DD #5 Annexation Approved Even with Vociferous Opposition

Part II
By
Loren G. Flaugh

Photo Credit: Loren G. Flaugh 

 Despite near total objection from landowners upstream in sections west and north of DD #5, the O’Brien County Supervisors voted unanimously to annex approximately 3,700 acres of land into an expanding DD #5 watershed at the Tuesday, June 20, 2017 supervisors meeting.  Landowner questions and concerns were numerous and vocal.
According to Iowa Code Chapter 468, County Board of Supervisors are legally considered as trustees for each DD and informally as the DD’s owners.  Consequently, it’s their duty to plan for DD clean out, repair and improvement projects.
As DD Attorney Jim Hudson would emphatically state later while answering a landowner’s question, “The one thing to remember is that a repair is a mandatory procedure.  The Board doesn’t have any discretion whatsoever whether or not to make a repair.  They’re required by drainage law to keep the DD’s facilities in a good state of repair.”
When DD clerk Barb Rohwer turned over the objection letters and petitions received in her auditor’s office, there were approximately 28 in all.  Two petitions with signatures and several hand written objection letters from individuals were recorded.  One more written objection came in just as Hudson started to review them.
Hudson read aloud an objection letter from Delmar and Myrna Dahnke with land in Section 11.  The letter simply stated their objection with no reason given.
“That’s fine.  They’ve preserved their rights by doing this.  Here’s what happens in drainage.  You don’t really know what you’re coming into.  I encourage landowners to file their objections so they preserve their rights,” Hudson said.
Donna Brandt’s objection was based on the DD #5 repair cost of $22.00 per acre assessed to landowners in the expanded DD.
Hudson corrected Brandt’s view that the $22.00 per acre assessment was finalized.  Hudson said that’s incorrect until there’s a formal hearing on all assessments at a later date.  “At that time, her objection would be proper and a subsequent discussion would determine a final per acre assessment for all landowners,” Hudson explained.
Hudson read an objection letter from John Buysman that said, “I’m writing this to state my objection to the annexation of my property in Lincoln Township, Section 4 into DD #5.  My property is not deemed part of the original creation of the DD and nothing has changed to warrant its inclusion now.”
Hudson replied when addressing Buysman’s reasoning, “That’s probably true.  There hasn’t been much that’s changed.  It probably should’ve been part of DD #5 to start with.  Almost every one of Iowa’s 3,400 DD's was made smaller than they should’ve been 100 years ago when most were created.”
After Husdon read the names on the petitions, he asked, “Is there anybody here that’s on one of these two petitions that has questions?”
Landowner Larry Remmers said, “The objection I have is for the cost of the DD clean out.  I went to the auditor’s office about a year ago and asked, ‘How am I involved in this?’ I live on the north end of 280th Street.  I got a letter from the auditor’s office on June 2nd telling me about this hearing.”
Remmers went on to explain that he thought the costs were for work done on the ditch upstream further north of his property.  “But, now I find out it’s not.  The work is on the open ditch downstream southeast of 280th Street.  We’re paying for work done further south and the cost is $93,000 for cleaning out the open ditch.”
Remmers expressed his concern that landowners upstream would pay a greater share of the clean out costs than landowners within the DD itself, once this 3,700 acre area was annexed in.
Hudson stepped in and explained how drainage engineers used to use one factor in figuring assessment schedules.  That factor was how close a landowner was to the open ditch.  Now, the engineers use multiple factors to determine relative benefits.  Proximity to the ditch is still a factor.  Soil types, topography, length of ditch used and number of laterals or branches are other factors.  
“There have been a lot of changes in how we assess landowners in a DD.  At the end of the day, you’re not going to pay the same far away as what the folks closer to where the work is done will pay.  I’ll tell you that much,” Hudson claimed.
“It’s apparent that, historically, landowners in that upstream area that’s to be annexed has excess rain water runoff that drains into DD #5’s open ditch and it carried away.  For many years, landowners in that area have been using the DD #5 outlet, without paying anything.  Now we’re correcting that by annexing it in.” said Hudson.
“If DD #5 didn’t exist, most of us that you’re annexing would drain just fine.  The only reason DD #5 was created was to control floods, right,” Remmers argued.  “Because those landowners had to take on a lot of water when it rained hard and their land would flood.  Now it doesn’t.  So, actually, this is an improvement for them.  It isn’t going to help us any because it never did!”
