OCTOBER 24, 2007



The Warrick County Drainage Board met in regular session with President Phillip H. Baxter presiding, also in attendance were Nova Conner. Vice President; Don Williams, Secretary; James E. Niemeyer, Surveyor and David K. Zengler, Attorney for the Board.


Minutes were recorded and transcribed by Cheryl D. Embry.


Those present in the audience were Donna Potts and Tom Roetting.




Phil Baxter:Warrick County Drainage Board October 24th 2007 will now come to order. What do you have, Jim?


Jim Niemeyer:The only thing that we have are claims and we also have all the paper work has been completed for the adoption of the new extension to the Edwards Ditch Legal system.


Don Williams:We need to approve the minutes from October 10, 2007.


Phil Baxter:I just looked at that. My fault. Do we have a motion to approve the minutes?


Nova Conner: I make a motion to approve theminutes from October 10, 2007.


Don Williams:Iíll second that.


A motion was made and seconded to approve minutes. Motion carried 3-0.




Jim Niemeyer: I am going to turn this portion over to Mr. Zengler.


David K. Zengler: We have advertised and notified for a Public Hearing on the Edwards Drain extension, there have been petitions filed by S. M. Properties LLP which is Schnucks overall so the Public Hearing is on their petition, however, I have filed today a petition that has been received from Ped-Corp which is on the other side from Schnucks. Itís from the apartment owners and they have joined in the petition and S.M. Properties would have met the legal criteria but with Ped-Corp we are well in excess of the legal criteria which allows this Board to go ahead and approve if they do desire. So I think the first step is though is a Public Hearing if anybody is here to speak to that issue.


Don Williams:Donít we have to advertise a Public Hearing?


Mr. Zengler:We did and it has been advertised for today. It was advertised in both the Boonville Standard and the Newburgh Register and it was advertised one time which is on 10-18-07 and it was advertised for today at 3:00.


Don Williams:I had copies of those claims, I just didnít read what they were for.

So we need to adjourn or recess this meeting and have the Public Hearing?


Mr. Zengler:Yes.


Don Williams:Mr. President, I would move that we recess the Drainage Board Meeting to do the Public Hearing on Edwards Ditch Extension.


Phil Baxter:Do we have a second?


Nova Conner:Second


Motion was made and seconded to recess meeting. Motion carried 3-0.


Phil Baxter:We will now have the Public Hearing on the Edwards Drain Extension. Do we have anyone to speak?


Don Williams:Mr. President, in the Matter of Edwards Extension I think this is something this Board has wanted and I think we need to go ahead and go forward with it, make it a legal drain and get it cleaned.


Phil Baxter:Any other discussion?


Jim Niemeyer: Itís ready to go. Does anyone need to speak, this is a Public Hearing about Edwards Ditch?


Don Williams:I would move, Mr. President we close the Hearing.


Nova Conner: I second that.


Motion was made and seconded and carried 3-0.


Phil Baxter:We will now reopen the Drainage Board Meeting.


Don Williams:Mr. President, I would move for action on the Matter of Edwards Ditch Drainage Extension Petition, I would move that we have our attorney go forward with making that a Legal Drain.


Nova Conner:I second.


Phil Baxter: We have a motion and second to approve. Motion carries 3-0.

David Zengler: I think the motion should include that you approve the petition that you approve that petition for the Edwards Drainage Extension.


Don Williams:Okay, I would further move that we approve the petition for the Edwards Extension.


Nova Conner:I second.


Phil Baxter:Motion was made and second. Motion carries 3-0.




Phil Baxter:We will now have claims.


Don Williams:Mr. President, I move that we pay the claims in the amount of $1,643.55.


Nova Conner:Second


Motion was made and seconded to pay claims. Motion carried 3-0.


Phil Baxter: Does anyone have anything for the Drainage Board?


Tom Koetting:My name is Tom Koetting and I am just here to check on the status of the cleaning of Edwards Ditch and it looks like that has commenced. Now is that going to continue?


Jim Niemeyer:Well, it will when the weather straightens up and dries up a little bit. We do have the beavers in my detention ditch.


Don Williams:Did you take them down there? Do we need to get a trapper?


Tom Koetting: Iím behind the curve on this, but the petition for the extension for Edwards Ditch, what was that?


