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SF 1659

as introduced - 92nd Legislature (2021 - 2022) Posted on 03/02/2021 09:48am

KEY: stricken = removed, old language.
underscored = added, new language.
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A bill for an act
relating to natural resources; modifying drainage and public waters laws to clarify
relationship between drainage repairs and public-waters-work permit requirements;
amending Minnesota Statutes 2020, sections 103E.011, subdivision 3; 103E.015,
subdivision 2; 103E.101, subdivision 4a; 103E.701, subdivision 2; 103G.225;
103G.245, subdivision 2.

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

Section 1.

Minnesota Statutes 2020, section 103E.011, subdivision 3, is amended to read:


Subd. 3.

Commissioner's permission; work in public waters; application.

(a) The
drainage authority must receive permission from the commissioner to:

(1) remove, construct, or alter a dam affecting public waters;

(2) establish, raise, or lower the level of public waters; or

(3) drain any portion of a public water.

(b) The petitioners for a proposed drainage project or the drainage authority may apply
to the commissioner for permission to do work in public waters or for the determination of
public waters status of a water body or watercourse.

new text begin (c) Permission under this section is not required to repair a lawfully established public
drainage system sponsored by the public drainage authority consistent with the definition
of "repair" in section 103E.701, subdivision 1.
new text end

Sec. 2.

Minnesota Statutes 2020, 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 or repair 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, wetlands, 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.new text begin These considerations may include but are not limited
to compliance with chapters 103G and 116D and Minnesota Rules, chapters 4410 and 6115.
new text end

Sec. 3.

Minnesota Statutes 2020, section 103E.101, subdivision 4a, is amended to read:


Subd. 4a.

Reestablishing records.

(a) If, after thorough investigation of drainage system
records, a drainage authority finds that records establishing the alignment, cross-section,
profile, or right-of-way of a drainage system that it administers are lost, destroyed, or
otherwise incomplete, it may, by order, reestablish records defining the alignment;
cross-section; profile; hydraulic structure locations, materials, dimensions, and elevations;
or right-of-way of the drainage system as originally constructed or subsequently improved
in accordance with this chapter. The procedure for reestablishing drainage system records
must involve, at a minimum, investigation and a report of findings by a professional engineer
licensed in Minnesota supported by existing records and evidence, including, but not limited
to, applicable aerial photographs, soil borings or test pits, culvert dimensions and invert
elevations, and bridge design records. new text beginThe reestablished records must be based on the weight
of evidence considered by and available to the engineer.
new text endThe existing and reestablished
records together must define the alignment; cross-section; profile; hydraulic structure
locations, materials, dimensions, and elevations; and right-of-way of the drainage system.
Drainage system records reestablished under this subdivision do not interrupt prescriptive
occupation.

(b) The description of a drainage system under this subdivision may be initiated by the
drainage authority on its own motion or by any party affected by the drainage system filing
a petition. If the system is under the jurisdiction of a county board, the petition must be filed
with the auditor. If the system is under the jurisdiction of a joint county drainage authority,
the petition must be filed with the auditor of the county with the largest area of property in
the drainage system. If the system is under the jurisdiction of a watershed district board,
the petition must be filed with the secretary.

new text begin (c) If the drainage system and the description of the system may affect public waters,
then, concurrent with the appointment of a professional engineer to perform the investigation
under paragraph (a), the drainage authority must notify the director of the proceedings.
Within 30 days after receiving notice, the director may request a technical panel consisting
of the engineer, a representative appointed by the director, and a soil and water conservation
district technician. The panel must investigate and recommend the originally constructed
or subsequently improved alignment; cross-section; profile; hydraulic structure locations,
materials, dimensions, and elevations; or right-of-way of the drainage system. The drainage
authority must consider the recommendation made by a majority of the technical panel,
along with other relevant evidence, in a subsequent hearing in the proceedings. The panel
recommendation is binding on the state. If the director does not request a technical panel,
the state is barred from future challenge of the reestablished records. The panel's
responsibility is to locate the actual as-built or lawfully improved profile of the drainage
system. If the panel identifies alternative solutions, the panel may recommend consideration
of those solutions to the drainage authority.
new text end

deleted text begin (c)deleted text endnew text begin (d)new text end When a drainage authority directs by resolution or when a petition is filed under
this subdivision, the drainage authority, in consultation with the auditor or secretary, shall
set a time and location for a hearing after the engineer's report is completenew text begin or the panel
recommendation under paragraph (c) is made
new text end. The auditor or secretary shall give notice of
the hearing by mail to the commissioner of natural resources, the executive director of the
Board of Water and Soil Resources, the petitioner or petitioners, and all property owners
benefited or damaged by the drainage system and shall give notice to other interested parties
either in a newspaper of general circulation in the drainage system area or by publication
on a website of the drainage authority.

