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DRAINAGE DISTRICT MEETING

DISTRICT WARREN #11

MARCH 29, 2011

The Story County Drainage District Trustees met in the public meeting room of the Story County Administration Building to consider a revised repair of, and hear input from landowners in Drainage District Warren #11 (Warren #11). Members present were Wayne Clinton, chair, Paul Toot, and Rick Sanders. Also present were County Engineer Darren Moon, Assistant Engineer Tyler Sparks, Drainage Clerk Scott Wall, Scott Renaud of Fox Engineering, and 30 district land owners and members of the public (see attached sign-in sheet).

Clinton called the meeting to order at 7:05 p.m. and spoke about what had happened since the meeting on January 25, 2011. At that meeting land owners were given 2 months to consider a $794,000 project and what actions they would like to see happen. A petition to dissolve the district has been circulating during that time. The trustees also had time to consider options and Renaud has a ?bare bones? proposal addressing the area covered by the original petition for repair of the open ditch.

Renaud presented a brief summary of what he had found in a visual inspection of the Warren #11 open ditch and his original recommendation for repairs. Because of concerns with the cost of the original proposal to clean 8.5 miles of open ditch he has scaled that back (see attached) to only address 2 miles of ditch north of County Road E18, the area covered by the original petition to repair the ditch. The scaled down project will cost an estimated $234,190.00, about a third of the original proposal.

He emphasized that if this project is done it does not preclude work being done on the remainder of the ditch in the future. There are significant issues south of E18 that will have to be addressed at some point. This proposal addresses what he sees as the critical needs in the district now.

Problems facing the district now are extensive tree growth, bank sloughing, channel meandering, siltation, and tile outlet washouts. The trees are not generally a problem but they block equipment from accessing the ditch for maintenance, shade out crops along the ditch, and provide materials for beavers.

The ditch north of E18 is heavily silted in and erosion is starting to threaten half a mile of County Road S14/620th Avenue which is a gravel road in that area. The silt needs to be removed as it is blocking several tile outlets into the ditch so they are unable to function. Downstream from E18 there are several point repairs that need to be done but most of the ditch can be left ?as is.?

Problems south of E18 that must be addressed are bank sloughing, siltation, tile washouts, and beaver dams. These are not included in the estimate and would add to the cost of the project.

Renaud said if land owners wish to maintain their portion of the ditch themselves they would have to meet the requirements of the Code of Iowa and have the permission of the trustees.

Clinton was concerned about allowing people to work on their part of the ditch. Would the district be expected to pay them for the work? Renaud said that could only happen if they met all the requirements of the Code and went through a bid process. Even then the work would have to be under the supervision of the county engineer. If a land owner wants to do work on the ditch at their own expense and it won?t affect the performance of the district that?s fine but the trustees would still want to be notified beforehand.

Sanders asked about the repairs to the ditch along 620th Avenue. Renaud said because the district ditch was inside the ROW the county would repair their side of the ditch along the road with county road funds while the district would only have to pay for repairs to the side of the ditch away from the road.

Sanders said in the last two weeks the issue of the ditch being in a flood plain had come up. What additional permits and requirements would be necessary to work in the flood plain? Renaud said there should be no additional permits over those required for work on any drainage district because they are repairing an existing facility. If they wanted to make an improvement additional permissions would be required because the district would be doing something new.

Sanders asked about maintenance of the ditch once repairs are completed. Moon spoke about a proposal from Weed Commissioner Joe Kooiker and the previous county engineer (on file in the Auditor?s Office) which would put districts into one of five categories based on their condition. The category a district fell into would determine the nature of the initial maintenance program. The goal would be to get all districts into the best category over time.

Sanders wanted Moon to talk about the maintenance proposal so the land owners would know the trustees are looking beyond this project to keep any district from deteriorating to the point Warren #11 has done. That being said he also wanted to make clear that the current trustees are committed to addressing the problems in the district now. Just because nothing was done the past 40 years they are not going to say, ?Well, we aren?t going to do anything either.?

Toot said that looking at the Code he wasn?t completely clear on what the trustees were obligated to do. He read from the section of Iowa Code dealing with repair and maintenance of drainage districts. Section 468.126.1 states ??the board of trustees shall keep the improvement in repair as provided in this section.? Section 468.1.a says ?The board at any time on its own motion, without notice, may order done whatever is necessary to restore or maintain a drainage or levy improvement in its original efficiency or capacity,?? He said the term ?may? gives the trustees some leeway in the actions they take. Sanders said he noted the first section contains the term ?shall? which forces the trustees to act.