Don Williams:That was the portion of the ditch behind Schnucks, there for the Green Spring Acres the North section.


Mr. Koetting: So that would now be included in theÖÖ..


Jim Niemeyer: Yes, it is a legal drain and we can commence to clean it.


Don Williams:Weíre not real fast but weíre getting there. Ihave a question for Jim, I understand that you had called off the work temporarily?


Jim Niemeyer:I did, Well, it was wet and anyway but what I thought I should do since we are a Department insofar as Department of Storm Water Management is concerned, I did call DNR to inform them of our intentions and so this afternoon, it boiled down to this I just need to write a letter to Army Corp of Engineers telling them what weíre doing and how weíre doing so that we get a permit back to proceed.


Don Williams:Iíve got a question? Weíre talking about a Legal Drain?


Jim Niemeyer:Yes


Don Williams: That this Board makes decisions on and weíre talking about an easement on County property. Now if weíre dealing with property that they had jurisdiction over I could see that but when you bring DNR and the Corp of Engineers in that could tie us up for years if they get a hair. That really should have been a Board decision, itís a Drainage Board Legal Drain decision not a Surveyorís decision to bring them in or to write them letters.


Jim Niemeyer: Well, it merely describes what weíre doing and theyíre all right with it as long as we donít remove any material.


Nova Conner: I was thinking that was under the Drainage Board not the Stormwater.


Don Williams: It is under the Drainage Board and the thing with that when it comes to our legal drainsÖ.See if we have a citizen out here and they have a legal drain going down their property we have 75-foot easement and we out of courtesy give them notice

that we are going to clean it and we go ahead and clean it. But when DNR has property or the Army Corp of Engineers owns the property we canít do that all of a sudden a legal drain changes status because itís got a government owner for some reason and they will hold us up and you know that Jim, in any other situation. I just personally feel unless its necessary we donít need to bring them in on our legal drains. We havenít in six and a half (6 Ĺ ) years that I have been on this Board.


Jim Niemeyer: Well, I was advisedÖÖÖ


Don Williams:If you get those people involved and what is going to happen is youíre going to end up slowing the whole process and the drainage issues we have in here we canít afford to be slowed up. Thatís just my personal thought, Iím not chewing on you here I just think that we should haveÖÖ


Jim Niemeyer: I think thatís something weÖ..Iím glad it came up so we can come to an agreement on that so that I know what Iím supposed to do and what not. Iím not trying to create a problem, Iím just trying to stay out of problems.


Don Williams:Sometimes a ten thousand dollar ($10,000.00) fine is cheaper than eighty thousand dollars($80,000.000) in permits.


Jim Niemeyer: I know we had that problem.


Don Williams:I donít mean that in the wrong way but I mean that is the case of some of their ditches and this is for an expression, this is turf that they really shouldnít have any say so in as long as weíre not filling in or putting pipe in it and then the Army Corp of Engineers would have to give us approval. But for us to go in and get their approval every time we wanted to clean a legal drain, weíve never done that in the past that I know of.


Phil Baxter: Have you ever notified them before, Jim?


Jim Niemeyer: Yeah, I did on Allen Ditch and Little Pigeon Creek.


Don Williams:Well, Little Pigeon Creek, they have some say so as that is their turf.


Nova Conner: Is that because Jim you were thinking it was under the Storm Water Management?


There was discussion on how quickly you would hear from both DNR and Army Corp of Engineers.


Jim Niemeyer: I guess we donít have to do it and I donít have to send a letter.


Don Williams:Because as quickly as that dries we need to be in there cleaning and if it doesnít dry as soon as it freezes we need to be in there cleaning.


Nova Conner:Yes, because we could start moving some of the brush cause I really feel like they are proceedingÖ..


Sam: We can continue on with the clearing just sending the excavator down through there even if itís a little wet. Weíre just pulling stuff off of the banks and laying it out there, so when it dries out or freezes up we can go in there and start removing it.


Don Williams:We donít have any crop concerns, do we?


Sam: No


Don Williams:Let the record show that was our Highway Superintendent Sam Roach speaking.


Phil Baxter: Its calling for rain again tonight so hopefully weíll hear something by the first of the week.


Jim Niemeyer:Well, Iím going to overnight it.


