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October 6, 2003 Tape #019

The White County Commissioners convened at 10:30 A.M. EST in the Commissioners’ Room of the White County Building, Monticello, Indiana with Board Members Ronald A. Schmierer, O. D. “Bud” Ferguson and John C. Heimlich, Attorney George W. Loy, Surveyor Dennis W. Sterrett, Engineer L. Todd Frauhiger and Secretary Romana Kiser in attendance.

Also attending the meeting were Joe E. Dunbar, Roger H. Wiese, Herb Hunt, Herbert Hunt, Tony Cain, Trent Pherson and Jack Pherson.

Chairman Schmierer opened the meeting with the opening of sealed quotes for the maintenance project on the C. Bossung Open Ditch in Honey Creek Township.

Attorney Loy stated there were six quotes. He said the Invitation to Bid stated they were to quote two separate items, Item One being clearing of all trees and brush from the channel and South side of ditch and Item Two being dredging of same ditch down to its original flow line as per plans (approximately 7,730 lineal feet of open ditch).

The quotes were as follows: County Line Tiling and Excavating Item 1 $2,965.00

Item 2 $6,750.00 Seeding $200.00 Total $9,915.00 – Blackman Excavation Item 1 $5,000.00 Item 2 $8,000.00 Total $13,000.00 – Tony Cain, T & M Enterprises Item 1 $4,500.00 Item 2 $15,460.00 Miscellaneous $2,000.00 Total $21,960.00 – Gutwein Bulldozing & Excavating Item 1 $8,000.00 Item 2 $8,000.00 Total $16,000.00 – Howe Excavating Item 1 $4,490.00 Item 2 $14,850.00 Total $19,340.00 – Segal’s Delta Trucking Inc. Item 1 $6,200.00 Item 2 $5,925.00 Total $12,125.00

Chairman Schmierer asked Attorney Loy to take the bids under advisement until he could look them over.

Next on the agenda was to set rates for Maintenance Modification on the Amelia Suits Drain in Lincoln, Jackson and Union Townships. The Amelia Suits Drain is north of Idaville. Chairman Schmierer noted that reconstruction was done on the drain in 1999 and following reconstruction two rock chutes had to be put in at a cost of $10,000.00. It is currently on variable rate at 40 cents, 60 cents, 75 cents and $1.00 per acre and $5.00 minimum. There are 101 parcels of which 22 are on minimum rate. It collects $3,003.02 per year and is now in debt $7,509.03 which would take two and a half years to pay off at the current rate. The Amelia Suits Drainage System benefits approximately 3,544.052 acres.

Chairman Schmierer noted that we are still spending quite a bit of maintenance money on the drain. Chairman Schmierer said we have had tile repair last year and beavers in it this year. He reviewed some of the claims. If we raise the maintenance twenty-five percent it will still take two years to get it out of debt. If we raise it fifty percent it would take in approximately $4,504.53 a year and it would make minimum $7.50 and would pay off the debt in approximately a year and a half. He observed that raising it fifty percent only brings part of the assessments up to $2.00 an acre, wondering if it should be raised more than fifty percent. It was discussed that we have not drawn any assessments on it at all this year yet (due to late tax payment deadlines).

Board Member Heimlich stated, “Between the two options, twenty-five percent and fifty percent, it is only going to be a half a year, I would question going through the Hearing procedure for no more extra than it would be bringing in. If you think we need more than that, that would be one thing, but otherwise between these two I would just keep it at the twenty-five percent without the Hearing.” Chairman Schmierer said, “We can do that, raise it twenty-five percent without a Hearing.” Attorney Loy asked, “It has not been raised before?” Chairman Schmierer said no. Board Member Heimlich said, “That was the understanding, it hadn’t been raised before. That would pay it off in two years if you didn’t have…(repairs, expense on it).” Chairman Schmierer said, “We can do that and come back and address it again next year and see where we’re at.” Board Member Heimlich said all the expense we’ve had this year is the beaver dams. Chairman Schmierer said that was $560.00. He said last year we spent a lot of money on it. Chairman Schmierer explained, “Where we got in trouble was when Isom did the job (reconstruction) and we had to the rock chute, cement and everything else out there and that was quite a project. $10,000.00 which was probably as much as we spent on Isom’s reconstruction.