Sanders asked Renaud if the reduced project represented the minimum work that had to be done. Renaud said his preference is still to do the entire 8.5 mile project but this is the area that must be addressed. There are also point repairs downstream that should be taken care of and are not part of his estimate. If land owners downstream from E18 want their part of the ditch repaired the trustees will have to authorize that as well. If the reduced project is done he thinks the remainder of the original proposal will eventually have to be done and will probably take place in stages, one or two miles at a time.

A land owner asked how drainage district benefits are determined. He believes they are unfair in Warren #11 and wanted to know if other district were the same. Wall replied that all districts in Iowa operate under the same Code Section. Warren #11?s schedule of benefits is by no means unique.

Another land owner said the classification of Warren #11 may have been fair in 1911 but the land is farmed differently today. When the district was formed a lot of the work was done by hand and someone far from the ditch did not have ready access to it. Today farmers 3 and 4 miles from the ditch can run tile to it relatively easily. They are now getting a benefit that wasn?t available to their predecessors and should be paying more.

Clinton asked about financing the project. How would payments be arranged and what had the trustees learned since the January meeting? Renaud said land owners can pay everything in a lump sum or, under the Code, spread their payments over 10-20 years. The timeframe is set by the trustees. Most counties use one of two options to pay for these projects while they wait for payment from the district residents. One is to stamp warrants and sell them to a bank which then gets the amount on the warrant plus interest. Most counties have chosen to take the role of the bank and finance projects internally. The counties can get a better return than they can with other investment vehicles and can offer the district better rates than a bank would.

Sanders said he knew of two methods to deal with the perceived inequities in benefits to drainage. One is to change the Iowa Code through the legislature. He pointed out that State Legislator Dave Deyoe was attending and thanked him for coming. The second method is reclassification. Renaud concurred and said, in his experience; reclassification costs a lot of money and does not significantly change individual assessments.

A land owner said he has a high assessment because his land was originally part of a parcel adjacent to the ditch. Now, his parcel is separated from the ditch but he is still paying as if he is next to it.

Renaud said he agreed there are things about drainage that don?t seem to make sense. The Code section was written in the late 1800?s and has changed very little. The legislature has been unwilling to make changes to the Code. The problem with trying to change the Code is only about a third of the counties in Iowa have drainage districts. They are largely agricultural counties so they may only have 10-15% of the state?s population. They legislature doesn?t have a lot of interest in extensively rewriting a code section that benefits a relatively small percentage of the state?s population.

Moon talked about the Iowa Drainage District Association (IDDA). They are a state-wide organization that promotes drainage issues and have a full-time lobbyist to bring their concerns to the legislature. They require dues from member drainage districts. Their website is www.iowadrainage.org.

A land owner asked about Story County?s share of the $234,000.00. Renaud said the county?s costs for repairing the ditch along 620th Avenue and 120th Street is not included in his estimate. The county does receive a benefit to ROW and will be assessed just as the land owners are. Wall said the county?s share of the $234,000.00 is approximately $33,000 from the engineer?s office and $7,000 from conservation.

A land owner asked about the remainder of the district below E18. Renaud said his preference was still to do the entire project. Historically the trustees have preferred to wait until the situation becomes intolerable then are faced with large projects like this one. Renaud has been adamant with previous boards that ongoing maintenance needs to be done but it hasn?t happened.

Sanders said going forward he expects the current trustees to handle districts differently. All the open ditches in the county should be looked at every two years as part of a regular maintenance program so we aren?t back here in 20 years facing another expensive repair. We will start catching problems before the land owners have to complain and all our drainage districts should expect to see more, smaller projects and fewer things like this.

Toot echoed Sander?s sentiment. His concern is if we only do to north part of this ditch what happens to the rest of it. How are we going to go about maintaining it if it hasn?t been cleaned out?

Renaud said if the trustees approve the reduced project and land owners downstream from it want work done on their portion of the ditch the trustees will have to add that to the project. If everyone wants some work done we are back to the $794,000.00 but his sense is that isn?t going to happen.

