Rosefield Dam reversal

The dam dilemma that has plagued the Eddy County Water Resource District (ECWRD), landowner Monty Schaefer and neighbors Doug and Chris Skadberg reached a turning point on Tuesday, June 4 after a tense discussion among the parties. As a result, plans to remove the dam have stalled and the Rosefield Dam will remain part of the landscape until further notice.

Schaefer secured a meeting with the Office of the State Engineer (OSE) this spring after he found additional evidence to support his claim that work he had done on the Rosefield Slough Dam was merely maintenance. After reviewing the evidence, the OSE issued a letter to the ECWRD stating that they had retracted their Nov. 1, 2016 determination, which led the ECWRD to order removal of the dam last May. The letter stated, “Based on the newly provided information, the OSE has now determined that the work performed by Mr. Schaefer in 2013 was dam maintenance. Because a construction permit is not required for maintenance activities, Mr. Schaefer’s work did not require a construction permit.

“The OSE does not consider the Rosefield Slough Dam, as it exists today, to be in violation of N.D.C.C. 61-16.1-38. The OSE retracts its November 2016 decision.”

Both Schaefer and Skadberg prepared statements to the ECWRD, which they read during the public comment period. Chris Skadberg was the first to speak, with attorney Kale Van Bruggen on speakerphone. He said that none of the information in the packet he presented was new information or evidence, but rather a dispute of the numbers presented by Schaefer. He also showed a 2009 photograph of the Schaefer property and Rosefield Dam in 2009, a period of high water, as evidence that the Dam was causing water issues in the area.

Van Bruggen highlighted the fact that Schaefer had withdrawn his appeal to the N.D. Supreme Court. Van Bruggen deduced that, as a result, the District Court decision to affirm ECWRD’s removal of the dam was a standing order with which the local board must comply.

Schaefer and attorney Bennett Johnson countered that the court had simply affirmed a decision reached by the ECWRD, not ordered removal. Schaefer also read a letter he had prepared, referencing Senator Joan Heckaman, State Water Commissioner Michael Anderson and Ag Commissioner Doug Goehring and acknowledging their willingness to “investigate this matter and take action instead of choosing not to get involved.”

Schaefer concluded, “I ask that you allow the Rosefield Dam and Slough to remain in place. I am willing to enter into a maintenance agreement for the upkeep and care of the dam and spillway... We could establish agreed upon benchmarks for the spillway and top of the dam, have periodic inspections take place and communicate about proper maintenance should the need for that arise in the future.”

Senator Heckaman also made comments, showing her appreciation for the “hard work and tough decisions” that must be made by the local officials and acknowledging that the Rosefield Dam issue was one of several situations where they identified errors made by the OSE during that time that were “reviewed and reversed” as a result.

ECWRD board member Peter Larson made a motion to rescind the ECWRD’s May 2018 order to remove the dam. The relatively quiet board discussion period that followed was characterized by 30-second pauses and careful communication among the four members.

Larson explained that he thought the best course of action was to essentially revert to the original decision made by the board in September 2014. At that time the ECWRD determined that work completed by landowner Monty Schaefer was maintenance only and did not require a permit. Further, officials deemed that the spillway was handling the water well even in wet years. Larson referenced a 2009 photo of the Schaefer property and dam and declared there was no evidence of water backing up onto Doug Skadberg’s property as alleged.

He also noted that Schaefer has offered to engage in a maintenance agreement with the ECWRD at his own cost.

“If conditions change, this board can remove the dam at any time because we own it,” Larson noted. He added that by his recollection, the board had ordered removal of the dam in May 2018 because they were “mostly forced to change by the OSE.” Larson deduced that since the OSE has retracted their prior Nov. 1, 2016 determination, the ECWRD is free to decide the fate of the dam.

ECWRD board member Mike Tweed postulated, “What other downstream problems will we create through removal?” All concurred that the effects were not known at this time.

The board approved the motion to rescind the May 2018 decision, so as it stands today the dam will remain on the landscape.