SF 2221

as introduced - 88th Legislature (2013 - 2014) Posted on 04/23/2014 08:35am

A bill for an act
relating to water; modifying drainage system provisions; amending Minnesota
Statutes 2012, sections 103E.015, subdivisions 1, 2, by adding a subdivision;
103E.091, subdivision 1; 103E.245, subdivisions 1, 2, 4; 103E.255; 103E.261,
subdivisions 4, 5; 103E.285, subdivision 10; 103E.301; 103E.341, subdivision
1; 103E.501, subdivision 4.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2012, section 103E.015, subdivision 1, is amended to
read:

Subdivision 1.

Environmental deleted text begin and deleted text end new text begin , new text end land use new text begin , and multipurpose water
management new text end criteria.

Before establishing a drainage project new text begin , new text end the drainage authority
must consider new text begin each of the following criteria new text end :

(1) private and public benefits and costs of the proposed drainage project;

(2) deleted text begin the present and anticipated agricultural land acreage availability and use in
the drainage project or system; deleted text end new text begin alternative measures, including measures identified in
applicable state-approved and locally adopted water management plans, to:
new text end

new text begin (i) conserve, allocate, and use drainage waters for agriculture, stream flow
augmentation, or other beneficial uses;
new text end

new text begin (ii) reduce downstream peak flows and flooding;
new text end

new text begin (iii) provide adequate drainage system capacity;
new text end

new text begin (iv) reduce erosion and sedimentation; and
new text end

new text begin (v) protect or improve water quality;
new text end

(3) the present and anticipated land use within the drainage project or system new text begin ,
including compatibility of the project with local land use plans new text end ;

(4) new text begin current and potential new text end flooding characteristics of property in the drainage project
or system and downstream for 5-, 10-, 25-, and 50-year flood events new text begin , including adequacy
of the outlet for the drainage project new text end ;

(5) deleted text begin the waters to be drained and alternative measures to conserve, allocate, and use
the waters including storage and retention of drainage waters deleted text end new text begin the effects of the proposed
drainage project on wetlands new text end ;

(6) the deleted text begin effect deleted text end new text begin effects of the proposed drainage project new text end on water quality deleted text begin of constructing
the proposed drainage project deleted text end ;

(7) new text begin the effects of the proposed drainage project on new text end fish and wildlife resources
deleted text begin affected by the proposed drainage project deleted text end ;

(8) new text begin the effects of the proposed drainage project on new text end shallow groundwater availability,
distribution, and use deleted text begin in the drainage project or system deleted text end ; and

(9) the overall environmental impact of all the above criteria.

Sec. 2.

Minnesota Statutes 2012, section 103E.015, is amended by adding a subdivision
to read:

new text begin Subd. 1a. new text end

new text begin Investigating potential use of external sources of funding and
technical assistance. new text end

new text begin When planning a drainage project or a repair under section
103E.715, and prior to making an order on the engineer's preliminary survey report
for a drainage project or the engineer's report for a repair, the drainage authority shall
investigate the potential use of external sources of funding to facilitate the purposes
indicated in section 103E.011, subdivision 5, and alternative measures in subdivision 1,
clause (2). This investigation shall include early coordination with applicable soil and
water conservation district and county and watershed district water planning authorities
about potential external sources of funding and technical assistance for these purposes and
alternative measures. The drainage authority may request additional information about
potential funding or technical assistance for these purposes and alternative measures from
the executive director of the Board of Water and Soil Resources.
new text end

Sec. 3.

Minnesota Statutes 2012, section 103E.015, subdivision 2, is amended to read:

Subd. 2.

Determining public utility, benefit, or welfare.

In any proceeding to
establish a drainage project, or in the construction new text begin or repair new text end of or other work affecting a
public drainage system under any law, the drainage authority or other authority having
jurisdiction over the proceeding must give proper consideration to conservation of soil,
water, new text begin wetlands, new text end forests, wild animals, and related natural resources, and to other public
interests affected, together with other material matters as provided by law in determining
whether the project will be of public utility, benefit, or welfare.

Sec. 4.

Minnesota Statutes 2012, section 103E.091, subdivision 1, is amended to read:

Subdivision 1.

Grounds for appeal.

A party may appeal to the district court from a
recorded order of a drainage authority made in a drainage proceeding that determines:

(1) the amount of benefits;

(2) the amount of damages;

(3) fees or expenses allowed; or

(4) whether the environmental deleted text begin and deleted text end new text begin , new text end land use new text begin , and multipurpose water management
new text end requirements and criteria of section 103E.015, subdivision 1, are met.

