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County eyes DD-44 repairs

January 22, 2013
By Michael Tidemann - Staff Writer , Estherville Daily News

The Emmet County Board of Supervisors Tuesday learned that it has the authority - and probably responsibility - to make repairs to a drainage ditch and assess at least part of the cost to the Iowa Department of Natural Resources.

Pocahontas attorney Jim Hudson, representing Bud Schnell, local landowner, said the DNR had knocked out a bulkhead without county permission and water was subsequently backing up on Schnell's property. In addition, Hudson said an engineer's study recommended a cleanout - the cost of which everyone in the district would share.

"Apparently the board got a little gun shy when it discovered the DNR owned that" Hudson said of the property where the DNR had made the modifications. Hudson emphasized that everyone has to follow drainage laws - including the DNR.

Hudson said when the drainage district was established it acquired a permanent right of way. And, said Hudson, the DNR has no authority to divert around the culvert.

As a result, said Hudson, Schnell has had water back up on his property - something that hasn't happened for years. In addition, he said the ditch needs to be cleaned out.

Scott Brunsvold, who did the engineer's study, said there was buildup where the natural waterway came into the bulkhead. Hudson suggested that if the headwall was not in the drainage district, it could be annexed so the district could control it.

While not recommending the DNR be prosecuted, Hudson said the DNR could be assessed for fixing the changes it had made without county approval. And if the DNR doesn't pay that assessment, the property could come up for tax sale. "Drainage districts are not out their assessments," Hudson explained, saying drainage is not a tax but an assessment.

Hudson said even a CREP easement, which some of the DNR property appears to be, is subject to drainage easement. He also said the federal government has no authority whatsoever to touch any district drainage facilities. "They had no authority to knock that out," Hudson said. "They just trespassed and did something illegally and improperly to our ditch."

When supervisor Jon Martyr said the DNR might show how a creek had bene already moved, Hudson said a landowner can do whatever he wants as long as the drainage district tells him how to connect to the ditch.

"Either way the DNR is subject to our guidelines and rules," said Hudson. "We can't have them messing with our facilities."

In other business, the board approved federal-aid agreements for surface transportation program projects. They include resurfacing A22 (170th Street) from Iowa 9 to Iowa 15 and A34 from Iowa 4 to N32.

The board also held a public hearing and approved second reading of both the county's 2013 subdivision regulations ordinance and the 2013 zoning ordinance.

Drainage assessments were also approved.



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