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DRAINAGE DISTRICT MEETING
DISTRICT WARREN #11
TUESDAY, JANUARY 25, 2011
The Story County Drainage District Trustees met in the public meeting room of the Story County Administration Building to consider action on a Preliminary Engineering Report from Fox Engineering (on file in the Auditor?s Office) recommending repairs to the open ditch in Drainage District Warren #11. Members present were Wayne Clinton, chair, Paul Toot, and Rick Sanders. Also present were Scott Renaud of Fox Engineering, County Engineer Darren Moon, Drainage Clerk Scott Wall, and 34 residents of the district or their representatives (see attached sign-in sheet).
Clinton called the meeting to order at 7:35 p.m. He emphasized that nothing has been decided and the purpose of tonight?s meeting is to provide those in attendance with information about the condition of the open ditch and collect feedback on what direction they would like the trustees to take. He pointed out that this all started with a petition to the trustees from land owners in the district in 2009 asking that something be done. Clinton asked Renaud to present his report.
Renaud emphasized that, under the Code of Iowa, the county supervisors act as drainage district trustees and he was representing them in that capacity. He was hired by the trustees because a petition was submitted to the trustees asking them to look into problems of siltation and brush in the open ditch. He explained that drainage districts are watersheds served by a tile or open ditch which is held in common by the residents of the district. Code of Iowa Chapter 468 covers drainage districts and their administration.
Renaud said he is a licensed civil engineer with 25 years experience working with drainage districts. Fox Engineering does preliminary reports like the one here, creates design plans, prepares bid documents, and oversees construction but they do not do the construction themselves. That work is awarded to independent contractors through competitive bidding.
The trustees must, by law, maintain drainage districts in their original design capacity. The Code is somewhat vague on exactly what that means but the trustees cannot simply choose to do nothing once they are aware of a problem. In this district the problems are trees and brush within the banks of the ditch, bank sloughing, siltation, and cutbacks. Renaud walked the ditch 15 years ago and the recommendation at that time was to remove 4 or 5 beaver dams and the beavers. The last major cleanout of the ditch was done in 1951.
The banks of the ditch are extremely steep and the multiple flood events since 1991 have been very hard on open ditches. Increased flows from flooding accelerate erosion and bank sloughing. Left alone the ditch will become wider and start to meander which takes adjacent land out of production. Renaud showed a series of photos from the report to illustrate the problems in the ditch. Field tiles are also being exposed as the water washes away the dirt around them. This erosion moves up the tile towards the fields it is draining.
Renaud is recommending that the trustees repair the ditch and set up a long-term maintenance program to control the growth of trees and brush in the future. The repair work would be performed in the winter to prevent crop damage and would take place over two years.
Cost estimates are based IDOT estimates for various types of work and on the 100 plus projects Fox Engineering is involved with every year. Fox tracks the cost of projects they are involved with and Renaud?s experience is that this gives a good basis for estimating how much a new project will cost. Renaud tries to skew his estimates toward the high end so there are no unpleasant surprises when the bids come in. The current economic climate has made contractors hungry for work and bids on recent projects have been 10-25% lower than the estimated project cost.
The cost to each land owner in a district is based on the benefits that land was seen to receive from being in the district and was set when the district was established. In general the closer the land is to district facilities the higher the benefit as that land would have the most flooding if the district facilities did not exist. Warren #11 was established in 1907 but was reclassified during the 1951 cleanout and benefits are based on the 1951 reclassification. There is a $60,000 item in the cost estimate for reclassification but in Renaud?s experience having that done doesn?t change individual benefits to drainage significantly and it adds 6-9 months to the length of the project. Fox Engineering does not do reclassifications. There is an engineering firm in Jefferson, IA that does.
Because this project would be a repair and not an improvement the land owners cannot stop it if the trustees elect to proceed. An improvement would increase the capacity of the ditch beyond what it could originally drain. A repair merely restores the original capacity. There are a couple of options for land owners to have more control over the district. They could opt to become their own trustees. This would give them control over how the district is maintained. Once they are their own trustees they could also opt to dissolve the district. This would require a petition signed by more than half of the landowners controlling more than 60% of the lands within the district. If the district were dissolved the ditch would become the property of those whose land it passed through and they could choose to maintain it or not.
