstead couldn't be used last spring.

Broten and area landowner Paul Abrahamson from Fargo, N.D., formed an association to look for a solution. Several people, including Phil Mueller, a Democratic state representative from Valley City, N.D., and Mike Clemens, a Wimbledon, N.D., farm group leader, are among those involved.

Abrahamson says the Barnes County Watershed Concerned Citizens Association is worried about the entire county and, among other things, wants hydrological studies conducted in the area. "Our focus has been mainly on Ten Mile and Sanborn Lake, but as we go to these meetings we find that the Barnes County Water Resource Board is starting to grow, especially if their area -- Barnes County -- is impacted by Devils Lake water," Abrahamson says.

In July, the Federal Emergency Management Agency helped raise the level of Burkhart's east-bound road, high enough that the existing culvert initially was plugged. Lake Township eventually put in a new culvert.

On an emergency basis, Lake Township put in two, 36-inch culverts to help ease the situation. Engineering designs showed that it would need much more capacity to handle 10-year probability events -- four 54-inch culverts. "We had to control the water so it didn't flood State Highway 9," he says.

In May, the township cut the road, but they couldn't put the culverts in until August.

Rising water

The group went to the Barnes County Water Resources Board, the Natural Resources Conservation Service, and the U.S. Fish and Wildlife Service in Valley City to see if there were natural drainage ways to remove excess sheet water, for public safety and to protect property.

To get the water moving out, Lake Township residents asked if they could clean out sediment in natural drainage ways and fence lines, wherever they can to get the water to move. "We're not talking drainage, just cleaning it out, to get water to move," Broten emphasizes.

"We got minimal effects (permission) from the farmers to the north, and they (NRCS) let you do it until the hazard is gone," Broten says, summarizing his own interpretation. "Roads can't stop water and natural sedimentation isn't supposed to stop water. That's all we were removing. We weren't putting a ditch in."

The clean-out moved water northward, toward Griggs County, where it wasn't welcome, because culverts on North Dakota Highway 1 there were full. "We had the water going north, and that was helping, but the water was still rising," Broten says.

The group went to the Barnes County commissioners in Valley City, who agreed that some of the water at the road cut should naturally flow southward, and that they should try to clean out some drainage that way. "So we went to the farmers to the south, and got a minimal effects signed by everybody there." This is Edna Township. Much of the work was done by late May, and maybe early June.

There wasn't time to get a permanent drainage permit. Broten understood the minimal effects permission would be allowed as a one-time solution for 2011, but he thought the solution could remain in place at least until the "hazard" went away.

"That's a real point of contention," he says.

One-time permit?

As water was leaving the Ten Mile Lake outlet at a more rapid pace, the townships were controlling it, but it had built up to the south at North Dakota Highway 9, which had only a 24-inch culvert. Early in September, the group and the Barnes Water Resource District board had influenced the North Dakota Highway Department to add a second culvert beneath the state highway.

There is about a 16-foot drop from the water level in Ten Mile Lake near the Broten farm and the Highway 9 culverts, about four miles south. Even with the added, 36-inch culvert, the water outlet remains grossly undersized.

Broten figures the overall effort to clean drainage and increase culverts reduced the water level by 18 to 20 inches in the lake -- significant, but still leaving it very high.

FEMA helped repair many roads in the area and paid for some culverts, but would only replace existing, washed-out culverts. It's the township's responsibility to add culverts, and older, smaller culverts will remain at the lowest level so no new, extra drainage is allowed.

Over the summer, a complaint came up about the new water going toward Highway 9. On Oct. 17, Amanda Brandt, a new district conservationist, who came on the job in late summer, sent letters to the farmers involved. "She said, you don't have a problem anymore; you have to close those drains," Broten says. Anything that had been cleaned under minimal effects permission would have to go back to the way it was before. Broten says the cleaning of sediment and debris should be allowed in any case.

The concerned citizens group sought support from the Barnes County Water Board, to allow keeping the fixes through summer 2012. Duane Lettenmaier of Sanborn, N.D., a member of the board, said the water board must work with the NRCS and had no business interfering with a federal matter. He said he was told the "temporary" minimal effects were ended because of "political pressure" on the Ten Mile Lake project.