Sec. 5.

Minnesota Statutes 2012, section 103E.245, subdivision 1, is amended to read:

Subdivision 1.

Survey.

The engineer shall proceed promptly to:

(1) examine the petition and order;

(2) make a preliminary survey of the area likely to be affected by the proposed
drainage project to enable the engineer to determine whether the proposed drainage
project is necessary and feasible with reference to the environmental deleted text begin and deleted text end new text begin , new text end land use new text begin , and
multipurpose water management new text end criteria in section 103E.015, subdivision 1;

(3) examine and gather information related to determining whether the proposed
drainage project substantially affects areas that are public waters; and

(4) if the proposed drainage project requires construction of an open channel,
examine the nature and capacity of the outlet and any necessary extension.

Sec. 6.

Minnesota Statutes 2012, section 103E.245, subdivision 2, is amended to read:

Subd. 2.

Limitation of survey.

The engineer shall restrict the preliminary survey to
the drainage area described in the petition, except that to secure an outlet the engineer
may run levels necessary to determine the distance for the proper fall of the water. The
preliminary survey must consider the impact of the proposed drainage project on the
environmental deleted text begin and deleted text end new text begin , new text end land use new text begin , and multipurpose water management new text end criteria in section
103E.015, subdivision 1. The drainage authority may have other areas surveyed after:

(1) giving notice by mail of a hearing to survey additional areas, to be held at least ten
days after the notice is mailed, to the petitioners and persons liable on the petitioners' bond;

(2) holding the hearing;

(3) obtaining consent of the persons liable on the petitioners' bond; and

(4) ordering the additional area surveyed by the engineer.

Sec. 7.

Minnesota Statutes 2012, section 103E.245, subdivision 4, is amended to read:

Subd. 4.

Preliminary survey report.

The engineer shall report the proposed
drainage project plan or recommend a different practical plan. The report must give
sufficient information, in detail, to inform the drainage authority on issues related to
feasibility, and show changes necessary to make the proposed plan practicable and feasible
including extensions, laterals, and other work. If the engineer finds the proposed drainage
project in the petition is feasible and complies with the environmental deleted text begin and deleted text end new text begin , new text end land use new text begin ,
and multipurpose water management new text end criteria in section 103E.015, subdivision 1, the
engineer shall include in the preliminary survey report a preliminary plan of the drainage
project showing the proposed ditches, tile, laterals, and other improvements, the outlet
of the project, the watershed of the drainage project or system, and the property likely to
be affected and its known owners. The plan must show:

(1) the elevation of the outlet and the controlling elevations of the property likely to
be affected referenced to standard sea level datum, if practical;

(2) the probable size and character of the ditches and laterals necessary to make
the plan practicable and feasible;

(3) the character of the outlet and whether it is sufficient;

(4) the probable cost of the drains and improvements shown on the plan;

(5) all other information and data necessary to disclose the practicability, necessity,
and feasibility of the proposed drainage project;

(6) consideration of the drainage project under the environmental deleted text begin and deleted text end new text begin , new text end land use new text begin , and
multipurpose water management new text end criteria in section 103E.015, subdivision 1; and

(7) other information as ordered by the drainage authority.

Sec. 8.

Minnesota Statutes 2012, section 103E.255, is amended to read:

103E.255 COMMISSIONER'S PRELIMINARY ADVISORY REPORT.

The commissioner shall make a preliminary advisory report to the drainage authority
with an opinion about the adequacy of the preliminary survey report. The commissioner
shall state any additional investigation and evaluation that should be done relating to
public waters that may be affected and environmental deleted text begin and deleted text end new text begin , new text end land use new text begin , and multipurpose
water management new text end criteria in section 103E.015, subdivision 1, and cite specific portions of
the preliminary survey report that are determined inadequate. The commissioner shall file
an initial preliminary advisory report with the auditor before the date of the preliminary
hearing. The commissioner may request additional time for review and evaluation of the
preliminary survey report if additional time is necessary for proper evaluation. A request
for additional time for filing the commissioner's preliminary advisory report may not be
made more than five days after the date of the notice by the auditor that a date is to be set
for the preliminary hearing. An extension of time may not exceed two weeks after the
date of the request.

Sec. 9.

Minnesota Statutes 2012, section 103E.261, subdivision 4, is amended to read:

Subd. 4.

Dismissal.