“DD #5 has historically helped you from day one.  That’s what a drainage engineer will say.  I don’t want to be mean-spirited, but you’ve kind of had a free lunch for all these years,” Hudson answered.
Remmers also believed that landowners would get billed this fall for the DD clean out costs.
“Next spring, more than likely, is when landowners would get billed.  Barb will work on that as far as when the time comes,” Hopper explained.  “I think she’s looking at next spring.”
Through the years, has there been a tax on the open ditch in DD #5 asked Remmers.  He then referred to a big 36-inch tile system that was installed in 1912.  He said that whether it was $.25 or $.50 an acre we’re taxed, but it’s been going on for a hundred years.
Hudson realized what Remmers was concerned about and replied, “No!  Once the DD #5 clean out bill is paid for, it’s over.  It’s not an ongoing assessment.  It’s totally different than your real estate taxes.  A DD just pays for what their expenses are.  Once the repairs are paid for, you’re done. You won’t pay another assessment unless there’s another repair made 30 years from now.”
“There’s not another assessment?” he questioned.
“No. That’s a common misconception that people think when we talk about payments that it’s an annual payment.  No. This is a one-time payment,” Hopper explained.    
Osceola County landowner Tom Graves raised the issue of the 84” diameter steel whistle in Section 12 that’s used for a ditch crossing.  Hopper reported that their engineering plan calls for adding another steel tube beside the one that’s there to allow for higher water flows.  Then water won’t back up on the upstream side of the ditch crossing.
Landowner Lynn Hennings in Section 1 a mile north of the crossing raised concerns about today’s no-till farming practices that caused corn stalk residue to plug up the ditch he straightened out in 1957.  I have 30 to 40 acres under water right now due to a freak 84 MPH wind event a couple of weeks ago that blew in the corn stalks.  It’s the farming practices that have changed, he suggested.
“However, that 84” steel tube that’s used for a ditch crossing a mile south is still our biggest problem,” Hennings reiterated.
Hudson asked if there were any more questions.  Rohwer said she received a question that someone wanted asked about environmental impacts on endangered species.
“We’re looking out for the bird nesting season,” Hopper replied.  “But, this general area doesn’t have any threatened species that we’ve been notified for.”
“I’ve a question for the supervisors.  Why doesn’t the County, in-house, dig this DD #5 ditch out?  The County can rent an excavator with a laser and dig out the ditch to the desired grade.  Doesn’t the County have the equipment operators, in-house, that can excavate the ditch cheaper?” questioned Remmers.
Supervisor Nancy McDowell replied, “I think if we had our Secondary Roads guys do it, they would get paid a lot more.  Then we wouldn’t have enough staff to take care of the roads.  The County would have to bill the DD for the costs anyway.”
“There’s also a dollar limit to what a county can do,” said Board Chair Tom Farnsworth.  “I think it’s about $100,000.  Mostly, what we do has to be bid out to private contractors.”
“Let me tell you what the law says,” Hudson interjected.  “First of all, O’Brien County has absolutely nothing to do with DD #5 or any other DD.  O’Brien County is a totally distinct and separate legal entity from the legal entity of DD #5.  The County can do minor things and the limit is $135,000.
I recommend to county engineers, if it’s around $25,000, you can take the county backhoe out and dip out a sandbar.  But, make certain that you charge the DD a proper hourly rate for the operator and the backhoe.  The other thing is the county engineer really doesn’t want his equipment operators tied up on ditch projects because it ties up his staff. “
The Board then officially annexed in the 3,700 acre area in question.
One question went unasked during the hearing by landowners.  Hopper was asked afterwards: Can a well maintained DD generally increase the value of land within the DD and those lands upstream that may not be in the DD?
    “In a one-word answer, I would say,” Hopper replied, “Yes.
    Just having that facility well maintained will keep land values higher.  People who really understand drainage, will look at it that way.  Landowners who deal with drainage all the time really see the benefit to land values.  When it’s a DD improvement project, then that also increases land values.  I’ve made that statement before.”
    Hudson was asked much the same question after the hearing because he said he was in Britt, Iowa the day before where a new DD was created.  He said it’s rare to have a new DD created. Yes, this new DD along the Iowa River will increase land values along the river, Hudson confirmed.