Office of the Revisor of Statutes
Minnesota Session Laws - 1985, Regular Session
Key: (1) language to be deleted (2) new language
Laws of Minnesota 1985
CHAPTER 172-S.F.No. 45
An act relating to drainage; recodifying the drainage
law; amending Minnesota Statutes 1984, sections
40.072, subdivisions 3, 4, 5, 6, and 9; 40.073; 88.43,
subdivision 2; 97.484; 97.50, subdivision 1; 105.42,
subdivision 1; 105.471; 105.74; 105.81; 111.09,
subdivision 2; 111.11; 111.13; 111.30; 111.31; 111.36;
111.78; 112.431, subdivision 2; 112.48, subdivision 1;
112.50; 112.501, subdivision 1; 112.541; 112.59;
112.60, subdivisions 1, 2, and 3; 112.64, subdivisions
2 and 3; 112.65, subdivision 1; 161.28, subdivision 1;
163.17; 357.021, subdivision 2; 375.471; 471.345,
subdivision 3; 473.877, subdivision 1; and 473.878,
subdivision 4; proposing coding for new law as
Minnesota Statutes, chapter 106A; repealing Minnesota
Statutes 1984, chapter 106 and section 109.38.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
DRAINAGE
Section 1. [106A.005] [DEFINITIONS.]
Subdivision 1. [APPLICABILITY.] The definitions in this
section apply to this chapter.
Subd. 2. [AFFECTED.] "Affected" means benefited or damaged
by a drainage system.
Subd. 3. [AUDITOR.] "Auditor" means the auditor of the
county where the petition for a drainage system was properly
filed.
Subd. 4. [BOARD.] "Board" means the board of commissioners
of the county where the drainage system is located.
Subd. 5. [COMMISSIONER.] "Commissioner" means the
commissioner of natural resources.
Subd. 6. [DIRECTOR.] "Director" means the director of the
division of waters in the department of natural resources.
Subd. 7. [DISMISSAL OF PROCEEDINGS.] "Dismissal of
proceedings" means that the petition and proceedings related to
the petition are dismissed.
Subd. 8. [DITCH.] "Ditch" means an open channel to conduct
the flow of water.
Subd. 9. [DRAINAGE AUTHORITY.] "Drainage authority" means
the board or joint county drainage authority having jurisdiction
over a drainage system.
Subd. 10. [DRAINAGE LIEN.] "Drainage lien" means a
recorded lien against property for drainage proceedings and
construction costs and interest on the lien as provided under
this chapter.
Subd. 11. [DRAINAGE SYSTEM.] "Drainage system" means a
ditch and tile system to drain property, including laterals,
improvements, and improvements of outlets, that is proposed to,
established by, or constructed by a drainage authority.
"Drainage system" includes the improvement of a natural waterway
used in the construction of a drainage system, and any part of a
flood control plan proposed by the United States or its agencies
in the drainage system.
Subd. 12. [ENGINEER.] "Engineer" means the county highway
engineer of a county where affected property is located or a
professional engineer registered under state law.
Subd. 13. [ESTABLISHED.] "Established" means the drainage
authority has made the final order to construct the drainage
system.
Subd. 14. [LATERAL.] "Lateral" means any drainage
construction by branch or extension, or a system of branches and
extensions, that connects property with an established drainage
system.
Subd. 15. [MUNICIPALITY.] "Municipality" means a statutory
or home rule charter city or a town having urban powers under
section 368.01, subdivision 1 or 1a.
Subd. 16. [NOTICE BY MAIL.] "Notice by mail" means a
notice mailed and addressed to each person entitled to receive
the notice, if the address is known to the auditor or can be
determined by the county treasurer of the county where the
affected property is located.
Subd. 17. [PERSON.] "Person" means an individual, firm,
partnership, association, or private corporation.
Subd. 18. [POLITICAL SUBDIVISIONS.] "Political
subdivisions" means statutory and home rule charter cities,
counties, towns, school districts, and other political
subdivisions.
Subd. 19. [PROCEEDING.] "Proceeding" means a procedure
under this chapter for or related to drainage that begins with
filing a petition and ends by dismissal or establishment of a
drainage system.
Subd. 20. [PROPERTY.] "Property" means real property.
Subd. 21. [PUBLICATION.] "Publication" means a notice
published at least once a week for three successive weeks in a
legal newspaper in general circulation in each county affected
by the notice.
Subd. 22. [PUBLIC HEALTH.] "Public health" includes an act
or thing that tends to improve the general sanitary condition of
the community by drainage, relieving low wetland or stagnant and
unhealthful conditions, or preventing the overflow of any
property that produces or tends to produce unhealthful
conditions.
Subd. 23. [PUBLIC WATERS.] "Public waters" has the meaning
given in section 105.37, subdivision 14.
Subd. 24. [PUBLIC WELFARE OR PUBLIC BENEFIT.] "Public
welfare" or "public benefit" includes an act or thing that tends
to improve or benefit the general public, either as a whole or
as to any particular community or part, including works
contemplated by this chapter, that drain or protect roads from
overflow, protect property from overflow, or reclaim and render
property suitable for cultivation that is normally wet and
needing drainage or subject to overflow.
Subd. 25. [RESIDENT OWNER.] "Resident owner" means an
owner of property or buyer under a contract for deed who resides
in the state.
Subd. 26. [ROAD.] "Road" means any road used by the public
for transportation purposes.
GENERAL DRAINAGE PROVISIONS
Sec. 2. [106A.011] [DRAINAGE AUTHORITY POWERS.]
Subdivision 1. [GENERALLY.] The drainage authority may
make orders to:
(1) construct and maintain drainage systems;
(2) deepen, widen, straighten, or change the channel or bed
of a natural waterway that is part of the drainage system or is
located at the outlet of a drainage system;
(3) extend a drainage system into or through a municipality
for a suitable outlet; and
(4) construct necessary dikes, dams, and control structures
and power appliances, pumps, and pumping machinery as provided
by law.
Subd. 2. [DRAINAGE OF WATERBASINS AND WATERCOURSES.] A
drainage authority may not drain a water body or begin work or
activity regulated by section 105.42 in a watercourse until the
commissioner determines that the water body or watercourse is
not public waters. If a water body or watercourse is determined
to be public waters, the drainage proceedings are subject to
section 105.391, subdivision 3, relating to replacing public
waters and the water bank program.
Subd. 3. [PERMISSION OF COMMISSIONER FOR 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 system 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.
Subd. 4. [FLOOD CONTROL.] The drainage authority may
construct necessary dams, structures, and improvements and
maintain them to impound and release flood water to prevent
damage. The dams, structures, and improvements may be
constructed with or without a drainage system. For a water body
or watercourse that is not public waters the drainage authority
may:
(1) lower, or establish the height of water in the water
body or watercourse to control flood waters;
(2) build structures and improvements to maintain a water
body or watercourse for flood control or other public purposes;
and
(3) construct dikes or dams in a water body to maintain
water at the height designated by the drainage authority and to
drain part of the water body.
Sec. 3. [106A.015] [CONSIDERATIONS BEFORE DRAINAGE WORK IS
DONE.]
Subdivision 1. [ENVIRONMENTAL AND LAND USE CRITERIA.]
Before establishing a drainage system the drainage authority
must consider:
(1) private and public benefits and costs of the proposed
drainage system;
(2) the present and anticipated agricultural land acreage
availability and use in the drainage system;
(3) the present and anticipated land use within the
drainage system;
(4) flooding characteristics of property in the drainage
system;
(5) the waters to be drained and alternative measures to
conserve, allocate, and develop the waters;
(6) the effect on water quality of constructing the
proposed drainage system;
(7) fish and wildlife resources affected by the proposed
drainage system;
(8) shallow groundwater availability, distribution, and use
in the drainage system; and
(9) the overall environmental impact of all the above
criteria.
Subd. 2. [DETERMINING PUBLIC UTILITY, BENEFIT, OR
WELFARE.] In any proceeding to establish a drainage system, or
in the construction of or other work affecting a public drainage
system under any law, the drainage authority or other authority
having jurisdiction of the proceeding must give proper
consideration to conservation of soil, water, 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. [106A.021] [DITCHES MUST BE PLANTED WITH PERMANENT
GRASS.]
Subdivision 1. [SPOIL BANKS MUST BE SPREAD AND GRASS
PLANTED.] In any proceeding to establish, construct, improve, or
do any work affecting a public drainage system under any law
that appoints viewers to assess benefits and damages, the
authority having jurisdiction of the proceeding shall order
spoil banks to be spread consistent with the plan and function
of the drainage system. The authority shall order that
permanent grass, other than a noxious weed, be planted on the
banks and on a strip 16-1/2 feet in width or to the crown of the
leveled spoil bank, whichever is the greater, on each side of
the top edge of the channel of the ditch. The acreage and
additional property required for the planting must be acquired
by the authority having jurisdiction.
Subd. 2. [RESEEDING AND HARVESTING GRASS.] The authority
having jurisdiction over the repair and maintenance of the
drainage system shall supervise all necessary reseeding. The
permanent grass must be maintained in the same manner as other
drainage system repairs. Harvest of the grass from the grass
strip in a manner not harmful to the grass or the drainage
system is the privilege of the fee owner or assigns. The county
drainage inspector shall establish regulations for the fee owner
and assigns to harvest the grass.
Subd. 3. [AGRICULTURAL PRACTICES PROHIBITED.] Agricultural
practices, other than those required for the maintenance of a
permanent growth of grass, are not permitted on any portion of
the property acquired for planting.
Sec. 5. [106A.025] [PROCEDURE FOR DRAINAGE PROJECT THAT
AFFECTS STATE LAND OR WATER AREA USED FOR CONSERVATION.]
Subdivision 1. [AREAS SUBJECT TO THIS SECTION.] If a land
or water area owned by the state and held or used to protect or
propagate wild animals, provide hunting or fishing for the
public, or for any other purpose relating to the conservation,
development, or use of soil, water, forests, wild animals, or
related natural resources will be affected by any public project
or proceeding for drainage under any law, all procedures
relating to the project or proceeding are subject to this
section, if applicable.
Subd. 2. [CONDITIONS TO TAKE OR DAMAGE STATE LAND AND
WATER AREAS.] (a) Any part of the state land or water area may
be taken or damaged for a public project after payment of just
compensation as provided by law and under the provisions of this
subdivision.
(b) The authority having jurisdiction of the drainage
project or proceeding shall first find and determine that there
is public necessity for the taking or damage that is greater
than the public interest in the purposes for which the affected
land and water areas are held or used by the state.
(c) In determining the compensation to be paid for the
taking or damage, the authority must give proper consideration
to the value of the land and water area for the purposes it is
held or used by the state and other material elements of value.
(d) Public waters may not be taken, damaged, or impaired
except as otherwise expressly authorized by law, and a provision
of any other law for the protection or conservation of public
waters may not be abridged or superseded by this subdivision.
Subd. 3. [CONSIDERATIONS IN DETERMINING BENEFITS.] In
determining benefits to the state land or water area in any
proceeding to levy assessments or offset benefits against
damages, proper consideration must be given to the value of the
area for the purpose it is held or used by the state, with other
material elements of value.
Subd. 4. [AMOUNTS PAID TO STATE.] Any amounts paid to the
state for taking or damaging the state land or water area in a
proceeding must be credited to the proper account for
acquisition, development, or maintenance of the areas, and the
amount is appropriated to the commissioner for those purposes to
remain available until expended.
Subd. 5. [MONEY TO PAY ASSESSMENTS.] Assessments for
benefits made against the state land or water area in a
proceeding must be paid out of money appropriated and available
to pay assessments as provided by law.
Sec. 6. [106A.031] [CONNECTION WITH DRAINS IN ADJOINING
STATES.]
Subdivision 1. [PROCEDURE.] If it is necessary to
construct a drainage system at or near the boundary between this
state and another state or country and the work cannot be done
in a proper manner without extending the drainage system into
the adjoining state or country, the drainage authority may join
with the board or tribunal of the adjoining state or country
having jurisdiction to plan and construct public drainage
systems. The drainage authority in this state may enter into
contracts or arrangements with the board or tribunal of the
adjoining state or country to construct the drainage system.
The proceeding and construction related to property in this
state and, as applicable, the drainage authority in relation to
the joint drainage work, are governed by this chapter.
Subd. 2. [PAYMENT OF COSTS.] The adjoining county or
district in another state or country must pay its proper share
of the necessary costs of the construction of any drainage work
including damages. If the benefits to property in the adjoining
state or country are not sufficient to pay all the costs of
construction of the drainage system in that state or country,
including damages, the drainage authority may authorize or
direct the affected counties to contribute sufficient funds to
complete the construction of the drainage system in the
adjoining state or country, if the construction will be of
sufficient benefit to the affected property in this state to
warrant the contribution.
Sec. 7. [106A.035] [DEFECTIVE NOTICE.]
If notice is required under this chapter and proper notice
has been given to some parties but the notice is defective or
not given to other parties, the drainage authority has
jurisdiction of all parties that received proper notice. The
proceedings may be continued by order of the drainage authority
for the time necessary to publish, post, or mail a new notice.
The new notice needs only be given to those not properly
notified by the first notice.
Sec. 8. [106A.041] [PERSONAL SERVICE IN LIEU OF OTHER
METHODS OF NOTICE.]
If notice is to be given under this chapter, personal
service at least ten days before the date of hearing may be
given in lieu of the manner provided. The notice must be served
in the manner provided for the service of summons in a civil
action in district court.
Sec. 9. [106A.045] [FAILURE OF DRAINAGE AUTHORITY TO
ATTEND HEARINGS.]
If an order has been made and notice for a hearing given
under this chapter, and the drainage authority does not appear
at the time and place specified for any reason, the auditor
shall continue the hearing to a date set by the auditor. The
auditor shall notify the drainage authority of the continuance
and the date of hearing. The jurisdiction is continued until
the date set by the auditor.
Sec. 10. [106A.051] [DEFECTIVE PROCEEDINGS.]
(a) A party may not take advantage of an error in a
drainage proceeding or an informality, error, or defect
appearing in the record of the proceeding or construction,
unless the party complaining is directly affected. The
modification of the benefits or damages to any property, or the
enjoining of collection of any assessment, does not affect any
other property or the collection of any assessment on other
property.