Clinton wanted to make clear that whatever is done, be it the full project or the reduced version, everyone in the district will be assessed a portion of the cost. If, two or three years down the road, a land owner south of E18 starts having problems the trustees will have to repair that portion of the ditch and there will be another assessment for everyone.

Sanders said he sees three options going forward. To do nothing is not under consideration ? as trustees they have to take some action. The trustees can do a project of whatever scope to address the problems in the district, they can have the district reclassified (which the engineer does not recommend, or the land owners can dissolve the district. He knows there is an ongoing effort to get a petition together to disband the district and that is dependent, largely, on what happens tonight. Can we talk a little about what dissolution would look like?

Clinton said he doesn?t believe the board, acting as trustees, can dissolve the district. Sanders said the legal advice the trustees have gotten is not to dissolve the district because the county could be held liable for problems that occur after dissolution. If the land owners want the district dissolved they will have to elect their own trustees and dissolve it themselves.

Clinton said there was an item on the agenda to accept a petition but, so far, the trustees have received one page signed by one land owner. There are probably more pages in possession of those here that could be submitted any time. He invited those present to express their opinions on doing the reduced project or some project or dissolving the district.

A land owner asked what, exactly, the district is getting for $234,000.00. Renaud went through his estimate line by line, explaining each item. He emphasized these were only estimates. The actual cost won?t be known until the work is bid. The district pays the actual cost of the project, not the estimated cost.

A land owner said the ditch parallels 120th Street as well as 620th Avenue. Will the county pay for repairs along that segment? Renaud said he didn?t think the ditch was inside the 120th Street ROW and would be entirely a district concern.

A land owner said, once the ditch is clean, what is the county going to do about the bridges? They are too narrow and restrict water flow. Renaud said that from a drainage district standpoint he didn?t care about the bridges. They are county facilities, not district facilities. They can restrict the flow of water and that does impact the district but he would let Moon talk about that.

A land owner said the Moon hasn?t looked at the bridges and doesn?t know how they will affect the district. Sanders and Clinton both said Moon has looked at the bridges and presented a five year road plan at the regular board meeting this morning. That?s for the whole county because bridges are not a unique concern of this district. They asked Moon to repeat what he had presented earlier today.

Moon said bridge size is a countywide issue. It is cost prohibitive to design bridges to span an entire floodway. This is true across the county. When you have 100 year floods the bridges are going to cause water to back up. They are designed to pass a given amount of water under normal conditions. The county has 284 bridges and gets about $300,000 a year from the federal government to help maintain them.

Jerry Hill asked why it was alright for the county not to fix its bridges because there wasn?t any money but the district land owners have to pay for this project whether or not they can afford it.

Moon said land owners are the county. If they want to pay more taxes to get the bridges fixed Moon is all for it. Sanders said there are more bridges than just the ones in this district. Funds are directed first to repair bridges in danger of closure so roads can be kept open.

Hill repeated that the bridges in the district are inadequate and no amount of district repairs will help if something isn?t done about the bridges. Moon replied that the county is struggling to address structural needs of existing bridges without sufficient funds. They simply cannot look at hydraulic issues as well.

Hill said the county was unwilling to do anything for the land owners and they were getting screwed.

Clinton said the county and the trustees were here tonight because they do want to work with the land owners toward a solution. To say otherwise is a misstatement. He understands that the land owners are more emotionally involved but there have been some options put forward and the trustees are requesting feedback on those options. The trustees will take into account everything presented here and try to make a decision that is in the best interest of the district and of the county. There are various ways for the county to fund projects and departments but in drainage districts the trustees have to go by the Code.

Sanders said no one is disagreeing that bridges can cause issues in flood events. While the bridges are a legitimate concern they are outside the scope of this project.

A land owner said it seems Fox Engineering gets all the jobs with Story County and they are very expensive. It seems like there is some kind of sweetheart deal between Fox and the county engineer. Where does Renaud come up with his estimates? Aren?t there other engineer?s that can do this work? Clinton responded that the county uses Fox because this is their area of expertise. He resented the implication that the county is giving Fox preferential treatment and asked that the conversation be kept on a more civil level. Fox is only doing the engineering work. They will not be doing the actual construction, only providing an estimate of its cost.

Renaud said he does 30-40 projects per year and he knows what things cost. All his estimates are based on prior and current projects Fox is involved in. He has an agricultural engineering degree from Iowa State, he?s good at his job, and he grew up on a farm and understands the land owner?s concerns. If they want to find another engineer go ahead but the costs will be about the same.

