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November 7, 2005 Tape #021

The White County Drainage Board convened at 10:30 A.M., EST in the Commissioners’ Room of the White County Building, Monticello, Indiana with Board Members Steven Burton, O. D. Ferguson and John C. Heimlich, Attorney George W. Loy, Surveyor Dennis W. Sterrett and Secretary Romana Kiser in attendance.

Also attending were Charles Mellon, Harold Reiff, Doug Lakamp, Gordon Denton, Mr. and Mrs. Forsythe and Jeannine Anderson.

Surveyor Sterrett reviewed a project that was discussed at the last Drainage Board meeting saying, “On the M. K. Reiff Ditch, you remember last meeting we were a little short of money to do the maintenance project. I see Mr. Reiff is here, I haven’t talked to him since then. We are still a little short of funds.” Mr. Harold Reiff stated, “We have an account opened up at the Bank of Burnettsville, M.K. Reiff Ditch account, and prepared to write the check to cover the funds you need. My understanding is it is around $4,300.00 and we have more than that in that account at the Burnettsville Bank and I’m prepared to write a check to cover the difference.”

Attorney Loy asked, “What is our low bid?” Surveyor Sterrett said, “It was Howe Excavating at $7,255.80 (Seventy-Two Hundred Fifty-Five Dollars and Eighty Cents). Chairman Burton stated there is $2,900 in the account. Attorney Loy said we are prepared to use all of what is in that maintenance fund now to go towards that project. Surveyor Sterrett said, “Yes, I believe there was $1,920.00 in there and it is going to bring in another $1,000.00 (in 2005).” Mr. Reiff stated, “We have more than enough money to cover it. The figure they gave was around $4,300.00 and we have more funds than that in the account right now to write a check to cover the difference.” Attorney Loy stated, “The Statutes do permit accepting gifts or donations to a specific fund.” Surveyor Sterrett said, “I come up with $4,355. 80, using the $2,900.00. Attorney Loy asked, “When you say WE who is WE?” Mr. Reiff stated, “I contacted all the local people who are involved with it. I had one hundred percent cooperation from everybody. They put the money into the account, which we set up to cover this. Incidentally, there are four people who are involved that are out of state. I haven’t heard back from them. But for the ones who are local, we have more than that in the account there at Burnettsville in a checking account.” Attorney Loy asked how many individual landowners there are. Mr. Reiff didn’t have the information with him. He said that basically anything under twenty acres wasn’t contacted.

Attorney Loy stated, “We can award the contract to the low quote, conditioned upon these folks cutting the check. What do you call your group?” Mr. Reiff said, “I have the check right here, who to make it out to and the amount to be made. The check is under the M.K. Reiff Ditch account at the State Bank of Burnettsville.” Attorney Loy asked if he is the Chairman. Mr. Reiff answered he is the spear header since they have the most acreage in the watershed. He said he personally contacted the other people and they gave him checks or put the money in the bank at Burnettsville. Attorney Loy stated, “To keep this simple, I just want to draw up a very simple agreement for Mr. Reiff to sign on behalf of himself and the M. K. Reiff Ditch account group, committing yourself to paying the difference between the roughly $2,900.00 and the…. (contract amount).” The difference would be $4,355.80. Mr. Harold E. Reiff wrote a check to the White County Treasurer for that amount. Secretary Kiser will deposit it with the Auditor and instruct her to deposit it into the M. K. Reiff Ditch maintenance fund account. Attorney Loy and Mr. Reiff will meet after the Drainage Board meeting to sign the agreement.

Chairman Burton stated, “I would entertain a motion to approve the cleaning of the M. K. Reiff Ditch with participation of the M. K. Reiff Ditch Association contributing $4,355.80.” Surveyor Sterrett stated that the low quote is Howe Excavating (Allen Howe) at $7,255.80 for dredging and brushing. County Line was $8,470.00 and Dennis Sparks was $9,920.00. Board Member Heimlich made that motion to approve the maintenance project on the M. K. Reiff Ditch and Howe Excavating’s low bid of $7,255.80 and Board Member Ferguson seconded the motion. The motion carried unanimously.