(b) If a drainage system has been established and a
contract awarded in good faith, without collusion, and at a
reasonable price:
(1) a defect or lack of notice in awarding, making, or
executing the contract does not affect the enforcement of an
assessment; and
(2) if the contract is performed in good faith in whole or
in part, a defect does not invalidate the contract.
Sec. 11. [106A.055] [REIMBURSEMENT OF COST OF FORMER
SURVEYS WHEN USED LATER.]
If after a proceeding has begun a survey has been made and
a proceeding to establish a drainage system has been dismissed
or the drainage system has not been established, and all or a
part of the former survey is used by the engineer for a drainage
proceeding in the same area, the amount saved in the subsequent
proceedings must be paid to the proper parties according to this
section. If the parties who paid the expense of the former
survey make a petition, the drainage authority shall:
(1) determine the amount of benefit that was derived by the
subsequent proceedings from the former survey;
(2) order the amount of the benefit to be paid to the
proper parties; and
(3) charge the amount paid as a cost of the subsequent
drainage proceeding.
Sec. 12. [106A.061] [RIGHT OF ENTRY.]
In proceedings under this chapter, the engineer, the
engineer's assistants, the viewers, and the viewers' assistants
may enter any property to make a survey, locate a drain, examine
the property, or estimate the benefits and damages.
Sec. 13. [106A.065] [DRAINAGE INSPECTORS.]
In counties where constructed drainage systems have an
aggregate cost of more than $50,000, the board shall appoint a
competent person as county drainage inspector. The inspector
may be the county highway engineer. The inspector shall examine
the drainage systems designated by the board. The board shall
specify the appointment period and compensation.
Sec. 14. [106A.071] [COUNTY ATTORNEY.]
The county attorney shall represent the county in all
drainage proceedings and related matters without special
compensation. A county attorney, the county attorney's
assistant, or any attorney associated with the county attorney
in business, may not otherwise appear in any drainage proceeding
for any interested person.
Sec. 15. [106A.075] [OBSTRUCTION OF DRAINAGE SYSTEM.]
Subdivision 1. [NOTIFICATION TO RESPONSIBLE PARTY.] If the
board determines that a drainage system has been obstructed,
including by the installation of bridges or culverts of
insufficient hydraulic capacity, the board shall notify the
person or public authority responsible for the obstruction as
soon as possible and direct the responsible party to remove the
obstruction or show the board why the obstruction should not be
removed. The board must set a time and location in the notice
for the responsible person to appear before the board.
Subd. 2. [OBSTRUCTION ON PRIVATE PROPERTY.] If the
obstruction is on private property, the owner is responsible for
the obstruction unless the owner proves otherwise. The owner
must be notified by certified mail at least ten days before the
hearing.
Subd. 3. [OBSTRUCTION HEARING.] The board shall hear all
interested parties and if the board determines that the drainage
system has been obstructed by a person or public authority, the
board shall order the obstruction removed by the responsible
party within a reasonable time set in the order. If the
obstruction is not removed by the prescribed time, the board
shall have the obstruction removed and the auditor shall make a
statement of the removal cost. The statement must be filed in
the county recorder's office as a lien on the property where the
obstruction is located or against the responsible party. The
lien must be enforced and collected as liens for drainage
repairs under this chapter, except that a lien may not be filed
against private property if the board determines that the owner
of the property is not responsible for the obstruction. The
lien may be enforced against the responsible party by civil
action.
Sec. 16. [106A.081] [CRIMES RELATED TO DRAINAGE SYSTEMS;
PENALTIES.]
Subdivision 1. [UNAUTHORIZED DRAIN OUTLETTING INTO
DRAINAGE SYSTEM.] A person may not cause or construct a drain
that outlets into a lawfully constructed drainage system except
as provided in this chapter.
Subd. 2. [OBSTRUCTION OR DAMAGE OF A DRAINAGE SYSTEM.] A
person may not wilfully obstruct or damage a drainage system.
Subd. 3. [ALTERING ENGINEER'S MARKING OR STAKES.] A person
may not wilfully change the location or alter markings of stakes
set by the engineer in a drainage system.
Subd. 4. [PENALTY.] Violation of this section is a
misdemeanor.
Sec. 17. [106A.085] [ENFORCEMENT.]
Subdivision 1. [WARRANTS AND ARRESTS.] The commissioner,
director of the fish and game division, game refuge patrolmen,
and conservation officers may execute and serve warrants, and
arrest persons detected in actual violation of sections 1 to 92
as provided in section 97.50, subdivision 1.
Subd. 2. [PROSECUTION.] The county attorney shall
prosecute all criminal actions arising under this chapter.
Sec. 18. [106A.091] [APPEALS.]
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 and land use requirements and
criteria of section 3, subdivision 1, are met.
Subd. 2. [PROCEDURE FOR APPEALS RELATED TO BENEFITS AND
DAMAGES.] (a) A person who appeals the amount of benefits or
damages may include benefits and damages affecting property not
owned by the appellant. Notice of the appeal must be served to
the auditor and to the owner or occupant of property included in
the appeal or to the attorney representing the property owner in
the proceedings.
(b) The appellant must file a notice of appeal with the
auditor within 30 days after the order to be appealed is filed.
The notice must state the particular benefits or damages
appealed and the basis for the appeal. Within 30 days after the
notice is filed, the auditor must file the original notice with
the clerk of the district court.
Subd. 3. [PROCEDURE FOR APPEAL RELATED TO ALLOWANCE OF
FEES OR EXPENSES.] An appeal related to the allowance of fees or
expenses may be to the district court of any county where the
affected property is located. The appeal must be made within 30
days after the order allowing or disallowing the claim and is
governed as applicable by the provisions of subdivision 4.
Subd. 4. [APPEAL TRIAL.] (a) The issues in the appeal are
entitled to a trial by a jury at the next term of the district
court after the appeal is filed that is held within the county
where the drainage proceeding was pending.
(b) If the appellant requests it, the trial must be held at
the next term of the district court of the county where the
affected property is located. The clerk of the district court
where the appeal is first filed shall make, certify, and file
with the clerk of the district court of the county where the
trial is transferred, a transcript of the papers and documents
on file in the clerk's office in the proceedings related to the
matters of the appeal. After the final determination of the
appeal, the clerk of the district court that tried the appeal
shall certify and return the verdict to the district court of
the county where the drainage proceedings were filed.
(c) The appeal shall take precedence over all other civil
court matters. If there is more than one appeal to be tried in
one county, the court may, on its own motion or the motion of an
interested party, consolidate two or more appeals and try them
together, but the rights of the appellants must be determined
separately. If the appellant does not prevail, the cost of the
trial must be paid by the appellant.
(d) The clerk of the district court where the appeal is
filed shall file a certified copy of the final determination of
the appeal with the auditor of the affected counties.
Subd. 5. [EFFECT OF DETERMINATION.] For all appeals, the
amount awarded by the jury as a determination of the issue
appealed shall replace the amount that was appealed.
Sec. 19. [106A.095] [APPEAL FROM ORDERS DISMISSING OR
ESTABLISHING DRAINAGE SYSTEMS.]
Subdivision 1. [NOTICE OF APPEAL.] A party may appeal an
order made by the board that dismisses drainage proceedings or
establishes or refuses to establish a drainage system to the
district court of the county where the drainage proceedings are
pending. The appellant must serve notice of the appeal to the
auditor within 30 days after the order is filed. After notice
of the appeal is served, the appeal may be brought to trial by
the appellant or the drainage authority after notifying the
other party at least ten days before the trial date.
Subd. 2. [TRIAL.] The appeal must be tried by the court
without a jury. The court shall examine the entire drainage
proceeding and related matters and receive evidence to determine
whether the findings made by the board can be sustained. At the
trial the findings made by the board are prima facie evidence of
the matters stated in the findings, and the board's order is
prima facie reasonable. If the court finds that the order
appealed is lawful and reasonable, it shall be affirmed. If the
court finds that the order appealed is arbitrary, unlawful, or
not supported by the evidence, it shall make an order, justified
by the court record, to take the place of the appealed order, or
remand the order to the board for further proceedings. After
the appeal has been determined by the court, the board shall
proceed in conformity with the court order.
Subd. 3. [DETERMINATION OF BENEFITS AND DAMAGES AFTER
COURT ORDER.] If the order establishing a drainage system is
appealed, the trial of appeals related to benefits or damages in
the drainage proceeding must be stayed until the establishment
appeal is determined. If the order establishing the drainage
system is affirmed, appeals related to benefits and damages must
then be tried.
Subd. 4. [PROCEDURE IF APPEAL ORDER ESTABLISHES DRAINAGE
SYSTEM.] If an order refusing to establish a drainage system is
appealed, and the court, by order, establishes the drainage
system, the auditor shall give notice by publication of the
filed order. The notice is sufficient if it refers to the
drainage system by number or other descriptive designation,
states the meaning of the order, and states the date the court
order was filed. A person may appeal the establishment order to
the district court as provided in this section.
Subd. 5. [APPEAL OF APPELLATE ORDER.] A party aggrieved by
a final order or judgment rendered on appeal to the district
court may appeal as in other civil cases. The appeal must be
made and perfected within 30 days after the filing of the order
or entry of judgment.
Sec. 20. [106A.101] [DRAINAGE PROCEEDING AND CONSTRUCTION
RECORDS.]
Subdivision 1. [DOCUMENTS ARE PUBLIC RECORDS.] All maps,
plats, charts, drawings, plans, specifications, and other
documents that have been filed, received in evidence, or used in
connection with a drainage proceeding or construction are
subject to the provisions on public records in section 15.17.
Subd. 2. [RECORD REQUIREMENTS.] All maps, plats, profiles,
plans, and specifications prepared and used in relation to a
proceeding must:
(1) be uniform;
(2) have each sheet bound and marked to identify the
proceeding by the drainage system number;
(3) show the name of the person preparing the sheet;
(4) show the date the sheet was prepared; and
(5) conform to rules and standards prescribed by the
director of the division of waters.
Subd. 3. [INDEX OF PROCEEDINGS AND RECORDS.] The auditor
shall keep all orders, exhibits, maps, charts, profiles, plats,
plans, specifications, and records of the proceedings. These
records may not be removed except when the board makes a written
order to remove them. The auditor shall keep an accurate index
of the proceedings and related documents in a bound book.
Subd. 4. [ENGINEER'S DOCUMENTS.] All original plats,
profiles, records, and field books made by the engineer during
the proceedings or the construction of a drainage system are
public records and the property of the drainage authority.
These public records must be filed with the auditor under the
direction of the drainage authority when construction is
completed or when the engineer stops acting for the drainage
system, whichever is earlier.
Subd. 5. [FILING AND STORAGE FACILITIES.] County boards
shall provide the auditor with necessary filing and storage
facilities to protect the files and records of all proceedings.
The county boards may provide for the copying and filing of the
documents and records of proceedings by photographic devices as
provided for public records under section 15.17. In the event
of loss of the originals, the photographic copies are originals
after authentication by the auditor.
Subd. 6. [RECORDS ARE PRIMA FACIE EVIDENCE.] The record of
proceedings under this chapter and of orders made by the
drainage authority or the district court in the proceedings, or
a certified copy of a record or order, is prima facie evidence
of the facts stated in the record or order and of the regularity
of all proceedings prior to the making of the order.
PROCEDURE TO ESTABLISH DRAINAGE SYSTEMS
Sec. 21. [106A.201] [NEW DRAINAGE SYSTEMS.]
Subdivision 1. [PROCEDURE.] To establish a new drainage
system under this chapter, the petitioners and drainage
authority must proceed according to this section and the
provisions applicable to establishment of drainage systems.
Subd. 2. [FILING PETITION AND BOND.] A petition for a new
drainage system and a bond must be filed with the auditor. If a
drainage system is within two or more counties, the petition
must be filed with the auditor of the county with the greatest
area of property that the proposed drainage system passes over.
Subd. 3. [SIGNATURES ON PETITION.] The petition must be
signed by a majority of the resident owners of the property that
the proposed drainage system described in the petition passes
over, or by the property owners of at least 60 percent of the
area that the proposed drainage system passes over, excluding
areas in and holders of easements for electric or telephone
transmission and distribution lines. The petition may be signed
by the commissioner of transportation or by a political
subdivision, when property affected by or assessed for the
proposed drainage system is in their jurisdiction. The
signature of each entity counts as one signature on the petition.
Subd. 4. [PETITION REQUIREMENTS.] The petition must:
(1) describe the property where the proposed drainage
system passes over;
(2) describe the starting point, the general course, and
the terminus of the proposed drainage system;
(3) state why the proposed drainage system is necessary;
(4) state that the proposed drainage system will benefit
and be useful to the public and will promote public health; and
(5) state that the petitioners will pay all costs of the
proceedings, if the proceedings are dismissed or the contract
for the construction of the proposed drainage system is not
awarded.
Subd. 5. [WITHDRAWAL OF A PETITIONER.] After a petition
has been filed, a petitioner may not withdraw from the petition
except with the written consent of all other petitioners on the
filed petition.
Sec. 22. [106A.205] [PETITIONERS' BOND.]
One or more petitioners must file a bond with the petition
for at least $10,000 that is payable to the county where the
petition is filed, or for a petition for a proposed joint county
drainage system that is payable to all of the counties named in
the petition. The bond must have adequate surety and be
approved by the auditor. The bond must be conditioned to pay
the costs incurred if the proceedings are dismissed or a
contract is not awarded to construct the drainage system
proposed in the petition.
Sec. 23. [106A.211] [EXPENSES NOT TO EXCEED BOND.]
The costs incurred before the proposed drainage system is
established may not exceed the amount of the petitioners' bond.
A claim for expenses greater than the amount of the bond may not
be paid unless an additional bond is filed. If the drainage
authority determines that the cost of the proceeding will be
greater than the petitioners' bond before the proposed drainage
system is established, the drainage authority must require an
additional bond to cover all costs to be filed within a
prescribed time. The proceeding must be stopped until the
additional bond prescribed by the drainage authority is filed.
If the additional bond is not filed within the time prescribed,
the proceeding may be dismissed.
Sec. 24. [106A.215] [IMPROVEMENT OF DRAINAGE SYSTEM.]
Subdivision 1. [PROCEDURE.] The procedure in this section
must be used to improve an established and constructed drainage
system.