Sanders said he believes Renaud knows what he?s doing and his estimated costs are valid. They are just estimated costs. The district will pay the actual costs of the project when it is completed.

Wall said the engineering fees are probably more certain than the rest of the costs since they are Fox?s fees. The construction costs are what can?t be known precisely until the project is bid.

A land owner asked about the 5 miles of open ditch in Hardin County. It all drains into Warren #11. Renaud said no lands in Hardin County were included when the district was established. He doesn?t know why. There may be a separate district on the Hardin County side.

Renaud said the way the district boundaries are set the county line is as far as we go.

Hill asked about sections 3 and 4 in Warren Township. The district map he has shows them in Warren #11 but they are not all being assessed.

Wall referred to a different map of the district on display. It was based on what lands were shown to be in the district in the 1951 classification report. The district maps tend to show the general outline of the district but the report is what determines which lands are in or out when there is a discrepancy.

There was a question about Warren #54. Wall responded that it is a tile district that outlets into the Warren #11 ditch. Part of that tile district is included in Warren #11 as are all of Districts Warren #57 and #26. Those areas can receive assessments against both Warren #11 and themselves. Why all of Warren #57 was not included is something he can?t explain.

Sanders asked if that were something reclassification could address. Wall said yes, absolutely. The one reclassification Story County has done did bring additional lands into the district but did not change the assessments significantly for those already in the district.

A land owner asked if that meant no one in Hardin County had to help with this project even though their water is coming into this district. Wall said that was correct. He said the way to try to include the people in Hardin County would be to do a reclassification. Because it would cover a much larger area than Warren #11 currently does the expense would be correspondingly higher.

Renaud said there may well be a district in Hardin County that stops at the county line. We don?t have access to the Hardin district maps so we don?t know.

A land owner asked how many miles were included in the project now. Renaud said there were 8.5 miles of open ditch in his original proposal and 2 miles in the reduced proposal. Not all of that distance needs attention. Some areas are worse than others so the repairs are tailored to the conditions at each section of open ditch.

Clinton asked that the meeting return to the two issues at hand. What to do about the proposal for a reduced project and will a petition to dissolve the district be submitted?

Loren Tjernagel initiated the original petition to repair the district and he had a proposal (attached) for the trustees. He is losing $5-10,000.00 of crops every year because his tiles cannot drain into the ditch due to siltation. His tile outlet is about 1.5 feet below the current bottom of the ditch. The ditch is about 5 feet deep at E18 but is 12 feet deep .5 miles north so that indicates how badly it has silted in. He asked that the project be dropped. In return he and a neighbor would clean out their portion of the ditch from E18 to their plugged tile at their expense. This is a distance of only about 300 feet. He feels the legislature needs to change the drainage law before any more extensive work is undertaken. He introduced his proposal as a motion which was seconded by another land owner in the audience.

Clinton asked if any one cared to comment on Tjernagel?s proposal and whether it was sufficient to address the problems currently facing the district. It is important to recognize that the trustees cannot simply tell Mr. Tjernagel to go ahead without insuring that his work would meet the terms of the Iowa Code. Tjernagel said they would hire a contractor to do the actual work.

Clinton asked twice what those attending thought of Mr. Tjernagel?s proposal, Would they like the trustees to act on it? There was no response.

A land owner asked if Representative Deyoe would say a few words about drainage districts and changing the Code. Deyoe said, in talking to staffers about drainage law, it appears almost all of it has remained unchanged since it was written. That means it?s either really well written or law makers are afraid to touch it. He suspects the latter. There is a proposed right bill now to force the state to pay when it is assessed benefits to drainage as a result of a court case involving non-payment by the state. He could attach an amendment to that legislation but fears it would torpedo that bill.

Deyoe continued that it is really too late in the session to introduce new legislation. The best course of action is to prepare proposals for next year. It will be pretty difficult to change assessments to an equal amount per acre which sounds fair but isn?t based on any kind of hard data. The original benefit structure is based on an engineering study and that carries a lot of authority with the legislature.

Robert Huffer said he has been involved with drainage law and the IDDA for 35 years and the legislature has turned a deaf ear to the IDDA?s requests to update the Code for every one of those years.