Surveyor Sterrett reported that Gordon Denton has filed a petition for removal of an obstruction on a natural surface watercourse on the Ida Lahr Drain. There is a natural surface watercourse over the Ida Lahr regulated tile drain which is east from Chalmers three and a half miles and south about half a mile. Surveyor Sterrett said, “I’ll bring you up to date on where I’ve been on it. I don’t remember exactly when it was but I remember Gordon called me up. He has a culvert on CR650 S and he has a waterway to the north of that that drains south. It gets to the culvert then it can’t go any farther. I believe it was in the spring of 2004, I’m not sure. He wanted to know what the Drainage Board could do and I said it’s really a civil matter. We have them all the time and I didn’t think the Drainage Board could do anything. Then June 15, 2004 we went out and looked at it and the neighbor had piled sod in front of the culvert, obstructing the drain. That’s when I suggested he file and use Indiana Code 36-9-27.4 to get the obstruction removed. Gordon notified the landowners through an attorney. On July 21, 2004 I met with Gordon and Doug Lakamp, the farm manager for Northern Trust who owns the property downstream from Mr. Denton’s property. At that time, the farm manager was here. He went to the Soil and Water office and we thought everything was going to be taken care of. On October 20 this year Gordon came in and said that he didn’t think they were going to get the waterway in there to open the drain up so he then filed a petition for removal.”

Chairman Burton recognized Doug Lakamp asking if the project with NRCS was totally off the table. Mr. Lakamp stated, “The problem we came in to was my client passed away before we got final paperwork signed and it is going to be passed on. So, we are pretty much starting over as far as getting the paperwork started to receive cost shares and NRC payments. I was told by NRCS that since my client passed away it would be best to hold off. My clients have asked me if I could just hold off until everything is straightened out. I don’t know what the future is for this property with it being passed on to her kids, but history has shown us that more than likely it will be sold. It is going through the estate process now. That’s why we held off. Everything was set up, lined up to go then she passed away.” He said he was asked to hold off by the Executor and the NRCS office said the payments have to go to the rightful person and it would be best to hold off until the estate was settled.

Surveyor Sterrett said, “The property owner downstream has not been notified by the Surveyor’s office as to a Hearing. After the petition is filed there is a thirty day notice. Doug just came in on his own today.”

Board Member Heimlich said, “We are talking about two different things here, what they were going to do was a voluntary procedure. Now what we are talking about here is a legal thing.” Chairman Burton said, “If we could get to the voluntary effort, that would meet the needs of your concerns on the obstruction, correct?” Gordon Denton answered, “Yes, I might add that Doug has been very cooperative, but the last time Doug called me it sounded to me like he didn’t know if this was going to get done or not. So I told him about this meeting. I told him it is my right to make sure it got done. We are at a year and a half right now, how much longer?” Chairman Burton said, “I didn’t want to proceed without making sure we couldn’t work out….” Doug Lekamp said he could ask again. Gordon Denton asked Doug’s opinion if they are ever going to do it, what their intentions are. Mr. Lakamp said he thinks they will sell the farm. Gordon Denton said in other words, if they sell it they won’t do it, that’s the way I understood it.

Board Member Heimlich asked Attorney Loy what the procedure is for removal. He said, “The waterway is not regulated so as Drainage Board we don’t have control over the waterway like we would over a normal drainage thing. There is a regulated tile underneath it and that is the way it is with a lot of County tiles that have a waterway over them. The waterway itself isn’t regulated. The obstruction originally was the piled sod on the other side of the culvert, which obviously you can’t do. I think we do have the jurisdiction to get that removed. Now, what’s happened in the meantime, with some big rains and a lot of water coming down there, now you don’t have all that sod piled right to the middle of the culvert, but instead kind of dispersed back a little bit so your obstruction now isn’t just in one area, it’s been scattered. So I guess my question is, how far can we go in addressing that?” Attorney Loy said, “It is still an obstruction. What was the intent of the laying of the sod, do you know?” Doug Lakamp said, “I’ll be honest, I didn’t know it was done.” Board Member Heimlich said Surveyor Sterrett has pictures and it was pretty obvious what the purpose was. Attorney Loy asked if it was just torn up sod from someplace else. Gordon Denton said, “It was laid in there pretty good. But that wasn’t the first thing. There’s been a cement plug put on my side three or four years ago that I had to remove with a loader, rocks on the other side.” Attorney Loy stated, “The Board has every right to call a Hearing, notify all the affected landowners, and have a Hearing. There is a thirty day requirement.”