Subd. 2. [DEFINITION.] In this section "improvement" means
the tiling, enlarging, extending, straightening, or deepening of
an established and constructed drainage system including
construction of ditches to reline or replace tile and
construction of tile to replace a ditch.
Subd. 3. [LIMIT OF EXTENSION.] An improvement may only
extend a drainage system downstream to a more adequate outlet
and the extension may not exceed one mile.
Subd. 4. [PETITION.] (a) To start an improvement
proceeding, a petition must be signed by:
(1) at least 26 percent of the resident owners of the
property affected by the proposed improvement;
(2) at least 26 percent of the resident owners of property
that the proposed improvement passes over;
(3) the owners of at least 26 percent of the property area
affected by the proposed improvement; or
(4) the owners of at least 26 percent of the property area
that the proposed improvement passes over.
(b) The petition must be filed with the auditor or, for a
drainage system in more than one county, with the auditor of the
county having the largest area of property the improvement is
located on.
(c) The provisions of section 21, subdivision 3, regarding
signatures of public officials apply to this subdivision.
(d) The petition must:
(1) designate the drainage system proposed to be improved
by number or another description that identifies the drainage
system;
(2) state that the drainage system has insufficient
capacity or needs enlarging or extending to furnish sufficient
capacity or a better outlet;
(3) describe the starting point, general course, and
terminus of any extension;
(4) state that the proposed improvement will be of public
utility and promote the public health; and
(5) contain an agreement by the petitioners that they will
pay all costs and expenses that may be incurred if the
improvement proceedings are dismissed.
Subd. 5. [SUBSEQUENT PROCEEDINGS.] When a petition and the
bond required by section 22 are filed, the auditor shall present
the petition to the board at its next meeting or, for a joint
county drainage system, to the joint county drainage authority
within ten days after the petition is filed. The drainage
authority shall appoint an engineer to examine the drainage
system and make an improvement report. The improvement
proceedings must proceed under this chapter as provided for the
original proceedings for the establishment of a drainage
system. The benefits and damages determined must be as a result
of the proposed improvement. Assessments for the repair of the
improvement must be based on the benefits determined for the
improvement.
Subd. 6. [PETITION FOR SEPARABLE PART OF THE DRAINAGE
SYSTEM NEEDING REPAIR.] (a) If the existing drainage system
needs repair and the petition for the improvement is for a
separable part only of the existing drainage system, the
engineer may include in the detailed survey report a statement
showing the proportionate estimated cost of the proposed
improvement required to repair the separable part of the
existing system and the estimated proportionate cost of the
added work required for the improvement. The notice of hearing
on the detailed survey report must be given by publication and
mailing to all persons owning property affected by the existing
drainage system. The hearing may be held at the same time and
location as the establishment hearing for the improvement.
(b) At the hearing, if the drainage authority determines
that only a separable portion of the existing drainage system
will be improved and that the portion needs repair, the drainage
authority shall determine and assess, by order, the
proportionate cost of the improvement that would be required to
repair the separable portion of the drainage system to be
improved. The order must direct that:
(1) the repair portion is allocated as repairs and assessed
against all property benefited by the entire drainage system, as
provided by section 86; and
(2) the balance of the cost of the improvement is assessed
in addition to the repair assessment against the property
benefited by the improvement.
Sec. 25. [106A.221] [IMPROVEMENT OF OUTLETS.]
Subdivision 1. [CONDITIONS FOR IMPROVEMENT OF OUTLETS.] If
a public or private, proposed or existing drainage system has
waters draining into an existing drainage system, watercourse,
or body of water, and the construction or proposed construction
of the drainage system causes an overflow of the existing
drainage system, watercourse, or body of water on adjoining
property, an affected county or the owners of the overflowed
property may start outlet improvement proceedings under this
section.
Subd. 2. [PETITION.] (a) A petition must be signed by the
board of an affected county, by at least 26 percent of the
resident owners of adjoining overflowed property, or by the
owners of at least 26 percent of the area of the overflowed
property. The petition must:
(1) describe the property that has been or is likely to be
overflowed;
(2) state in general terms by number or otherwise the
drainage systems that have caused or are likely to cause the
overflow;
(3) describe the location of the overflowed drainage
system, watercourse, or body of water and the outlet;
(4) show the necessity of the improvement by enlarging the
system or controlling the waters by off-take ditches, additional
outlets, or otherwise;
(5) show that the outlet improvement will protect the
adjoining property from overflow;
(6) state that the improvement will be of public benefit
and utility and improve the public health; and
(7) state that the petitioners will pay all costs incurred
if the proceedings are dismissed or a contract for the
construction outlet improvement is not awarded.
(b) The petitioners, except for a petition made by the
board, shall give the bond required by section 22.
Subd. 3. [FILING OF PETITION.] The petition shall be filed
with the county auditor. If the board makes the petition, it
must be addressed to the drainage authority and filed with the
auditor. If part of the improvement or the overflowed property
is located in more than one county, the petition must be filed
with the auditor.
Subd. 4. [JURISDICTION OF BOARD AND DISTRICT COURT.] After
the petition is filed, the board or joint county drainage
authority where the petition is filed, has jurisdiction of the
petition, the improvement, the affected property, and all
proceedings for the establishment and construction of the outlet
improvement and the assessment of property benefited by the
outlet improvement, as provided for establishment and
construction of a drainage system under this chapter.
Subd. 5. [PRELIMINARY SURVEY REPORT REQUIREMENTS.] In the
preliminary survey report, the engineer shall show the existing
or proposed drainage systems that cause the overflow, the
property drained or to be drained by the drainage system, and
the names of affected property owners.
Subd. 6. [BENEFITED PROPERTY TO BE DETERMINED BY VIEWERS.]
If, after the preliminary survey report hearing, a detailed
survey is ordered and viewers appointed, the viewers shall
determine and report the benefits to all property from the
outlet improvement including property drained or to be drained
by the existing or proposed drainage system.
Sec. 26. [106A.225] [LATERALS.]
Subdivision 1. [PETITION.] (a) Persons that own property
in the vicinity of an existing drainage system may petition for
a lateral that connects their property with the drainage
system. The petition must be signed by at least 26 percent of
the resident owners of the property or by the owners of at least
26 percent of the area of the property traversed by the
lateral. The petition must be filed with the auditor, or for
property in more than one county, the petition must be filed
with the auditor of the county with the largest property area
traversed by the lateral. The petition must:
(1) describe in general terms the starting point, general
course, and terminus of the proposed lateral;
(2) describe the property traversed by the lateral;
(3) state the necessity to construct the lateral;
(4) state that, if constructed, the lateral will be of
public benefit and utility and promote the public health;
(5) request that the lateral be constructed and connected
with the drainage system; and
(6) provide that the petitioners will pay all costs
incurred if the proceedings are dismissed or if a contract for
the construction of the lateral is not awarded.
(b) The petitioners shall give the bond required by section
22.
Subd. 2. [ESTABLISHMENT PROCEDURE.] After the petition is
filed, the procedure to establish and construct the lateral is
the same as that provided in this chapter to establish a new
drainage system.
Subd. 3. [AUTHORITY NECESSARY FOR PROPERTY NOT
ASSESSED.] A lateral may not be constructed to drain property
that is not assessed benefits for the existing public drainage
system until express authority for the use of the existing
system as an outlet for the lateral has been obtained under
section 52.
Sec. 27. [106A.231] [DISMISSAL OF PROCEEDINGS BY
PETITIONERS.]
A proceeding under this chapter may be dismissed by a
majority of the petitioners if they own at least 60 percent of
the area owned by all of the petitioners as described in the
petition. The proceeding may be dismissed at any time before
the proposed drainage system is established after payment of the
cost of the proceeding. The drainage authority shall determine
the cost of the proceeding. After the proceeding is dismissed
any other action on the proposed drainage system must begin with
a new petition.
Sec. 28. [106A.235] [DRAINAGE SYSTEM IN TWO OR MORE
COUNTIES.]
Subdivision 1. [DESIGNATION.] A petition for a proposed
drainage system in two or more counties must be designated as a
joint county drainage system with a number assigned by the
auditor of the county with the largest area of property in the
drainage system.
Subd. 2. [JOINT COUNTY DRAINAGE AUTHORITY.] The board
where a petition for a proposed joint county drainage system is
filed shall notify the board of each county where property is
affected by the drainage system and request the boards to meet
jointly and consider the petition. The boards shall select five
of their members at the meeting to be the drainage authority. At
least one member must be from each board. The drainage
authority shall be known as the joint county drainage authority
with a joint county drainage system number. A vacancy in the
membership of the joint county drainage authority must be filled
by joint action of the boards.
Subd. 3. [TRANSFER OF DRAINAGE SYSTEMS TO WATERSHED
DISTRICTS NOT AFFECTED.] This section does not affect the
transfer of a drainage system to the board of managers of a
watershed district under section 112.65.
Sec. 29. [106A.241] [ENGINEER.]
Subdivision 1. [APPOINTMENT.] Within 30 days after filing
the petition and bond, the drainage authority shall, by order,
appoint an engineer to make a preliminary survey within a
prescribed time. The engineer is the engineer for the drainage
system throughout the proceeding and construction unless
otherwise ordered. Each appointed engineer must file an oath
and bond. The engineer may be removed by the drainage authority
at any time. If the engineer position is vacant, the drainage
authority shall appoint another engineer as soon as possible.
Subd. 2. [OATH; BOND.] An appointed engineer must
subscribe to an oath to faithfully perform the assigned duties
in the best manner possible and file a bond with the auditor.
Within ten days after being appointed, the drainage authority
shall set an amount of at least $5,000 for the bond. The bond
must have adequate surety and be payable to the county where the
petition is filed, or for a proposed joint county drainage
system to all counties in the petition. The bond must be
conditioned to pay any person or the drainage authority for
damages and injuries resulting from negligence of the engineer
while the engineer is acting in the proceedings or construction,
and provide that the engineer will diligently and honestly
perform the engineer's duties. The bond is subject to approval
by the auditor. The aggregate liability of the surety for all
damages may not exceed the amount of the bond.
Subd. 3. [ASSISTANTS; COMPENSATION.] The engineer may
appoint assistant engineers and hire help necessary to complete
the engineer's duties. The engineer is responsible for the
assistant engineers and may remove them. The compensation of
the engineer, assistant engineers, and other employees is
provided by section 76.
Subd. 4. [ENGINEER'S REPORTS.] The engineer shall make an
expense report every two weeks after the beginning of the
engineer's work until the construction contract is awarded. The
report must show costs incurred by the engineer and expenses
incurred under the engineer's direction relating to the
proceeding, and include the names of the engineer, engineer
assistants, and employees and the time each was employed, and
every item of expense incurred by the engineer. The engineer
must file this report with the auditor as soon as possible and
may not incur expenses for the proceeding greater than the
petitioners' bond.
Subd. 5. [CONSULTING ENGINEER.] After the engineer is
appointed and before construction of the drainage system is
finished, the drainage authority may employ an engineer as a
consulting engineer for the proceeding and construction. A
consulting engineer shall advise the engineer and drainage
authority on engineering matters and problems that may arise
related to the proceeding and construction of the drainage
system. The drainage authority shall determine the compensation
for the consulting engineer.
Sec. 30. [106A.245] [PRELIMINARY SURVEY AND PRELIMINARY
SURVEY REPORT.]
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 system to enable the engineer
to determine whether the proposed drainage system is necessary
and feasible with reference to the environmental and land use
criteria in section 3, subdivision 1;
(3) examine and gather information related to determining
whether the proposed drainage system substantially affects areas
that are public waters; and
(4) if the proposed drainage system requires construction
of an open channel, examine the nature and capacity of the
outlet and any necessary extension.
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. The preliminary survey must consider the impact of
the proposed drainage system on the environmental and land use
criteria in section 3, 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.
Subd. 3. [ADOPTION OF FEDERAL PROJECT.] The engineer may
approve and include as a part of the report, a project of the
United States relating to drainage or flood control that is
within the proposed drainage system area, and may accept data,
plats, plans, or information relating to the project furnished
by United States engineers. The engineer does not need to make
the preliminary survey if the material furnished by the United
States is sufficient for the engineer to make the preliminary
survey report.
Subd. 4. [PRELIMINARY SURVEY REPORT.] The engineer shall
report the proposed drainage system 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 system in the petition is feasible and
complies with the environmental and land use criteria in section
3, subdivision 1, the engineer shall include in the preliminary
survey report a preliminary plan of the proposed system showing
the proposed ditches, tile, laterals, and other improvements,
the outlet of the system, the watershed of the drainage 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 practicablity, necessity, and feasibility of the proposed
drainage system;
(6) consideration of the project under the environmental
and land use criteria in section 3, subdivision 1, of the
proposed drainage system; and
(7) other information as ordered by the drainage authority.
Sec. 31. [106A.251] [FILING PRELIMINARY SURVEY REPORT.]
The engineer shall file the completed preliminary survey
report in duplicate with the auditor. The auditor shall send
one copy of the report to the director. If the proposed
drainage system involves a joint county drainage system, a copy
of the report must be filed with the auditor of each affected
county.
Sec. 32. [106A.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
under the public waters determination in section 105.37, and the
environmental and land use criteria in section 3, subdivision 1,
and cite specific portions of the preliminary survey report that
are 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. 33. [106A.261] [PRELIMINARY HEARING.]
Subdivision 1. [NOTICE.] When the preliminary survey
report is filed, the auditor shall promptly notify the drainage
authority. The drainage authority in consultation with the
auditor shall set a time, by order, not more than 30 days after
the date of the order, for a hearing on the preliminary survey
report. At least ten days before the hearing, the drainage
authority after consulting with the auditor shall give notice by
mail of the time and location of the hearing to the petitioners,
owners of property, and political subdivisions likely to be
affected by the proposed drainage system in the preliminary
survey report.
Subd. 2. [HEARING.] The engineer shall attend the
preliminary hearing and provide necessary information. The
petitioners and all other interested parties may appear and be
heard. The commissioner's advisory report on the preliminary
plan must be publicly read and included in the record of
proceedings.
Subd. 3. [SUFFICIENCY OF PETITION.] (a) The drainage
authority shall first examine the petition and determine if it
meets the legal requirements.
