COVER STORY: Raising hell about water and its local governance

HILLSBORO, N.D. -- Sixteen culverts jut from the south wall of a one-mile stretch of freshly reconstructed drainage ditch. This newly rebuilt ditch carries water nine miles east to the Red River in Traill County, N.D.

The "Leirness Drain" is two miles south of Hillsboro, N.D., and runs west to east. Water feeding into this drain comes from west of Interstate 29.

Roger Anderson, a farmer whose land is among those assessed for the drain, sees the newly reconstructed $2.75 million Leirness Drain as simply "terrible" -- a sign of favoritism by boards that approve field drainage the result.

Despite repeated legal defeats, Anderson and his son, Michael, have used legal means to battle the project and the personalities who govern water projects. He says the "mini-river" contributes to flooding downstream toward and into the Red River.

The opposite view comes from people like Gary Thompson, a Mayville, N.D., farmer and a member of the Traill County Water Resource Board since 1995. Thompson also is president of the North Dakota Water Resource Districts and vice chairman for the Red River Joint Water Resource District board.

The local five-member water board is appointed by the Traill County Commission to govern this kind of development (with an admitted minor mistake on an illegal meeting) and has done its job well, Thompson says.

Thompson says the Leirness Drain reconstruction -- now mostly finished -- is more popular now than when it was voted on. To him, it's a sign that the democratic process works. In a side note, he says projects such as this have little to do with spring Red River flooding that plagues Fargo, N.D.

Difference in bond

The Leirness Drain operates in concert with another, parallel drainage ditch, one mile to the north. This one is called the Steenerson Drain. Like many "drains" in the valley, they were built in the 1900s, with some updates generally in the 1940s and 1950s.

Every acre of land deemed to have a benefit from the drainage is assigned a value, and landowners pay an annual assessment for building and then maintaining such a project. Land closest to the drain gets a 100 percent assessment, with value of a $2-per-acre maximum annual payment. Land farther away gets smaller percentages -- 75 percent, 50 percent or 33 percent. The maintenance fund for each drain is capped at six times the value of the total assessment area.

Gary Peterson, 60, a former farmer and now office manager and technician for the water board, last April told Agweek that if farmers want to reconstruct a drain, they first must post a bond to cover up-front costs of studying and promoting the project.

There is "risk," Peterson says, that if the vote fails, the petitioners "lose" the bond.

Anderson says that's as it should be, but it's not always so.

In fact, Anderson says, such a forfeiture happened in 1994, when he was among petitioners who proposed a new "assessment" drain, east of Hillsboro, that would take water north to the Goose River. The vote failed, and Anderson and Mike Warner forfeited their bond.

Since then, however, Anderson complains there have been other petitions, but some with no bond at all.

Anderson doesn't understand that.

One of the first ones that bothered him was in 1997, when a group of farmers petitioned the water board to reconstruct the Leirness Drain. Anderson says no bond was posted, and Thompson and Peterson, the water board office manager and technician, can find no evidence anyone forfeited money.

Thompson says that makes sense because the North Dakota Century Code says the water board "may" require a bond "in a sum sufficient to pay all expenses of surveys." It doesn't require it, as Peterson had implied and as many people understand.

"Every drain has its idiosyncrasies," Thompson says. He adds that it's not quite correct to say that bonds are "forfeited," as they pay for the drainage "plan," which can belong to the petitioners if the plan is not built.

Thompson says the water board in some cases has the authority to sponsor the petition itself. It can fund it out of maintenance fees that have been accumulated for a particular drain or even rarely out of "general" funds, which come from taxation.

Thompson and Peterson say there usually is "some bond" to indicate the "commitment" of the petitioners. Thompson speculates the 1994 vote required a bond because it was a proposal for a new assessed area, which meant no previous maintenance funds were available.

In any case, after the 1997 reconstruction of the Leirness Drain failed, the costs were absorbed by the assessment area.

A clean, clean-out?