Board Member Heimlich made the motion to raise the maintenance on the Amelia Suits Drain in Lincoln, Jackson and Union Townships by twenty-five percent without a Hearing. Board Member Ferguson seconded the motion. The motion carried with a vote of 3 in favor and 0 opposed.

Surveyor Sterrett addressed the issue of farm crossings. Surveyor Sterrett said, “I guess we sent Roger Wiese to an engineer and Joe Dunbar to have a culvert sized. There is more than one square mile watershed behind the pipe so it has to go through DNR to get their approval.

Roger Wiese addressed the Board, “I am Roger Wiese, president of Wiese Farms, Inc., which is the entity that would like to upgrade a crossing over Fraser Ditch that my grandfather or great grandfather put in over a hundred years ago probably. I made some requests about this several years ago. Romana (Sec. Kiser) looked it up in the minutes and January 2000 the Commissioners (Drainage Board) said I ought to get an engineer. I didn’t do anything with it for a while and I got a hold of DNR and I was told I would have to get a permit by the Division of Water so I got a hold of them and they sent me an application which covered 29 pages. I decided I was going to need some help so I called Don Ward (engineer) and he told me if it is over one square mile of drainage area you have to get a permit from the Division of Water. An interesting side note to that, supposedly cities and counties don’t have to have a permit from the Division of Water unless they are over fifty square miles of drainage. Anyhow, we spent a lot of money with Mr. Ward on engineering and we still haven’t sent in an application, but I was getting a little more agitated the longer I went with this thing and I got a hold of Division of Water in Indianapolis and talked to a guy named Tony Scott and he gave me websites to download and I did and there were 120 pages of rules and whatever. While it was raining on Labor Day I read the whole thing and the amazing thing it never once used the word ditch. What it used was river, creek or stream. Now there’s a vast difference between a ditch and a river, creek or stream. A river, creek or stream all have a natural floodplain and that ditch has no floodplain. All it was, was a series of swamps that may or may not have been connected originally. And they had no natural outlet over the lands so that’s the reason why they were put in. I took that to my attorney just to get my thoughts collaborated and I said where am I at? According to the dictionary there’s a big difference here with these things. Why do we have to conform to all of these rules which involve floodplains when we don’t have one? It was Terry Smith and he agreed with me that it was very shaky ground. Anyhow, if I have to follow Division of Water rules to build this crossing out there, which I intended to take out a bridge with abutments which are giving away, I think John has looked at them, and I wanted to put a pipe in and the County has a nine and a half foot pipe on CR 100 South, which amazingly enough through all those big rains in July the water never got over that pipe once, but according to Division of Water rules I would have to put in a way bigger pipe just a quarter of a mile upstream from it. That’s a little agitating to me why I have to spend as much money for a farm crossing as the State does to put one over the Interstate. I think George (Attorney Loy) talked to Terry (Attorney Smith) about this didn’t you, George? (Attorney Loy answered yes) My feeling is I think you guys have the right to decide this stuff, I don’t think I have to have permits from the Division of Water.”

Attorney Loy stated, “First of all, the Drainage Board does not have the authority to tell the Division of Water or the Department of Natural Resources how to enforce their rules and regulations. Their jurisdiction is defined largely in the Drainage Code, and when it comes to crossings like what we are talking about, all WE need is that it be approved by the County Surveyor. The Surveyor shall disapprove the plans and specifications if they do NOT show that the structure will meet hydraulic requirements that will permit the drain to function properly. So, as far as the Drainage Board is concerned, we are just interested in whether or not hydraulically your crossing or controlled and or other pertinent structure over an open drain works.”

Roger Wiese said, “I guess the question is are you going to require the same hydraulic modeling that the Division of Water would?” Attorney Loy answered, “Ask them (the Board). And I don’t think that they have to for OUR purposes, but some other bureaucracy like the DNR or Division of Water might, but it is not up to us to tell them how to enforce their rules. I personally agree with you, but they (Board) don’t have jurisdiction over the DNR.”

