If you are contemplating hiring a contractor to install grass waterways, drainage tile, terraces, levies or other drainage projects on your farm in 2012, there are several practical legal considerations you may want to take into account:
• Drainage district. The first question a landowner should ask is if the land they are hoping to improve is located in a drainage district. The county auditor or county supervisor should be able to answer that question.
The Iowa Legislature first adopted a system of drainage districts in 1890 and provided those districts with the authority to establish and maintain drainage facilities. The basic purpose behind the establishment of those districts was to drain the excess water within a watershed area; those who are benefited from the drainage are levied through property taxes.
Generally, most of Iowa’s drainage districts are located in the western and north-central portions of the state. However, there are several isolated drainage districts located throughout the state that were formed for specific drainage purposes, such as levy systems.
A landowner in a drainage district will want to contact the trustees of the district (usually the county board of supervisors) before making improvements. If not in a district, the common law applies, and the private landowner would assume maintenance for all parts of the “drainage system” on their land.
• Designing the project and wetlands. Landowners have a duty to establish and maintain good erosion control and soil conservation practices, and should visit with the local Natural Resources Conservation Service office before starting a project. NRCS can assist in designing a project that complies with each farm’s conservation plan and, in some instances, may provide cost-share funds.
If a landowner is concerned that the land being improved is a wetland, NRCS would make that determination. If a landowner doesn’t inquire, he or she could be violating provisions of Swampbuster, an act that bars conversion of wetlands after 1985. Violating Swampbuster may cause a farmer to forfeit eligibility for federal farm programs. Generally, the contractor is quite familiar with the local NRCS staff and will be able to make the initial contact.
• Hiring a responsible contractor. The vast majority of contractors performing drainage work in Iowa comply with the laws and attend extensive training sessions. However, it is good practice to obtain referrals when hiring a contractor. The Iowa Code requires at least 48-hour notice prior to commencement of excavation projects. A recent Iowa case reaffirmed a contractor’s duty to “One-Call” excavation projects. In that case, a contractor failed to “one-call” a tiling project and struck a gasoline pipeline.
The gas company sued the contractor, and the contractor claimed the landowner was jointly liable. The key element in these cases is control. Here, the landowner was not liable because the contractor controlled the mode, method and manner or all excavation activities; the landowner was not personally liable. A landowner personally attempting excavation should always “one-call” the project.
• Consider legal rights of neighbors. Practically speaking, it is always a good practice to contact neighboring landowners before the installation of drainage facilities that may affect adjacent lands. The Iowa Code and the courts have routinely held that upstream (dominant) landowners may outlet drainage onto the downstream (servient) owners.
Generally, the downstream landowner must accept all “natural drainage.” If an adjacent landowner obstructs that drainage, then the upstream owners may seek an injunction from the courts to require the downstream owner to remove the obstruction. A “willful obstruction” of natural drainage could constitute a serious misdemeanor in Iowa.
Further, natural drainage cannot be diverted by another landowner to the damage of others. If an upstream owner substantially increases the volume of water or significantly changes the manner or method or drainage in that watercourse, then the landowner may be liable for damages to a neighboring landowner. A good rule of thumb is that a landowner should exercise “ordinary care” in the use of his or her property and not seek to injure the rights of neighboring landowners.
• Put it in writing. A landowner may consider negotiating a private drainage easement with adjoining landowners regarding drainage and improvements. As usual, any and all agreements affecting your land should be in writing and signed. An easement would “run with the land” and should be recorded. Oftentimes, these improvements can be mutually beneficial. Some contractors or landowners find that putting the scope of work of a drainage project in writing avoids potential arguments. If the project is quite extensive, it is always a good idea to have a written “meeting of the minds.”
Herbold-Swalwell is an attorney with Beving, Swanson and Forrest in Des Moines. Reach her at eherbold@
This article published in the January, 2012 edition of WALLACES FARMER.
All rights reserved. Copyright Farm Progress Cos. 2012.