An appeal filed in court, along with the discovery of zebra mussel veligers, have put plans for a Ditch 25 outlet on indefinite hold.
The appeal, filed in January by an attorney for the McDonald Lake Association, contends that the Otter Tail County Board of Commissioners acted in an “arbitrary, unlawful and unsupported nature” in its approval of the proposed outlet. It asks the court to remand the board’s approval, which could essentially bring the project back to square one.
The Ditch 25 outlet was approved by the county board in July of last year, following a petition by the Little McDonald, Kerbs and Paul Lakes Improvement District (LID) and a lengthy series of meetings and public hearings.
The LID lakes, located just west of Perham, have been struggling with flooding problems for more than a decade. Their proposal calls for draining excess water from their lakes via a downstream route, which winds through part of Ditch 25 and several other lakes and waterways, including McDonald Lake.
A major hurdle put a pause on the project last October, however, when zebra mussel veligers were found in three of four lakes tested along the route. Now those same lakes, as well as two additional downstream lakes, must be retested once the waters warm. If the presence of the invasive species is confirmed through these retests, but no veligers are found downstream, then the project cannot proceed as proposed.
Another major hurdle has been opposition from downstream residents, who not only fear reduced water quality in their own lakes as a result of the drainage plan, but also have concerns about the legality of the county board’s handling of the situation.
While opponents of the project have said they sympathize with the LID’s high water problems, many were still feeling dissatisfied with the outlet plan after its approval. Ultimately, the McDonald Lake Association took legal recourse by filing its appeal.
The appeal asks the court to deny the county board’s approval of the LID’s petition to use Ditch 25 as an outlet. If the judge sides in the appellants’ favor, the board could have to go through the whole process of reviewing the project again, this time following a different, more rigorous set of state statutes.
A hearing on the appeal is scheduled for March 25 at 11 a.m., after which the judge will have 90 days to make a decision.
“We’re on hold until we know the outcome of the appeal and the zebra mussel testing,” said Roger Neitzke, chair of the LID. “We’re waiting out the appeals process… (and) we can’t vent if we have veligers in our lakes.”
Even if the judge sides with the county board on the appeal and the court allows the project to move forward, the zebra mussels would still be an issue.
“If there are veligers after the retesting, we’ll have to reexamine our options,” Neitzke said.
He added, however, that, “Our position hasn’t changed. We still have high water issues. We’re still about 28 inches above the ordinary high water mark.”
Julie Aadland, an area hydrologist with the DNR’s Division of Ecological and Water Resources, said the presence of zebra mussels would mean the LID would need to find a way to outlet the excess water without discharging the invasive species downstream.
“They’ve got a lot of hurdles,” she said of the LID.
No formal proposal has been brought to the DNR yet for this project, Aadland added, and “now that there’s aquatic invasive species in the lakes, that’s probably going to change their proposal to us.”
One thing related to Ditch 25 is moving forward right now – a redetermination of benefits, which establishes who benefits from the ditch and thus will pay for any maintenance to it.
County Attorney David Hauser said this process would be done regardless of the outlet project.
As of press time, the county board was scheduled to act on the final order of redetermination of benefits at a meeting on Tuesday.
The benefitted area of the proposed outlet has not yet been defined, according to County Auditor Wayne Stein. And none of the property owners included in the redetermination of benefits are downstream residents that would be impacted by the proposed outlet project – at least none that Stein was aware of.
A “Memorandum of Law in Support of Appeal of Order Establishing Drainage System,” submitted by Tami Norgard of Vogel Law Firm in Fargo, N.D., was filed with the Otter Tail County 7th Judicial District Court on Jan. 22 on behalf of the McDonald Lake Association, versus Otter Tail County by and through its Board of Commissioners.
The county responded to this appeal in February, and then the McDonald Lake Association replied to that response in a new memorandum filed March 7. The next step in the process is the hearing coming up March 25.
Three reasons for the appeal are listed in the original memorandum:
1) The board impermissibly approved the project, since it involves improvements to the drainage system, not repairs.
County commissioners contend that the ditch work proposed only constitutes as repair work. The appeal, however, defines the work as “improvements,” since it extends beyond the original construction of the ditch, increasing the capacity of the drainage system.
Improvements of a drainage system are governed differently than repairs, the appeal states, and that process would include passage of a petition signed by certain affected property owners, which in this case never happened.
2) The board did not have authority to grant the LID’s petition in the manner that it did, because the project involves the establishment of a lateral, which is governed under a different procedure than the one the board used.
A “lateral” is a constructed branch or extension that connects or provides an outlet to property within an existing drainage system. Establishing a lateral requires a petition signed by a certain percentage of affected property owners – something which was never obtained in this case.
The board has said that this step is unnecessary since this project is “private” and the proceedings related to laterals are only necessary for public projects.
However, the McDonald Lake Association believes this project may involve broader consequences than private interests, and they point out that the LID is a public entity created as a subset of the county board itself.
3) The board arbitrarily granted the LID’s petition when it has previously denied similar petitions.
In a past case, the board denied another lake’s petition to vent waters downstream because there were a number of downstream issues, according to the appeal. But, despite knowledge that downstream capacity issues exist in this case, the board granted the LID’s petition to use Ditch 25.
Under the U.S. Constitution, political subdivisions are required to provide similarly situated applicants with similar treatment. The appellants believe that, based on the precedent of the board’s other decisions, it exercised its power in this case in an arbitrary and unconstitutional fashion.
Marie Nitke, Perham Focus