In 2001, the water board was addressing the Leirness Drain again.

After the earlier reconstruction vote failed, the water board authorized a "cleanout."

In a cleanout, there is no deepening or widening, and no vote is required. Funds for the cleanout are taken from a maintenance fund that is collected through the years.

The water board hired a local construction contracting company, Burd & Smith Construction Inc., to do this work. Mike Burd, one of the principles in Burd & Smith, says his company earlier had done hourly work for the water board. But this was one of the first times they'd bid a larger drainage project in Traill County.

Mike Burd later acknowledged that he made money on the Leirness project but felt the excavated quantities that the water board's engineer, Bob Boone, estimated for the bid were not as large as what he'd removed.

Subsequently, in 2002, the water board hired Burd & Smith to come back and repair points along the Leirness cleanout that already were "sloughing off," or caving in.

Meanwhile, separately, Anderson was preparing to sue the water board over a diverse collection of related of practices and decisions. Some of them had to do with earlier conflicts with the Ralph and Jim Engel family.

Particularly, Anderson was angry that the Water Board since 2002 has failed to exercise its powers of eminent domain to acquire rights to spread spoil from the Steenerson Drain cleanout along Section 11 -- land owned by the Engels, neighbors with whom he'd had other drainage issues.

All of the other farmers along the Steenerson Drain cleanout had allowed the spreading of the spoil so it wouldn't pile up along the edge of the drain.

Peterson today admits that he failed to realize that the Steenerson Drain had a smaller right-of-way than the Leirness Drain, and so didn't acquire it. Boone, in later statements, said it was his job to obtain easements.

Peterson says other farmers along the cleanout had cooperated. They either hadn't noticed or hadn't protested. Other landowners later were informed about the mistake and were compensated, but the Engels have blocked the project for seven years and have refused to sell right-of-way.

"It's gone so long, we've kind of forgot about the thing," Peterson says.

Thompson, however, acknowledges that the right-of-way should have been obtained long ago and that the water board finally should move to resolve it, acknowledging snow and weed concerns. However, he dismisses the Andersons' suspicions that the Engels tried to link or trade their cooperation on the spoil-spreading to culverts or ditch blocks.

Another irritant about this project involves what Anderson and others call "swales."

The engineers design a "swale" -- technically a "field intercept" -- into the spoil bank, so that when the water is especially high, the excess temporarily can go out into an adjacent farmer's field. This slows its path toward the river and protects adjacent township roads.

Along the Steenerson Drain, some of these intercepts are carved in the spoil bank where Anderson farms, and they accept it. On the Leirness cleanout, Burd & Smith also was called back "at least three times" to clean out "swales" in spoil bank that had been filled in by landowner Curt Reimer. Burd says the water board's engineer, Boone, directed Mike Burd to refill those intercepts.

Streams and suits

As time went by, Anderson suspected that the 2001 Leirness cleanout was a "disguised deepening" of the channel, which he says would be illegal without a vote.

To confirm this suspicion, Anderson went to great lengths. He hired Widseth Smith Nolting & Associates of Crookston, Minn., and Grand Forks, N.D., to survey and measure the depth of the drain and every culvert and drain tile structure in the entire Leirness and Steenerson drain system. This cost him $6,500.

Survey leader Christopher Jordheim later testified that the Steenerson Drain's depths in summer 2007 were the same level as the 1953 Soil Conservation Service survey, but the Leirness Drain for some reason was deeper.

Jordheim measured the depth at 17 reference points. The mean average was 1.8 feet deeper across the entire nine-mile stretch. The three westernmost miles averaged 2.2 feet deeper.

Thompson states that Jordheim's data was taken "only on the washouts."

Jordheim says the Leirness measurements were taken every half- or quarter-mile at historic SCS reference points. The biggest difference was 3.8 feet deeper at the northwest corner of Section 22.

Burd, meanwhile, was concerned about the water board's payment bookkeeping.

