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Public Drainage Projects: Navigating the Legal, Environmental, and Political Challenges Image

Public Drainage Projects: Navigating the Legal, Environmental, and Political Challenges

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The success of cash crop farming in Minnesota is due in large part to the work our ancestors in this state did to convert wet and even flooded property into dry farmland. Through systems of open ditches and buried pipe, land was made farmable by quickly draining water from the landscape allowing it to be tilled and planted. The backbone of this agricultural drainage system is a network of public ditches and public tile systems administered by public drainage authorities, who are usually county boards or watershed districts. In turn, private landowners add their own tile which relies on the public systems as an outlet.

Many public drainage systems were installed a century or more ago. Though these systems provided a major upgrade from the natural drainage in the area, in many cases they are inadequate for modern farming practices. In many cases, public drainage tile may be too small to drain the land efficiently, leading to extended ponding and resulting crop losses. As more land is pattern-tiled, the impact of undersized county tile lines is more noticeable. Historically, tile lines were buried much shallower, as little as two feet deep. While this would have been sufficient for a team of horses or a Model B, it risks crushing and collapse from large modern machinery. And while some drainage systems installed a century ago are in remarkably good condition, others have succumb to wear and tear over the years, becoming filled with sediment, being crushed, collapsed, or damaged, leading to even more restricted drainage capacity. On top of these problems, recent years with heavy rains (2021 excluded) have highlighted the need for good drainage.

Facing these issues, producers and landowners may be interested in improving or expanding an existing public drainage system to provide better drainage or to extend the drainage system to land not previously served. While Minnesota law does provide a petition process to have the drainage authority improve or expand a drainage system, it is important to plan your project carefully to limit costs, minimize objections, and provide the greatest chance of success.

As an important first step, you should get the lay of the land, so to speak, with your potential project. First, this involves getting an understanding of the current system. For open ditches, this is often straightforward. But for buried tile, reference to maps or drawings of the system may be required. Luckily, many counties or other drainage authorities have drainage maps that can be downloaded or may be displayed on County GIS programs.

These maps will show where the system and its branches run and who is served and benefitted by the system. Because it is likely that others benefitted by the system will be affected or may have to contribute to the cost of the project, knowing who is involved allows up front outreach. In addition, obtaining a list of the benefitted landowners on a system from the county auditor can also help identify those involved. Talking with neighbors about your project to build support or learn of any concerns allows for an early evaluation of potential local political risks a project may face.

As part of this evaluation process, engaging a drainage engineer earlier to provide an initial feasibility study concerning a project is often a good idea. This feasibility study can identify areas of concern such as environmental issues. For example, if the outlet for a drainage system is a public water, minimizing the impact may be an important step to satisfy the Minnesota DNR or other regulators. This may inform whether the project is cost-effective in the first place. While not required, a pre-petition landowner meeting led by the engineer can help neighbors understand the project and ultimately lead to their support on a petition.

Once a desired scope of the project is identified, the landowner can petition the drainage authority to commence the process. Drainage petitions can involve improving an existing system (for example, by deepening or enlarging tile or ditches), adding a new lateral that will contribute to an existing system, or establishing a new system entirely. Often, a petition to establish a new system is used to convert a private shared-drainage ditch into a public system if the landowners served by the private system can no longer agree or cooperate on maintenance.

While a drainage petition is not extraordinarily complex, it must include several specific allegations set forth in statute. Further, the drainage project process can be a daunting mix of notices, hearings, reports, and orders. For this reason, landowners often hire legal counsel to assist in preparing a petition that meets the requirements of the statute and guide them through the process. Generally, the petition must describe the project, who is affected, and how it will benefit landowners. In addition, it must be signed by landowners representing at least 26% of either the land or individuals affected by the project. Importantly, any person who signs on as a petitioner necessarily agrees to repay the drainage authority all of the costs incurred in pursuing the drainage project in the event the petition is dismissed or a contract for construction is ultimately not awarded. Because engineering fees can exceed $100,000 and legal and administrative costs can add thousands on top, joining a petition can be a significant risk.

After the petition is submitted, an engineer is appointed by the drainage authority (often it makes sense to appoint the engineer who completed the feasibility study) to prepare a preliminary and later a final report of the project. As part of this, the engineering report will include construction drawings depicting the project, describe the environmental impact of the project, provide a cost estimate of the project, and address other important requirements.

Before the project may be approved, the engineering report must be provided to the DNR so it can provide advisory comments. While the DNR does not have the power to approve or deny a drainage project (unless a public waters works permit is required), reviewing and addressing the DNR’s concerns early on is important. Recently, both the DNR and other environmental groups have begun to very carefully scrutinize drainage projects and object on the grounds that additional water will negatively impact downstream environments by contributing to pollution, stream bank erosion, and flooding.

A strategy to address these objections and concerns has been to implement water storage features such as retention ponds or water and sediment control basins (WASCOBs). These water storage features work by collecting water and filling up quickly after rain events and then slowly metering the water out downstream through a small outlet pipe or other control structure. While they can add significant cost to a project, they also provide important environmental benefits, and can help alleviate objections that might otherwise serve as a roadblock to a project.

After the engineering work is completed, a group of three specialized appraisers known as “viewers” are appointed to evaluate the land affected by the project and make a report on the amount of benefits that will be provided to land served by the project. The viewers also determine the amount of damages that might be suffered by land as a result of the project; for example, land might need to be taken out of production to construct a ditch or retention pond and the landowner would be entitled to be paid damages for the lost acreage. The viewers’ work and determination of benefits is particularly important because in order for a project to ultimately be approved, the benefits accruing to landowners must exceed all of the project costs, including the construction, engineering, and administrative costs.

A useful component of this cost-benefit analysis in drainage improvement projects involves a concept known as “separable maintenance.” The concept is essentially this: suppose a drainage tile system is in need of replacement because the tiles have deteriorated and collapsed, but before the work can be completed, a petition for improvement is filed to increase the tile size from 12-inch tile to 18-inch tile. Because this improvement will avoid necessary repair costs, those hypothetical repair costs to replace the existing 12-inch tile will be deducted from the total cost of the improvement. The avoided repair costs are known as separable maintenance and are assessed to landowners as a repair. The cost of the improvement that is weighed in the cost-benefit test will only be the additional cost that it takes to install the larger tile rather than replacing the tile with the same size. Separable maintenance can become quite controversial, because expensive projects with relatively little benefits can be approved, and landowners who may not benefit at all from the improvement may be billed for part of the project as repair costs.

After the drainage design is finalized and environmental permitting is complete, the project is set for a final hearing before the drainage authority. Though considered by county boards or other political bodies, the decision is supposed to be a fact-based process, not based on what a majority of landowners necessarily desire. Specifically, if the six statutory criteria are satisfied—(a) the process followed the drainage code, (b) the viewers’ and engineer’s reports are complete and correct, (c) the benefits and damages of the project are properly determined, (d) the benefits of the project exceed the costs, (e) the project will be of public utility, and (f) the project is practicable—then the drainage authority is supposed to approve the project. That being said, this decision can be significantly influenced by opposition from landowners or environmental groups. Thus, it is beneficial to address as many concerns as possible before the final hearing.

The most important aspect to a successful drainage project is planning and attempting to address problems early. The alternative may lead to wasted costs in redesigning a project halfway through or attempting to pursue an unpopular project that is subject to appeals, delays, and ultimately more expense. With planning, coordination with the engineers and attorneys, and engagement with neighbors, improvements and drainage upgrades can be approved, with better drainage soon to follow.