The section of the Code of Iowa dealing with drainage was largely written in the late 1800?s. The law has changed little since that time but the way the land is utilized has changed dramatically. Since only about a third of the counties in Iowa have drainage districts most state legislators don?t know anything about it and it has proven extremely difficult to make changes to drainage law. The Iowa Drainage District Association has been lobbying the legislature for years but most representatives simply aren?t interested.
Randy Hill said he had spoken to Representative Dave Deyoe about this yesterday and Deyoe didn?t know anything about it. He did seem receptive to Hill?s concerns. Sanders said Deyoe had contacted him last night and they spoke for an hour. Sanders thought Deyoe seemed reluctant to address the issue.
There are a few options on how to pay for a drainage project. The most common is a lump sum but most large drainage projects are in the $50-100,000 range and individual assessments aren?t as high as they will be on this one. The Code allows for the district to sell bonds with terms up to 20 years though most are 10-12 years. Banks buy the bonds which are tax free municipal bonds and a relatively safe investment. Renaud talked to Nevada State Bank and their current interest rate on bonds is 5.6%. He also talked to a bond security salesman who said bonds are available with rates as low as 3.5%.
One of those present commented that this was all set up so Renaud could make money. Sanders stated the Code is over 100 years old. Clearly Renaud and Fox Engineering had nothing to do with how the Code was written.
Several land owners asked why Fox had been brought in anyway. Why hadn?t the trustees asked the land owners what they wanted first? Moon explained that he had received a petition asking that something be done about the trees and siltation in the ditch. Secondary roads crews had gone out and done about $7,000 of work but it became apparent that the scope of the work was greater than they could deal with. The Code requires that the trustees obtain an engineer?s report on any project costing over $25,000. As to asking the land owners prior to the report, what would the trustees ask? The report is necessary to show the scope of the work and give a starting point to any discussion.
The project could be broken down into smaller pieces. For instance one mile of ditch could be cleaned each year. Warren #11 has 8.5 miles of open ditch which would mean a yearly assessment for 8-9 years. This would be more affordable per year but the overall project cost would be higher because you lose the economies of scale that you have with a single project.
A land owner said the Code should be revised before this project is allowed to go forward. Why don?t the supervisors tell the legislature to change the law? Clinton responded that any legislative action must start with the citizens. Write or email your representatives and the trustees. The trustees will see that any correspondence they receive is forwarded to the legislature.
Sanders asked how much the trustees had to do under the Code to maintain the district. Does it have to be put in its original condition? Renaud said the Code is a little vague on this point. It would be prohibitive to rebuild the ditch as it was originally, since it is considerably wider now. He wants to prevent meandering which eats into the adjacent lands and keep the silt out of the channel. The district should be able to move the water at the same rate as when it was new.
Gary Hendrick said he?d heard a lot about how the trustees had to maintain the district but clearly Warren #11 has not been maintained properly. Now the land owners are faced with paying a high price for years of neglect. Why had the trustees let things go so far? Moon replied that Story County maintains drainage districts on a complaint basis. That is, we rely on the land owners to let us know when there is a problem.
Renaud said 15 years ago when the beaver dams were removed the ditch was not in the same condition it is now. There have been numerous flood events in the last 20 years ? 1991, 1993, 1995, 1997, 2000, 2001, 2003, 2004, 2007, 2008, and 2010 ? and these events greatly accelerate the wear on district facilities. Many of the large district projects he has been involved in came directly after a flood event. He would prefer to see districts have a regular maintenance schedule but he doesn?t get called until things are well beyond that point.
Sanders asked how a regular maintenance program would work. Renaud said the trustees would contract with someone to check the districts on a regular schedule and keep the trees and brush down. The cost would be billed to the individual districts just as repair costs are.
Toot said the current trustees can?t speak for the actions of previous trustees but he is willing to start a program of regular maintenance on Story County?s districts. The only thing the current trustees can do at this point is move forward.
Clinton said, in the 10 years he?s been, here he hasn?t seen land owners come forward to ask for routine maintenance of the districts. That is a valid issue to consider but it is separate from what is before the trustees tonight.
Dwayne Tjelmeland said he hired someone to clean out his portion of the ditch. Why should he have to pay to remove the trees from the ditch where people hadn?t taken care of it? Bill the people who aren?t taking care of the ditch. Renaud said if you are in a district you should call the county engineer rather than maintain the district facilities at your own expense. Then everyone in the district will share the cost. Tjelmeland said if you call the county it takes them a year to get around to you and it costs too much. If he has a problem he takes care of it. Renaud did not disagree but said that?s the way the Code is written and the trustees have to operate under its restrictions.
