The Hancock County Board of Supervisors discussed, but took no action on, a the Iowa Department of Natural Resources requiring the county to apply for a permit to do some maintenance work on the Drainage Districts 1 and 2 south main near Twin Lakes.
The DNR became involved because, to do the maintenance of the tile main, the county has to clear some trees surrounding the drainage ditch.
Additionally, there is no set easement line of where the DNR’s protected land ends and the district’s easement begins. However, the work on one side of the ditch has already been completed.
The Supervisors had requested the help of Jim Kramer, a partner at Johnson Law Firm and Kent Rode, senior project manager at Bolton & Menk.
Bruce Trautman, acting director of the Iowa DNR, stated in a letter to Johnson, a drainage district must receive a permit from the DNR before working on state land, citing Iowa Code and the Natural Resource Commission’s rules.
“The activities involved in drainage district maintenance and improvement projects are of the kinds that generally require such a permit,” the letter reads. “None of these statutory or administrative rule provisions includes an exception for work done by drainage districts specifically, or under easements generally.”
The letter went on to say the DNR does not intend to deny districts with a valid easement their rights by requiring the districts to obtain a permit from them.
However, Kramer said the statute the state cited don’t really apply to this situation; instead, the code sited has to do with constructing a shelter or structure of some kind, such as a pier, fence or commercial building on state property.
As for who has superior jurisdiction in the matter, Trautman pointed to the Iowa Supreme Court case of Polk County Drainage District Four v. Iowa Natural Resources Council, in which the Court ruled the INRC had concurrent authority over the construction of improvements the drainage district was trying to accomplish.
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“Id. Polk County stands for the proposition that claims of exclusive authority by drainage districts must give way to an environmental policy statute governing the same subject matter,” the Court stated.
However, Rode disagreed, saying the Polk County case was a different ballgame in that they were working on improvements, and the Hancock County drainage district is simply doing maintenance on the ditch and has an easement around it.
“The Board has the obligation from the state to maintain the facility, and the trees are in the way of part of that, an obstruction to maintain them,” he said. “We have to remove the trees in order to get in there to maintain the ditch to its original grade.”
Kramer added to that, saying under the drainage laws, the Board has the right to do the maintenance, but under state law they’re not allowed to cut down a tree on state land without getting a permit.
“Our rights have been established long before the state had any right, and we’re simply maintaining and implementing the improvement that was there, and the state has acquired their property subject to our right to do this,” he said.
The Supervisors have two choices: they can fight the DNR on this, continue the work and possibly go to court with them or they can apply for the permit and allow the DNR to set as many constrictions and rules they decide are necessary.
The supervisors made no decision on which course of action to take.
In October 2018, the Supervisors had applied and received a permit for a similar situation at Drainage District 30 at the Eagle Lake Wetland Complex in which they were cleaning out the existing open drainage ditch to a depth equal to the original design.