He called the North Dakota Bureau of Criminal Investigation to look into its accounting practices. The BCI investigator found some "unusual" practices, but nothing criminal. Peterson, says the BCI recommended some bookkeeping changes, such as "two signatures" on certain transactions.

Burd & Smith went out of business in 2006.

In 2007, Burd was in the process of suing the water board and discovered Jordheim's data. In his own suit, Burd claimed Burd & Smith hadn't been fully paid for all the work they'd done on two separate drains (Munter Drain and Brokke Drains, in work from 2003 to 2005), and added in the Leirness Drain discrepancies for good measure.

Ultimately, it didn't help his case.

Burd's lawsuit was scheduled in court on March 17, 2009, but was thrown out in late December 2008, in part because a two-year statute of limitations had expired and because Burd's attorney had failed to depose Peterson and Boone.

Mike Burd today is a foreman for a large road construction company in the region and says the water board's alleged payment shortfalls put him out of business.

"Who can absorb $200,000?" Burd says.

FEMA' s key role

Because assessment drains are government-owned structures, the Federal Emergency Management Agency sometimes is used to offset reconstruction costs if damages occur during disaster declarations, which are quite common.

Such was the case on the Leirness Drain reconstruction, which they say suffered from three declared flooding events in the early 2000s.

"We were fighting with FEMA because the amount of money they were going to give us would have allowed us to simply dump some dirt in there, which we said would just wash out again," Thompson recalls. "They wanted to give us $200,000, but to fix it right would have been $800,000 to $900,000." (An engineer with Moore Engineering later would say that it was this flooding -- not any deepening because of a clean-out -- that increased the depth of the channel bottom and caused the bank slopes to be less stable.)

On Feb. 5, 2008, the water board initiated another informational meeting to decide what to do with the Leirness Drain because FEMA now was committing more funds to the project.

Chad Engels from Moore Engineering did much of the talking. The water board presented three options --- minimum effort, improving the side slopes or reconstructing the drain to a new channel grade, new side slopes and multiple bridge replacement.

Fully reconstructed, the project would cost about $2.75 million, Engels said. About $40,000 of that would go for "preliminary" engineering, and the total project would include another $240,000 for "engineering." Engineering fees are based on a flat percentage of the entire project, Engels says.

The reconstructed drain would extend west through North Dakota Highway 200, the Burlington Northern Santa Fe Railway and Interstate 29.

On the income side, the water board announced that about $900,000 would come from local taxpayers.

FEMA had committed $600,000, to repair flood damage in 2004 and 2005. Other listed "contributors" were North Dakota Soil and Water Conservation funding, $500,000; North Dakota Department of Transportation, $400,000; BNSF, $200,000; and Traill County, $150,000.

An April 1 hearing was set. There, the public considered a reconstruction petition, signed by Curt Reimer, Richard Diehl, Darrell Rotvold, Leon Bertsch, Marvin Siegert, Todd Steenerson, Arlen Oanes, Jay Boeddeker, Laurie Lammers, Daniel Downs and John Diehl.

Again, no bond was posted.

Thompson and Peterson explained that the water board didn't ask for a bond from the petitioners but funded it from maintenance funds from that drain.

"We needed the survey anyway, for the FEMA project; they require that," Peterson says.

It was announced that ballots on the project were due April 11.

The second meeting

On the evening of April 1, after the announced hearing was over, water board members were approached to clear up what they considered "misinformation."

Water board member Kyle Meyer called fellow Water Board members and asked them to come to a second meeting, April 2 at the courthouse.

"The people want all of us to be there," Thompson remembers Meyer saying.

Thompson says the second meeting was designed to answer questions from some downstream landowners who were alarmed when Chad Engels had said the project "could" go 3 feet deeper with culverts under Interstate 29. Engels said the grade was enough to handle that.

Today, Thompson recalls that he had immediate concerns about the legality of the meeting because -- if all water board members in fact were in attendance on April 2 -- this would be a quorum.