(b) If the petition does not meet the legal requirements of
this chapter, the hearing shall be adjourned and the petition
referred back to the petitioners. The petitioners, by unanimous
action, may amend the petition. The petitioners may obtain
signatures of additional property owners as added petitioners.
(c) If at the adjourned hearing the petition does not meet
the legal requirements, the proceedings must be dismissed.
Subd. 4. [DISMISSAL.] (a) The drainage authority shall
dismiss the proceedings if it determines that:
(1) the proposed drainage system is not feasible;
(2) the adverse environmental impact is greater than the
public benefit and utility after considering the environmental
and land use criteria in section 3, subdivision 1, and the
engineer has not reported a plan to make the proposed drainage
system feasible and acceptable;
(3) the proposed drainage system 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 system must begin with a new petition.
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 system 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 system outlined in the petition,
or modified and recommended by the engineer, is feasible;
(2) there is necessity for the proposed drainage system;
(3) the proposed drainage system will be of public benefit
and promote the public health, after considering the
environmental and land use criteria in section 3, 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 system with the order. The order and accompanying
documents must be filed with the auditor.
Subd. 6. [OUTLET IS EXISTING DRAINAGE SYSTEM.] If the
outlet is an existing drainage system, the drainage authority
may determine that the outlet is adequate and obtain permission
to use the existing drainage system as an outlet. The drainage
authority shall assign a number to the proposed drainage system
and proceed under section 52 to act in behalf of the proposed
drainage system.
Subd. 7. [EFFECT OF FINDINGS.] (a) For all further
proceedings, the order modifies the petition and the order must
be considered with the petition.
(b) The findings and order of the drainage authority at the
preliminary hearing are conclusive only for the signatures and
legal requirements of the petition, the nature and extent of the
proposed plan, and the need for a detailed survey, and only for
the persons or parties shown by the preliminary survey report as
likely to be affected by the proposed drainage system. All
questions related to the practicability and necessity of the
proposed drainage system are subject to additional investigation
and consideration at the final hearing.
Sec. 34. [106A.265] [ORDER FOR DETAILED SURVEY AND
DETAILED SURVEY REPORT.]
Subdivision 1. [ORDER.] When the preliminary hearing order
is filed with the auditor, the drainage authority shall order
the engineer to make a detailed survey with plans and
specifications for the proposed drainage system and submit a
detailed survey report to the drainage authority as soon as
possible.
Subd. 2. [WAIVER.] The drainage authority may waive the
order for and the detailed survey if it determines that adequate
data, plans, and specifications have been furnished by a United
States engineer.
Sec. 35. [106A.271] [DETAILED SURVEY.]
Subdivision 1. [SURVEY AND EXAMINATION.] When an order for
a detailed survey is filed, the engineer shall proceed to survey
the lines of the proposed drainage system in the preliminary
hearing order, and survey and examine affected property.
Subd. 2. [SURVEY REQUIREMENTS.] All drainage lines must be
surveyed in 100 foot stations and elevations must be based on
standard sea level datum, if practical. Bench marks must be
established on permanent objects along the drainage line, not
more than one mile apart. Field notes made by the engineer must
be entered in bound field books and preserved by the engineer
until they are filed with the auditor.
Sec. 36. [106A.275] [ENGINEER'S VARIANCE FROM DRAINAGE
AUTHORITY ORDER.]
(a) In planning a proposed drainage system, the engineer
may vary from the starting point and the line and plan described
by the preliminary hearing order if necessary to drain the
property likely to be assessed in the proposed drainage system.
(b) The engineer may:
(1) survey and recommend the location of additional
necessary ditches;
(2) where better results will be accomplished and more
desirable outlets secured, provide for the extension of the
outlet; and
(3) provide for different parts of the drainage to flow in
different directions with more than one outlet.
(c) The open ditches do not have to connect if they drain
the area to be affected in the petition. The variance must be
reported with similar information in the detailed survey report.
Sec. 37. [106A.281] [SOIL SURVEY.]
The engineer shall make a soil survey if: (1) the drainage
authority orders a soil survey; (2) the commissioner requests a
soil survey; or (3) the engineer determines a soil survey is
necessary. The soil survey must show the nature and character
of the soil in the proposed drainage area and include the
engineer's findings from the soil survey. The report on the
soil survey must be included in the detailed survey report or
reported and filed separately before the final hearing.
Sec. 38. [106A.285] [DETAILED SURVEY REPORT.]
Subdivision 1. [REPORT AND INFORMATION REQUIRED.] The
engineer shall prepare a detailed survey report that includes
the data and information in this section.
Subd. 2. [MAP.] A complete map of the proposed drainage
system must be drawn to scale, showing:
(1) the terminus and course of each drain and whether it is
ditch or tile, and the location of other proposed drainage works;
(2) the location and situation of the outlet;
(3) the watershed of the proposed drainage system and the
sub-watershed of main branches, if any, with the location of
existing highway bridges and culverts;
(4) all property affected, with the names of the known
owners;
(5) public roads and railways affected;
(6) the outline of any lake basin, wetland, or public water
body affected; and
(7) other physical characteristics of the watershed
necessary to understand the proposed drainage system.
Subd. 3. [PROFILE OF DRAINAGE LINES.] A profile of all
proposed drainage lines must be presented showing, graphically,
the elevation of the ground and gradient at each 100 foot
station, and the station number at each section line and at each
property line. The profile must show information necessary to
understand it, including, in the case of an open ditch, the
bottom width and side slope and, in the case of a tiled ditch,
the size of tile.
Subd. 4. [BRIDGE AND CULVERT PLANS.] Plans for private
bridges and culverts to be constructed by and as a part of the
proposed drainage system and plans for other works to be
constructed for the proposed drainage system must be presented.
A list must be made that shows the required minimum hydraulic
capacity of bridges and culverts at railways and highways that
cross ditches, and at other prospective ditch crossings where
bridges and culverts are not specified to be constructed as part
of the proposed drainage system. Plans and estimates of the
cost of highway bridges and culverts must be prepared for the
viewers to determine benefits and damages.
Subd. 5. [TABULAR STATEMENT OF EXCAVATION, CONSTRUCTION,
AND COST.] A tabular statement must be prepared showing:
(1) the number of cubic yards of excavation, linear feet of
tile, and average depth on each tile line;
(2) the bridges, culverts, and works to be constructed
under the plans for the system; and
(3) the estimated unit cost of each item, a summary of the
total cost, and an estimate of the total cost of completing the
proposed drainage system that includes supervision and other
costs.
Subd. 6. [RIGHT-OF-WAY ACREAGE.] The acreage must be shown
that will be taken for ditch right-of-way on each government
lot, 40 acre tract, or fraction of a lot or tract under separate
ownership.
Subd. 7. [DRAIN TILE SPECIFICATIONS.] Specifications for
drain tile must be given that comply with the requirements of
the American Society for Testing Materials standard
specifications for drain tile, except where the engineer
requires tile of a special, higher quality for certain tile
depths or soil conditions.
Subd. 8. [SOIL SURVEY REPORT.] If required under section
37, the report on the soil survey must be included in the
detailed survey report or reported and filed separately before
the final hearing.
Subd. 9. [RECOMMENDATION FOR DIVISION OF WORK.] If
construction of the proposed drainage system would be more
economical, the engineer may recommend: (1) that the work be
divided into sections and contracted separately; (2) that the
ditch and tile work or tile and labor on the system be
contracted separately, or (3) the time and manner for the work
to be completed.
Subd. 10. [OTHER INFORMATION ON PRACTICABILITY AND
NECESSITY OF DRAINAGE SYSTEM.] Other data and information to
inform the drainage authority of the practicability and
necessity of the proposed drainage system must be made available
including a comprehensive examination and the recommendation by
the engineer regarding the environmental and land use criteria
in section 3, subdivision 1.
Subd. 11. [OUTLET IN ANOTHER STATE.] If an outlet is only
practical in an adjoining state, the engineer shall describe the
right-of-way needed and the cost of obtaining the right-of-way
and constructing the outlet.
Subd. 12. [COMPLETION.] The engineer shall prepare the
detailed survey and complete the detailed survey report, in
duplicate, as specified in this section.
Sec. 39. [106A.291] [FILING DETAILED SURVEY REPORT.]
The engineer must file the detailed survey report with the
auditor where the proceedings are pending and the auditor must
deliver a copy of the detailed survey report to the
commissioner. The engineer must also file copies of the
detailed survey report with the auditors of any affected
counties.
Sec. 40. [106A.295] [REVISION OF ENGINEER'S DETAILED
SURVEY REPORT AFTER ACCEPTANCE.]
After the final acceptance of the proposed drainage system,
the engineer shall revise the plan, profiles, and designs of
structures to show the project as actually constructed on the
original tracings. The engineer shall file the revised detailed
survey report with the auditor. The auditor shall forward the
original or a copy to the director as a permanent record.
Sec. 41. [106A.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 system is not of public
benefit or utility under the environmental and land use criteria
in section 3, 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. 42. [106A.305] [VIEWERS' APPOINTMENT AND
QUALIFICATION.]
Subdivision 1. [APPOINTMENT.] When the order for a
detailed survey is made, the drainage authority shall, by order,
appoint viewers consisting of three disinterested resident
property owners of the counties affected by the proposed
drainage system.
Subd. 2. [AUDITOR'S ORDER FOR FIRST MEETING.] Within five
days after the detailed survey report is filed, the auditor
shall, by order, designate the time and location for the first
meeting of the viewers, and issue a copy to the viewers of the
auditor's order and a certified copy of the order appointing the
viewers.
Subd. 3. [FIRST MEETING.] At the first meeting and before
beginning their duties, the viewers shall subscribe to an oath
to faithfully perform their duties. If an appointed viewer does
not qualify for any reason, the auditor shall designate another
qualified person to take the disqualified viewer's place.
Sec. 43. [106A.311] [VIEWERS' DUTIES.]
The viewers, with or without the engineer, shall determine
the benefits and damages to all property affected by the
proposed drainage system and make a viewers' report.
Sec. 44. [106A.315] [ASSESSMENT OF DRAINAGE BENEFITS AND
DAMAGES.]
Subdivision 1. [STATE LAND.] Property owned by the state
must have benefits and damages reported in the same manner as
taxable lands subject to the provisions relating to conservation
areas in section 3, subdivision 2.
Subd. 2. [GOVERNMENT PROPERTY.] The viewers shall report
the benefits and damages to the state, counties, and
municipalities from the proposed drainage system.
Subd. 3. [PUBLIC ROADS.] If a public road or street is
benefited or damaged, the state, county, or political
subdivision that is the governmental unit with the legal duty of
maintaining the road or street, must be assessed benefits or
damages to the road or street, except that benefits and damages
for bridges and culverts must be assessed to the governmental
unit that has the legal duty to construct and maintain the
bridge or culvert under section 60.
Subd. 4. [RAILWAY AND OTHER UTILITIES.] The viewers shall
report the benefits and damages to railways and other utilities,
including benefits and damages to property used for railway or
other utility purposes.
Subd. 5. [EXTENT OF BENEFITS.] The viewers shall determine
the amount of benefits to all property benefited, whether the
property is benefited immediately by the construction of the
proposed drainage system or the proposed drainage system can
become an outlet for drainage, makes an outlet more accessible,
or otherwise directly benefits the property.
Subd. 6. [BENEFITS FOR PROPOSED DRAINAGE SYSTEM AS
OUTLET.] (a) If the proposed drainage system furnishes an outlet
to an existing drainage system and benefits the property drained
by the existing system, the viewers shall equitably determine
and assess:
(1) the benefits of the proposed drainage system to each
tract or lot drained by the existing drainage system;
(2) a single amount as an outlet benefit to the existing
drainage system; or
(3) benefits on a watershed acre basis.
(b) Assessments that conform with the provisions in this
subdivision are valid. If a single sum is assessed as an outlet
benefit, the lien for the assessment must be pro-rated on all
property benefited by the existing drainage system in proportion
to the benefits determined in the existing drainage system
proceeding.
Sec. 45. [106A.321] [VIEWERS' REPORT.]
Subdivision 1. [REQUIREMENTS.] The viewers' report must
show, in tabular form, for each lot, 40 acre tract, and fraction
of a lot or tract under separate ownership that is benefited or
damaged:
(1) a description of the lot or tract, under separate
ownership, that is benefited or damaged;
(2) the names of the owners as they appear on the current
tax records of the county;
(3) the number of acres in each tract or lot;
(4) the number and value of acres added to a tract or lot
by the proposed drainage of meandered lakes;
(5) the damage, if any, to riparian rights; and
(6) the amount that each tract or lot will be benefited or
damaged.
Subd. 2. [DISAGREEMENT OF VIEWERS.] If the viewers are
unable to agree, each viewer shall separately state findings on
the disagreed issue. A majority of the viewers may perform the
required duties under this chapter.
Subd. 3. [FILING.] When the viewers complete their duties,
they shall file the viewers' report with the auditor of each
affected county. A detailed statement must be filed with the
viewers' report showing the actual time the viewers were engaged
and the costs incurred. The viewers shall perform their duties
and complete the viewers' report as soon as possible after their
first meeting.
Sec. 46. [106A.325] [FINAL HEARING.]
Subdivision 1. [TIME.] Promptly after the filing of the
viewers' report and the commissioner's final advisory report,
the drainage authority after consulting with the auditor shall
set a time and location for the final hearing on the petition,
the detailed survey report, and the viewers' report. The
hearing must be set 25 to 50 days after the date of the final
hearing notice.
Subd. 2. [NOTICE.] (a) The final hearing notice must state:
(1) that the petition is pending;
(2) that the detailed survey report is filed;
(3) that the viewers' report is filed;
(4) the time and place set for the final hearing;
(5) a brief description of the proposed drainage system,
giving in general terms the starting point, terminus, and
general course of the main ditch and branches;
(6) a description of property benefited and damaged, and
the names of the owners of the property; and
(7) the municipal and other corporations affected by the
proposed drainage system as shown by the detailed survey report
and viewers' report.
(b) Names may be listed in a narrative form and property
affected may be separately listed in narrative form by
governmental sections or otherwise.
(c) For a joint county proceeding, separate notice may be
prepared for each county affected, showing the portion of the
proposed drainage system and the names and descriptions of
affected property in the county.
