Drainage District Hearing Q & A Session Instructive to Landowners

By

Loren G. Flaugh

Part III

“There’s a lot of process to come.  This hearing is the very first step in a number of steps.  Public hearings are held at every step along the way.  I rarely see the initial hearing result in final decisions for the project.  It’s too much information for the landowners to soak up, for the Board, and the engineer. It’s too much to do all at once,” concluded Drainage District (DD) #5 attorney Jim Hudson after an informative Q & A session at the Tuesday, Nov. 29, 20016 O’Brien County supervisors meeting.

    Attorney Hudson, with the Hudson Law Firm, and DD #5 Project engineer Richard Hopper, engineering director with Jacobson-Westergard & Associates, entertained a lengthy Q & A after their presentation of detailed information related to the estimated $200,000 project.
    Osceola County supervisor elect Jerry Helmers was the first with questions.  Helmers is a landowner who’ll eventually be impacted by the DD #5 cleanout due to land annexed into the DD. 
    “As I understand, Osceola County landowners have no say in this DD #5 cleanout project?” questioned Helmers.
    DDs can cross county lines and land in the entire watershed is likely to be annexed in.  That’s one method.  Another method, besides annexation, is to create a joint DD between both counties which then becomes an entirely new legal entity.  Then you’d have a say in this matter and vote on everything. Landowners in Osceola County will help pay the costs of the work done in DD #5, “but it’s a one-time assessment.  It’s not an ongoing assessment.” Hudson stressed.
    Helmers asked, “Who determines what land needs to be annexed in?”
    Hudson replied, “The project engineer and an annexation commission will make that determination.
    “Should Iowa Code Chapter 468 be revisited,” asked Helmers?  The issues of drainage and who pays what didn’t seem fair to him.
    “I’m not in favor of revisiting that law and here’s why,” answered Hudson.  “The legislature doesn’t have much understanding of drainage.  Every time we open up drainage for discussion in Des Moines, I’m afraid we’re going to backslide.  I’d rather work with the good stuff that we have in the procedures.
    Once you get some supervisor’s experience, I think you’ll see that drainage is pretty doggone fair.  Every part of this DD #5 watershed—it doesn’t matter if its urban or agricultural will pay their fair share of the DD #5 cleanout costs.  Landowners should see better crop yields and better land management with good drainage.”
    Hudson explained further how water draining from Osceola County DDs #8 and #12 flows south into O’Brien County DD #5 and that’s why those northern landowners help pay the cleanout cost.  If the two Osceola County DDs went through a cleanout process, the water from DD #5 still doesn’t flow north.  That’s why DD #5 does not help pay the two DD costs further north.
    Roger Westphal expressed his concern about a bridge on Van Buren Ave. adjacent to his land in Section 12, Lincoln Township.  Westphal said in a heavy 5-inch rain, the bridge on the secondary gravel road becomes a bottleneck and water backs up onto his land and floods bad.  He said that once the ditch is cleaned, even more water would overwhelm his land due to the bridge having too small an opening.
    “It looks to me like this bridge needs to be replaced before the cleanout of the drainage ditch is done,” argued Westphal.   
    Hudson replied, “The taxing and management authority for secondary roads is the County.  The drainage law requires that this roadway authority must install and maintain proper sized bridges or culverts to allow for higher water flows to pass.  If the bridge impedes the flow of water, it must be replaced or fixed.”
    Westphal suggested, “The next bridge down the line will also be too small and may need to be changed.”
    “Roads can’t be or become dams.  The County doesn’t want the water to rise so high that it washes out a bridge,” said Hudson.  “The DD doesn’t pay a nickel for a bridge replacement.  The entire population of the county will pay for that through their taxes paid into the County.  A bridge replacement should be done in coordination with a DD cleanout.”
    “More often, culverts are a problem than bridges because a bridge has a more open design,” Hopper added.
    Larry Hennings, a landowner also in Section 12, brought up probably the driving issue that brought the whole DD #5 project to light.  Hennings contends that an 84” pipe on an adjoining property to the south is used as a ditch crossing thereby impeding drainage of water from his farmland.  
This became of lengthy discussion with many questions asked.  Hennings calls the 84” pipe ‘the Hoover Dam’.  He claimed it needed to be removed so the water can go through.
Hopper said he has studied the size of the pipe and the elevation.  He said it may have been installed by the County too high in the early 1990s and it may be undersized.  At any rate, Hopper said he plans to investigate this matter more before he submits his final engineering report.  
