§ 8.8.4. Review criteria.

A.

The following provisions apply to all development proposals, as listed in subsection 8.8.2 above, that include irrigation facilities. Any preliminary plat, final rural land plan or site plan must show the top of ditch banks relative to the limits of the proposed easement;

B.

Written approval of the ditch owner or its representatives must be obtained for any proposed modifications of any irrigation facilities, including but not limited to realignments, changes to configurations (i.e. [e.g.], from an earthen to a lined ditch, from an open ditch to underground, etc.) or crossings;

C.

The time schedule for any modifications approved under subsection B above or other activities that may disrupt the flow of water must be referred to the ditch owner for review and comment. The county commissioners will require, by condition of approval, that such modifications be made or such activities be conducted when the disruption of the water flow will be minimized;

D.

Ditch easements will extend the length of the ditch through the site. The minimum width of the easement will be the area between the ditch banks plus the following:

1.

For ditches having an average bottom width of less than eight feet, the easement will be 25 feet measured from the top of the ditch on one side of the ditch;

2.

For ditches having an average bottom width of eight feet or more, the easement will be 30 feet measured from the top of the ditch on both sides of the ditch;

3.

The ditch owner will be entitled to additional easement width where the ditch owner demonstrates:

a.

Terrain or other circumstances (such as existing maintenance roads on both sides of a ditch) necessitate a wider easement or additional easements to operate, repair and maintain the ditches; and/or

b.

An entitlement to a wider easement by law or based on historical use or an agreement between the land owner and the ditch owner.

E.

Prior to dedication of any easement or right-of-way for irrigation facilities, the applicant must provide a proper abstract of title or a proper commitment for title insurance in form, amount and insurance company acceptable to the ditch owner;

F.

The applicant is responsible for any and all reasonable costs for engineering, surveying and legal services incurred on behalf of a ditch owner as a result of the development proposal. The costs incurred on behalf of a ditch owner must be paid in full before any public hearing is scheduled for the development proposal;

G.

Unless approved in writing by the county engineer and the ditch owner, irrigation ditches shall not be used to carry surface water flows and stormwater runoff, except to the extent that the ditch received such water prior to the development. Such water can only be discharged into the ditch in the same volumes, at the same rate of flow, at the same location or locations and within the same time frames as historically occurred. Unless the ditch owner agrees otherwise, in writing, the development must be designed and constructed so that the ditch receives such water in this manner free from the addition of any pollutant but does not receive additional water;

H.

When the county commissioners determine that unreasonable, unnecessary or extraordinary requirements are proposed by a ditch owner, the commissioners may approve only those requirements they deem appropriate to protect the irrigation facilities.