deleted text begin (d)deleted text end new text begin(e) At the hearing on reestablishing records, the drainage authority must consider
the evidence and recommendation presented by the engineer or technical panel, public
comment, and other material evidence in the proceedings and must adopt an order consistent
with the record.
new text endDrainage system records reestablished under this subdivision constitute
official drainage system records. A finding of drainage system right-of-way in the applicable
order is a defense to a trespass claim and shall be given due weight in any subsequent court
proceeding to establish the existence or nature of a property encumbrance.

Sec. 4.

Minnesota Statutes 2020, section 103E.701, subdivision 2, is amended to read:


Subd. 2.

Repairs affecting public waters.

new text begin (a) Where as-built records; reestablished
records under section 103E.101, subdivision 4a; or prior concurrence of the commissioner
exists, the drainage authority may proceed with a drainage system repair consistent with
the definition in subdivision 1 without further concurrence, review, or action of the
commissioner.
new text end

new text begin (b) Where as-built records; reestablished records under section 103E.101, subdivision
4a; or prior concurrence of the commissioner do not exist
new text endbefore a repair is ordered, the
drainage authority must notify the commissioner if the repair deleted text beginmay affectdeleted text endnew text begin will be conducted
in, through, or adjacent to
new text end public waters.new text begin Notice to the commissioner must include the
proposed repair design and configuration. Within 60 days after receiving notice, the
commissioner must concur or nonconcur that the proposed repair is a repair as defined in
this section. Failure of the commissioner to concur or nonconcur with the repair design and
configuration within 60 days is deemed concurrence.
new text end If the commissioner deleted text begindisagrees with
the repair depth
deleted text endnew text begin does not concur that the proposed repair is a repair as defined in this sectionnew text end,
the engineer, a representative appointed by the director, and a soil and water conservation
district technician must jointly determine deleted text beginthe repair depthdeleted text endnew text begin an authorized repair as defined
in this section
new text end using deleted text beginsoil borings, field surveys, and other available data or appropriate
methods
deleted text endnew text begin existing records and evidence, including but not limited to applicable aerial
photographs, soil borings or test pits, culvert dimensions and invert elevations, and bridge
design records
new text end. Costs for determining the repair deleted text begindepthdeleted text endnew text begin design and configurationnew text end beyond the
initial meeting must be shared equally by the drainage system and the commissioner. The
determined repair deleted text begindepthdeleted text endnew text begin design and configurationnew text end must be recommended to the drainage
authority. The drainage authority may accept the joint recommendation and proceed with
the repair.

Sec. 5.

Minnesota Statutes 2020, section 103G.225, is amended to read:


103G.225 deleted text beginSTATE WETLANDSdeleted text endnew text begin PUBLIC WATERSnew text end AND PUBLIC DRAINAGE
SYSTEMS.

If the state deleted text beginowns public waters wetlandsdeleted text endnew text begin has inventoried and designated public
watercourses, basins, or wetlands
new text end on or adjacent to existing public drainage systems, the
state shall consider the use of the public waters deleted text beginwetlandsdeleted text end as part of the drainage system. If
the new text begincommissioner's desired management or protection of new text endpublic waters deleted text beginwetlandsdeleted text end interfere
with or prevent the authorized functioning of the public drainage system, the state shall
deleted text begin providedeleted text endnew text begin paynew text end for necessary work to allow proper use and maintenance of the drainage system
while still preserving the public waters deleted text beginwetlandsdeleted text end.

Sec. 6.

Minnesota Statutes 2020, section 103G.245, subdivision 2, is amended to read:


Subd. 2.

Exceptions.

A public-waters-work permit is not required for:

(1) work in altered natural watercourses that are part of drainage systems established
under chapter 103D or 103E if the work in the waters is undertaken according to chapter
103D or 103E;

new text begin (2) repair of a lawfully established public drainage system sponsored by the public
drainage authority consistent with the definition of "repair" in section 103E.701, subdivision
1;
new text end

deleted text begin (2)deleted text endnew text begin (3)new text end a drainage project for a drainage system established under chapter 103E that does
not substantially affect public waters; or

deleted text begin (3)deleted text endnew text begin (4)new text end culvert restoration or replacement of the same size and elevation, if the restoration
or replacement does not impact a designated trout stream.