Subd. 3. [METHOD OF NOTICE.] The auditor shall notify the
drainage authority, auditors of affected counties, and all
interested persons of the time and location of the final hearing
by publication, posting, and mail. A printed copy of the final
hearing notice for each affected county must be posted at least
three weeks before the date of the final hearing at the front
door of the courthouse in each county. Within one week after
the first publication of the notice, the auditor shall give
notice by mail of the time and location of the final hearing to
the commissioner, all property owners, and others affected by
the proposed drainage system and listed in the detailed survey
report and the viewers' report.
Subd. 4. [DEFECTIVE NOTICE.] If the final hearing notice
is not given or is not legally given, the auditor shall properly
publish, post, and mail the notice or provide the notice under
the provisions to cure defective notice in section 7.
Sec. 47. [106A.331] [JURISDICTION OF PROPERTY BY DRAINAGE
AUTHORITY.]
After the final hearing notice is given, the drainage
authority has jurisdiction of all property described in the
detailed survey report and viewers' report, of the persons and
municipalities named in the reports, and of persons having an
interest in a mortgage, lien, or encumbrance against property
described in the reports.
Sec. 48. [106A.335] [PROCEEDINGS AT THE FINAL HEARING.]
Subdivision 1. [CONSIDERATION OF PETITION AND REPORTS.] At
the time and location for the final hearing specified in the
notice, or after the hearing adjourns, the drainage authority
shall consider the petition for the drainage system, with all
matters pertaining to the detailed survey report, the viewers'
report, and the commissioner's final advisory report. The
drainage authority shall hear and consider the testimony
presented by all interested parties. The engineer or the
engineer's assistant and at least one viewer shall be present.
The director may appear and be heard. If the director does not
appear personally, the final advisory report shall be read
during the hearing. The final hearing may be adjourned and
reconvened as is necessary.
Subd. 2. [CHANGES IN DRAINAGE PLAN.] If the drainage
authority determines that the general plan reported by the
engineer may be improved by changes, or that the viewers have
made an inequitable assessment of benefits or damages to any
property, the drainage authority may amend the detailed survey
report or the viewers' report, and make necessary and proper
findings in relation to the reports. The drainage authority may
resubmit matters to the engineer or to the viewers for immediate
consideration. The engineer or viewers shall proceed promptly
to reconsider the resubmitted matters and shall make and file
the amended findings and reports. The amended reports are a
part of the original reports.
Subd. 3. [REEXAMINATION.] If the drainage authority
determines that property not included in the notice should be
included and assessed or that the engineer or viewers, or both,
should reexamine the proposed drainage system or the property
benefited or damaged by the system, the drainage authority may
resubmit the reports to the engineer and viewers. If a report
is resubmitted the final hearing may be continued as is
necessary to make the reexamination and reexamination report.
If the reexamination report includes property not included in
the original report, the drainage authority may, by order,
adjourn the hearing and direct the auditor to serve or publish,
post, and mail a final hearing notice with reference to all
property not included in the previous notice. The jurisdiction
of the drainage authority continues in the property given proper
notice, and new or additional notice is not required for that
property.
Sec. 49. [106A.341] [DRAINAGE AUTHORITY FINAL ORDER.]
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 system are less
than the total cost, including damages awarded;
(2) the proposed drainage system will not be of public
benefit and utility; or
(3) the proposed drainage system is not practicable after
considering the environmental and land use criteria in section
3, subdivision 1.
Subd. 2. [ESTABLISHMENT OF PROPOSED DRAINAGE SYSTEM.] (a)
The drainage authority shall establish, by order, a proposed
drainage system if it determines that:
(1) the detailed survey report and viewers' report have
been made and other proceedings have been completed under this
chapter;
(2) the reports made or amended are complete and correct;
(3) the damages and benefits have been properly determined;
(4) the estimated benefits are greater than the total
estimated cost, including damages;
(5) the proposed drainage system will be of public utility
and benefit, and will promote the public health; and
(6) the proposed drainage system is practicable.
(b) The order must contain the drainage authority's
findings, adopt and confirm the viewers' report as made or
amended, and establish the proposed drainage system as reported
and amended.
Sec. 50. [106A.345] [APPORTIONMENT OF COST FOR JOINT
COUNTY DRAINAGE SYSTEMS.]
For joint county proceedings, the auditor where the
petition is filed shall file a certified copy of the viewers'
report with the auditor of each affected county within 20 days
after the date of the final order establishing the system. When
the final order to establish the drainage system is made, the
drainage authority shall determine and order the percentage of
the cost of the drainage system to be paid by each affected
county. The cost shall be in proportion to the benefits
received, unless there is a contrary reason. An auditor of an
affected county may petition the drainage authority after the
final order is made to determine and order the percentage of
costs to be paid by the affected counties. The drainage
authority shall hold a hearing five days after giving written
notice to the auditor of each affected county. After giving the
notice to the auditors of the affected counties, the drainage
authority may, at any time that it is necessary, modify an order
or make an additional order to allocate the cost among the
affected counties.
Sec. 51. [106A.351] [REDETERMINATION OF BENEFITS.]
Subdivision 1. [CONDITIONS TO REDETERMINE BENEFITS;
APPOINTMENT OF VIEWERS.] If the drainage authority determines
that the original benefits determined in a drainage proceeding
do not reflect reasonable present day land values or that the
benefited areas have changed, or if more than 50 percent of the
property owners benefited by a drainage system petition for
correction of an error that was made at the time of the
proceedings that established the drainage system, the drainage
authority may appoint three viewers to redetermine and report
the benefits and the benefited areas.
Subd. 2. [HEARING AND PROCEDURE.] The drainage authority
shall hold a hearing on the report and confirm the benefits and
benefited areas. The redetermination of benefits shall proceed
as provided for viewers and the viewers' report in sections 43
to 45, and for the final hearing under sections 46, 48, and 49.
Subd. 3. [REDETERMINED BENEFITS REPLACE ORIGINAL
BENEFITS.] The redetermined benefits and benefited areas must be
used in place of the original benefits and benefited areas in
all subsequent proceedings relating to the drainage system.
Subd. 4. [APPEAL.] A person aggrieved by the
redetermination of benefits and benefited areas may appeal from
the order confirming the benefits and benefited areas under
section 18.
OUTLETS FOR DRAINAGE SYSTEMS
Sec. 52. [106A.401] [USE OF DRAINAGE SYSTEM AS AN OUTLET.]
Subdivision 1. [COMMISSIONER MUST RECOGNIZE DRAINAGE
OUTLET PROCEEDINGS WHEN PURCHASING WETLANDS.] If the
commissioner purchases wetlands under section 97.481, the
commissioner must recognize that when a majority of landowners
or owners of a majority of the land in the watershed, petition
for a drainage outlet, the state should not interfere with or
unnecessarily delay the drainage proceedings if the proceedings
are conducted according to this chapter.
Subd. 2. [EXPRESS AUTHORITY NECESSARY.] After the
construction of a drainage system, a public or private drainage
system that drains property not assessed for benefits for the
established drainage system may not be constructed to use the
established drainage system as an outlet without obtaining
express authority from the drainage authority of the drainage
system proposed to be used as the outlet. This section is
applicable to the construction of a public or private drainage
system that outlets water into an established drainage system
regardless of the actual physical connection.
Subd. 3. [PETITION.] A person seeking authority to use an
established drainage system as an outlet must petition the
drainage authority. When the petition is filed, the drainage
authority in consultation with the auditor shall set a time and
location for a hearing on the petition and shall give notice by
mail and notice by publication of the hearing. The auditor must
be paid a fee of $5 plus 30 cents for each notice mailed in
excess of ten.
Subd. 4. [HEARING.] At the hearing the drainage authority
shall consider the capacity of the outlet drainage system. If
express authority is given to use the drainage system as an
outlet, the drainage authority shall state, by order, the terms
and conditions for use of the established drainage system as an
outlet and shall set the amount to be paid as an outlet fee. The
order must describe the property to be benefited by the drainage
system and must state the amount of benefits to the property for
the outlet. The property benefited is liable for assessments
levied after that time in the drainage system, on the basis of
the benefits as if the benefits had been determined in the order
establishing the drainage system.
Subd. 5. [PRIVATE DRAINAGE SYSTEM MAY NOT BE CONSTRUCTED
WITHOUT PAYMENT OF OUTLET FEE.] A private drainage system may
not be constructed to use the established drainage system as an
outlet until the outlet fee, set by order, is paid by the
petitioner to the county treasurer where petitioner's property
is located.
Subd. 6. [PAYMENT OF OUTLET FEE.] The outlet fee for a
proposed drainage system is a part of the cost of the proposed
drainage system and is to be paid by assessment against the
property benefited by the proposed drainage system, under
section 67, and credited to the established drainage system
account.
Sec. 53. [106A.405] [OUTLETS IN ADJOINING STATES.]
In any drainage proceeding, at the hearing on the detailed
survey report and viewers' report, if the drainage authority
determines that a proper outlet for the drainage system does not
exist, except through property in an adjoining state, the
drainage authority may adjourn the hearing. If the hearing is
adjourned the drainage authority shall require the auditor or,
for a joint county drainage system, the auditors of affected
counties to procure an option to acquire the needed right-of-way
at an expense not exceeding the estimated cost specified in the
detailed survey report. The order establishing the drainage
system may not be made until the option is procured. If the
option is procured and the drainage system established, the
option shall be exercised and the cost of the right-of-way shall
be paid as a part of the cost of the drainage system.
Sec. 54. [106A.411] [DRAINAGE SYSTEM AS OUTLET FOR
MUNICIPALITY.]
Subdivision 1. [PETITION.] A municipality may use a
drainage system as an outlet for its municipal drainage system
or the overflow from the system under the provisions of this
section. The municipality must petition to the drainage
authority to use the drainage system. The petition must:
(1) show the necessity for the use of the drainage system
as an outlet;
(2) show that the use of the drainage will be of public
benefit and utility and promote the public health;
(3) be accompanied by a plat showing the location of the
drainage system and the location of the municipal drainage
system; and
(4) be accompanied by specifications showing the plan of
connection from the municipal drainage system to the drainage
system.
Subd. 2. [APPROVAL BY POLLUTION CONTROL AGENCY.] The plan
for connecting the municipal drainage system to the drainage
system must be approved by the pollution control agency.
Subd. 3. [FILING; NOTICE.] (a) If proceedings to establish
the drainage system to be used as an outlet are pending, the
petition must be filed with the auditor. The municipal drainage
system petition must be presented to the drainage authority at
the final hearing to consider the detailed survey report and
viewers' report. Notice of the municipal drainage system
petition must be included in the final hearing notice.
(b) If the drainage system to be used as an outlet is
established, the municipal drainage system petition must be
filed with the auditor. When the petition is filed, the
drainage authority in consultation with the auditor shall, by
order, set a time and place for hearing on the petition. Notice
of the hearing must be given by publication and by mailed notice
to the auditor of each affected county.
Subd. 4. [HEARING AND ORDER.] (a) At the hearing the
drainage authority may receive all evidence of interested
parties for or against the granting of the petition. The
drainage authority, by order, may authorize the municipality to
use the drainage system as an outlet, subject to the conditions
that are necessary and proper to protect the rights of the
parties and safeguard the interests of the general public, if
the drainage authority determines:
(1) that a necessity exists for the use of the drainage
system as an outlet for the municipal drainage system or the
overflow from the system;
(2) that use of the drainage system will be of public
utility and promote the public health; and
(3) that the proposed connection conforms to the
requirements of the pollution control agency and provides for
the construction and use of proper disposal works.
(b) The drainage authority must, by order, make the
municipality a party to the drainage proceedings and determine
the benefits from using the drainage system as an outlet.
Subd. 5. [BENEFITS AND ASSESSMENTS IF DRAINAGE SYSTEM IS
ESTABLISHED.] If the drainage system is established, the
drainage authority must determine the amount the municipality
must pay for the privilege of using the drainage system as an
outlet. The amount must be paid to the affected counties and
credited to the account of the drainage system used as an
outlet. The municipality is liable for all subsequent liens and
assessments for the repair and maintenance of the drainage
system in proportion to the benefits, as though the benefits
were determined in the order establishing the drainage system.
CONSTRUCTION OF DRAINAGE SYSTEM
Sec. 55. [106A.501] [CONTRACT AND BOND.]
Subdivision 1. [PREPARATION.] The county attorney, the
engineer, and the attorney for the petitioners shall prepare the
contract and bond. The contract and bond must include the
provisions required by this chapter and section 574.26 for bonds
given by contractors for public works and must be conditioned as
provided by section 574.26 for the better security of the
contracting counties and parties performing labor and furnishing
material in performance of the contract. The prepared contract
and bond must be attached and provided to the contractor for
execution.
Subd. 2. [CONTRACTOR'S BOND.] The contractor shall file a
bond with the auditor for an amount not less than 75 percent of
the contract price of the work. The bond must have adequate
surety and be approved by the auditor. The bond must provide
that the surety for the bond is liable for all damages resulting
from a failure to perform work under the contract, whether the
work is resold or not, and that any person or political
subdivision showing damages from the failure to perform work
under the contract may maintain an action against the bond in
their own names. Actions may be successive in favor of all
persons injured, but the aggregate liability of the surety for
all the damages may not exceed the amount of the bond. The
surety is liable for the tile work guaranteed by the
contractor. The contractor is considered a public officer and
the bond an official bond within the meaning of section 574.24
construing the official bonds of public officers as security to
all persons and providing for actions on the bonds by a party
that is damaged.
Subd. 3. [CONTRACT.] The contract must contain a specific
description of the work to be done, either expressly or by
reference to the plans and specifications, and must provide that
the work must be done and completed as provided in the plans and
specifications and subject to the inspection and approval of the
engineer. The contract must provide that time is of the essence
of the contract, and that if there is a failure to perform the
work according to the terms of the contract within the time
given in the original contract or as extended, the contractors
shall forfeit and pay counties an amount stated in the contract
as liquidated damages. The amount must be fixed by the auditor
for each day that the failure of performance continues.
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 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
section 3, subdivision 1.
Subd. 5. [CONTRACT WITH FEDERAL UNIT.] If any portion of
the work is to be done by the United States or an agency of the
United States, a bond or contract is not necessary for that
portion of the work, except that a contract must be made if the
United States or its agencies require a contract with the local
governmental units. The contract must contain the terms,
conditions, provisions, and guaranties required by the United
States or its agencies to proceed with the work.