Engineer Frauhiger spoke up, “The key point that you made, which, when I talked to you on the phone that day I didn’t understand, is that it is an existing crossing. DNR is most stringent on new crossings. If there is an existing crossing, you have a certain amount of backwater at that existing crossing, that’s all you have to match. As a matter of fact, I don’t know if you knew this or not, all you have to do is go out and measure the waterway opening of your existing structure and show that either by increasing the hydraulic characteristics of a new structure or by matching that existing area, that is all you have to do. You don’t have to fill out that 29 page permit. You submit a letter to DNR, you say ‘here’s an existing structure, it has 50 square foot of waterway opening, I am putting 50 square foot of water opening back in with a new structure because the old one is falling down.’ If I remember correctly, DNR has X number of days that you have to respond, but as long as you are matching the area, even though they don’t get responded back to you, you are still allowed to go out and replace the structure as long as it is in kind.”

Roger Wiese stated, “The existing structure there has cement abutments and they are bigger than the nine and a half foot culvert pipe. But what difference does it make as long as the County only has a nine and a half a quarter mile down stream and it is big enough? What good is it going to do me to be way bigger than that? What good is it going to do anybody?” Engineer Frauhiger said, “It does make a difference to DNR and that’s why the interesting thing is, all you have to do is match waterway area. Say you want to put a nine foot culvert in there, and you sump the road down so that what happens is when the water comes up to a hundred year storm, it flows over the road which you don’t really care because you’re not going to be using your crossing when everything is flooded out there anyway. So if you can show matched waterway areas a number of ways, you can show the same size openings underneath the road, you can show a combination of waterway openings with whatever structure you put in, with the road brought down over it so in the higher storms the water just flows right over your road. Then between the area where you allowed it to go across the road and the area you put your pipe in just show that area is the same area that used to be there before you made your change. There’s a lot of ways to do it. If the existing structure that you are taking out now causes a foot of head-up, all you have to do is show that between the structure you put in and the sump you put in your road that you caused no more than a foot of head-up with the new structure. And that’s all you have to do.”

Roger Wiese said, “I understand all of that, but the County has a nine and a half foot pipe a quarter of a mile downstream with no sump over the road and the water does not go over it period, it doesn’t even get to the top of the pipe.” Engineer Frauhiger said, “But the problem is as you mentioned on the phone, the County and State have an exemption to get a DNR permit to the fifty square mile limit that I was talking to you about. Hundred percent chance that when the County put that nine and a half foot pipe in they didn’t have to file for a DNR permit, they didn’t have more than fifty square miles above that crossing. Had they filed for a DNR permit they would’ve put a bigger structure in or they would have shown that the combination of the waterway area they put in the pipe and potential road overflow at the approaches to the pipe didn’t cause any than a tenth of a foot. If you were going to go out in a ditch and put a brand new crossing in where it has never had a crossing before, you have to show that your crossing doesn’t increase that hundred year water elevation by more than one tenth of a foot. An existing crossing, all you have to do is show that you are matching the same waterway characteristics that was there prior to taking the old crossing out. So there’s a big difference. Unfortunately, I think this particular time since DNR has been notified, both by yourself and your engineer, you are going to have to show DNR that you are going to match the existing characteristics of what was there to get your permit. I don’t think you have to fill out the whole 29 pages though.”

Roger Wiese stated, “That doesn’t answer the question, Mr. Frauhiger, what is the difference between a ditch and a river, creek and a stream. All those rules, and I’ve got 120 pages of them, they all talk about floodplains but a dug ditch has no floodplain, it never had one.” Attorney Loy stated, “We are not the one telling you that.”

Engineer Frauhiger told of a case in Hancock County where DNR State Statutes prevailed despite the County Surveyor’s insistence that he had jurisdiction over a manmade, constructed ditch. They had to go back after reconstruction, after the fact, and get a DNR permit. See tape.

Roger Wiese asked, “Maybe you’re the guy to answer this question. In all those rules they talked about stuff that was constructed before 1973 and after several times. What does that mean? I haven’t found out yet when the County put the pipe in on CR 100 South. No one seems to know.” Engineer Frauhiger said he didn’t know what happened in 1973, he would have to go back and look. Roger Wiese said it was some difference in the rules and the way to engineer. Attorney Loy said that was probably when the law changed. Engineer Frauhiger said, “And the law doesn’t even say a tenth of a foot, the law says negligible impact, so DNR then with their engineering group said we’re going to say that means a tenth of a foot but we’ll let you slide up to .15 feet. But, if you look and look and look and read and read and read you’ll never see a tenth of a foot and you’ll never see .15 feet. You’ll see ‘negligible impact’ and that’s what they decided that means.”