(a) The drainage authority shall dismiss the proceedings if
it determines that:

(1) the proposed drainage project is not feasible;

(2) the adverse environmental impact is greater than the public benefit and utility
after considering the environmental deleted text begin and deleted text end new text begin , new text end land use new text begin , and multipurpose water management
new text end criteria in section 103E.015, subdivision 1, and the engineer has not reported a plan to
make the proposed drainage project feasible and acceptable;

(3) the proposed drainage project is not of public benefit or utility; or

(4) the outlet is not adequate.

(b) If the proceedings are dismissed, any other action on the proposed drainage
project must begin with a new petition.

Sec. 10.

Minnesota Statutes 2012, section 103E.261, subdivision 5, is amended to read:

Subd. 5.

Findings and order.

(a) The drainage authority shall state, by order, its
findings and any changes that must be made in the proposed drainage project from those
outlined in the petition, including changes necessary to minimize or mitigate adverse
impact on the environment, if it determines that:

(1) the proposed drainage project outlined in the petition, or modified and
recommended by the engineer, is feasible;

(2) there is necessity for the proposed drainage project;

(3) the proposed drainage project will be of public benefit and promote the public
health, after considering the environmental deleted text begin and deleted text end new text begin , new text end land use new text begin , and multipurpose water
management new text end criteria in section 103E.015, subdivision 1; and

(4) the outlet is adequate.

(b) Changes may be stated by describing them in general terms or filing a map
that outlines the changes in the proposed drainage project with the order. The order and
accompanying documents must be filed with the auditor.

Sec. 11.

Minnesota Statutes 2012, section 103E.285, subdivision 10, is amended to read:

Subd. 10.

Other information on practicability and necessity of drainage
project.

Other data and information to inform the drainage authority of the practicability
and necessity of the proposed drainage project must be made available including a
comprehensive examination and the recommendation by the engineer regarding the
environmental deleted text begin and deleted text end new text begin , new text end land use new text begin , and multipurpose water management new text end criteria in section
103E.015, subdivision 1.

Sec. 12.

Minnesota Statutes 2012, section 103E.301, is amended to read:

103E.301 COMMISSIONER'S FINAL ADVISORY REPORT.

(a) The commissioner shall examine the detailed survey report and within 30 days of
receipt make a final advisory report to the drainage authority. The final advisory report
must state whether the commissioner:

(1) finds the detailed survey report is incomplete and not in accordance with the
provisions of this chapter, specifying the incomplete or nonconforming provisions;

(2) approves the detailed survey report as an acceptable plan to drain the property
affected;

(3) does not approve the plan and recommendations for changes;

(4) finds the proposed drainage project is not of public benefit or utility under the
environmental deleted text begin and deleted text end new text begin , new text end land use new text begin , and multipurpose water management new text end criteria in section
103E.015, subdivision 1, specifying the facts and evidence supporting the findings; or

(5) finds a soil survey is needed, and, if it is, makes a request to the engineer to
make a soil survey.

(b) The commissioner shall direct the final advisory report to the drainage authority
and file it with the auditor.

Sec. 13.

Minnesota Statutes 2012, section 103E.341, subdivision 1, is amended to read:

Subdivision 1.

Dismissal of proceedings.

The drainage authority must dismiss the
proceedings and petition, by order, if it determines that:

(1) the benefits of the proposed drainage project are less than the total cost, including
damages awarded;

(2) the proposed drainage project will not be of public benefit and utility; or

(3) the proposed drainage project is not practicable after considering the
environmental deleted text begin and deleted text end new text begin , new text end land use new text begin , and multipurpose water management new text end criteria in section
103E.015, subdivision 1.

Sec. 14.

Minnesota Statutes 2012, section 103E.501, subdivision 4, is amended to read:

Subd. 4.

Contract provisions for changes during construction.

The contract must
give the engineer the right, with the consent of the drainage authority, to modify the
detailed survey report, plans, and specifications as the work proceeds and as circumstances
require. The contract must provide that the increased cost resulting from the changes will
be paid by the drainage authority to the contractor at a rate not greater than the amount for
similar work in the contract. A change may not be made that will substantially impair
the usefulness of any part of the drainage project or system, substantially alter its original
character, or increase its total cost by more than ten percent of the total original contract
price. A change may not be made that will cause the cost to exceed the total estimated
benefits found by the drainage authority or that will cause any detrimental effects to the
public interest under new text begin the environmental, land use, and multipurpose water management
criteria in new text end section 103E.015, subdivision 1.