Subd. 6. [GUARANTY OF TILE WORK.] If tile is used to
construct any part of the drainage system, a majority of the
persons affected may file a written request with the auditor to
contract the tile work separately. The request must be filed
before advertising for the sale of the work has begun. If the
request is properly made, the tile work must be contracted
separately. The contractor must guarantee the tile work under
the contract for three years after its completion against any
fault or negligence on the part of the contractor. The
advertisement for bids must include this requirement.
Subd. 7. [MODIFICATION OF CONTRACT BY AGREEMENT.] This
chapter does not prevent the persons with property affected by
the construction of a drainage system from uniting in a written
agreement with the contractor and the surety of the contractor's
bond to modify the contract as to the manner or time when any
portion of the drainage system is constructed, if the
modification is recommended, in writing, by the engineer and
approved by the drainage authority.
Sec. 56. [106A.505] [AWARDING THE CONSTRUCTION CONTRACT.]
Subdivision 1. [AUDITORS AND DRAINAGE AUTHORITY TO
PROCEED.] Thirty days after the order establishing a drainage
system is filed, the auditor and the drainage authority or, for
a joint county drainage system, a majority of the auditors of
the affected counties shall proceed to award the contract to
construct the drainage system.
Subd. 2. [PENDING APPEAL OF BENEFITS AND DAMAGES.] If an
appeal regarding the determination of benefits and damages is
made within 30 days after the order establishing the drainage
system has been filed, a contract may not be awarded until the
appeal has been determined, unless the drainage authority orders
the contract awarded. The auditor of an affected county or an
interested person may request the drainage authority to make the
order. If the request is not made by an affected auditor, the
auditors of affected counties must be given notice five days
before the hearing on the request.
Subd. 3. [NOTICE OF CONTRACT AWARDING.] The auditor of an
affected county shall give notice of the awarding of the
contract by publication in a newspaper in the county. The
notice must state the time and location for awarding the
contract. For a joint county drainage system the auditors shall
award the contract at the office of the auditor where the
proceedings are pending. If the estimated cost of construction
is more than $3,000, the auditor must also place a notice in a
drainage construction trade paper. The trade paper notice must
state:
(1) the time and location for awarding the contract;
(2) the approximate amount of work and its estimated cost;
(3) that bids may be for the work as one job, or in
sections, or separately, for bridges, ditches and open work,
tile, or tile construction work, if required or advisable;
(4) that each bid must be accompanied by a certified check
or a bond furnished by an approved surety corporation payable to
the auditors of affected counties for ten percent of the bid, as
security that the bidder will enter into a contract and give a
bond as required by section 55; and
(5) that the drainage authority reserves the right to
reject any and all bids.
Subd. 4. [ENGINEER SHALL ATTEND AWARDING OF CONTRACT.] The
engineer shall attend the meeting to award the contract. A bid
may not be accepted without the engineer's approval of
compliance with plans and specifications.
Subd. 5. [HOW CONTRACT MAY BE AWARDED.] The contract may
be awarded in one job, in sections, or separately for labor and
material and must be let to the lowest responsible bidder.
Subd. 6. [BIDS EXCEEDING 30 PERCENT OF ESTIMATED COST NOT
ACCEPTED.] Bids that in the aggregate exceed the total estimated
cost of construction by more than 30 percent may not be accepted.
Subd. 7. [AFFECTED COUNTIES CONTRACT THROUGH AUDITOR.] The
chairman of the drainage authority and the auditor of each
affected county shall contract, in the names of their respective
counties, to construct the drainage system in the time and
manner and according to the plans and specifications and the
contract provisions in this chapter.
Subd. 8. [WORK DONE BY FEDERAL GOVERNMENT.] If any of the
drainage work is to be done by the United States or its
agencies, a notice of awarding that contract does not need to be
published and a contract for that construction is not
necessary. Affected municipalities may contract or arrange with
the United States or its agencies for cooperation or assistance
in constructing, maintaining, and operating the drainage system,
for control of waters in the district, or for making a survey
and investigation or reports on the drainage system. The
municipalities may provide required guaranty and protection to
the United States or its agencies.
Sec. 57. [106A.511] [PROCEDURE IF CONTRACT IS NOT AWARDED
DUE TO BIDS OR COSTS.]
Subdivision 1. [CONDITIONS TO USE PROCEDURE IN THIS
SECTION.] The procedure in this section may be used if after a
drainage system is established:
(1) the only bids received are for more than 30 percent in
excess of the engineer's estimated cost, or in excess of the
benefits, less damages and other costs; or
(2) a contract is awarded, but due to unavoidable delays
not caused by the contractor, the contract cannot be completed
for an amount equal to or less than the benefits, less damages
and other costs.
Subd. 2. [PETITION AFTER COST ESTIMATE ERROR OR CHANGE TO
LOWER COST.] A person interested in the drainage system may
petition the drainage authority if the person determines that
the engineer made an error in the estimate of the drainage
system cost or that the plans and specifications could be
changed in a manner materially affecting the cost of the
drainage system without interfering with the efficiency. The
petition must state the person's determinations and request that
the detailed survey report and viewers' report be referred back
to the engineer and to the viewers for additional consideration.
Subd. 3. [PETITION AFTER EXCESSIVE COST DUE TO
INFLATION.] (a) A person interested in the drainage system may
petition the drainage authority for an order to reconsider the
detailed survey report and viewers' report if the person
determines:
(1) that bids were received only for a price more than 30
percent in excess of the detailed survey report estimate because
inflation increased the construction cost between the time of
the detailed survey cost estimate and the time of awarding the
contract; or
(2) that after the contract was awarded there was
unavoidable delay not caused by the contractor, and between the
time of awarding the contract and completion of construction
inflation increased construction costs resulting in the contract
not being completed for an amount equal to or less than the
assessed benefits.
(b) The person may request in the petition that the
drainage authority reconsider the original cost estimate in the
detailed survey report and viewers' report and adjust the cost
estimate consistent with the increased construction cost.
Subd. 4. [HEARING ORDERED AFTER RECEIPT OF
PETITION.] After receiving a petition, the drainage authority
shall order a hearing. The order must designate the time and
place of the hearing and direct the auditor to give notice by
publication.
Subd. 5. [HEARING ON COST PETITION.] (a) At the hearing
the drainage authority shall consider the petition and hear all
interested parties.
(b) The drainage authority may, by order, authorize the
engineer to amend the detailed survey report, if the drainage
authority determines that:
(1) the detailed survey report cost estimate was erroneous
and should be corrected;
(2) the plans and specifications could be changed in a
manner materially affecting the cost of the drainage system
without interfering with the efficiency; and
(3) with the correction or modification a contract could be
awarded within the 30 percent limitation and equal to or less
than benefits.
(c) If the drainage authority determines that the amended
changes affect the amount of benefits or damages to any property
or that the benefits should be reexamined because of inflated
land values or inflated construction costs, it shall refer the
viewers' report to the viewers to reexamine the benefits and
damages.
(d) The drainage authority may, by order, direct the
engineer and viewers to amend their detailed survey report and
viewers' report to consider the inflationary cost increases if
the drainage authority determines that:
(1) bids were not received; or
(2) because of inflationary construction cost increases,
construction under the awarded contract cannot be completed for
30 percent or less over the detailed survey cost estimate or in
excess of the benefits, less damages and other costs.
(e) The drainage authority may continue the hearing to give
the engineer or viewers additional time to amend the reports.
The jurisdiction of the drainage authority continues at the
adjourned hearing.
(f) The drainage authority has full authority to consider
the amended reports and make findings and orders. A party may
appeal to the district court under section 18, subdivision 1.
Sec. 58. [106A.515] [DAMAGES, PAYMENT.]
The board of each county where the damaged property is
located must order the awarded damages to be paid, less any
assessment against the property, before the property is entered
for construction of the drainage system. If a county or a
municipality that is awarded damages requests it, the assessment
may not be deducted. If there is an appeal, the damages may not
be paid until the final determination. If it is not clear who
is entitled to the damages, the board may pay the damages to the
clerk of the district court of the county. The court shall
direct the clerk, by order, to pay the parties entitled to the
damages.
Sec. 59. [106A.521] [SUPERVISION OF CONSTRUCTION.]
The drainage authority shall require the engineer to
supervise and inspect the construction under contract. The
drainage authority shall cause the contracts under this chapter
to be performed properly.
Sec. 60. [106A.525] [CONSTRUCTION AND MAINTENANCE OF
BRIDGES AND CULVERTS.]
Subdivision 1. [HYDRAULIC CAPACITY.] A public or private
bridge or culvert may not be constructed or maintained across or
in a drainage system with less hydraulic capacity than specified
in the detailed survey report, except with the written approval
of the director of the division of waters. If the detailed
survey report does not specify the hydraulic capacity, a public
or private bridge or culvert in or across a drainage system
ditch may not be constructed without the director's approval of
the hydraulic capacity.
Subd. 2. [ROAD AUTHORITY RESPONSIBLE FOR CONSTRUCTION.]
Bridges and culverts on public roads required by the
construction or improvement of a drainage system must be
constructed and maintained by the road authority responsible for
keeping the road in repair, except as provided in this section.
Subd. 3. [NOTICE; CHANGING COST.] The auditor shall notify
the state and each railroad company, corporation, or political
subdivision that they are to construct a required bridge or
culvert on a road or right-of-way under its jurisdiction, within
a reasonable time in the notice. If the work is not done within
the prescribed time, the drainage authority may order the bridge
or culvert constructed as part of the drainage system
construction. The cost must be deducted from the damages
awarded to the corporation or collected from it as an assessment
for benefits. If the detailed survey report or viewers' report
shows that the construction of the bridge or culvert is
necessary, the drainage authority may, by order, retain an
amount to secure the construction of the bridge or culvert from
amounts to be paid to a railroad, corporation, or political
subdivision.
Subd. 4. [CONSTRUCTION ON LINE BETWEEN TWO CITIES PAID
EQUALLY.] The costs of constructing a bridge or culvert that is
required by construction of a drainage system on a public road
that is not a state trunk highway on the line between two
statutory or home rule charter cities, whether in the same
county or not, must be paid jointly, in equal shares, by the
cities. The cities shall pay jointly, in equal shares, for the
cost of maintaining the bridge or culvert.
Subd. 5. [CONSTRUCTION ON TOWN AND COUNTY LINES.] The cost
of constructing and maintaining bridges and culverts on a town
or county road across a drainage system ditch constructed along
the boundary line between towns or counties, with excavated
material deposited on the boundary line or within 33 feet of the
line, must be paid equally by the town or county where the
bridge or culvert is located and the other town or county
adjoining the boundary.
Sec. 61. [106A.531] [INSPECTION OF DRAINAGE CONSTRUCTION
AND PARTIAL PAYMENTS.]
Subdivision 1. [INSPECTION AND REPORT.] The engineer shall
inspect and require the work as it is being completed to be done
in accordance with the plans, specifications, and contract for
construction. Each month during the work, the engineer shall
report to the drainage authority, in writing, showing the work
completed since the previous report and all materials furnished
under the contract.
Subd. 2. [PRELIMINARY CERTIFICATE.] The engineer shall
issue with the monthly report a preliminary certificate for work
done and approved or materials delivered. The certificate must
contain the station numbers of the work covered by the
certificate and the total value of all work done and the
materials furnished according to the contract. For each ditch
section, the certificate must show the actual volume, in cubic
yards, of the excavation completed. For joint county drainage
systems the certificate must also show the percentage of the
total value to be paid by each county in the proportion fixed by
the drainage authority order. Each certificate must show that a
loss will not occur as a result of a partial payment. A
duplicate of the certificate must be delivered to the auditor of
each affected county.
Subd. 3. [PARTIAL PAYMENT.] The affected counties must pay
the contractor, based on the certificate, 90 percent of the
total value of work done and approved and 90 percent of the
total value of material furnished and delivered. The materials
may only be delivered as required in the course of construction
and authorized by the engineer.
Sec. 62. [106A.535] [PARTIAL PAYMENT OF RETAINED CONTRACT
AMOUNTS.]
Subdivision 1. [PETITION FOR PARTIAL PAYMENT OF RETAINED
VALUE.] If a single contract exceeds $50,000, and the contract,
exclusive of materials furnished and not installed, is one-half
or more complete and the contractor is not in default, the
contractor may file a verified petition with the auditor stating
these facts and requesting that an order be made to pay 40
percent of the retained value of work and material.
Subd. 2. [NOTICE OF HEARING.] When the petition is filed,
the auditor shall set a time and location for a hearing on the
petition before the drainage authority. At least five days
before the date of hearing, the auditor shall give notice by
mail of the date and location of hearing to the engineer, the
attorney for the petitioners, the surety of the contractor's
bond, and auditors of the affected counties.
Subd. 3. [HEARING.] At the hearing the drainage authority
shall hear all parties interested. If the drainage authority
determines that the facts in the petition are correct, the work
has been performed in a satisfactory manner, and a portion of
the retained percentage may be released without endangering the
interests of affected counties, the drainage authority shall
state the findings and may order not more than 40 percent of the
retained value of work and material to be paid.
Sec. 63. [106A.541] [EXTENSION OF TIME ON CONTRACTS.]
The auditors of affected counties may extend the time for
the performance of a contract as provided in this section. The
contractor may apply, in writing, for an extension of the
contract. Notice of the application must be given to: (1) the
engineer and the attorney for the petitioners; and (2) for a
joint county drainage system, to the auditors of the affected
counties. The auditors may grant an extension if sufficient
reasons are shown. The extension does not affect a claim for
liquidated damages that may arise after the original time
expires and before an extension or a claim that may arise after
the time for the extension expires.
Sec. 64. [106A.545] [REDUCTION OF CONTRACTOR'S BOND.]
Subdivision 1. [APPLICATION TO DRAINAGE AUTHORITY.] The
contractor, at the end of each season's work and before the
contract is completed, may make a verified application to the
drainage authority to reduce the contractor's bond and file the
application with the auditor. The application must state:
(1) the work certified as completed by the engineer;
(2) the certified work's value;
(3) the amount of money received by the contractor and the
amount retained;
(4) the amount unpaid by the contractor for labor or
material furnished on the contract; and
(5) a request for an order to reduce the amount of the
contractor's bond.