Roger Wiese said, “That terminology is interesting to me because with the nine and a half foot pipe on CR 100 South downstream from me, and I’ve offered to put in a ten, which is bigger than the County has a quarter of a mile downstream, how can I have an impact? I mean, I’m going to let through more water than what the County can.” Engineer Frauhiger stated, “Take your ten foot pipe, have Don do the calculation, he’s already calculated your elevation, sump the road, get your waterway opening between your ten foot pipe and the area….do you know what I mean by sumping the road? Show that the area going across the road at the hundred year storm and the area of your ten foot pipe is equal to or greater than the area of the bridge you are taking out. Submit that to DNR, all Don has to do is submit the calculations showing what the hundred year storm elevation was. Then they will ask him to calculate the area below that hundred year storm elevation, and just show that after you are done with the new structure you’ll have the same area and you’ll get a permit within thirty days. Going the 29 page route and you’re lucky if you get one in six months.”

Roger Wiese said, “I guess I have to ask Mr. Loy , George do you agree with what he’s telling you? You’re the Attorney for the Drainage Board.” Attorney Loy answered, “Yes, I don’t disagree with him. He’s an engineer. From a legal standpoint, under the Drainage Code, which is what these guys work with, replacement or repair or maintenance of private farm crossings are the responsibility of the owner, and that has to be done per the approval of our Surveyor and Engineers to meet hydraulic specs. If anybody else, DNR, IDEM, any other State or even Federal agency has some other rules that apply to them, that’s for them to determine, not for us to overrule.”

Roger Wiese said, “I guess there’s one question nobody has answered for me yet. In all those 120 pages of rules and the 29 page application, what is the difference, since the fact that it never mentions ditch, it only mentions river, creek and stream. Go to the dictionary and look them up, they’re different. They are not the same thing.” Attorney Loy explained, “I understand, and there’s Webster’s definition and then there’s a legal definition of those and I personally agree with you. That’s where your own private attorney will come in to lobby on your behalf to whoever is telling you that you need more stringent specs.”

Roger Wiese said, “I could initiate a law suit but to find out something here, but what I feel, I have talked to at least John about this, I think it’s a question that you as the County Attorney should answer. What is the difference?” Attorney Loy answered, “We’re not telling you that you have to. The White County Drainage Board, I don’t think, none of us has told you that you have to.” Board Member Heimlich said, “No, but I think what he’s saying is that WE should want to know if there’s a difference between a ditch, river, stream or creek for how we deal with the regulatory agencies.” Roger Wiese said, “There’s a lot of stuff here that just doesn’t match up, they talk about flood plains all the time, but a dug ditch has no flood plain.” Attorney Loy stated it has a watershed.

Engineer Frauhiger explained, “What a floodplain is, it is the hundred year flow in any structure, do you have it right there? Basically, what happens at the hundred year flood, or hundred year storm, how it flows through that channel. So to say it is a ditch, what happens is when the ditch overflows, it is not made to carry a hundred year storm, it goes outside the ditch. DNR would define that as the floodplain.” Engineer Frauhiger explained that in Hancock County not only did DNR prove jurisdiction over a dredged ditch in court, but also Army Corp of Engineers did also.

Roger Wiese said he didn’t think he was going to get any more of an answer than that. Attorney Loy said, “If it is (Engineer) Don Ward that is advising Roger that there are more stringent requirements I guess we need to get in touch with him.” Roger Wiese said, “It just absolutely blows my mind that I have to have enough opening for an interstate highway and the County doesn’t a quarter of a mile away, theirs is big enough. Engineer Frauhiger said, “You’re not getting the point. I think that Don with the two ten foot pipes, he’s looking at .15 surcharge. You do not have to do that. You don’t have to do .15, you’ve got an existing structure, you match existing characteristics of a hundred year storm, so you do not have to get to .15 and if you can get whatever your existing head-up is between road overflow and a ten foot pipe that’s the way I would do it.”

