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Committee Recommends Payment

By Staff | Dec 23, 2010

An interim Legislative Study Committee met last Wednesday at the Statehouse in Des Moines to discuss the ongoing dispute between The Palo Alto County Supervisors, acting as trustees for Drainage Ditch 80 and the Iowa Department of Natural Resources over a drainage assessment on Five Island Lake. After hearing testimony from several parties, the committee, co-chaired by Senator Jack Kibbie, center back, voted to recommend the state’s Executive Council pay the original drainage assessement. -- Dan Voigt photo

Editor’s Note: This is the conclusion of a report on the hearing held Wednesday, Dec. 15, by the Levee and Drainage District Law Study Committee at the Iowa State Capitol in Des Moines.

Palo Alto County Drainage Engineer Don Etler also testified that during the entire assessment process, the DNR never re-contacted the trustees to attempt to negotiate a lower assessment for the lake or even inquire how the district had arrived at the assessment amount for the lake.

“The DNR did assume that I had influenced the benefit commission to sock it to Five Island Lake. The DD80 attorney, now deceased, told me of a call he received from the IDNR’s attorney, now retired, which began with the exclamation, “Do you know what that Etler has done to us now!” Etler told the committee. “I do not believe this state attorney’s implication that the benefit commission or I acted improperly is appropriate.”

After viewing a PowerPoint on the district and the way the assessment was determined and calculated, the committee heard testimony from David Dorrf, an Assistant Attorney General representing the DNR, who re-stated the opinion that lakes do not benefit from being in drainage districts, citing the district court rulings in the DD80 case.

“The Executive Council only pays drainage district assessments voluntarily on lands above the ordinary high-water mark,” Dorrf stated. “Of course, the General Assembly would be free to legislate to pay the assessment, but it would be disingenuous to think that the lake gets any benefit from that drainage district.”

Dorrf concluded his remarks by pointing out that the Attorney General’s office refused to bring the assessment to the Executive Council because a court had rendered a decision that the state wasn’t liable to pay the assessment.

Also speaking was Wayne Gieselman, Administrator of the Environmental Services Division of the DNR.

“I have 34 years of experience with drainage issues, having worked with the Soil Conservation Service before coming to the DNR,” Gieselman said. “What we have is drainage law that is 100 years old, drainage districts that are 100 years old and they are both crumbling, much like other infrastructure in our state.”

Gieselman noted that he, too, agreed with the assessment that Five Island Lake received no benefit by draining to DD80.

“The Department will abide by the wishes of the Legislature, but I support the Attorney General’s position,” Gieselman said. “The Executive Council also does have the right to choose to pay this assessment.”

“My purpose in convening this committee today is to clear up the Code of Iowa so that everyone understands it,” Senator Kibbie said as the testimony concluded. “I’ve come up with three recommendations I’d like to present to the committee on issues we’ve heard here today.”

Doug Adkisson of the Legislative Services Bureau offered the three recommendations, the first addressing notification to state bureaus or departments in the future that would specify notices being addressed to the director or head of the bureau or department, along with the use of registered or certified mail to obtain a paper trail of proof of delivery. The committee gave unanimous approval to the recommendation.

A second recommendation addressed the revision of legislation to Chapter 468 of the Code of Iowa to clarify how lakes may be assessed. The committee also approved the recommendation unanimously.

The final recommendation addressed a review of the Executive Committee and the Attorney General’s policies regarding the payment of assessments on lakes by drainage districts. Unanimous approval was given to the third recommendation.

Kibbie then brought the issue to a head. “How many of you feel this assessment should be paid from somewhere out of the state budget?”

Senator Merlin Bartz was the first to speak.

“I would support a recommendation to have it paid by the state agency,” Bartz said. “I think it’s up to the Legislature to hold state agencies accountable for assessments that are due. The state should pay its’ fair share.”

There were nods of agreement around the conference table and murmurs of assent from the lawmakers as Bartz spoke.

“Well, the cost to the district is much more than the original $96,000,” Kibbie noted, “This is a case where we’re trying to fix where many people believe mistakes were made in, but it needs to be made right. I would leave it up to the committee to determine what steps we want to take as far as it involves the Executive Council and as it involves this payment, and I’d like to see the Executive Council pay that as the current Code requires, but I need some help to get it to the Executive Council in 2011 without some statutory change.”

Bartz offered a motion to send a recommendation to the Executive Committee to pay the assessment in the upcoming Legislative session, and following a second, the committee voted unanimously to approve the recommendation.