Nova Conner: But at this point you still feel like you need to do that? The letter.


Jim Niemeyer:Well, I mean I donít have to send it.

Nova Conner: Because my thinking was that you were putting it under the Storm Water Management think and really I think this was under the Drainage Board.


Jim Niemeyer: I think it becomes a Storm WaterÖÖ..


Don Williams:Jim, I think since youíve already contacted them, I donít think you have any choice but to follow through.


Jim Niemeyer:Iím not contacting Louisville


Don Williams:I think our Attorney agrees with us that we probably ought not to bring them in unless we need to.


David Zengler: Youíve already contacted DNR though, is that who youíve contacted?


Jim Niemeyer: Yes, There is nothing in writing but they do haveÖ.I talked to two (2) people there and the person this morning said all I needed to do was send a letter to Corp of Engineers and inform them of what weíre doing and thatís it. But like I say I donítÖ..


Don Williams:Thatís what happened with the Parks Board and all of a sudden they were owing them Eighty to Ninety thousand ($80,000 to $90,000) dollars in permitting fees and that wasnít a legal drain that was just a little blue line ditch that nobody cares about.


Phil Baxter: And it was on our property.


Jim Niemeyer: Yes, but this is going to come Iím sure.


Nova Conner:In terms of?


Jim Niemeyer:I donít suppose that weíre going to get away from it.


There was other discussion about it being on record and that it didnít need to be done on legal drains unless weíre going through property that DNR controls or Army Corp of Engineers. It was asked if this has always been done.


Jim Niemeyer: I went upon the advice of Commonwealth. I asked them if I should since we are a functional department.


Don Williams:This is not a Commonwealth issue nor is it a Storm Water Issue.

It is a Drainage Board issue, Commonwealth shouldnít have even been brought into it. I think youíre getting them confused there, Jim.


Nova Conner: I think you were thinking of Storm Water and I think it is easy to do.


Don Williams:That is all I have, cause I definitely want to get Edwards Ditch cleaned out as soon as possible and the fact that we get to use our new excavator that we bought last year for the Highway Department is going to save the county thousands and thousands of dollars. They are winding down in their road work so they have the opportunity and the time to do this, so Iím for going as quickly as we can.


Nova Conner: So you donít even think he can proceed just taking the brush that is already there and taking it out?


Jim Niemeyer:As long as we donít haul any dirt out of there.


Sam Roach: We werenít planning on hauling any dirt anywhere. Even to widened it we would put the dirt back in. We were just going to haul some brush off.


Don Williams:I guess the brush will go out to the landfill? I think weíre in good shape and donít think of that as chewing Jim I didnít mean that, I think itís going to be difficult for the four of us keeping Drainage Board and Storm Water Management issues separate because there is some overlapping automatically.


Nova Conner: That is something that I would like to discuss because we were doing some bench marking in Newburgh and everything falls under Storm Water Management, they donít have a drainage, it all falls under one.


Don Williams:The difference is under State Statute the legal drains, the county has to take care of those.


Nova Conner:Iím anxious to see how we can get that incorporated because we are going to be duplicating and Iím just anxious to seeÖÖ


Don Williams:I donít think weíll be doing any duplicating we shouldnít because weíve got the same four (4) members on both boards and weíve got the same attorney.


Nova Conner: But that is what Iím saying if we could get it all under one.


David Zengler: I donít think you can do it under one by State Statute because by Statute you have to have a Drainage Board and you have to have a Storm Water. I think the criteria we initially talked about was anything with a legal drain would be under the Drainage Board, anything thatís not a legal drain would be under Storm Water.


Nova Conner: So we develop that criteria, because I wondered where that came from.


Don Williams:State Statute.


Nova Conner: Then why doesnít everyone have to do that, I guess I didnít understand that. Because some people like Newburgh are running itÖ..


Phil Baxter: That is because they are a municipality and they donít have legal drains.


Nova Conner: So it is stated somewhere that we have to keep them separate.


David Zengler: The County has to have a Drainage Board and part of it is the funding mechanism. So the County would have to have the Drainage Board and they have to have a Storm Water Management. Municipalities like Chandler and Newburgh would not have to do that they could have it all in one and there will be some overlap and itís probably going to beÖ.