Renaud said he recommends against reclassification. It is time consuming and expensive and offers minimal, if any, benefits. That leaves the issue of how much the land owners want to have done.
A land owner asked what becomes of the trees and silt that are removed. Renaud said the silt is typically spread on the surrounding farm ground and the trees are burned. Stumps are killed chemically to prevent re-growth.
Another owner said he has CRP buffer strips on his land and the NRCS won?t even let him drive over them. How does the contractor deal with those sorts of issues? Renaud said permit need to be acquired from the DNR, NRCS, and others. They usually come with restrictions such as what time of year you can work in certain areas.
Someone asked how far upstream Renaud went when he walked the ditch. Renaud said all the way to the end. The owner said there is open ditch all the way into Hardin County. Do they have to pay for this project? Wall said there are no Hardin County parcels included in this district so no one in Hardin County is included in the assessment.
A land owner said there was an open ditch that went up into Section 6 but the map shows it ending in Section 7. Wall said the map only shows district facilities. The open ditches were there before the district but what shows on the map was straightened as part of the establishment of Warren #11 and the ditch in Section 6 was not.
Sanders asked how many land owners there were in Warren #11. Wall replied that 92 letters were sent out. Sanders asked, in a voting situation, did the land owners get a certain number of votes based on acres or proximity to the ditch or some other factor? Wall replied as far as this project was concerned only the trustees can vote. If the land owners want to be their own trustees they would vote to elect those trustees and each land owner gets a certain number of votes depending on the size of their benefit to drainage.
A land owner asked about the benefit to drainage and how they are determined. Renaud said in this district they are determined by a 1951 reclassification. The questioner asked if the 1951 report was available. Wall replied that we have is the Report of Commission to Assess Benefits which lists each land owner, the legal description of each parcel, and the acres in drainage and benefit to each parcel. It does not explain how those figures were arrived at. We have a current reclassification from a joint district with Boone County and it does not explain the process either. In that case the engineer came to a meeting and explained how parcels in a district are assigned benefits.
A land owner said Bear Creek had been straightened decades ago and now Iowa State University (ISU) is helping landowners there to return it to its natural state to improve water quality and wildlife habitat, reduce erosion, and control flooding. Now Renaud is saying this ditch needs to be straightened and cleaned out. Which is right? Renaud said Bear Creek is not part of a drainage district while this ditch is. Drainage districts are designed to move water out of the districts where natural systems hold onto water.
Sanders asked if accepting the report implied the trustees would have to abide by it. No, it simply shows that it was received and reviewed. Sanders moved, seconded by Toot, to accept the Preliminary Engineering Report on Warren #11 from Fox Engineering. Motion carried unanimously (MCU).
Clinton asked that anyone who wanted to speak about the project step to the podium and give their name.
Jerry Bearden stated he is not in favor of the project as proposed. The ditch has been allowed to deteriorate to the point that it is not fiscally possible to restore it. He is not opposed to spot repairs.
Randy Hill read a letter (attached) drafted by his mother and himself opposing the project. He also read some data from ISU Extension Service related to the Bear Creek watershed. It indicates that trees and shrubs provide stable soils, clean water, wildlife habitat, and timber resources. H e also referenced data from the Leopold Center at ISU indicating that trees and shrubs do assist in stabilizing stream banks. He said in the photos Renaud had shown the worst bank sloughing was in treeless areas. He thinks Dave Deyoe is sympathetic to the land owners. Hill believes the district should be assessed on an equal number of dollars per acre and the legislature can change the law to make that possible. He hates to think what will happen to anyone who comes on their property without checking with them first. To try to shove this down the land owners? throats without going to the legislature first is just ridiculous.
Clinton wanted to clarify that when the engineering report says ?all trees? it is referring to the trees within the banks of the ditch. He said, while the Code requires that the trustees ?do something?, it is the land owners that must live in the district. Because of the lack of maintenance in this area the land owners are faced with a couple of choices, to either do something to prevent further deterioration or to become their own trustees and dissolving the district. That is the purpose of this meeting ? to learn what the land owners want.