The application must be filed with the auditor.
Subd. 2. [NOTICE FOR HEARING.] When an application is
filed, the auditor, by order, shall set the time and location
for a hearing on the application. Ten days before the hearing,
notice of the hearing must be published in each affected county
and notice by mail given to the engineer, the attorney for the
petitioners, and the auditor of each affected county. The
contractor must pay the cost of the hearing notice by
publication.
Subd. 3. [HEARING; REDUCTION OF BOND.] The drainage
authority may, by order, reduce the contractor's bond if it
determines that the contractor is not in default and that a loss
will not result from reducing the bond. The bond may be reduced
to an amount sufficient to protect the affected counties from
loss and damage, but the reduction:
(1) may not be more than 35 percent of the amount already
paid to the contractor;
(2) may not affect the remaining amount of the bond;
(3) does not affect liability incurred on the bond before
the reduction; and
(4) does not affect a provision for a three-year guaranty
of tile work.
Sec. 65. [106A.551] [CONTRACTOR'S DEFAULT.]
Subdivision 1. [NOTICE.] If a contractor defaults in the
performance of the contract, the auditor shall mail a notice of
the default to the contractor, the surety of the contractor's
bond, the engineer, and the auditors of the affected counties.
The notice must specify the default and state that if the
default is not promptly removed and the contract completed, the
unfinished portion of the contract will be awarded to another
contractor.
Subd. 2. [COMPLETION OF CONTRACT BY SURETY.] If the surety
of the contractor's bond promptly proceeds with the completion
of the contract, the affected auditors may grant an extension of
time. If the contract is completed by the surety, the balance
due on the contract must be paid to the surety, less damages
incurred by the affected counties from the default.
Subd. 3. [AWARDING OF CONTRACT; RECOVERY ON BOND.] If the
surety of the contractor's bond does not undertake the
completion of the contract or does not complete the contract
within the time specified or extended, auditors of the affected
counties shall advertise for bids to complete the contract in
the manner provided in the original awarding of contracts. The
drainage authority may recover the increased amounts paid to a
subsequent contractor after reselling the work, and damages
incurred by affected counties, from the first contractor's bond.
Sec. 66. [106A.555] [ACCEPTANCE OF CONTRACT.]
Subdivision 1. [ENGINEER'S REPORT AND NOTICE.] When a
contract is completed, the engineer shall make a report to the
drainage authority showing the contract price, the amount paid
on certificates, the unpaid balance, and the work that is
completed under the contract. When the report is filed, the
auditor shall set a time and location for a hearing on the
report. The auditor shall give notice of the hearing by
publication or notice by mail at least ten days before the
hearing to the owners of affected property. The notice must
state that the report is filed, the time and location for the
hearing, and that a party objecting to the acceptance of the
contract may appear and be heard.
Subd. 2. [HEARING.] At the hearing the drainage authority
may, by order, direct payment of the balance due if it
determines that the contract has been completed in accordance
with the plans and specifications. If good cause is shown, the
drainage authority may waive any part of the liquidated damages
accruing under the contract. When the order is filed, the
auditor shall draw a warrant on the treasurer of the county for
the balance due on the contract. For a joint county drainage
system the auditor shall make an order to the auditors of the
affected counties to pay for their proportionate shares of the
balance due on the contract. After receiving the order, the
auditor of each affected county shall draw a warrant on the
treasurer of the county for the amount specified in the order.
FUNDING, COLLECTION, AND PAYMENT OF DRAINAGE SYSTEM COSTS
Sec. 67. [106A.601] [DRAINAGE LIEN STATEMENT.]
Subdivision 1. [DETERMINATION OF PROPERTY LIABILITY.] When
the contract for the construction of a drainage system is
awarded, the auditor of an affected county shall make a
statement showing the total cost of the drainage system with the
estimated cost of all items required to complete the work. The
cost must be prorated to each tract of property affected in
direct proportion to the benefits. The cost, less any damages,
is the amount of liability for each tract for the drainage
system. The property liability must be shown in the tabular
statement under subdivision 2, opposite the property owner's
name and description of each tract of property. The amount of
liability on a tract of property for establishment and
construction of a drainage system may not exceed the benefits
determined in the proceedings that accrue to the tract.
Subd. 2. [DRAINAGE LIEN STATEMENT.] The auditor of each
affected county shall make a lien statement in tabular form
showing:
(1) the names of the property owners, corporate entities,
or political subdivisions of the county benefited or damaged by
the construction of the drainage system in the viewers' report
as approved by the final order for establishment;
(2) the description of the property in the viewers' report,
and the total number of acres in each tract according to the
county tax lists;
(3) the number of acres benefited or damaged in each tract
shown in the viewers' report;
(4) the amount of benefits and damages to each tract of
property as stated in the viewers' report and confirmed by the
final order that established the drainage system unless the
order is appealed and a different amount is set; and
(5) the amount each tract of property will be liable for
and must pay into the county treasury for the establishment and
construction of the drainage system.
Subd. 3. [SUPPLEMENTAL DRAINAGE LIEN STATEMENT.] If any
items of the cost of the drainage system have been omitted from
the original drainage lien statement, a supplemental drainage
lien statement with the omitted items must be made and recorded
in the same manner provided for a drainage lien statement. The
total amount of the original drainage lien and any supplemental
drainage liens may not exceed the benefits.
Subd. 4. [RECORDING DRAINAGE LIEN STATEMENT.] The drainage
lien statement and supplemental drainage lien statements must be
certified by the auditor and recorded by the county recorder of
the county where the tract is located. The county recorder's
fees for recording must be paid on allowance by the board. The
drainage lien statement and any supplemental drainage lien
statements, after recording, must be returned and preserved by
the auditor.
Sec. 68. [106A.605] [EFFECT OF FILED DRAINAGE LIEN.]
The amount recorded on the drainage lien statement and
supplemental drainage lien statement that each tract of property
will be liable for, and the interest allowed on that amount, is
a drainage lien on the property. The drainage lien is a first
and paramount lien until fully paid, and has priority over all
mortgages, charges, encumbrances, and other liens unless the
board subordinates the drainage lien to easements of record. The
recording of the drainage lien statement or a supplemental
drainage lien statement is notice to all parties of the
existence of the drainage lien.
Sec. 69. [106A.611] [PAYMENT OF DRAINAGE LIENS AND
INTEREST.]
Subdivision 1. [PAYMENT OF DRAINAGE LIEN PRINCIPAL.] (a)
Drainage liens against property benefited under this chapter are
payable to the treasurer of the county in 20 or less equal
annual installments. The first installment of the principal is
due on or before November 1 after the drainage lien statement is
recorded, and each subsequent installment is due on or before
November 1 of each year afterwards until the principal is paid.
(b) The drainage authority may, by order, direct the
drainage lien to be paid by 1/15 of the principal on or before
five years from November 1 after the lien statement is recorded,
and 1/15 on or before November 1 of each year afterwards until
the principal is paid.
(c) The drainage authority may order that the drainage lien
must be paid by one or two installments, notwithstanding
paragraphs (a) and (b), if the principal amount of a lien
against a lot or tract of property or against a county or
municipality is less than $50.
Subd. 2. [INTEREST.] (a) Interest is an additional
drainage lien on all property until paid. The interest rate on
the drainage lien principal must be set by the board, but may
not exceed seven percent per year from the date the drainage
lien statement is recorded.
(b) Before the tax lists for the year are given to the
county treasurer, the auditor shall compute the interest on the
unpaid balance of the drainage lien at the rate set by the
board. The amount of interest must be computed on the entire
unpaid principal from the date the drainage lien was recorded to
August 15 of the next calendar year, and afterwards from August
15 to August 15 of each year.
(c) Interest is due and payable after November 1 of each
year the drainage lien principal or interest is due and unpaid.
Subd. 3. [COLLECTION OF PAYMENTS.] Interest and any
installment due must be entered on the tax lists for the year.
The installment and interest must be collected in the same
manner as real estate taxes for that year by collecting one-half
of the total of the installment and interest with and as a part
of the real estate taxes on or before May 15 and one-half on or
before October 15 of the next year.
Subd. 4. [PREPAYMENT OF INTEREST.] Interest may be paid at
any time, computed to the date of payment, except that after the
interest is entered on the tax lists for the year, it is due as
entered, without a reduction for prepayment.
Subd. 5. [PAYMENT OF DRAINAGE LIENS WITH BONDS.] The board
may direct the county treasurer to accept any outstanding bond
that is a legal obligation of the county under this chapter
issued on account of a drainage lien in payment of drainage
liens under the provisions of this chapter. The bonds must be
accepted at their par value plus accrued interest.
Subd. 6. [DRAINAGE LIEN RECORD.] The auditor shall keep a
drainage lien record for each drainage system showing the amount
of the drainage lien remaining unpaid against each tract of
property.
Subd. 7. [COLLECTION AND ENFORCEMENT OF DRAINAGE
LIENS.] The provisions of law that exist relating to the
collection of real estate taxes are adopted to enforce payment
of drainage liens. If there is a default, a penalty may not be
added to an installment of principal and interest, but each
defaulted payment, principal, and interest draws interest from
the date of default until paid at seven percent per year.
Sec. 70. [106A.615] [ENFORCEMENT OF ASSESSMENTS.]
Subdivision 1. [MUNICIPALITIES.] Assessments filed for
benefits to a municipality are a liability of the municipality
and are due and payable with interest in installments on
November 1 of each year as provided in section 69. If the
installments and interest are not paid on or before November 1,
the amount due with interest added as provided in section 69
must be extended by the county auditor against all property in
the municipality that is liable to taxation. A levy must be
made and the amount due must be paid and collected in the same
manner and time as other taxes.
Subd. 2. [COUNTY OR STATE-AID ROAD.] If a public road
benefited is a county or state-aid road, the assessment filed is
against the county and must be paid out of the road and bridge
fund of the county.
Subd. 3. [STATE TRUNK HIGHWAY.] An assessment against the
state for benefits to trunk highways is chargeable to and
payable out of the trunk highway fund. The commissioner of
transportation shall pay assessments from the trunk highway fund
after receipt of a certified copy of the assessment against the
state for benefits to a trunk highway.
Subd. 4. [ASSESSMENT FOR VACATED TOWN ROADS.] If a town is
assessed for benefits to a town road in a drainage system
proceeding under this chapter and the town road is later vacated
by the town board under section 164.07, the town board may
petition the drainage authority to cancel the assessment. The
drainage authority may cancel the assessment if it finds that
the town road for which benefits are assessed has been vacated
under section 164.07.
Subd. 5. [STATE PROPERTY.] State property, including rural
credit property, is assessable for benefits received. The
assessment must be paid by the state from funds appropriated and
available for drainage assessments after the state officer
having jurisdiction over the assessed property certifies the
assessment to the commissioner of finance.
Subd. 6. [ASSESSMENTS ON WILDLIFE LANDS TO BE PAID FROM
WILDLIFE ACQUISITION FUND.] An assessment against state land
acquired for wildlife habitat shall be paid from the wildlife
acquisition fund as provided in section 97.484.
Subd. 7. [RAILROAD AND UTILITY PROPERTY.] Property owned
by a railroad or other utility corporation benefited by a
drainage system is liable for the assessments of benefits on the
property as other taxable property. From the date the drainage
lien is recorded, the amount of the assessment with interest is
a lien against all property of the corporation within the
county. Upon default the assessment may be collected by civil
action or the drainage lien may be foreclosed by action in the
same manner as provided by law for the foreclosure of mortgage
liens. The county where the drainage lien is filed has the
right of action against the corporation to enforce and collect
the assessment.
Sec. 71. [106A.621] [SATISFACTION OF LIENS.]
When a drainage lien with the accumulated interest is fully
paid, the auditor shall issue a certificate of payment with the
auditor's official seal and record the certificate with the
county recorder. The recorded certificate releases and
discharges the drainage lien. The auditor may collect 25 cents
for each description in the certificate. The auditor's fee and
the fee of the county recorder must be paid from the account for
the drainage system.
Sec. 72. [106A.625] [SUBDIVISION BY PLATTING MUST HAVE
LIENS APPORTIONED.]
A tract of property with a drainage lien that is subdivided
by platting is not complete and the plat may not be recorded
until the drainage liens against the tracts are apportioned and
the apportionment filed with the county recorder of the county
where the tract is located.
Sec. 73. [106A.631] [APPORTIONMENT OF LIENS.]
Subdivision 1. [PETITION.] A person who has an interest in
property that has a drainage lien attached to it may petition
the drainage authority to apportion the lien among specified
portions of the tract if the payments of principal and interest
on the property are not in default.
Subd. 2. [NOTICE.] When the petition is filed, the
drainage authority shall, by order, set a time and location for
a hearing on the petition. The drainage authority shall give
notice of the hearing by personal service to the auditor, the
occupants of the tract, and on all parties having an interest in
the tract as shown by the records in the county recorder's
office. The service must be made at least ten days before the
hearing. If personal service cannot be made to all interested
persons, notice may be given by publication. The petitioner
shall pay the costs for service or publication.
Subd. 3. [HEARING.] The drainage authority shall hear all
related evidence and, by order, apportion the lien. A certified
copy of the order must be recorded in the county recorder's
office and filed with the auditor.
Sec. 74. [106A.635] [DRAINAGE BOND ISSUES.]
Subdivision 1. [AUTHORITY.] After the contract for the
construction of a drainage system is awarded, the board of an
affected county may issue the bonds of the county in an amount
necessary to pay the cost of establishing and constructing the
drainage system.
Subd. 2. [SINGLE ISSUE FOR TWO OR MORE DRAINAGE
SYSTEMS.] The board may include two or more drainage systems in
a single drainage bond issue. The total amount of the drainage
bond issue may not exceed the total cost, including expenses, to
be assessed to pay for the drainage systems. The total cost to
be assessed must be determined or estimated by the board when
the drainage bonds are issued.
Subd. 3. [SECURITY AND SOURCE OF PAYMENT.] The drainage
bonds must be issued in accordance with chapter 475 and must
pledge the full faith, credit, and resources of the county for
the prompt payment of the principal and interest of the drainage
bonds. The drainage bonds are primarily payable from the funds
of the drainage systems financed by the bonds or from the common
drainage bond redemption fund of the county. The common
drainage bond redemption fund may be created by resolution of
the county board as a debt redemption fund for the payment of
drainage bonds issued under this chapter.