A land owner asked if Tjernagel?s proposal was sufficient to help the problems in the district.

Clinton said whether it was sufficient or not the trustees need to talk with legal counsel and the county engineer to decide if it is even something they can allow. He is not sure that the trustees can simply drop the larger project with the knowledge that there are more problems that need to be addressed.

Sanders said the trustees can adopt any option they want. What they can?t do is let Mr. Tjernagel take on this project and pay for it himself. The district should do the work and assess it back to everyone. If they do that there should be an understanding that this is strictly a stopgap measure and we?ll be right back here next spring looking at what Representative Deyoe has or has not accomplished with the legislature and deciding what to do with the district as a whole.

Clinton asked if there were any issues with the trustees going ahead with Mr. Tjernagel?s proposal. Moon said if a land owner wants to do a small project and pay for it themselves that might be okay but if it gets over $20,000 and they want the district to pay the project will have to be let and the district will have to administer it.

Sanders said a small project simply kicks the can down the road. The best thing would be to repair the entire district and put a maintenance schedule in place but he completely understands the land owner?s fiscal concerns. He is willing to put this off for another year and see where we are at that time. Another thing to remember is the district already has some cost involved in this project that will be assessed this year no matter what else is done.

Hill read from Code Section 468.126.1.c which states that an engineering report is not required if there is an existing report within the last 10 years. He wanted to make sure Fox Engineering would not be hired to write a new report next year. Sander said if the materials already submitted by Fox were quite sufficient and nothing additional would be expected from them.

Sanders moved, seconded by Toot, to authorize the county engineer to estimate the scope and cost of Tjernagel?s proposed project, do a letting if necessary, and get that project done with the understanding that it is not the end of the work in Warren #11, that some type of ongoing maintenance will be started this year, and the trustees will move ahead with more work in the future depending on how things go.

Clinton wanted to clarify that whatever the cost of this work it would be assessed to the entire district. There being no further discussion Clinton asked for a vote. Motion carried unanimously (MCU).

Clinton asked those present if, having heard what direction the trustees were taking, they had anything to submit with regards to the petition for dissolution.

Hill said there were still some people thinking it over and they weren?t ready to submit anything tonight.

Clinton asked what would be a reasonable time to give the land owners. Sanders said a viable motion had been made and voted on and the trustees are going to move forward with what they?ve proposed tonight. If the land owners wish to petition for dissolution they can submit that petition at any time. There are still several weeks before a letting can be done, if one is needed, and more until actual repairs could commence.

Toot said Tjernagel?s concern was that this be done sooner rather than later and the trustees need to move on this.

Moon said he would ask for estimates from several area contractors. If they are under $20,000.00 we can just do it. If they exceed $20,000.00 the trustees will be required to set a hearing date, notify the land owners, and accept bids on the work. If estimates exceed $25,000.00 an engineer?s report would be required which would bring the district back to Fox?s proposal.

Tjernagel said it was only 2-300 feet to get his tile running and it won?t cost $20,000.00.

Huffer said he would recommend that Hill get the addresses of everyone in the district, organize a meeting at the McCallsburg Legion Hall, and decide what changes they would like the legislature to address. That is how you get the law changed.

Sanders repeated that he wanted everyone to understand this is not a dead issue. There is more to be done and the trustees will have to revisit it.

A land owner asked what would happen to the road if Tjernagel?s project is done. Will the county continue to take care of the road if the larger project doesn?t happen? Moon said the county would riprap the worst areas but there are no funds budgeted for extensive repairs. The county has been waiting to see what direction the district takes. They will do what is necessary to protect the road but will leave the ditch alone.

Another land owner said the road should be done concurrently with the ditch cleaning because they could use material from the ditch to repair the banks. A third land owner asked if riprapping the road would block the channel. Moon said these would be spot repairs where the water is cutting into the road shoulder and won?t block the main channel. He agreed that it would be ideal to take care of the whole ditch along the road at one time.

Sanders again pointed out that this wasn?t the end of this discussion. If they do the work Tjernagel wants that does not preclude coming back for additional repairs. The larger project has just been put on hold, not abandoned. He thinks this whole project has been made much more difficult than it needs to be but, because of the financial concerns, that?s where we are.

Toot moved, seconded by Sanders, to adjourn. MCU. Meeting adjourned at 9:00 p.m.

Respectfully submitted,

Scott T. Wall