Doug Lakamp asked, “What if we didn’t do a waterway, just had some dirt work done and kind of clean up that particular little spot? Is that sufficient?” Board Member Heimlich said, “What I’m getting at, it’s not a LITTLE spot because the water has carried it out a little bit. That’s what my question is; how far out we can go in putting it back the way it was.”

Gordon Denton stated, “NRCS had a plan, I assume they know what they are doing, I don’t know.” Chairman Burton said it is coming out five hundred feet. Gordon Denton said, “I believe that’s right. You see it’s not just my water. It comes off of Baker’s hill, goes across to the sewer down there on 300 E about five hundred feet east of the Chalmers Road, across the Storm farm and comes into me. Now if I could plug my end I wouldn’t have any problem but I don’t want to do that.”

Surveyor Sterrett said, “If the sod waterway is not put in, my feeling is that it could be tilled back across it and we’d have the same problem.” Board Member Heimlich said, “Well, that’s what has happened, I would guess it has been years and years that it has been farmed through. The waterway is certainly obstructed to what it was at one time, just natural.” Attorney Loy stated, “At a Hearing, if it reaches that point, if you find that it was more than likely an intentional obstruction…. they can order the obstruction removed no matter what….but if they further find that it is an intentional obstruction and you are ordered to remove it and DON’T, then the County can do it and assess the cost against the owners. So it would be nice if this could be resolved by agreement. It will be more costly to the owners if WE do it and assess the cost against the ground than if they go out there and do it themselves.” Doug Lakamp said that’s why he is here so he can reiterate it back to the clients.

Board Member Heimlich said, “I don’t know if we can use the Soil and Water Conservation plan because at the time the obstruction was put in there, you were looking at probably a ten or fifteen foot area and now it has washed out and you are looking at a larger area.” Gordon Denton asked, “Wouldn’t it be more logical to do it right instead of cobble it up just a little bit?” Board Member Heimlich said, “I’m just getting at what we have AUTHORITY to do.”

Attorney Loy stated, “You have the authority to enter an Order stating what it takes to remove the obstruction. And if it is intentional, to assess the costs, if they refuse to do so, against the landowners. There would be a Hearing held, notice given to landowners, how many landowners, any idea?” Doug Lakamp said around 3 or 4 landowners. Attorney Loy stated, “The Trust would be notified, the beneficiaries of the Trust would be the parties of interest.” Doug Lakamp said, “Say you guys go ahead with this Hearing, I have thirty days to say ‘alright guys you’ve been summoned for this Hearing to do this’? Surveyor Sterrett said, “I would send a certified letter to the landowners.” Doug Lakamp said, “Then if we could get it by that thirty day period then I’d let you guys know?”

Chairman Burton said, “Ideally if this could convince them to go sign with NRCS and let them complete the project the cost would probably be…………” Doug Lakamp said the whole idea was to make it as cost effective as possible for his clients and going through their program was a way to do that. But, by the time all the paperwork was in order she passed away.

Board Member Heimlich said, “Again, we’re talking about two different procedures there and that one probably will take longer, with the paperwork involved in changing……you know, through the FSA and Soil and Water, I would think it would take longer. But, what we talked about removing the obstruction, it is something kind of follows along the same line, which you say goes out five hundred feet.” Doug Lakamp said that was just the plan by NRCS. Board Member Heimlich said, “What I’m saying, if what we do to remove the obstruction kind of follows that plan, maybe not with the SODDED waterway or whatever, but at least digs it out that far, you know that could be done quicker.” Gordon Denton said, “But if it’s not sodded the way they recommend, it will fill right back in and we have another problem in ten years.” Board Member Heimlich said, “If it is farmed through, yes, eventually it is going to fill back in.”

