Drainage Law

Minnesota agriculture depends upon an immense network of public drainage systems. These systems are called "ditches", but they encompass both open ditches, trapezoidal open trenches and underground tile systems. In Minnesota there are now approximately 21,000 miles of open drainage ditches. From the latter part of the nineteenth century through the 1950's, Minnesota law encouraged expansion of the public drainage system. Public ditches are administered by "Drainage Authorities." Depending on the circumstances, a drainage authority may be a County Board, a Joint Ditch authority composed of representatives from multiple counties, or a Watershed District. The legislature has encouraged watershed districts to take over drainage ditches, so that water policy will be set on a watershed wide basis.

Assessment Based Funding: Drainage Ditches are administered for the private economic benefit of landowners. For this reason, generally the funds to maintain a drainage ditch must come entirely from assessments, and not from taxes. This is an important principle. When a ditch is first established, the drainage authority must determine which lands will receive an economic benefit from the proposed system. The economic benefit is measured by determining the increase in the value of the lands affected by the new system. The Drainage Authority then creates a benefits roll, which establishes the initial benefits for each parcel of land. All expenses of the authority are assessed out to the benefited parcels in proportion to that parcel's proportionate share of the total benefits. For example, if the total benefits assigned to all lands affected by the ditch equals $500,000, a parcel with $5,000 in benefits will pay one-percent of any expenses for the ditch. This includes repair and maintenance, engineering costs, legal costs in some instances, and administration. The revenues from assessments go into a special fund which can be used only for that ditch. Funds advanced by a County toward a ditch represent a debt of the fund, which must be paid back with interest.

Drainage Proceedings? The drainage code contemplates six distinct proceedings: (1) to establish a new drainage system, Section 103E.202; (2) to repair an existing ditch Section 103E.212; (3) to improve an existing ditch Section 103E.215; (4) to improve the outlet of an existing ditch, Section 103E.221; (5) to establish laterals to an already existing ditch system, Section 103E.225; and (6) to abandon all or a portion of an existing system Section 103E.805, 811. Each of these proceedings has its own special jurisdictional requirements, answering the question who may petition, how many petitioners are required, what kind of notice is required, and so on. Once one of these proceedings is started, many of these proceedings follow similar steps, although each form of proceeding has special wrinkles of its own.

Establishment: An establishment is the creation of a brand new ditch.
Repair: A repair restores the ditch system to its as-built capacity.
Improvement: An improvement generally involves deepening, widening, changing from tile to open ditch (or the reverse). An improvement typically provides new drainage not previously provided by the existing ditch. If an improvement project provides a repair benefit, the cost of the repair component may be treated as a repair.

Improvement of Outlet: This proceeding provides a better outlet for the waters coming from the ditch.

Establishment of Laterals: A lateral is a ditch running laterally off to the side, to extend the reach of the ditch laterally.>

Abandonment: Abandonment gives up all or a portion of the system: it eliminates the public's easement. Like the abandonment of a road, it restores private ownership.

Redetermination of Benefits: Redetermination of Benefits updates the benefit rolls of the drainage authority. It may add lands, remove lands, or change the amount of benefits assigned to individual parcels.

What Happens in a Drainage Proceeding The drainage authority reviews the petition to make sure it is proper. If the proceeding involves a new ditch, or improvement to a ditch, then the petitioners must post a bond. They must post a bond large enough to cover the costs of the proceedings in the event they are dismissed: that's because if the project fails, there will be no benefited property to pay for the proceedings. On the other hand, in repair proceedings, the benefited parcels pay for the costs of the proceedings, even if the proceedings fail, so no petitioner's bond is required. If the petition is proper, the Drainage Authority appoints an engineer. The engineer works for the drainage authority and must himself post a bond: the Drainage Authority should require the engineer to have liability insurance. The engineer prepares a preliminary report with his recommendations. After he submits his preliminary report, the Drainage Authority holds a preliminary hearing. After the preliminary hearing, the Drainage Authority issues an order and findings on whether the drainage project appears to be feasible, necessary, and of public benefit. It is very important that the Drainage Authority pay close attention to issues at the preliminary hearing, because the costs of the proceedings which follow can be considerable. Most drainage proceedings provide for comment by the Commissioner of Natural Resources on environmental factors. When the drainage authority is considering an establishment or improvement, environmental factors must be considered more intensively than if the drainage authority is considering routine maintenance.

