Welte: Whiskey's for drinkin,' water's for fightin'I remember going to Grand Forks with Dad one summer day in the early 1980s. It was time to certify acres in order to participate in the federal farm program. So he took me with him to the ASCS office.
By: Peter Welte,
I remember going to Grand Forks with Dad one summer day in the early 1980s. It was time to certify acres in order to participate in the federal farm program. So he took me with him to the ASCS office.
In those days — before email and computerization — certifying acres could take hours. So Bud — my dad — crossed the hall to talk drainage with Rich, the director of the Soil Conservation Service.
The brief conversation — between two of my favorite people — went something like this:
Bud: Rich, there’s no problem with me cleaning that drain on the South Roddy Quarter, is there?
Rich: Is that the one just south of the Logan Center Dam?
Bud: Yep. Damn good quarter, but it’s hard to keep that pothole dry.
Rich: You had a nice barley crop there last year, but the water down there probably cost you some swaths. Go ahead. Have at ’er.
In 2015, any farmer wanting to drain land must navigate legal mine fields that strike fear in the hearts of seasoned attorneys. And things are not getting easier any time soon.
First, a U.S. Department of Agriculture agency name primer: The ASCS, the administrative agency of USDA, still exists, but it is called the Farm Service Agency. Its primary purpose is the administration of federal farm programs.
And the SCS was the Soil Conservation Service was the sister agency of the ASCS. The role of the SCS was to provide technical assistance to farmers. The agency still thrives, and it is named the Natural Resources Conservation Service. It still renders technical assistance to farmers as a primary role, but with the addition of the Conservation Reserve Program back in the mid 1980s, the size and scope of NRCS has markedly increased.
One thing hasn’t changed: Surface water drainage vexes farmers to no end. And moving surface water has become more of an art than a science.
Anything resembling a pothole may be deemed “navigable waters of the United States.” So the federal government has jurisdiction over drainage of that pothole.
And unlike the 1980s, getting permission from the federal government to drain a pothole is no longer an easy process.
So even if you want to clean a drain, you must seek permission from the NRCS, and since the NRCS and the FSA have similar missions, seek permission from both agencies.
Get that permission in writing, because the Federal Courts have held that the federal government cannot be held accountable for their spoken word. Unlike the 1980s when Rich and Bud made a decision based upon their handshake, in this day and age, the federal government can change its mind even after giving you the answer you want to hear. So get permission in writing.
After you obtain that permission, if certain conditions apply — parcels larger than 80 acres, for example — you must obtain a permit from the local water resource district. Failure to obtain such a permit could impose either civil liability or criminal liability upon the offending farmer.
Finally, it is a good idea to have a meeting with your neighboring landowners, as well, if for no other reason than to maintain good relationships. After all, as a wise farmer once told me “Whiskey’s for drinkin’, but water’s for fightin.’”
Farmers with drainage questions would be well-advised to review Title 61 of the North Dakota Century Code before commencing any drainage.
Editor’s note: Welte is an attorney with Vogel Law Firm in Grand Forks, N.D., and a small grains farmer in western Grand Forks County.