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Repair Project Approved Following Public Hearing

By Staff | Oct 6, 2009

It wasn’t an easy decision to arrive at, but the joint boards of supervisors of Palo Alto and Kossuth Counties voted to proceed with a repair project to Lateral B Joint Drainage District one following a public hearing Tuesday, Sept. 29 at the Palo Alto County Election Center. Around 15 interested landowners were on hand for the hearing to weigh in on a pair of proposals for a repair and an improvement to the district.

The area under consideration lies in Sections 25 and 36 of Independence Township and Section 31 of Fenton Township in neighboring Kossuth County. A petition, filed in June of 2007, requested a clean out of the open ditch to remove silt to restore the original grade of the ditch. In his report to the joint boards, Etler noted that there would be no need to reclassify the district, or to obtain additional right-of-way, as a clean out was done in the 1980’s. However, when that cleanout was done, the original plans of the district were unavailable and the project engineer at that time attempted to determine a grade level for the ditch. That grade ended up being too high, resulting in some tiles running into the ditch being submerged all the time. Additionally, the grade ended up being very flat, and water stands and becomes stagnant in the ditch in a couple of locations.

In his report on the district, Etler noted that when the petition was received, a search of old records found the original plans for the ditch, and when compared with the 1980’s cleanout, the original grade of the ditch was found to be lower than what was restored in the 1980’s.

Complicating the issue even further was the fact that wetlands were allowed to be established over top of functioning tile lines that feed into the lateral, and that the tiles were not disconnected. If any improvement work were to be done to the lateral that might affect the wetlands, Federal agencies including the Farm Service Agency and Natural Resource Conservation Service will not release landowners from any liability for their wetlands and CRP regulations if a repair is done to a drainage district that affects a wetland, especially if the lands do not meet the CRP or wetlands criteria.

In his report, Etler presented two options for the ditch, a straight cleanout with an estimated cost of $301,540, or a cleanout and restoration to the original ditch grade with an estimated cost of $495,055. The costs for the project would be spread out over the landowners according to the established benefits schedule for the 5,300 acres in the district.

However, a majority of landowners were opposed to the improvement option, with many concerned over the possible repercussions of work affecting wetlands.

Drainage Attorney Bob Brinton of Clarion appeared to represent the District trustees and read written objections to the improvement option. With over 20 objections being read into the record, Brinton noted that under Iowa Drainage law, a Remonstrance provision was possible, if 50 percent of the landowners owning 70 percent of the land in the district were in opposition to the project. “In this case, a number of acres represented are not properly documented to apply to the Remonstrance provision. From our tabulations, we have 2,961.9 acres properly documented, or 56 percent of the land that object to the proposed repair. We just cannot confirm in all those people have the proper Power of Attorney or authority to speak for the actual landowners.”

“Wait – you’re quibbling about a few signatures?” asked Darrell Berkland, a landowner in the district. “Technically, you’re right, but morally, you’re wrong.”

Another landowner expressed frustration that a petition by one landowner could cost all the landowners a half a million dollars, and wondered by the landowners had no say in such a question.

“Under drainage law, that’s the way it is,” replied Palo Alto County Supervisor Chair Ed Noonan.

“Then the law should be changed,” was the response.

“I agree,” Noonan answered.

Brinton also agreed, noting that he had proposed lawmakers consider implementing a requirement for any drainage petitioner to be required to post a cash bond with their petitions for improvements, to help discourage frivolous petitions, but lawmakers were hesitant to make such a move.

“Are there enough signatures to stop the improvement on this ditch?” asked Palo Alto County Supervisor Jerry Hofstad.

“Signatures, yes, but for acres of land, no,” was Brinton’s response.

“I’d say we should continue this to let these folks get the proper documentations that they need,” Hofstad suggested.

Brinton disagreed, however, and the hearing continued.

Don Etler reviewed the problems with wetlands and the improvement proposal, and acknowledged if the improvement were done, water would be taken off of two wetland areas owned by David and Gary Bolte. “I asked he FSA about this, and their response was that they, the Bolte’s, would be in violation of wetland practices. I know the Boards do not want to put anybody in wetlands violations.”

Etler noted that two representatives of the NRCS and FSA from the state offices, John Meyers and Don Currington, were present at the meeting.

“Let me ask, if my neighbor puts in a tile line on his land, and it ends up draining a wetland on my farm, would I be penalized for his actions?” Noonan asked Meyers, and got a negative answer. “They why would this be different?”

“Because they are all part of one drainage system,” was Myers’ answer.

Etler concluded his comments by noting he believed the improvement was the best option for the district. “But, because of the wetland complications in this issue, and the fact that so many people would be put at risk, I’d recommend the board not do any improvements to this district, just the basic repair.”

A question was asked if the entire repair needed to be done at one time, to which Brinton replied that when a petition is received, the trustees are required to restore the ditch to its original state, but that the trustees did control the timetable.

“It’s always better to do the work all at one time to get the best bids,” noted Kossuth County Supervisor Jack Plathe. “I will say that there is no way I can vote to do the improvement on this ditch due to the federal laws that are so stupid.”

“Just remember that the last time we did a repair out there, it wasn’t done right,” pointed out George Bierstedt, the petitioner for the project. “Let’s just get this done right so we’re not back in her in 20 years doing this all over again.”

With that, the hearing was closed. The board accepted the engineer’s report and directed Etler to prepare bids for the repair project. A provision was added to remove a private crossing in the ditch and if new pipe was required to re-establish the crossing, to split the cost 50-50 with the landowner. With that, a unanimous vote of both boards approved the repair project and brought the meeting to a close.