In Broten's interpretation, the farmers had followed "all of the rules" and the hazard is still there, so the clean-out should have been allowed into the spring. "I asked for rights to appeal, and Brandt said there are no rights to appeal on this," Broten says. "All 15 to 17 farmers involved would lose their farm program benefits if we didn't put it back."

Among other things, the NRCS claimed some of the soil that had been moved was clay, implying that the work had gone deeper than a simple cleaning. Broten, a professional engineer but not a hydrologist, disputed the technicality. Broten claims the soil is "sodic," soil or topsoil, while NRCS implied to him that it might be clay soils.

No appeal rights

When the letters arrived farmers involved in the project began to panic, worried that if they didn't immediately refill the clean-outs they'd lose farm program benefits that can be worth tens of thousands of dollars, or more.

In early November, officials said the drainage could be kept open for the time being, as long as landowners could tell them precisely when it would be closed in the spring. Then, suddenly, they changed their mind and said it had to be closed Nov. 19.

The refurbishing work was done to the best of their ability, within the time allowed. It was still so wet that track hoes were needed to do the work, which cost more money.

Excess water is costing people in ways large and small. Roads often have been built up several times, and some can't be driven on in the spring, after the thaw.

The flooding also threatens sanitary sewers, undersized culverts, and brings with it problems that accumulate over years.

"They said you can clean it out again next spring, if you get water," Broten says, of the temporary permit, but that probably won't be an option now. "That's what's wrong with our country. It doesn't make any sense. If this water ever free-flowed, and started cutting, it's a miniature Devils Lake is what it is."

Broten thinks no wetlands were harmed by the clean-outs. "I'd say it cost about $50,000 or better to clean it up the first time," he says. He thinks FEMA money will be available to help pay for some of the cleaning, but he isn't clear about restoration costs.

New NRCS policy

Podoll, North Dakota's NRCS state conservationist since Sept. 15, says the Ten Mile Lake situation will affect the way the agency interacts with landowners and water boards. Immediately, internal discussions about it led her to end the policy of approving "temporary" minimal effect for drainage.

Podoll, who had held various posts in the agency over 25 years, says she talked to landowners on both sides of the issue.

Because of the size of the Ten Mile Lake project, and the impact of excess rains throughout the state on so many areas, Podoll asked her staff to develop clearer rules and quicker responses to public safety and health situations.

The clarification will underline that NRCS' only role is to make sure that farm program participants don't run afoul of so-called Swampbuster provisions that date back to the 1985 farm bill.

"We're going to put out a fact sheet that says we don't have the authority to do a temporary minimal effect, but here's what we can do, quickly," Podoll says. Under the proposed plan, still under development, a district conservationist will make sure drainage can be done if it doesn't affect the wetland, and if it does, quickly identify mitigation options.

Podoll says the agency wants to allow water boards and farmers to take appropriate action quickly, without having to have wetlands on farmland "determined and certified" in a process that takes too much time.

She says the temporary minimal effect permission at Ten Mile Lake was specifically for "public safety and health" and that all parties in that case -- including the water board, farmers and ranchers, knew that it had to be restored by the deadline. "We really don't have any authority to approve it beyond that date," she says.

The NRCS wants to work with the community to help develop a conservation plan and a water drainage area that either doesn't affect wetlands for farm program purposes, or, if it does, a way for farmers to mitigate the wetland loss within that watershed. "We'd like to do the planning up-front," Podoll says. "If the community works together and can identify neighbor-to-neighbor options, that would be great." There is also a long-standing program for farmers to mitigate with people who want to tile or drain.

Regardless, Podoll says landowners such as Broten appear to be "fortunate, lucky . . . blessed, whatever the case may be," for the precipitation-light winter, so far.

She notes that, if the drainage hadn't been filled back in or restored, the landowners wouldn't necessarily have lost their farm program benefits.

She says the agency would have offered them appeal rights. If the farmers could establish they drained their wetlands as a "good faith" support of neighbors and the water board, they would have been given an option of mitigating and restoring those wetlands. "That might mean a plug or a gate that allows water to be drained, but not the wetland to be drained," she says. "It isn't always for the agricultural producer, but ultimately there are solutions."