Upper Salt Fork Drainage District v. DiNovo

904 N.E.2d 84, 385 Ill. App. 3d 1083
CourtAppellate Court of Illinois
DecidedOctober 14, 2008
Docket4-07-1068
StatusPublished
Cited by4 cases

This text of 904 N.E.2d 84 (Upper Salt Fork Drainage District v. DiNovo) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Upper Salt Fork Drainage District v. DiNovo, 904 N.E.2d 84, 385 Ill. App. 3d 1083 (Ill. Ct. App. 2008).

Opinion

PRESIDING JUSTICE APPLETON

delivered the opinion of the court:

Plaintiff, the Upper Salt Fork Drainage District, petitioned the trial court for an increase in its annual maintenance assessment. Some landowners objected. In a bench trial, the trial court found that the District had proved its need for an increase, but because the District did not provide enough information about the structures it intended to build in the ditch, the court authorized a lesser amount of increase than the District had requested. The District appeals. We do not find the judgment to be against the manifest weight of the evidence. Engineers testified that some of the structures the District proposed could cause erosion and flooding. A reasonable trier of fact could require more information about the number, dimensions, and locations of these structures — which would cost thousands of dollars apiece — rather than decide, sight unseen, that they were a good investment. Therefore, we affirm the trial court’s judgment.

I. BACKGROUND

On September 4, 2007, the Upper Salt Fork Drainage District filed a petition seeking authority to do two things: (1) increase the annual maintenance assessment in the main district (count I) and (2) establish an annual maintenance assessment in subdistrict No. 2 (count II). See 70 ILCS 605/4 — 19 (West 2006). Only count I — the request to increase the annual maintenance assessment in the main district — is at issue in this appeal.

According to count I, the district’s drain consists of a single ditch approximately 21 miles long, extending from Rantoul to about 3 miles south of St. Joseph, where it empties into the Salt Fork River. At the upper end of the District, the ditch is 15 feet deep with a bottom 120 feet wide, lV2-to-l slopes (IV2 feet back to 1 foot of rise), and a bottom grade of 0.17% (9 feet of fall per mile of ditch). At the lower end of the District, the bottom of the ditch is 80 feet wide with a slope of only .035% (2 feet of fall per mile of ditch). The banks of the ditch are eroding into the channel, and as the slope of the bottom flattens and the channel becomes wider, the water slows down and drops its load of sediment. Recently, on May 13, 2004, the circuit court approved an additional assessment of $335,000 (see 70 ILCS 605/4 — 19 (West 2006)), which the District used to dredge sediment from the ditch bottom.

The District would like to get erosion under control, reducing the amount of sediment that enters the ditch and making it less costly to remove the sediment in the future. To that end, the District has consulted Wayne Kinney of Midwest Streams, Inc., a company that specializes in stabilizing the banks of waterways. According to the petition, Kinney has submitted “a proposal to prepare a [l]ong[-][t]erm Maintenance [pilan.” A copy of Kinney’s proposal (but not the plan, which is yet to be prepared) is attached to the petition as exhibit A.

In his proposal, Kinney recommends, first of all, stabilizing the banks of the ditch, mostly by installing stone toes. The banks of the ditch are especially vulnerable to erosion wherever the stream meanders into them. The flowing water scours the toe of the slope, undercutting the bank and causing it to collapse. A stone toe is a structure at least three feet wide composed of large quarry stones, or rip-rap. This rip-rap is built up in the toe of the slope to about two feet above the base-flow elevation, to prevent the current from scouring away the bank.

In some places, Kinney states in his proposal, the channel has become too wide. As the water spreads out, it grows shallow, and the energy of the current is dissipated, reducing its capacity to carry sediment. Kinney proposes solving this problem through two techniques. One technique is to narrow the channel with J-hook vanes and bend-way weirs. A J-hook vane is rip-rap assembled roughly in the shape of a J. The top bar of the J is anchored in a bank of the ditch, and the rest of the J is in the water, extending upstream and curving toward the center of the channel. There are gaps in the hook of the J, to allow water to flow through. Inside the hook, the current swirls around in a scour pool, deepening the channel and creating a habitat for aquatic life. A bendway weir is a similar structure. It is anchored into an eroding bank and diverts the current away from the bank, creating a habitat for fish and narrowing the channel so as to make it flow faster and carry more sediment. These structures form a two-stage channel, turning the ditch into a sort of microcosmic river valley consisting of a deeper, inset channel, which carries the water most of the time, and a wider, miniature floodplain, which is 5 or 10 feet below the original floodplain.

Kinney’s second technique for remedying an over-widened channel is to build a rock-riffle sequence. Lines of rip-rap, called rock riffles, are placed all the way across the stream, and these riffles are spaced out so as to leave room for pools to form in between them. These pools will be habitat for fish and also will help to keep the water clean. Water will accumulate in the pools and spill over the riffles with enough velocity to carry away the sediment.

Where the channel is narrow but meandering into a bank, causing the bank to be steep and unstable, Kinney proposes installing rock-riffle grade controls, which will “direct flow to the center of the channel, create deeper pools[,] and reduce velocities in the newly formed pools. The stream energy that is eroding the banks will *** be dissipated in the deep pools and on the steep stone backslopes designed to withstand the increased velocityf,] protecting the banks from erosion and reducing the channel[’]s[ ] natural tendency to meander.”

These strategies, the proposal says, are “intended to be long term and will likely take a span of many years to fully implement.” The plan will “require monitoring as implementation begins[,] to refine the design techniques [so as] to insure the most effective use of resources.” Kinney notes that bendway weirs and J-hook vanes are “not known to have been used in small streams, [but] the[se] concept[s] [are] widely used by the [United States] Army Corps of Engineers on navigable streams to maintain a navigable channel. The plan will explore [their] application in [the Upper] Salt Fork Drainage District.”

Under the heading of “Plan Development,” Kinney concludes as follows:

“The proposed plan will be developed using the experience of Midwest Streams, Inc.[,] along with existing data on stream flows and existing profiles and geomorphic studies. The approach will be to use accepted hydraulic flow equations to determine the impact of all planned improvements to insure that adequate channel capacity is maintained. This approach will require each site to be evaluated and designed as maintenance works are proposed for implementation. The impact of each project will not be determined in the [l]ong[-][r]ange [maintenance [p]lan. However, this site[-] specific approach will avoid the use of extensive data[-]collection necessary to complete a hydraulic model study such as HEC-RAS [(Hydrologic Engineering Center River Analysis System)].

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Bluebook (online)
904 N.E.2d 84, 385 Ill. App. 3d 1083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/upper-salt-fork-drainage-district-v-dinovo-illappct-2008.