Thompson says he asked fellow water board member Meyer to ask technician Gary Peterson to post a notice on the door. Peterson says he forgot to do that, but the two agree it "wouldn't have mattered" because the water board hadn't properly given notice to the county newspaper.

Roger Anderson was in Texas at a horse show and

didn't make either meeting.

On April 2, Michael Anderson, who had attended previous day's legal meeting, says he happened to be in the Traill County Courthouse. He says he happened by the second meeting in progress and walked in.

Among other things, Michael Anderson recalls that the engineer, Chad Engels, refuted some criticisms from the legal meeting the day before and offered to change some features for individuals.

"They were saying, 'Yeah, we can drop a culvert 3 feet here; we can do this, do that' -- things that weren't discussed April 1," Michael Anderson recalls. "I thought to myself, 'This was an illegal meeting' -- no notice, no minutes being taken."

On April 3, Michael Anderson went into the water board offices to turn in his father's "no" vote to the reconstruction. The extra cost on some of this land would have been $800 per quarter section per year.

"And here's Gary Peterson, opening ballots and recording them into the computer," Michael Anderson says. "They weren't supposed to be opened until April 11."

Peterson acknowledges he was opening and tallying ballots on April 3, but says there's nothing wrong with that. Thompson says it is a standard practice to open ballots and tally ballots as they come in.

On April 11, the Water Board Chairman Joel Halvorson, after a legal review, officially announced that the drain reconstruction passed with 57.3 percent "for" and 42.7 percent "against."

Deemed illegal

On April 15, 2008, the water board approached the County Commission about its $150,000 share of the project. Commissioners balked at the figure, saying they hadn't budgeted for it.

Meanwhile, Roger Anderson asked North Dakota Attorney General Wayne Stenehjem for an opinion on whether the April 2 meeting was illegal.

Peterson described it as "question-and-answer" session and "no minutes were kept, no motions made and no business discussed." Dan Gaustad of Grafton, N.D., the attorney representing the insurance company for the Water Board, denied the Water Board had violated the rules, but said if the meeting were found to be illegal, the board would "be prepared to reconduct this meeting with notice.

Stenehjem found the meeting illegal, but said the board simply could provide "detailed minutes." After the fact, the water board did provide minutes, but Anderson complained they failed to name two of a small group of landowners who attended.

At a May 6 meeting, county commissioners complained that the project had grown from three to seven and then 10 crossings. Commissioner Tom Eblen suggested cutting out some of the crossings to save money. Engels, the engineer, suggested that some of the farmers voted for the project to get closer access to their land.

In a May 20 meeting, Hillsboro landowner Mike Warner requested that the County Commission -- which appoints the water board -- require the water board to redo the hearing and process because of the illegal meeting.

Water Board member Jason Siegert warned that any rehearing and revote could delay the construction and jeopardize the $600,000 in FEMA funds. Two weeks later, State's Attorney Stuart Larson advised county commissioners they stay out of the dispute, which they did.

Today, Thompson says the County Commission was required to pay its share of the project, regardless of whether it had budgeted for it.

"It's in statute, in law, that they (County Commission) have to pay their share on crossings that are voted on, whether it's budgeted or not," Thompson says.

In this case, the reconstruction project came up after the county budget was formed. He says he has since recommended to the county that it automatically budget an amount equal to a five-year average for such expenditures.

The Andersons have been upset about various things, including what they say is an expansion of field culverts "all the way up and down the line" -- after the Leirness Drain was passed.

Anderson says the "whole project should be laid out on the table, the total cost."

As a prime example, the Andersons point to north side of Section 22, where the new project now has 16 field intercept culverts instead of the 10 that it had before reconstruction. The culverts drain from gently sloping land, operated by Curt Reimer and Richard Diehl, a former township officer and a current one.

Field engineer Brady Woodard says this drainage from the fields is about the same as before, except some low spots in the berm have been replaced with culverts.

Thompson says this is a misunderstanding of how projects are developed.