Repairs: A repair restores a drainage system to its original as-built condition. The Drainage Code contemplates two kinds of repairs. A Drainage Authority can conduct regular annual maintenance out of the drainage fund by approving the maintenance at a regular meeting of the authority. Commonly, the Authority cleans out a portion of the ditch each year. These expenses may be assessed out to all parcels on the benefits rolls: share and share alike. Very large repairs, however, must go through a repair proceeding, with a preliminary hearing, an engineer's report, and a final hearing. The smaller repair does not have an appeal process. The larger repair can be appealed through the drainage code's appeal procedure.

Unauthorized Use of Ditch: It is technically against the law for a landowner to ditch or tile into a drainage ditch, directly or indirectly, without a permit, unless the land has already been assessed for benefits. Persons engaged in drainage into the ditch, directly or indirectly, are in effect taking the benefit of a project paid for by others. Landowners need no permit if their land is simply producing the natural flow of water: but substantial alteration of the flow of water requires a permit. A Drainage Authority is authorized to charge a fee to persons making unauthorized use of a system, or it may enjoin the drainage until a permit is obtained.

Environmental Laws: A variety of environmental laws impact modern drainage law. The Clean Water Act requires a Corps of Engineers Permit for placement of dredge or fill material in regulated wetlands, unless the project is exempt. The "Swampbuster" law has an impact on whether it is prudent to drain certain lands, and should be considered by all parties before a project goes forward. WACA, state legislation protecting wetlands must be considered. A wetland replacement plan may be required. The impact on protected waters must be reviewed.

Viewing. If the drainage authority issues an order on preliminary hearing to proceed, (except in repairs) the Drainage Authority appoints viewers to conduct an appraisal of the benefits and damages to landowners. The viewers prepare a tabular report containing a description of the property and a recommendation of the benefits and damages accruing to each parcel. In all proceedings, the total net benefits accruing to all land establishes the cap on costs. The report is available for landowners to review, and before the final hearing, the Drainage Authority will issue a "property owners report" containing information about the proposal and how it affects each parcel. Except for repair proceedings, the individual benefits for each parcel establishes a cap on assessments for that parcel and sets the parcel's pro rata share of benefits determines its share of total assessments. Viewers estimate the increase in the value of the land which comes from having a drainage system. Most viewers look at soils information, aerial photos, assessor's records of land sales and consider the income which may be derived from improving crop productivity. They generally actually view the lands, and most viewers are available to visit the land with the landowner on request, so that the landowner can discuss special features of each parcel. Viewers consider restrictions on usage imposed by federal and state law.

Procedural Rights and Appeals. The Drainage Authority is a public body, of course: its proceedings are subject to the open meeting law. At certain stages, the drainage code requires published notice and notice to the landowners. All hearings are open to the public. Interested parties may submit written comment or testimony at appropriate times. The records of the authority are open to the public. Most proceedings are initiated by petitioners. If the petitioners have a lawyer, that lawyer represents the petitioners in their efforts to establish or repair. The lawyers' services are paid by the petitioners, but in most proceedings reasonable attorneys fees may be reimbursed out of assessments if the project is successful, because the petitioners are viewed as performing an economic service to the benefited parcels. The Drainage Authority issues its final order after the Final Hearing. In most cases, judicial review can only proceed in accord with the appeal provisions of the Drainage Code, found in sections 103E.095 and 103E.091. Landowners can appeal the decision to approve or disapprove, can appeal the amount of benefits or damages determined. Landowners can appeal a decision to authorize or approve payment. An appeal must be made within the time limits established by the Drainage Code.

More About Appeals. Appeals from the final order are handled in two parts. Establishment Appeals: Appeals attacking the decision to go forward with the project go first. The appeal is handled by a judge who decides the case without a jury. Environmental appeals are handled here as well. The Judge will consider the record of proceedings before the Drainage Authority, but he will also take additional evidence. Benefits-Damages Appeals: After the establishment appeal is resolved, the court proceeds with the appeal of landowners objecting to benefits, damages, or costs. These cases can be tried to a jury, unless both parties waive the jury. In this phase, the court also decides whether the total cost of the project exceeds the total benefits. In most cases, the project fails, in that event. A party may appeal from the District Court to an appellate court.

More About Drainage. Drainage law involves lots of complicated issues. This panel just touches the surface. A competent drainage lawyer should be consulted before undertaking any drainage project.