Board Member Heimlich stated, “So, we have the petition. We schedule the Hearing. Mr. Lakamp takes the information back to the owners. You say there’s three or four?” Doug Lakamp said, “Yes, I’ve only talked to one of them. Nothing has finally been transferred, we’re still waiting on appraisals. They are doing Title work now to get everything transferred.” Board Member Heimlich said, “At least there can be some discussions, some negotiation before the Hearing. Then we hold the Hearing and see what it brings.” Attorney Loy asked who the attorney is for the Trust for the estate. Doug Lakamp said he believes it is going to be Bob Christopher and he was planning to get in touch with them, getting permission to call him and let him know about this. He said he just came to get an idea about what needs to be done.

Board Member Heimlich made a motion to accept the petition that has been received from Gordon Denton requesting the removal of an obstruction from the Ida Lahr Drain waterway in Big Creek Township, White County, Indiana and agreeing to set the date for a Hearing on the petition. Board Member Ferguson seconded the motion. The motion carried unanimously. For discussion on filing see tape.

Board Member Heimlich made a motion to hold the Hearing on the petition on the removal of an obstruction from the Ida Lahr Drain waterway on December 5, 2005 at 10:30 A.M., EST. Board Member Ferguson seconded the motion. The motion carried unanimously. Mr. Lakamp was given a copy of the petition.

Surveyor Sterrett reported that landowner Lynnora Blissett called and told the Surveyor that her tile is plugged up. It is the Henry Stewart Tile north of the tank farm at south of Brookston on Highway 43. Surveyor showed where the tile goes and said it ends at the headwall. He said, “The tile is regulated but the open ditch part is not. So we can work at the outlet, right?” Attorney Loy said, “The outlet of our regulated tile.”

Board Member Heimlich asked what the obstruction is. Surveyor Sterrett answered, “The ditch needs dipped out. She just called me last week so I didn’t have a chance to take any elevations. She wasn’t there but I did get a chance to go out and look at it.” Board Member Heimlich asked how much of the ditch needs dipped. Surveyor Sterrett said, “That depends on the grade, maybe 300 or 400 hundred feet is all, it looks like it drops off real fast. We don’t have any right-of-way to work on the ditch. All these landowners along here aren’t assessed on the tile. She’s the last landowner being assessed.” Board Member Heimlich asked if it is like a creek, does the water from each side naturally drain into it? Surveyor Sterrett said yes. He said it is not just a waterway. He said he thinks it is an eighteen inch tile and it is actually a little open ditch, a brook.

It probably has a two foot bottom and fifteen foot banks and there is grass and lawns on both sides of it. Chairman Burton said it is a natural watercourse, it would be there whether the tile dumped into it or not. Surveyor Sterrett said yes, it is a depressed area.

Board Member Heimlich asked, “What jurisdiction do we have? The tile is regulated, we have control of it but our outlet is filled in.” Chairman Burton said, “Where it dumps into this unregulated open ravine there’s enough backed up that…..” Surveyor Sterrett said the silt probably came from the tile and now it is pushing up over the silt. Attorney Loy said, “But our description ends before that.” Board Member Heimlich said the work that has to be done, has to be done in an area that we don’t control, it’s not regulated. Attorney Loy said, “You could attempt to extend your jurisdiction of the drain to include that and any other reasonable area downstream. Make that a part of the regulated drain. Are there any of the landowners here?” The answer was no. Attorney Loy asked how far they would have to go and Surveyor Sterrett said he didn’t have elevations yet, three, four or five hundred feet maybe. Attorney Loy said that is beyond where we ought to be going. He said to find out if the landowners will cooperate with it. Surveyor Sterrett said he would think they might because the water is running overland now, running out of the ditch. Board Member Heimlich asked if trucks can get in so the silt can be hauled away because that might be a problem they would have if you were going to dump silt on their lawn. Surveyor Sterrett said, “I don’t think that will be a problem. I doubt if you could get a truck down there, it’s pretty wet. I think it can be done with a backhoe on maintenance. It might not take half a day to do it, depending on how far we have to go. Locations discussed – see tape. Surveyor Sterrett said the tile ends on Blissett’s property. Board Member Heimlich said it would be through three other properties. Surveyor Sterrett said he will try to get the landowners’ permission. He will notify the landowners of a landowners’ meeting.

