OAKES, N.D. - Some landowners in southeast North Dakota's Dickey and Sargent counties are working to get the North Dakota Legislature to change the laws governing drainage projects.
Paul Mathews of Cogswell, N.D., is a farmer-landowner who is affected by the Jackson Township Drain project - a $5.2 million project that takes water into the James River near Oakes, N.D.
Mathews, a certified public accountant, is concerned about the process in projects involving the Jackson Township Drain, also called Jackson Improvement District No. 1, which involves more than 6 miles of new legal drain.
He's also part of a $3.5 million project called "Drain 11" Improvement District, but he says the multi-million-dollar projects benefit few.
One big drain
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The U.S. Fish and Wildlife Service in the 1990s secured the Kraft Slough Wildlife Area as part of the Garrison Reformulation Act of 1986. The area had been a water storage area before it was repurposed to mitigate wildlife political opponents. The slough today is managed by a federal wildlife refuge system, locally through the Tewaukon Refuge at Cayuga.
Since 1995, the region had above-normal precipitation. The water swelled three interconnected sloughs from the area into lakes, the most prominent being Kraft Slough, about 10 miles east of Oakes.
Today, Kraft Slough is about 23 feet deep, and is considered a lake because of its size.
Because of the growing concern of flooding, the Dickey-Sargent Joint Water Board was created to discuss possible solutions, and held its first meeting on April 12, 2011.
The board brought in Moore Engineering Inc., of West Fargo, N.D., to consider a study on the Jackson Township Drain. Christopher Gross, Moore Engineering project manager, told landowners and others it would take at least $40,000 to perform more than a brief overview. About 40 farmers - including Mathews and others who later opposed the project - put in "seed money," which could be refunded if the project came to fruition.
According to North Dakota Century Code, it's up to the Dickey-Sargent Joint Water Board to assign "benefits" for a drain project.
The original idea was a straight ditch to the James River. The project made national news because Brown County, S.D., was unhappy about getting additional water from it when they, too, were wet. The town of Oakes, N.D., was also concerned about water quality and quantity near their municipal water well intakes, and about their own drainage.
Mathews says the Water Board planned to build a pumping lift station to reduce the amount of excavation and costs. The pump would be turned off when there was a threat to downstream landowners, including those in South Dakota and the city of Oakes. Conversely, if the James River didn't have adequate flow to dilute the natural salts in the water, the pumps would also be turned off.
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In another connection, it would "block" to prevent undesirable fish species from swimming upriver into Kraft Slough.
"If the new normal is wet like that, we would not see that pump running until August," Mathews says. "That's when my caution lights went on. I thought: 'If the pump isn't operating, it isn't helping you and me a bit, but I'll be paying for it."
Emergency fixes
By 2013, Mathews and others contend many of the public safety issues associated with high water were already solved, the railroad and Highway 11 had even built up.
"Maybe our state should be a little bit more proactive," says Brian Vculek of Oakes, regarding drainage. He volunteered to take a 100 percent tax assessment on "more acres than we had to," and says it had the effect of giving him a bigger percent of the vote.
"I'm just happy we abide by state laws," Vculek says. "How do you know the water is not going to get that much higher (again)? I don't have to make that claim. I support it."
A public hearing was held Nov. 5, 2014, to hear an oral description, and the joint board held an election on Dec. 5, 2014. Ballots were sent to Moore Engineers to "verify the local secretary's tabulations."
Moore, which is ultimately expected to receive $480,000 from the project, notified the landowners of the results near the end of December. It passed 55 percent to 45 percent, with CP Railway accounting for 10 percent of the vote. Appeal rights ended Jan. 5, 2016.
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Gerald Dill of nearby Stirum, N.D., is unhappy with the project. He owns Dilly's Bar-N-Grill in Stirum and land next to Kraft Slough. He sold 10 lake lots for private cottages on Kraft Slough and established a recreational vehicle park. Since the project was created, the value of properties has gone down.
He says the lake is one of the "greatest things that ever happened" to recreation in the area, and fears the lake will drop because of the new project.
Two projects?
Mathews says the pumps turned the Jackson Township Drain into two separate projects.
The western project in Dickey County passed with 68 percent of the vote. There, the project is gravitational, so it works whether the pump is on or off.
The Sargent County plan includes a new, north lateral ditch, draining the northern end of the system into the three, interconnected sloughs. This adds water to a system upstream, which doesn't drain out unless the pump operates. Regardless, construction started in April 2016 and should be complete by Christmas.
Mathews says he and his extended family will pay $121,000 in the life of the project.
He has similar concerns about a "Drain 11" project, that is just getting started.
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Now Drain 11
Drain 11 is a meandering ditch that flows into the Wild Rice River. The water board identified some parcels of the land they believed they owned, as per a 1917 document, and wanted to use those acres, removing them from Mathews' family.
Gross and colleagues were in Cogswell on Nov. 15, at a public meeting in which it was decided the $3.5 million project will widen but not deepen the first 13 miles of a 40-mile ditch that was built in 1917 and 1918. Gross says the local share of the project will be about $2 million and the state has kicked in about $1.5 million - appropriated two years ago before the state's oil revenue picture changed.
Roger Zetocha, a member of the Sargent County Water Board, says the project is needed for public safety. Both say the district is attempting to get participation from Ransom County, which supplies about a third of the water. Zetocha says part of the effect of breaking a 40-mile project into 13-mile segments is affordability, and one of the effects is that it is never voted on in its entirety. He says it would be "interesting" to know whether such a project would succeed or not in a vote.
Mathews and Dill want the North Dakota State Legislature to consider some changes in how watershed districts define benefits, and what their powers should be.
In North Dakota, the engineer-managers "must consider the entire watershed" when assigning benefits, considering all of the land in a watershed contributes water and sediments. But Mathews says the actual benefits decline rapidly if land isn't adjacent to the drain. If land is farther from the drain, the landowner might have to negotiate with a neighbor for a flowage easement access.
Mathews says he'd like to see a system like Illinois, for example, where the state determines the value of a project to a parcel, and can never assign more cost than benefits.
Quick take
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The Jackson Township Drain used condemnation to acquire land from a couple of the landowners in the project for the right to their corridor for the construction. In March 2016, the Legislature looked at "quick take" procedure, which Mathews describes as "condemnation on steroids."
Gov. Jack Dalrymple, who sits on the North Dakota State Water Commission, used a line item veto of an appropriations bill in 2015 that would have prevented water districts from using quick take, and insisted it be an interim study. Chairman Jim Schmidt, R-Huff, called on the Legislative Council staff to consider three draft bills - Considered bills to eliminate from water resources the authority to use quick take eminent domain; Require water boards to obtain county commission approval before using it; To require a 75-day process for negotiation between a landowner and water resource board before the quick take process can be used.
Late this summer, Mathews approached two District 26 legislators - Reps. Jerome "Jerry" Kelsh, D-Fullerton, and Bill Amerman, D-Forman - about possible legislative corrections. Both were defeated in the Nov. 8 election. Since then, he's approached their replacements: Reps.-elect Kathy Skroch, R-Lidgerwood, and Sebastian Ertelt, R-Lisbon, who he says are "interested but cautious" on the topic.
Lake property owner Dill wants to see changes. He calls the current system "vote-rigging at its finest," and says informational meetings allow time to judge and prevail over opponents. "Why should 350 parcel owners pay millions of taxes to benefit five or six," he says. "It's a bad situation, not just for this public drain, but for most I've ever read up on."
