Landowners Arlene and Alton Nitschke stand next to Hay Creek in October as it runs through their 42 acres of land about 6 miles northeast of Bismarck. The Nitschkes have appealed a permit granted to the Burleigh County Water Resource District allowing the implementation of a drain tile system for a housing subdivision located to the north to pump possible contaminated ground water into Hay Creek. Their home is located behind the tree shelter belt pictured in the upper left corner. 

The Burleigh County Water Resource District's approval of a drainage project to remove excessive groundwater from the Hay Creek Pines subdivision, located 6 miles northeast of Bismarck, has resulted in downstream landowners seeking legal action.

Alton and Arlene Nitschke, who own about 40 acres of land and have lived south of Hay Creek Pines for 24 years, filed an appeal to district court, alleging the groundwater to be diverted to their property has been polluted by coliform and other contaminants.

"Well, I'm here again, and I'm not going away," said Arlene Nitschke, at Wednesday's meeting of the BCWRD. "Why should we take on somebody else's bad water? This is not over. You are going to hear from me forever."

The Hay Creek Pines Groundwater Removal Project is intended to lower groundwater levels in the subdivision by providing an avenue for the water to more readily leave.

The project's aim is to improve the stability of the road bed in and around Hay Creek Pines, reduce sump pump operations in homes, protect structures and reduce the drowning of trees.

In July, the BCWRD tested water samples from four wells and one sump pump, but the Nitschkes allege the tests did not include all essential attributes. The five basic items to be tested, per the United States Department of Agriculture, are nitrates, sulfates, phosphates, E. coli and coliform. The latter two of which were not tested by the county.

High levels of sulfate and total dissolved solids were found in several of the water samples.

Using one of the same test wells, the Nitschkes tested for coliform and E. coli in the groundwater. Results show coliform was present, though E. coli was not found.

The Nitschkes, who expressed concern their land will turn to alkali due to the contaminated groundwater, allege that the BCWRD refused to test a murky sample collected from one of the test wells.

The county has since agreed to test additional groundwater samples, with Braun Intertec drawing samples from a handful of different wells Nov. 1.

"Mr. Nitschke was notified within an hour from the time this board was notified that the contractor was going to be put in place, doing work on-site," said Rodney Beck, a member of the water resource district board.

The results of the testing are expected to arrive sometime next week, Beck said.

The Nitschkes, who allege the BCWRD is withholding information, submitted an open records request to the board, to have access to every email correspondence that pertains to the Hay Creek Pines Groundwater Removal Project.

"I would really like all of the Burleigh County Water Resource District emails," said Alton Nitschke, but agreed he'd be satisfied — for now — with only those pertaining to the drain tile system.

Hay Creek Pines subdivision resident Gary Christenson, who petitioned for the project, was also present at Wednesday's meeting.

"Our project was just to, basically, expedite during high-water table periods," Christenson said. "I'm disappointed that this has gotten to be such a contentious issue. Unfortunately, lots of misunderstandings, I think.

"I'm hoping the board can recognize that and do what's necessary to move forward with a very simple project," he said.

In the meantime, the project is moving forward.

The BCWRD directed Houston Engineering to prepare the easements at the lower end of the Hay Creek Pines development. The board's attorney, David Bliss, reviewed the proposed easements, which will be presented to the appropriate landowners.

"Those easements are required and should've been in place long before this project even started, because natural drainage is going through these two properties," Beck said.

In preparation of the roadway reconstruction project within the subdivision, the board authorized Houston Engineering to conduct a topography review of the area by drone, in lieu of sending a survey crew.

"A drone is a lot cheaper and a lot more detailed," Beck said.

The Hay Creek Pines Groundwater Removal Project was approved May 2, with 97 percent of the Hay Creek Pines voters favoring it. An assessment district has been established and $555,100 worth of specials will be spread out evenly among the 35 landowners.


General Assignment Reporter