Surveyor Sterrett explained to Attorney Loy that Contractor Derflinger wants to use an irrevocable letter of credit for his bond for the J. P. Carr Drain reconstruction job. Surveyor Sterrett showed Attorney Loy an example, a letter Mr. Derflinger had from Jasper County. Attorney Loy asked the amount of the bid on the project. Derflinger’s bid was $74,000.00. The bids were opened in October. Attorney Loy said a condition of the contract was that he get a bond. Attorney Loy asked if there were other bidders. The answer was yes. Attorney Loy stated, “It is my recommendation that he get a performance bond. Then if he fails to do the job it will take care of it.”

Jeannine Anderson addressed the Board concerning dredging that is needed in the area north of Buffalo involving the Harp-Helfrick Drain. Mr. And Mrs. Forsythe were still not willing to sign any waiver connected with the work needed. They were also unwilling to build a seawall to protect their bank. Jeannine Anderson suggested two options. She said, “We could dig out further so it doesn’t affect their house because they still don’t want to sign anything at this point, any waivers and I realize you want them to sign a waiver. But if you dug out further where the island is forming it shouldn’t hurt their house or their foundation. The other thing we could do is dig on the north side of Palmers (Drive), it’s easy access for the trucks, they can scoop it out every three years.” Jeannine Anderson discussed what neighbors she has talked to and said it has to be dug out and asked what can we do? She asked if it is possible to put a silt trap on the north side of Palmer Drive. She said she has worked with NRCS upstream on getting filter strips. See tape.

Chairman Burton stated, “The Board is not against trying to draw some of that silt that is there along the east bank which would be straight out and we’ve heard that the landowner has been willing to work with us on creating an access although that has not officially been documented as far as that landowner agreeing to it, but as you mentioned, yes we have 75 foot of right-of-way which encompasses that house which puts us into direct…….” Mrs. Forsythe said according to the paper they gave her, the right-of-way is on the east side. She said it says ‘to the right of the ditch’. Board Member Heimlich informed her the Board has seventy-five feet on BOTH sides. Attorney Loy said, “It says ‘measured at right angles from both crests of the ditch’.” Mr. Forsythe said, “I’ve lost part of my bank already, that was solid out there, and I’m going to keep losing it.” Chairman Burton said, “And that’s what the issue is currently.” Jeannine Anderson said, “I can’t see that the bank erosion has made that island.” Chairman Burton said, “We’re not suggesting that, but if we proceed at this point to make changes to deal with that, as you’ve heard today, in the best interest of the County we are concerned with our legal obligations and this is a stumbling block.” Mrs. Forsythe said, “It wasn’t ten years ago. This was dug out in 1995 and we were told it was supposed to be dug out every two to three years. Now they’ve let it go and it has gotten this bad. No one has ever had to sign anything or do anything. This was dug out right where we want it dug out now. J. R. Smith was here and said that.” Chairman Burton said, “And we are ready to proceed, but we are still at the stumbling block, if we move in there and we clean that out……..” Mrs. Forsythe said, “You don’t have to come near our property, near our bank. It is all out front. It’s the ditch, it’s not anywhere near our property.” Chairman Burton said, “If that’s the case, if we do that then we’re suggesting that you are saying you will not hold the County responsible if, the next six inch rain that comes through there and because of the water moving through there, erodes your bank and your house slides down.” Mrs. Forsythe said, “No, we’re not saying that. We’ve already been advised we do not sign anything. We’re not asking you to dig along side…..” Board Member Heimlich stated, “It doesn’t make any difference where we dig.” Mrs. Forsythe asked why they did it ten years ago. The Board Members answered that they were not here ten years ago.

Attorney Loy stated, “From my standpoint, it comes back to your house was built in the wrong place and that is YOUR problem, not the County’s.” Mrs. Forsythe said, “If our property erodes, it is because of your ditch.” Attorney Loy said, “No, that’s not the case.”