Surveyor Sterrett stated, “I thought Don (Ward) told me that he was going to submit for just one ten foot pipe.” Roger Wiese said, “That’s what we thought to do and try to go from there and if they turned that down, ask for an exemption.” Engineer Frauhiger asked if they were going to put gravel or stone across it, that’s what he would do. He said to tell Don Engineer Ward) before he submits to make sure that road is sumped so that the road overflow and the ten foot pipe equal what he had before, submit that to DNR and a letter and he’ll have to submit his calculations showing what the hundred year storm elevation is before and what it is after and showing that it hasn’t increased and you’ll get it (permit) fairly quickly.

Attorney Loy said, “In the meantime we are going to ask Don to provide us with his engineering opinion as to why this was required in the first place. You’re not going to be the last person to come before the Board.” Surveyor Sterrett said we have two of them today. Chairman Schmierer asked Joe Dunbar what ditch he is trying to put a crossing in. Joe Dunbar responded saying the Myers Ditch. Chairman Schmierer asked if there was an existing one there now. Joe Dunbar answered yes. Engineer Frauhiger asked how big the existing one is. Joe Dunbar answered, “I don’t know exactly. It is a concrete bridge.” Surveyor Sterrett stated, “About five hundred feet from it probably or less than that there is a twelve foot Interstate bridge, or culvert.” Engineer Frauhiger asked, “What do you want to do, put a pipe in or….” Joe Dunbar said, “I’d like to put a pipe in. I like what you said about the pipe being at a lower level.” Engineer Frauhiger said, “Yes, that’s all you have to do is have someone calculate a hundred year flood elevation and, unfortunately, the other thing DNR doesn’t allow you to do….. railroad bridges or culverts are incorrigibly undersized, and I’ve been involved with DNR before where we’re putting a crossing in a ditch and you can stand there and look at a railroad pipe downstream and you can say ‘look, there’s back-water from that railroad pipe that comes clear to our site’…..they won’t let you consider downstream restrictions or upstream restrictions in your calculations. I’m sure that pipe is big enough, but if that pipe wasn’t big enough they would say forget it, pretend like it’s not there. Calculate the hundred year flow at this bridge right here, calculate a water surface elevation, figure out what the area is below that water surface elevation and below this bridge and that’s all you have to do. And you know, you put a pipe in the ditch and sump the road down over it, let the water go over the road, I’m sure you can get the areas matched up.”

Roger Wiese said, “In my case, I have these old abutments that I am either going to have to break off or remove and I just want to take the top off and put a pipe in and cover the whole thing up. If I put the sump in, I still have to go to all that expense and it’s getting down to if I sell the farm I can afford a crossing. Well, I’m still not a hundred percent satisfied with the question here when you talk about the definitions of these different types of streams.” Attorney Loy said, “I guess if it is Don (Engineer Ward) that is telling you that, we haven’t received any kind of info.” Roger Wiese said, “I just told him to stop when I read all of this stuff because I said there is a lot of stuff in here that doesn’t match us.” Attorney Loy said, “Todd, will you give Don a call and I guess determine where he is getting his, or why he is telling Roger what he is telling him.” Engineer Frauhiger said, “I will call him.”

Surveyor Sterrett read, “It says authorization required only if the Indiana Department of Natural Resources has jurisdiction. DNR has no jurisdiction if activity is occurring entirely outside the floodway if determined or if the drainage area is less than one square mile, or if the activity is occurring under County direction and is on a stream or an open drain that is less than ten miles long or the work is not within one half mile of a freshwater lake.” Engineer Frauhiger said, “If this is a County project that’s your situation. So, if the County wants to put in this culvert and get reimbursed for it by the property owner I suppose you could go that way and not have to get a DNR permit, period.”

Roger Wiese said, “I think the interesting thing about that floodway, is the ditch has no floodplain.” Engineer Frauhiger said, “They have a legal definition of a floodway and that is the area that it takes to…inaudible…see tape. What they do is, remember I said you have a ditch and you have a floodplain that goes out into the field, what they do with their computer program is they start taking that floodplain and equally on both sides they start constricting it in and at the point that they get it constricted in enough that they cause one tenth of head-up….inaudible…that becomes the floodway, that’s how they do it. So your ditch, even though it is a dug ditch you have a floodplain and you have a floodway by calculations.” Attorney Loy said, “The Statute says a crossing can be part of maintenance assessed against the land.”