Clinton said in addition to the letter read by Hill the trustees had received 9 other letters (attached) from property owners. All of them are in opposition to the project. He asked Wall to include them as part of the record of this meeting.
Dick Pringnitz, Hertz Farm Management, spoke in favor of the project. He represents two land owners in the district, Mary Hathpath and Robert Nady Trust, and they are both in favor. Those present have benefitted from the district for years and now they don?t want to pay for it. At some point in time neglecting the district will impact the productivity of people?s land.
Jerry Hill said Hertz heavily tiled 80 acres they control last year and now he gets all their water flooding his land. They get more benefit but they don?t have to pay more. Of course they are in favor. They want to suck up to their clients so they can drain their land and dump the water on him. Also, the county road bridges are too narrow for the increased flows, which causes the water to back up even more. Renaud?s assistant last year told Jerry he thought the bridges were too narrow. He asked Renaud what he thought about the bridges. Renaud said it was immaterial. Hill told Renaud he wants nothing done and he?d like to see Renaud leave right now. If the project is done and a maintenance program is set up is Renaud going to be back every year wanting more money? He asked Renaud how much he?d made on this so far. Renaud said about $6,000. Hill said Renaud had told him last summer it would be about $20,000. After repeated requests from Toot and Clinton to leave the podium Hill returned to his seat.
Wall said he could speak to what a regular maintenance program might look like. Hamilton County contracts with a lawn care company which checks the open ditches on a three-year, rotating schedule ? so many per year. They spray the trees and brush before they can grow large enough to create a problem and bill the individual districts. It does not involve Fox Engineering or any other engineering firm. It is a contract between the company doing the maintenance and the district trustees.
Sanders asked for clarification. Is it correct that the only time the trustees would bring in a consulting engineer is if they believe a given project?s cost will exceed $25,000? Wall said that was correct. Maintenance will be substantially less than $25,000.
Toot said we were at the point where the trustees need to decide on some direction. If those present want to elect their own trustees or to dissolve the district, the trustees will allow them to proceed as they see fit.
Clinton said the trustees could defer any action this evening if the land owners want to elect trustees but he would like there to be a straw poll of those present as to what direction to take. He asked how many were in favor of doing something, not necessarily the entire project but something. Four people raised their hands. How many would like to see the trustees do nothing at this time? About 29 hands went up.
Clinton said the trustees could defer taking action tonight but that is not really productive. Moon said, under the Code, the trustees must do something. If the land owners want nothing done then dissolution of the district should be considered.
Jerry Hill said they do not want outsiders coming on their land to survey, repair, or spray chemicals without them knowing about it in advance. They are happy with things the way they are now.
Sanders said that is exactly why dissolution looks like a viable option. Then each landowner can choose to maintain his portion of the ditch or not. As a trustee the Code gives him no choice but to act. He sympathizes with the land owners and agrees that parts of the Code don?t make sense but that?s what the trustees have to work with. Sanders encouraged everyone to pick up the phone and call Dave Deyoe and write to him and to other legislators and to the trustees. He guaranteed the trustees will forward anything they get to the legislature but it will take more than one drainage district to get the legislature to act.
A land owner asked what was needed to dissolve the district. Moon read Code Section 468.250.1 which states ?a majority of the landowners, who, in the aggregate, own sixty percent of the land?? Sanders said with 92 letters being sent out for this meeting they will need 55 to 60 land owners who own more than 60% of the ground to say they want to dissolve the district.
A land owner asked if they had to be their own trustees to dissolve the district. Sanders and Clinton both said if a valid petition for dissolution was submitted they feel the Code leaves the trustees no choice but to dissolve the district regardless of who the trustees are.
Clinton mentioned that earlier in the meeting Mr. Tjelmeland said he and others had taken care of problems in the ditch without contacting the county engineer or the trustees. They saw something needed to be done and they did it. Is there any provision in the Code covering this? Should they have worked with the county engineer or an outside engineer? Moon said the Code does not allow individual owners to spend district funds. If they do work on their own they can?t come to the trustees afterwards and expect to be reimbursed.
A land owner asked about the original petition. Why not just do the work requested by that and leave the rest. Toot responded that whatever work is done, either the whole district or just a part of it, the entire district still gets charged.
Toot cautioned that if the district is dissolved and the owners let it go it won?t be too many years before the area is a wetland again. Someone said not if the individuals maintain the ditch. Toot said that?s right but will everybody who has the ditch on their land take care of it?