"Some people think it should be exactly what they vote on it, but it doesn't work out that way. Certain things are missed in the preliminary planning -- culverts, but also utilities, he says.

Chad Engel of Moore Engineering, says the field intercepts are a small part of the whole project and that the Leirness Drain reconstruction is coming in at or below its estimated cost.

Engels says the preliminary engineering for the project figures in only an average for field culverts. It is entirely normal for "field intercept pipes" -- culverts -- to be added after the vote, and the engineers actively solicit farmers -- including the Andersons -- to include their requests for these culverts.

The Andersons were asked if they wanted extra culverts on some of their land after the project was voted on. But they declined on principle because it wasn't discussed in the informational meeting.

On the other hand, Michael Anderson says he twice requested that Woodard approve installing a culvert in a township ditch in the southwest corner of Section 10. He says he was denied making it consistent with two neighboring culvert structures on each mile to the west.

The culvert wasn't installed. The Andersons didn't approach the board about it.

"What's the use?" Roger Anderson says.

Proper politicking?

The Andersons say the illegal meeting and the politicking that followed led to what appears to them to be individual incentives to gain passage of the restructuring and an unfair disadvantage for those who opposed it.

Thompson says -- except for the illegal meeting -- all rules were followed.

As for any early ballot tallying, Thompson says any landowner in the assessment area could have requested the ballot tally in progress. They're free to "do their own politicking" against the project. He says the same practices are used in Walsh and Cass counties.

Michael Anderson thinks that FEMA and the taxpayers are duped.

"The water board got a free pass to cover up their own mistake of going too deep with the clean-out and causing erosion and deterioration on the Leirness Drain," Michael Anderson says.

Roger Anderson says there's "nothing wrong with 'local control,' but there's got to be somebody that controls the local boards."

He says there is a tremendous opportunity for conflicts of interest for various members of township boards, water boards and county commissioners.

"All are farmers -- either active, or have land rented out," Anderson says. "It's just a total mess, when it comes to fair play, when you're dealing with that many governing bodies. They all have land interests," Anderson says.

"County commissioners hire the water board members. The water board members are farmers. Most of the county commissioners go to the water board, like other people, and make requests. Is the water board going to go against their bosses?"

He says that when "best friends, or relatives" scenarios are thrown into the mix, it can makes the situation even less equitable.

Thompson vigorously disagrees.

"As far as being on a water board or township board, I don't see any conflict of interest," Thompson counters. He says members within areas have abstained from votes in areas in which they are interested.

All of the Andersons' complaints have been answered in court, Thompson says, yet "he keeps asking questions on the same thing. What is it they want?" he says.

Both Peterson and Thompson emphasize they have no personal benefit from the Leirness Drain being constructed at all. Yes, Thompson acknowledges, he gets $75 per diem for days they have meetings about the drains.

"But we don't get rich off of this by any means," he says.

Peterson says he owns farmland along the Red River, to the north of the Leirness Drain outlet.

"If anything, it's the other way, because it comes by my place," he says.

Peterson, who lost his farmstead in 1979 flooding, quickly amends that, agreeing with Thompson that these assessment drains don't cause the flooding that people think they do.

"These drains are designed for 10-year events -- rainfall over a period of 24 hours, drained off in 48 hours -- about 3.5 inches in our area," Thompson says.

Only part of it runs off and into the river.

Roger Anderson says he appreciates the benefits of local water governance, but says there are too few people in the townships and too many cross-connections. He says there isn't enough representation by women.

"These guys are in charge of a big chunk of money, and you hope, as farmers and landowners their decisions are for the benefit and equity for everybody," Anderson says.

He says that it is significant that FEMA money is figured into drain construction, and then FEMA money is used on the other end of the water, repairing damage.

One issue that argues for a larger authority is that farmers today farm in townships where they don't live.

"If you don't live in the township, you have no voice in that township," Anderson says. "We can't have farmers calling all of these shots."