Attorney Loy asked what is the estimated cost of doing the project the common sense way. Roger Wiese said he could get it done for $15,000.00 and if we do it the other way a ballpark figure on that is $40,000.00. Chairman Schmierer said, “What Denny just read and I’ve read this before, if we would do the project, if the County would do the project then we can assess the land, we can assess you. We can get around a lot of this.” Roger Wiese said, “I’m ready.” Attorney Loy said, “The law allows you to do that so long as we’re not getting into any….” Board Member Heimlich said you still have to use the engineer’s recommendations for the volumes and hydraulics. Engineer Frauhiger said, “The thing you don’t want to do, and those calculations can be done very easily, but as long as you are comfortable with what you are putting in and the elevation of the road going over it won’t restrict the hundred year flow, you could do exactly what you’re talking about.” Board Member Heimlich said, “Well, Roger is not going to be restricting the flow because he’s got a lot of ground upstream from it.”

Attorney Loy asked why he is replacing the crossing. Roger answered that it is a hundred years old and it will fall into the ditch eventually. He said, “The thought had crossed my mind what would happen here if the County replaced it and then billed it back to me.” Board Member Heimlich said, “Well, that’s what we were talking, Denny said that.” Attorney Loy stated that the law permits that. Roger Wiese said then there’s the answer. Attorney Loy said, “Well, it could very well be. My only question is……” Engineer Frauhiger cautioned that all it takes is one disgruntled neighbor to make one phone call. He said you are well within your rights to replace it as a maintenance project as long as if DNR contacts you, you say ‘yes, what we put in does not restrict the hundred year flow’.” Attorney Loy said, “And that’s an engineering decision. (Todd said that is correct.) Todd, do you mind confirming that what you just said is true.” Engineer Frauhiger agreed to do that.

Roger Wiese said, “The County can already do fifty square miles and there’s no fifty square miles on Fraser Ditch. So therefore they would be exempt.” Engineer Frauhiger said, “They would be exempt, but DNR can still get involved and claim jurisdiction if there is a complaint. There shouldn’t be, don’t worry about it, there shouldn’t be.” Attorney Loy said, “We’ll check on all this and get back with you shortly and confirm that can be done.” Board Member Heimlich said, “I think we need to look into that possibility because we are going to have more of these.” Chairman Schmierer asked Joe Dunbar if he could hold up on his until we get the opinion of whether we can do this or not. He said if we can do it, we’ll do it for you. Then you can pay us.

Herb Hunt was present to address a concern about neighbor Robert Teumer re-routing water in their area. Chairman Schmierer stated that he and Surveyor Sterrett were up there after Mr. Hunt called. He said Mr. Teumer hadn’t filled the wetland in and he asked Mr. Hunt where Mr. Teumer is putting dirt in that he isn’t supposed to put dirt in because when they were there they didn’t see anything other than where he had filled in around his house. Herb Hunt said, “Basically that is not a wetland, that was farmable years ago and he was born and raised on that farm, he knows it was farmable. But down through the years that natural waterflow has got filled in. Where Teumer owns, he built that house ten foot from our property line, which is in violation….inaudible…supposed to be one hundred feet. The only reason he built that house there was because that water came all the way down in front of him which went into our property. So he started filling in and he just pushes the water farther on us.”

Chairman Schmierer asked where he is filling in now. Mr. Hunt said, “Well, he’s just working east. He has pretty well got in front of his house filled in. But, when he built that house he built it without a permit, he still doesn’t have a permit, and there was water in his basement as he was building it. So, what looked like he’s filling in his front yard, he’s filling in that area in front of the house so the water, unless the river goes up, it keeps the water out of his house.”