Jeannine Anderson thought perhaps it wouldn’t get any worse if a silt trap was put in on the north side, or perhaps upstream further. Chairman Burton asked about the procedure for building silt traps on regulated drains. Board Member Heimlich said, “There would have to be a Hearing, who is going to pay for it? Plus you have the construction of the silt trap and periodic maintenance on it.” Charles Mellon said they tried before (to put a silt trap in) and they had a Hearing on it, the Pulaski Surveyor was there, and it got voted down. He said that ditch goes way up north and all of the landowners were there and they voted against it. He said the reason the ditch isn’t cleaned north of there is to keep the silt from washing down.

Chairman Burton summarized, “We have a plan here to try to resolve the silt, but there is a hang up of the County needing to be responsible and that’s where we are, with existing erosion on their bank, and I’ll go back and review again, if they would chose to build a seawall along that bank, the County would be willing to consider that.” Jeannine Anderson asked if a rip rap seawall would be possible. Chairman Burton said he would have to refer to our Engineer or Surveyor. Mrs. Forsythe said she would think the Drainage Board would have to be responsible for their water coming through, for that seawall. Board Member Heimlich stated, “Not for structures built where it shouldn’t have been built, inside the right-of-way. The ditch was there first.” See tape for further discussion.

Board Member Heimlich stated, “There is a retaining wall there now, it is metal, but it is rusting out, that’s our concern. That’s going to rust out whether we dig in there or not. So if anything we do is blamed later, when that seawall rusts out and falls in, then it’s our fault because we dug there.” Jeannine Anderson said, “If they put a seawall in that is structurally sound…….” Attorney Loy said they would have to have a Consent to Encroach on the County’s right-of-way. We have to approve the design and it would be at their cost. Jeannine Anderson said, “Ok, if they have a seawall that meets your requirements, THEN are you ready to dig, if they have an adequate seawall, without having them sign a waiver.” Attorney Loy said, “My advice to that would be the same.” Board Member Heimlich said, “I think we’ve talked about that before. If we had an engineer that says that it would be no problem for us digging there. Somebody with some technical expertise would have to sign off.” Chairman Burton said, “Forsythe's mentioned they weren’t interested in paying anything so we moved on from there.” See tape for further explanation on Consent to Encroach, etc.

Chairman Burton said, “It is not that we are not willing to work through this…..Well, there is no use discussing it any more.” Jeannine Anderson said, “What I’m thinking is a new silt trap on the other side then we don’t deal with them.” Chairman Burton said, “Trying to dissolve the current situation, the best, fast and easiest way out, due to the stumbling block there, would you concur to try and do a silt trap there on the north side of Palmer Drive?” Board Member Heimlich said, “Well, what Charlie is talking about, you are going to have the same thing, you’re going to have to have a Hearing on it and who is going to be in favor of that silt trap upstream?” Charlie Mellon said there was probably forty people there that night they talked about it when George Milligan was surveyor.

Chairman Burton said, “You’ve heard where we’re at.” Jeannine Anderson asked, “So, if they don’t sign a waiver the whole thing is off forever?” Attorney Loy stated, “That’s an open-ended question that could take forever to answer. Their house is where it shouldn’t be. If there’s any work that we do, we could be potentially liable and that’s the legal advice I am giving this Board, and they apparently value legal advice because they’re taking some legal advice of their own.” Board Member Heimlich said, “We’ve been up there and looked at it, and as I explained, they have retaining walls there built with metal and it’s rusting out. They are going to have problems regardless in the future.” Charlie Mellon said, “They had a chance to sign that waiver at you guys’ first meeting and they turned it down and it’s just got worse since.”

Chairman Burton said, “This is not a done issue, it’s a stumbling block and I hope eventually we can get over this and we will go back to the fastest, easiest, probably most cost effective way to deal with this.” Jeannine Anderson asked, “What do you advise me to do? What steps do I take?” Charlie Mellon said get them to cooperate, that’s the main thing. Board Member Heimlich said, “I doubt that they have contacted a lawyer yet. Maybe they will contact a lawyer and he’ll tell them the same thing we have told them and maybe we’ll get some place. Nobody here is threatening to tear down their house, nobody has ever done that. But, they do have a house that is not only encroaching on the right-of-way, it’s practically right on top of it (drain) where the improvements were made and it puts us in an awkward situation. We can’t really grant the Consent to Encroach now, once it’s been done, that increases our liability.”

Chairman Burton adjourned the meeting.