Don Williams:The only overlap would be water quality issues on legal drains. If there is a legal drain that for some reason gets polluted, then that would have to be inspected. The cause of that pollution would have to be determined and that would be under the Storm Water Management side of it. I think thatís the only real overlapping that I am aware of.

But there may be other things that Iím not aware of.


Nova Conner: Yes, because honestly when we were talking with Mike (Feltz) he was saying in terms of the fees that we raise could go right into the drainage to be there because really storm water is everything. So see I guess Iím still having a problem with the private and the public cause he is saying to us as a consultant that heís been working with usÖ.and tell me that this is wrong, Jim, that we could simply put the money over into the drainage fund to take care of it that is what he said the other night because anything that falls under storm water management.


Don Williams:Canít, one is utility and one is a government entity.


Nova Conner: Well, I guess that is what concerns me.


Don Williams:That is the same reason why they wonít pay claims out of Drainage Board for Storm Water Management.


Nova Conner: I guess thatís what bothers me is the fact that weíre using Commonwealth as a consultant because they help write the regulations and he is telling us that that can be done and that just kind of concerns me.


Don Williams:Iím not sure what he is telling you exactly, Iím not clear on that.


Nova Conner:Didnít you get that understanding Jim, he did, he said that can be put into the drainage so I just..you know.


Jim Niemeyer:Because all the water eventually winds up in legal drains.


Don Williams:Well, thatís true it all does.


Nova Conner:I know thatís what he said and we have paid this man a lot of money to be a consultant and when he said that I found it interesting and I guess thatís why Iím trying to figure out the rules and the best way that it can be done.


Phil Baxter:I hope weíre being steered in the right direction.


Nova Conner:Yes, we do absolutely because we want to get to help the people with this flooding that is one of our main goals and I want to be able to do that the fastest and most efficient way in terms of cost and everything else that weíre not duplicating as far as other expenses.


Don Williams:So anyway to get back to the matter at hand I donít know if we need a motion or anything but if we need a consensus thatís fine but I would like to see the Highway Department continue on with the cleaning of the debris, the trash, the trees out of Edwards Ditch and as soon as we get feedback from DNR and the Army Corp start sloping and cleaning. Iíll put that in the form of a motion.


Nova Conner:Second


Motion was made and seconded to have the Highway Department continue on with the cleaning of Edwards Ditch. Motion was carried 3-0.


There was discussion as to how much brush and trash there was in the ditch and also that there probably wonít have to be as much excavation as was originally thought.

A gentleman came in late and asked questions but was not on the microphone and he did not identify himself. Phil responded that they had looked at where he was talking about last week and that there is going to be a box culvert put in that area and hoping that the developer cleans it out also.


Jim stated that he had an offer of two box culverts but didnít know all of the details, it just came to him on the internet.


David Zengler: For our Storm Water Management Meeting for November I donít know what the date is but itís the Wednesday before Thanksgiving and I will be out of town visiting our daughter who lives in England. So I wondered if and I think Jim indicated that he may be gone also.


Don Williams:I would rather wait and cancel that later on in one of the November meetings and the reason for that is weíre very tentative right now as far as dealing with getting the funding and things like that and there may be some kind of emergency thing that comes up in the next two or three weeks so as far as cancellation of that meeting, I would just as soon wait. I donít think this Board can cancel that meeting anyway.


David Zengler: This Board canít I was just informing you that I wonít be here and you mightÖ.


Don Williams:It doesnít make much sense if we have anything legal on the books but if we donít have anything on the agenda then Iím all for not doing it.


Phil Baxter: I think in the past we have cancelled all meetings on that day.

Don Williams:I think we have also. But the only thing, my thoughts if there were some type of an emergency issue that we would have to handle. Then we would have to go through the re-advertising and all that and Iím thinking if we wait until weíre a little closer to that date, cause each one of us can call Jim or Cheryl and say lets cancel it as long as you get consensus. And if your not going to make it and heís not going to make it and if one more person cancels cause it takes 3 to have a caucus. But lets wait and cancel it in 2-3 weeks just to see if we have anything. We have another Drainage Board meeting before then on the 14th and we can cancel it then just as easy. You might even make that a line item on the agenda. I move we adjourn.


Phil Baxter:Second


Motion was made and seconded to adjourn. Motion carried 3-0.