Chairman Schmierer said, “I don’t think he’s done anything about tiling that yet either.” Mr. Hunt said, “I talked to the lady in the Planning Commission and she said that he hasn’t done anything and they are kind of waiting, what this all came up about, that trailer that sits there was supposed to have been moved a long time ago. And she said that they were kind of waiting to see if he conforms to putting the tile in, which he hasn’t and I told her I’m tired of waiting. I want that trailer moved for number one. And then, I want to find out what legally we can do to force him to put the drain in where he has blocked all the water up.” Chairman Schmierer said he would have to let counsel answer that. He said when he and Surveyor Sterrett were up there he was putting dirt in around his house. There is an area there that has water in it and they thought it was a wetland and they told Mr. Teumer that needs to be drained. Mr. Hunt said, “You say it’s a wetland, well it has developed into one, but it shouldn’t be.” Chairman Schmierer said, “I’m saying he has to get permission from DNR to drain that, we can’t give him permission to drain that.” Mr. Hunt said, “But is it classified as a wetland?” Chairman Schmierer said we don’t know. Mr. Hunt said, “If it’s not classified as a wetland then he doesn’t need permission from DNR does he?” Chairman Schmierer said he has to find out from DNR whether it is or not, because we can’t tell him, we don’t know, we’ve told him before we can’t give him permission to drain something like that.

Attorney Loy asked if this had anything to do with one of our regulated drains. It does not. Attorney Loy said there is a proceeding you can initiate under the Drainage Code to arbitrate drainage matters between neighbors and you have to contact a private attorney to get advice on that. He said, “It is a neighbor that has diverted water onto your property?” Chairman Schmierer said he’s causing it to back up in a field and he is losing some farm ground out of it. Surveyor Sterrett said he is causing an obstruction.

Mr. Hunt said, “I think the whole thing started back when Linback dug that canal. Since he’s (Teumer) filling it in, it’s got worse. There used to be a culvert down there somewhere at the west end.” Chairman Schmierer said he and Surveyor Sterrett haven’t been able to find a culvert. He said they went out the next week after Mr. Hunt called. Chairman Schmierer said, “We had told him (Teumer) at a meeting that he had to get permission to put that tile in and I’m not sure if a fifteen inch tile is going to do what you need out there anyhow with that much ground. We told him to get an engineer to do that and I don’t think he has done anything towards any of his Area Plan work or anything else because I checked with Diann (Weaver, AP Director) last week when we went out there.” Mr. Hunt said the rumor is that he has already sold the property, he has subdivided it anyway. The senior Mr. Hunt said the trouble is he is going to continue to fill that dirt in. Mr. Hunt said that in the last week or so he has filled in he’s brought in another four or five big dump truck loads. He said he is now putting the dirt in the wet area. Chairman Schmierer stated, “Counsel said you’ll have to get an attorney in there to stop him and I will talk to Area Plan and see if they can get on top of it right away.”

Mr. Hunt said, “I talked to the lady in the Plan Commission and she said it looks like they will go ahead and get the trailer out of there.” Chairman Schmierer said the trailer isn’t going to solve your water problem. Mr. Hunt said, “No, but it’s seven foot from our property line and I want it out of there!!”

Board Member Ferguson asked how long ago they built the house. The Hunts didn’t know other than it was over a year ago. Mr. Hunt said he built the house at night under flood lights so people couldn’t see it. Board Member Ferguson thought maybe it was built before Liberty Township was in zoning. Mr. Hunt said no because he tried to get a permit and they wouldn’t give him a permit because he could not get far enough away from the property line. The water was all out in front of his house and now he has filled enough to get it clear to the side of it now. Chairman Schmierer advised the Hunts to get an attorney and we’ll continue to look into it. The senior Mr. Hunt asked can we stop him from hauling any more dirt in. Chairman Schmierer said, “I would get started on it right away and get an attorney and get an injunction against him as quick as you can, that’s what I would do.”

Engineer Frauhiger reported a change in the Streitmatter Hog Operation drainage plans. He stated, “We have an approved drainage plan. The building is pretty much completed. They were digging a detention area around the back of the building and going to build a burrow and put a pipe in to hold water back going into a soybean field. The gentleman who owns the buildings also owns the field around it. What happened was, Denny and I were out there last week and they were constructing it, it actually looked real good. They have a portion of the detention area done and they were working on the berm a little bit. I think it was Friday night we got the rain, we got about a two inch rain and we got a call from Jerry Gutwein (contractor) who said that they had been in some very sandy conditions and everything they had dug washed in, filled completely back in. He indicated to me that he doesn’t see any way that he is going to be able to construct this thing and get it to hold because they’re kind of in sugar sand situations. I noticed when Denny and I were out there, I made the comment that I couldn’t believe how sandy that soil was. When I talked with Jerry last week, what we were thinking about doing is, since the property owner owns the field, they were planning on putting downspouts on the back of this building, but what we were thinking about doing as a potential solution is not downspouting the building and let the water just sheet-flow off of the building. Then we were going to build a buffer strip between the edge of the building and the farm field with some different types of grasses. The water will just come off of the roof of the building right into this buffer area. We will plant some plantings that will slow the water down before it gets out into this field. That’s about the only thing I can think of to do right now. I think with the sand conditions, I don’t think he’s going to be able to get anything to hold. Every time we get a rain it’s just going to wash everything away.” Chairman Schmierer asked Todd if he was going to handle it. Todd answered yes, that’s the direction they were heading. Chairman Schmierer asked if he still had some of Streitmatter’s funds to work with. Engineer Frauhiger answered yes.

