Sergeant County lawmakers and farmers ask legislature to tap flexible transportation fund for Legal Drain 11 repairs

Representative Brandenburg, sponsor of House Bill 1202, told the House Transportation Committee that work by the state on Highway 13 in 2013—where the Department of Transportation replaced smaller culverts with much larger openings—substantially increased flow into Legal Drain 11 and created long-term flooding and road-safety problems for Sergeant County.

"Before that, there was 3 36 inch culverts and 3 different spots... they went and put in 2 double 54s," Representative Brandenburg said, explaining that the changes increased the water flow dramatically and contributed to downstream erosion, sloughing and road closures. He introduced HB 1202 to authorize up to $3 million from the state’s flexible transportation fund for culvert and bridge crossings and related work.

The bill’s backers emphasized public-safety and farm-productivity impacts. Roger Zeneca, a Sergeant County farmer and water board member, told the committee that township and county roads south of Highway 13 have been underwater “at times for almost 6 months of the year,” and said the crossings create delays for emergency vehicles and present safety risks for school buses and other traffic.

"The biggest concern I personally have had over this whole issue is safety," Zeneca said. Lucas Chimenisky, another Sergeant County farmer and water board member, described why past funding was capped at a $4-per-acre maintenance levy and why boards historically phased work in to keep assessments low. Michael Wyham, also a water board member, said the Supreme Court ruling that halted additional work occurred after some phases were already completed and that the district had planned financing for earlier phases using maintenance levies and cash on hand.

Representatives on the committee pressed for details. Representative Kaufman asked what portion of any appropriation would be used for litigation; Brandenburg said litigation costs ran “somewhere up to close to over $1,000,000” but said he would remove litigation-expense language from the bill and that his intent for the flexible fund money was to pay for larger culverts and road crossings downstream.

The Department of Transportation, represented at the hearing by Ron Hanke, opposed designating a targeted $3 million from the flex fund for this single project. Hanke said the flex fund was established with an application and scoring process and cautioned against earmarking the fund outside that process. He said certain crossing repairs could be eligible through the normal application process but that the fund does not generally cover cleaning an entire drain.

Committee members and witnesses discussed several practical and legal constraints. Witnesses and Representative Brandenburg described lengthy litigation in Sergeant County that delayed work, increased construction costs and produced legal bills they estimate at roughly $1.1 million; project cost estimates that were $3.1 million in 2016 rose to $7.9 million by a later bid; and some work completed under the old practice left the county with outstanding bonds and crossing obligations the county commission has since resisted paying pending a vote. Witnesses said the Supreme Court ruled further work could not proceed without a vote of all landowners within the watershed.

Committee members suggested two tracks: consider a policy solution that would limit who may vote in future drainage votes or preserve the existing scoring/application process for transportation dollars rather than earmarking flex-fund money. Representative Koppelman noted he expected related policy bills in the Natural Resources committee. At the hearing’s end committee leadership said they would hold the bill to allow the sponsor time to discuss amendments and policy fixes and to gather additional information.

No committee vote was taken on HB 1202 during the hearing.