Clinton said, based on what he was hearing it might be best for the trustees to defer action to a later date to give the land owners time to consider what they?d heard tonight and decide on where they?d like the district to go. How long would they defer action? Clinton said with the
magnitude of this problem they wouldn?t want to defer indefinitely.
Sanders asked Renaud if the work were to be bid out so it could begin in the fall how much time he needs to prepare design work and bid documents. Renaud said the surveying and design work would be done in the spring but the bidding can happen any time. Sanders said we could come back in March then, so the owners have some time to decide what they want to do. The trustees could defer action for 60 days to give the land owners time to think about being their own trustees. Would that leave Renaud enough time to prepare design documents for bidding the project? Renaud said yes.
In response to several people unhappy with Renaud?s fees Sanders pointed out that this was not a money making scheme devised by Fox Engineering. People in the district submitted a petition and the trustees hired Fox to prepare a report.
Moon said the whole thing started with a request for tree clearing and the Secondary Roads crews did about $7,000 worth of work. At that point it had become apparent that there was more than $25,000 of work to be done so Moon brought it to the trustees and Renaud was asked to prepare the report.
Responding to a question about dredging Renaud said the plan is not to dredge the entire ditch. There are areas that have a siltation problem and there are areas that are okay. An owner said he didn?t want anyone one his property. Renaud said he knows they think the land is theirs but the district has certain rights of access granted by the Code so the ditch can be accessed and maintained. He said if people are okay with meanders on their land and it doesn?t hurt anyone else that?s fine. Several people had referenced the Bear Creek project. If you go up to Bear Creek the channel is 2-300 feet wide and a lot of people aren?t going to accept that. The Warren #11 ditch is 75-100 feet wide now.
There was a question about whether the district was strictly an open ditch or if there was tile out there as well. Wall replied that it is predominately an open ditch district but there is some tile at the north end and scattered along the ditch. Any tile that shows on the map of the district is part of the district. If it isn?t on the map, it?s private. There are also some tile districts that are part of Warren #11 so those lands exist in two districts.
Hendrick asked, since the trustees are acting on a petition, is there a required number of people who have to sign the petition for it to be valid. Moon said a petition is another form of complaint and just gets the ball rolling. It isn?t the number of people who complain so much as the scope of the work. There is nothing in the Code that requires a certain number of petitioners. Hendrick asked what would happen if the petitioners withdrew the petition. Moon and Sanders both said once the trustees are aware of a problem it doesn?t go away because people change their minds.
There was a question about erosion damage where the ditch parallels a county road. Moon said the road crews had to go out and do some work to prevent damage to the road. In that case the district was probably not billed.
Renaud said right-of-ways presented a gray area as far as who does what work. Since E18 needs some work done and the original petition was for the ditch north of E18 that would be the place to start if the trustees just wanted to address a portion of the ditch.
There was a question about how many tiles were plugged. Renaud said most of the plugged tiles were in the upper portion of the ditch. It wasn?t possible to tell in most places because there were high flows and the tiles were under water.
Sanders moved to defer a decision on whether to proceed with cleaning out the open ditch in Warren #11 to March 25, 2011. If, at that time, the supervisors are still the trustees and no apparent action is being taken by the land owners some form of repair will be considered.
Toot affirmed that the trustees would have to move forward if the land owners have not taken action by March 25. He asked if Renaud could prepare an estimate of costs for cleaning the ditch north of County Road E18 which is what the original petition was requesting. Renaud said that would not be a problem.
A land owner asked why start at the top of the district to clean the silt out. Shouldn?t you start at the bottom? Renaud replied that most of the siltation is at the top of the district. With all the high water flows the last few years the bottom end of the ditch is relatively clear. The high flows are hard on the banks but they are good for moving silt out.
Toot seconded the motion by Sanders. Clinton asked if Sanders or Toot had any final comments. Toot said if no action is taken by the people in the district by March 25 he believes it is the responsibility of the trustees to move forward with some sort of repair in Warren #11. Sanders asked Wall if he could help the land owners with the dissolution process. Wall said he can provide the pertinent Code Sections and owner names and addresses. Clinton called for a vote. MCU.
Sanders moved, seconded by Toot, to adjourn. MCU. Meeting adjourned at 10:05 p.m.
Scott T. Wall