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Interim Committee Votes To Recommend Drainage Payment

By Staff | Dec 21, 2010

DES MOINES – Even though it isn’t a guarantee of a check, you could call it an early Christmas gift for the trustees of Palo Alto County Drainage District 80. On a unanimous vote of the Iowa Legislature’s Levee and Drainage District Study Committee, the state’s Executive Committee will receive a recommendation to pay a drainage assessment of $96,000 to Palo Alto County. The recommendation came late Wednesday afternoon, Dec. 15, following a day-long hearing by the committee in the statehouse in Des Moines.

For the Palo Alto County Supervisors, acting as trustees of DD80, the recommendation could be a fitting conclusion to a long, arduous disagreement involving several court cases and countless hours of legal maneuvering by the Iowa Department of Natural Resources to get out of paying an assessment against Five Island Lake, dating back to 2005. The assessment came about following an annexation of lands into DD80 that year.

In Wednesday’s hearing of the committee, Senator Jack Kibbie and Representative Helen Miller served as the co-chairs of the study committee, which was comprised of five senators and five representatives. Testimony began at mid-morning with Dean Lemke, Engineering Supervisor of the Iowa Department of Agriculture and Land Stewardship, who updated the committee on several drainage issues and issues related to drainage systems. In the course of his remarks, Lemke took note of the Five Island Lake issue as one that needed resolution for all parties involved.

Testimony on the Five Island Lake issue continued after a noon recess, with John Torbert, Executive Director of the Iowa Drainage District Association, presenting a statement to the committee. In his remarks, Torbert noted that, “as an outsider, looking in on this case, the best characterization I can use to describe how this case appears to me is puzzling. I truly have difficulty understanding how we got to where we are today.”

Torbert reviewed the facts of the case, which revolved initially around the DNR’s contention that they never received the original notice of assessment, or that the right persons at the DNR never received the assessments. After legal challenges that ruled against the county, an attempt was made to refer it to the Executive Council, but the state Attorney General’s office would not allow that to happen. “Again, puzzling,” Torbert said. “So, here we are today, some three-plus years later still talking about Five Island Lake. There is very little disagreement the state’s “expert” witness aside that the lake would be benefitted by this project.”

Torbert paused. “I would point out to the committee that this amount is not some program that the state can decide to fund or de-fund. It is a bill due and payable to the county whose supervisors are the legally constituted trustees of the drainage district.”

Palo Alto County Drainage Attorney Robert Brinton of Clarion spoke to the committee, also briefly reviewed the history of the dilemma and pointed out that according to a district court judge’s ruling, “the problem was not the method of notifying the DNR, rather, it was the failure to inform the DNR of the consequences of the failure to respond.”

“In this situation, the department (DNR) chose to use legal technicalities to avoid paying a lawful assessment against Five Island Lake,” Brinton stated, “and therefore benefits from the improvements without paying anything, and consequently transferring $96,633.83 to the private landowners in the district.”

Brinton compared a similar court case involving Drainage District 77 and Rush Lake, also located in Palo Alto County, in which the DNR objected to a similar drainage assessment by claiming the lake was not land. “Blacks Law Dictionary states; LAND, in the most general sense, comprehends any ground, soil, or earth whatsoever, as fields, meadows, pastures, woods, moors, waters, marshes, furzes and heath.”

Brinton continued. “The Judge stated in his opinion “No surface water exists to be drained.” Judges are wise and strive to always render an opinion that is sound in fact and law. However, the opinion of a Judge still cannot, even though a well reasoned opinion, change the laws of nature.

“Likewise, the DNR, cannot, through regulation or legislation stop the waters of Five Island Lake from flowing into the Drainage District 80 open ditch when the lake level rises about the high water mark.” Brinton added.