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Legal Questions Answered On Objections To Drainage Project

By Staff | Aug 2, 2011

After being presented with several objections and a request to stop any further study on a drainage project, the Palo Alto County Board of Supervisors discussed the matter with their drainage attorney during the board’s July 26 meeting. The discussion, in a conference call with attorney Jim Hudson of Pocahontas, covered concerns of some landowners in Drainage District 15 North.

Earlier this year, representatives of the Iowa Department of Agriculture and Land Stewardship (IDALS) brought a proposal for a pilot project that would involve the “re-engineering and re-construction” of a drainage district, using new technology and innovations, including the construction of a wetland to act as a nitrate removal filter. As part of the proposal, IDALS would pay 50 percent of the engineering and cost for the project. Drainage District 15 North in Palo Alto County, and its counterpart, DD15 South, were both identified as ideal for the project.

A petition for drainage relief was filed by two landowners in DD15 North, and accepted by the board earlier in the year. At that time, Drainage Engineer Don Etler began work on the proposal, working with staff from IDALS for designs. But, it is that work that prompted some concerns from landowners.

At their July 19 meeting, the supervisors were presented with objections to the project from 20 landowners in the district, which were presented by Rick Dodds, a farm manager representing the Wikert Limited Partnership. At the time the objections were presented, Dodds explained that the objectors do not want the project and do not want to see any more money expended on it.

The Supervisors were troubled by that attitude, noting that the engineer’s final report had not been submitted, and that there were no cost estimates per acre available for consideration. At that time, Board Chair Keith Wirtz expressed his reluctance to consider the objections, stating that the landowners needed to see the final report and have information in front of them before making such a decision.

Other board members agreed, and suggested that the county’s Drainage Attorney be contacted to offer an opinion for what direction the board should take on the issue.

Tuesday morning, the board received that direction. Engineer Don Etler opened the discussion with Hudson via conference call, as four of the objectors, Rick Dodds, Dale Opheim, Richard Naig and Craig Brownlee, sat in on the call with the supervisors.

“The Board asked me to compare the objectors’ list to the benefitted lands in the district, and at this point, they would have 75.3 percent of the lands,” Etler told Hudson.

“The Board has been asked to stop this project right now,” Wirtz told Hudson, “But, we have accepted a drainage petition on this district, and it’s my feeling that we have to hear the engineer’s report first.”

“You are right, Mr. Chairman,” Hudson replied. “Under statutes, when the trustees of a drainage district receive a petition, the statutes say ‘you shall appoint a competition engineer, and that the engineer shall make a full written report to the trustees. Notice the word shall that doesn’t mean you can, it means you must do it.”

Hudson went on to explain that when a report calls for improvements, statutes require a public hearing, and that is the point when objections may be entered into the record against a project. At that point, the provision of Remonstrance can come into play. Under Remonstrance, 50 percent of the landowners in a district that own 70 percent of the land can stop any project from going forward. However, if the proposed work is a repair, then the right of Remonstrance does not apply.

“I would make these points,” Hudson said. “Right now, the landowners do not know what the engineer’s report has in it; IDALS is paying 50 percent of the bills, and I don’t think they want it stopped short; so I would strongly recommend that the board continue to hold informal hearings to keep everyone informed on what is happening with this proposal, so that no one is pressured to do anything.”

Hudson continued, “The objections you have received are fine, you can be aware of them and they can even be mentioned in the engineer’s final report, but they are premature and cannot be acted on at this time.”

“The board as trustees are bound by these laws,” Wirtz told the group. “Does everyone understand that?”

All four objectors nodded in agreement.

Etler asked Hudson if the objections would need to be re-filed when a formal hearing was held.

“No, keep them on file,” Hudson answered. “They can be withdrawn and they can be re-filed on the day of the hearing, as can any objection, but they must be in written form to be recognized on the date of the hearing. This is a very important project and I really feel it would be beneficial to all the landowners to receive all the information that they possibly can from the engineer’s report.”

“I’d like to continue these meetings and get the actual cost estimates,” agreed Craig Brownlee. “I think it should proceed so I can get more information.”

“I like the ideas of meetings so that everybody knows what’s going on,” Wirtz said. “But, we still have to follow the laws.”

“I think the question is over taking marginal land and draining it and then taking quality farmland and turning it into a wetland. That doesn’t seem to make sense to me,” observed Dale Opheim.

“But it also could be of tremendous benefit to lots of acres up there, at the cost of 130 acres,” Brownlee replied.

“Sitting here on the board, I don’t like all the government rules on drainage any more than you folks do, but that’s the way we have to do this,” noted Supervisor Ed Noonan as the discussion ended.