Hudson weighed in on this vexing issue by explaining the complicated legal issues that encompass a natural stream versus a man-made ditch.  Hudson said there’s a lot of misconceptions about a situation like this.  
“When a DD goes through and digs a ditch across farmland, now the farm has become severed.  DDs should then pay severance damages to the landowner. The landowners would sometimes use the severance damage check and pay a contractor to build a sturdy crossing to get to landlocked areas of the farm.  
It probably wasn’t correct for the secondary roads engineering department to become involved in 1990 and install the 84” pipe because this is a DD ditch.  Maybe the County did this out of the goodness of their heart.  Anytime anything is in the DD right-of-way that impedes the flow of water, then whoever is responsible for that needs to remove that impediment.  
There’s a lot of incorrect interpretation of DD laws and the usage of the law throughout the state,” Hudson explained.
Another questioner asked Hopper how much the water falls from the south end of DD #5 back up to the north end.
“As far as the slope, the lower end of DD #5 is at .11%.  It’s about the same slope throughout.  That’s not very much, but that’s a lot more than what we’re getting in many other districts that were built.  It’s equal to a little over an inch of fall for every 100 linear feet of ditch.  One recent project had a slope of .03% which is about 3/8ths of an inch for every 100 linear feet.  They will take water, but it’s real slow and it still ends up with sediment,” Hopper explained.
One Osceola County landowner expressed his dislike at how a DD #8 cleanout project wasn’t done as well or correctly as it should have been.  O’Brien County Board Chair Nancy McDowell asked that the discussion and hearing return to matters with DD #5.  
Hopper was asked how the spoil from the ditch is to be stored on the right-of-way to create what’s called a spoil bank.  He said he’d send out a notice to the landowners asking for the right to place it on CRP ground next to the ditch.  
Hudson suggested the need for some additional right-of-way to give the contractor a sufficient area to work and store the spoil from the ditch.  The landowner does have permissive use of the spoil bank for planting buffer strips, crops, cover crops or grazing.  The landowners can specify which side of the ditch the spoil is stored, but in most cases, the removed silt will be stored on both banks.  
Landowners questioned the instances when surface water could pond behind the spoil bank and not get into the cleaned out ditch.  Hopper said that is when the proper sized surface drain may need to be built to drain the surface water under the spoil bank and into the ditch.  
“This brings up a good point,” said Hudson.  “The engineer and the supervisors need you landowners to be their eyes.  When you see these things, you need to bring this to the attention of the Board, contractor or the engineer.”
“One thing about the assessment that I disagree with is that the landowner right on the ditch gets assessed a higher percentage than those further away from the ditch,” one landowner noted.  “That doesn’t seem right to me.”
“Part of it ends up being soil types where the lower areas need more drainage.  If you’re close, it usually benefits you more because that would’ve been swamp or whatever, if that ditch wasn’t there,” Hopper answered.  “However, this has been changing in recent years.  Re-classification now assesses landowners further away a little more than what they used to.  I have seen so many fields pattern tiled even though it is rolling hilly land that you’d think wouldn’t need it.  Everything now is getting tiled.”
“I may not be here during your re-classification hearing,” said Hudson.  “Here’s a quick lesson on assessments.  When we started with DD’s in the state, the engineer only used one factor to determine your assessment.  That was the proximity you were to the ditch.  That was woefully inequitable.  
Now, the engineer uses 5 or 6 factors and this methodology changed throughout the state in the 1950s to 1970s. Proximity, soil types, slope and usage are some of the factors now used to determine assessments.  Therefore, the landowners further away are going to pay more. More and more, you may start to see reclassification done ahead of the project.  Now it’s mostly done after the project is finished.”
Supervisor elect Helmers again expressed his concern for annexation.  “Eventually, I believe a majority of the area in DD #8 and DD #12 will be included in this somehow,” Hopper suggested.  Hudson said he’d talk to Hopper to see how to proceed with this.
“The classification commission will make that determination and make a report.  Then, there will be a hearing after the notice is published.  You landowners will attend that hearing just like today,” Hudson advised.  “Frequently during the construction, we discover things that are coming into our ditch.  That’s why we wait until after the construction to do the annexation.  If we annexed now, we may not know everything that’s out in the field because there’s no records of these things.”
The next hearing is like to be to discuss the final engineering report and possibly let bids for the project.