Board Member Ferguson made a motion to approve the minutes of the last meeting. Board Member Heimlich seconded the motion. The motion carried.

Surveyor Sterrett reported he received a letter from Fiber Optics this morning. He asked if that is a County Commissioner item or Drainage Board item. Chairman Schmierer asked Attorney Loy to read the letter. He said if he reads it right, they will be in the right-of-way so they will pay the County. Surveyor Sterrett said that they said three and a half foot from the right-of-way line but they didn’t say if that was inside or outside of it. Engineer Frauhiger asked if it was along the road or along a ditch. Surveyor Sterrett said it is along the road and he would assume it is inside of the right-of-way. Chairman Schmierer said under our Ordinance he will have to pay right-of-way fees to the County. If he is going to cross private property, he’ll have to pay to cross County roads and ditches, so we need to contact Steve Brooke (White County Highway Supt.) for that. Chairman Schmierer directed Surveyor Sterrett to notify him to contact Steve Brooke for the R-O-W permits and he’ll have to pay for permits for that. Attorney Loy asked if he has provided a map or route. Surveyor Sterrett said yes, from Yeoman to Buffalo and Jasper County to Wolcott.

Surveyor Sterrett reported that Mr. Ward at Northbrooke Condominiums sold a condominium and the paperwork came to him (from the Auditor’s office to the Surveyor’s office) to change the ditch assessment. Chairman Schmierer said he didn’t know why it would because they don’t own anything but the buildings. Surveyor Sterrett explained that they changed that and they are going to own the land. He called the Title Company and asked about it. They are selling the land with it. Actually what they are selling is, each time they build a new building they’re going to revise a new map. So, it’s not quite like a Subdivision because when you get a Subdivision in you say like, ok I have five lots at five dollars each. Surveyor Sterrett explained, “The way I did it was, they got approved that they could build four units, six units, two units, and twelve units. So I added them up and got twenty-four and that was they each owed forty-five dollars and submitted it like that. What their density table is, is twenty-four units on four lots. I took the minimum of five dollars and took that times twenty-four and got a hundred and twenty dollars and each time they sell a unit ….inaudible….is that alright?” Attorney Loy said yes.

The Board gave Surveyor Sterrett permission to survey the lot for the Tornado Memorial at the corner of Bluff Street and Broadway at the request of Connie Nieninger.

Chairman Schmierer asked for the decision on the sealed bids for the C. Bossung Drain maintenance project. Attorney Loy asked Surveyor Sterrett, “Were you contemplating, or can you award the low bid for project 1 and project 2 to two different bidders?” Surveyor Sterrett said, “One is for clearing brush and the other is for dipping the ditch out.” Attorney Loy asked, “And they are totally separate projects?” Surveyor Sterrett answered, “Not really, you would have to get the brush cleaned before you got the ditch fixed so, why we did that was we were going to pay one of them out of maintenance.” Attorney Loy said, “For billing purposes then.” The answer was yes. Attorney Loy said, “The low bid obviously is County Line Tiling.”

Board Member Ferguson made the motion to award the contract for the C. Bossung Drain maintenance project to the low bidder, County Line Tiling and Excavating for the amount of $9,915.00 and Chairman Schmierer seconded the motion. Board Member Heimlich abstained from voting on this issue for the reason of conflict of interest since he is a landowner in the watershed. The motion carried by a vote of 2 in favor and 0 opposed.

Chairman Schmierer adjourned the meeting.