Subd. 4. [PAYMENT PERIOD AND INTEREST ON DRAINAGE
BONDS.] (a) The board shall determine, by resolution:
(1) the time of payment for the drainage bonds not
exceeding 23 years from their date;
(2) the rates of interest for the drainage bonds, with the
net average rate of interest over the term of the bonds not to
exceed seven percent per year; and
(3) whether the drainage bonds are payable annually or
semi-annually.
(b) The board shall determine the years and amounts of
principal maturities that are necessary by the anticipated
collections of the drainage systems assessments, without regard
to any limitations on the maturities imposed by section 475.54.
Subd. 5. [TEMPORARY DRAINAGE BONDS MATURING IN TWO YEARS
OR LESS.] The board may issue and sell temporary drainage bonds
under this subdivision maturing not more than two years after
their date of issue, instead of bonds under subdivision 4. The
county shall issue and sell definitive drainage bonds before the
maturity of bonds issued under this subdivision and use the
proceeds to pay for the temporary drainage bonds and interest to
the extent that the temporary bonds are not paid for by
assessments collected or other available funds. The holders of
temporary drainage bonds and the taxpayers of the county have
and may enforce by mandamus or other appropriate proceedings:
(1) all rights respecting the levy and collection of
assessments sufficient to pay the cost of drainage proceedings
and construction financed by the temporary drainage bonds that
are granted by law to holders of other drainage bonds, except
the right to require levies to be collected before the temporary
drainage bonds mature; and
(2) the right to require the offering of definitive
drainage bonds for sale, or to require the issuance of
definitive drainage bonds in exchange for the temporary drainage
bonds, on a par for par basis, bearing interest at the rate of
seven percent per year if the definitive drainage bonds have not
been sold and delivered before the maturity of the temporary
drainage bonds.
Subd. 6. [DEFINITIVE DRAINAGE BONDS.] The definitive
drainage bonds issued in exchange for an issue of temporary
drainage bonds must be numbered and mature serially at times and
in amounts to allow the principal and interest to be paid when
due by the collection of assessments levied for the drainage
systems financed by the temporary bond issue. The definitive
bonds are subject to redemption and prepayment on any interest
payment date by the county notifying each definitive bondholder
who has registered their name and address with the county
treasurer. The bondholders must be notified by mail 30 days
before the interest payment date. The definitive bonds must be
delivered in order of their serial numbers, lowest numbers
first, to the holders of the temporary drainage bonds in order
of the serial numbers of the bonds held by them.
Subd. 7. [SALE OF DEFINITIVE DRAINAGE BONDS.] The board
must sell and negotiate the definitive drainage bonds for at
least their par value. The definitive bonds must be sold at
public sale after advertised notice under chapter 475.
Subd. 8. [COUNTY INVESTMENT, PURCHASE, AND SELLING OF
TEMPORARY DRAINAGE BONDS.] (a) Funds of the issuing county may
be invested in temporary drainage bonds under sections 471.56
and 475.66, except that the temporary drainage bonds may be:
(1) purchased by the county when the temporary drainage
bonds are initially issued;
(2) purchased only out of funds that the board determines
will not be required for other purposes before the temporary
drainage bonds mature; and
(3) resold before the temporary drainage bonds mature only
if there is an unforeseen emergency.
(b) If a temporary drainage bond purchase is made from
money held in a sinking fund for other bonds of the county, the
holders of the other bonds may enforce the county's obligation
to sell definitive bonds at or before the maturity of the
temporary drainage bonds, or exchange the other bonds, in the
same manner as holders of the temporary drainage bonds.
Subd. 9. [DELIVERY OF BONDS AS DRAINAGE WORK PROCEEDS.]
The board may provide in the contract for the sale of drainage
bonds, temporary drainage bonds, and definitive drainage bonds,
that the bonds are delivered as the drainage work proceeds and
the money is needed, and that interest is paid only from the
date of delivery.
Subd. 10. [BOND RECITAL.] Each drainage bond, temporary
drainage bond, and definitive drainage bond must contain a
recital that it is issued by authority of and in strict
accordance with this chapter. The recital is conclusive in
favor of the holders of the bonds as against the county, that
the drainage system has been properly established, that property
within the county is subject to assessment for benefits in an
amount not less than the amount of the bonds, and that all
proceedings and construction relative to the drainage systems
financed by the bonds have been or will be made according to law.
Subd. 11. [HOW BONDS MAY BE PAID.] The board may pay
drainage bonds, temporary drainage bonds, and definitive
drainage bonds issued under this chapter from any available
funds in the county treasury if the money in the common drainage
bond redemption fund or in the drainage fund for the issued
bonds is insufficient. The county treasury funds that money is
transferred from must be reimbursed, with interest at a rate of
seven percent per year for the time the money is actually
needed, from assessments on the drainage systems or from the
sale of drainage funding bonds.
Sec. 75. [106A.641] [DRAINAGE FUNDING BONDS.]
Subdivision 1. [AUTHORITY.] The board may issue drainage
funding bonds under the conditions and terms in this section.
Subd. 2. [CONDITIONS FOR ISSUANCE.] Drainage funding bonds
may be issued if:
(1) money in a drainage system account or in the common
drainage bond redemption fund will not be sufficient to pay the
principal and interest of the drainage bonds payable from the
funds and becoming due within one year afterwards; or
(2) the county has paid any of the principal or interest on
any of its drainage bonds from county funds other than the fund
from which the bonds are payable, or by the issuance of county
warrants issued and outstanding.
Subd. 3. [AUDITOR'S CERTIFICATE.] (a) Before drainage
funding bonds are authorized or issued under this section, the
county auditor shall first sign and seal a certificate and
present the certificate to the board. The board shall enter the
certificate in its records. The certificate must state in
detail, for each of the several drainage systems:
(1) the amount that will be required to pay an existing
shortage under subdivision 2; and
(2) the probable amount that will be required to pay the
principal and interest of the county's outstanding drainage
bonds that become due within one year afterwards.
(b) The certificate is conclusive evidence that the county
has authority to issue bonds under the provisions of this
section in an amount that does not exceed the aggregate amount
specified in the auditor's certificate.
Subd. 4. [ISSUANCE OF BONDS.] When the auditor's
certificate is entered in the board's records, the board may
issue and sell, from time to time, county drainage funding bonds
for the same drainage purposes as the funds listed in the
certificate were used. The bonds must be designated drainage
funding bonds. The board shall authorize issuance of the
drainage funding bonds by resolution. The drainage funding
bonds must be sold, issued, bear interest, and obligate the
county as provided in section 74 for drainage bonds. The
drainage funding bonds must mature serially in annual
installments that are payable within 15 years.
Subd. 5. [ APPLICATION OF BOND PROCEEDS.] The proceeds of
drainage funding bonds that are paid into the treasury must be
applied to the purpose for which they are issued.
Subd. 6. [COUNTY BOND OBLIGATION.] Drainage funding bonds
are general obligations of the county but are not included in
determining the county's net indebtedness under any law.
Sec. 76. [106A.645] [ALLOWANCE AND PAYMENT OF FEES AND
EXPENSES.]
Subdivision 1. [FEES AND EXPENSES.] The fees and expenses
in this section are allowed and must be paid for services
provided under this chapter.
Subd. 2. [ENGINEER, ENGINEER'S ASSISTANTS, AND OTHER
EMPLOYEES.] The compensation of the engineer, the engineer's
assistants, and other employees is on a per diem basis and must
be set by order of the drainage authority. The order setting
compensation must provide for payment of the actual and
necessary expenses of the engineer, the engineer's assistants,
and other employees, including the cost of the engineer's bond.
Subd. 3. [VIEWERS.] Each viewer may be paid for every
necessary day the viewer is engaged on a per diem basis and for
the viewer's actual and necessary expenses. The compensation
must be set by the drainage authority.
Subd. 4. [BOARD MEMBERS.] Each member of the board may be
paid a per diem under section 375.055, subdivision 1, and actual
and necessary expenses incurred while actually employed in
drainage proceedings or construction, or in the inspection of
any drainage system if the board member is appointed to a
committee for that purpose.
Subd. 5. [AUDITOR, ATTORNEY FOR THE PETITIONERS, AND OTHER
COUNTY OFFICIALS.] The county auditor and the attorney for the
petitioners must each be paid reasonable compensation for
services actually provided as determined by the drainage
authority. The fees and compensation of all county officials in
drainage proceedings and construction are in addition to other
fees and compensation allowed by law.
Subd. 6. [PETITIONERS' BOND.] The cost of the petitioners'
bond must be allowed and paid.
Subd. 7. [PAYMENT.] The fees and expenses provided for in
this chapter for a drainage system in one county must be
audited, allowed, and paid by order of the board or for a
drainage system in more than one county must be audited,
allowed, and paid by order of the drainage authority after ten
days' written notice to each affected county. The notice must
be given by the auditor to the auditors of affected counties.
The notice must state the time and location of the hearing and
that all bills on file with the auditor at the date of the
notice must be presented for hearing and allowance.
Sec. 77. [106A.651] [DRAINAGE SYSTEM ACCOUNT.]
Subdivision 1. [FUNDS FOR DRAINAGE SYSTEM COSTS.] The
board shall provide funds to pay the costs of drainage systems.
Subd. 2. [DRAINAGE SYSTEM ACCOUNT.] The auditor shall keep
a separate account for each drainage system. The account must
be credited with all money from the sale of bonds and bond
premiums and all money received from interest, liens,
assessments, and other sources for the drainage system. The
account must be debited with every item of expense made for the
drainage system.
Subd. 3. [INVESTMENT OF SURPLUS FUNDS.] If a drainage
system account or the common drainage bond redemption fund has a
surplus over the amount required for payment of obligations
presently due and payable from the account or fund, the board
may invest any part of the surplus in bonds or certificates of
indebtedness of the United States or of the state.
Subd. 4. [DORMANT DRAINAGE SYSTEM ACCOUNT TRANSFERRED TO
GENERAL REVENUE FUND.] If a surplus has existed in a drainage
system account for a period of 20 years or more and there have
not been any expenditures from the account during the period,
the board, by a unanimous resolution, may transfer the surplus
remaining in the drainage system account to the county general
revenue fund of the county.
Sec. 78. [106A.655] [PAYMENT OF DRAINAGE SYSTEM COSTS.]
Subdivision 1. [PAYMENT MADE FROM DRAINAGE SYSTEM
ACCOUNT.] The costs for a drainage system proceeding and
construction must be paid from the drainage system account by
drawing on the account.
Subd. 2. [INSUFFICIENT FUNDS; TRANSFER FROM OTHER
ACCOUNTS.] If money is not available in the drainage system
account on which the warrant is drawn, the board may, by
unanimous resolution, transfer funds from any other drainage
system account under its jurisdiction or from the county general
revenue fund to the drainage system account. If the board
transfers money from another account or fund to a drainage
system account, the money plus interest must be reimbursed from
the proceeds of the drainage system that received the transfer.
The interest must be computed for the time the money is actually
needed at the same rate per year charged on drainage liens and
assessments.
Subd. 3. [WARRANT ON ACCOUNT WITH INSUFFICIENT FUNDS;
INTEREST ON WARRANT.] If a warrant is issued by the auditor
under this chapter and there is not enough money in the drainage
system account to pay the warrant when it is presented, the
county treasurer shall endorse the warrant "Not paid for want of
funds," with the date and sign the endorsement. Interest on the
warrant must be at the rate of six percent per year and paid
annually from available funds until the warrant is called in and
paid by the treasurer. Interest may not be paid on a warrant
after money is available to the treasurer to pay the warrants.
The warrant is a general obligation of the county issuing the
warrant.
Sec. 79. [106A.661] [ESTABLISHMENT OF DRAINAGE SYSTEM
ACCOUNTS BY STATE AUDITOR.]
Subdivision 1. [STATE AUDITOR MUST ESTABLISH ACCOUNTS UPON
APPLICATION.] A county may apply, by resolution, to the state
auditor to examine the accounts and records of any or all
drainage systems in the county. The auditor must establish a
system of accounts for each drainage system applied for in the
county.
Subd. 2. [PAYMENT OF EXPENSES.] The compensation and
travel and hotel expenses of the examining accountant must be
audited, allowed, and paid into the state treasury by the board.
The money must be credited to the revolving fund of the state
auditor. The county auditor shall apportion the expenses among
the drainage systems in the county.
PROCEDURE TO REPAIR DRAINAGE SYSTEMS
Sec. 80. [106A.701] [REPAIRS.]
Subdivision 1. [DEFINITION.] The term "repair," as used in
this section, means to restore all or a part of a drainage
system as nearly as practicable to the same condition as when
originally constructed or subsequently improved, including
resloping of ditches and leveling of waste banks if necessary to
prevent further deterioration, and routine operations that may
be required to remove obstructions and maintain the efficiency
of the drainage system.
Subd. 2. [REPAIR OF TOWN DITCHES.] The town board has the
power of a drainage authority to repair a town drainage system
located within the town.
Subd. 3. [BRIDGES AND CULVERTS.] (a) Highway bridges and
culverts constructed on a drainage system established on or
after March 25, 1947, must be maintained by the road authority
charged with the duty of maintenance under section 60.
(b) Private bridges or culverts constructed as a part of a
drainage system established by proceedings that began on or
after March 25, 1947, must be maintained by the drainage
authority as part of the drainage system. Private bridges or
culverts constructed as a part of a drainage system established
by proceedings that began before March 25, 1947, may be
maintained, repaired, or rebuilt and any portion paid for as
part of the drainage system by the drainage authority.
(c) For a repair of a drainage system that has had
redetermination of benefits under section 51, the drainage
authority may repair or rebuild existing bridges or culverts on
town and home rule charter and statutory city roads constructed
as part of the drainage system and any portion of the cost may
be paid by the drainage system.
Sec. 81. [106A.705] [REPAIR PROCEDURE.]
Subdivision 1. [INSPECTION.] After the construction of a
drainage system has been completed, the drainage authority shall
maintain the drainage system that is located in its jurisdiction
and provide the repairs necessary to make the drainage system
efficient. The drainage authority shall have the drainage
system inspected annually by an inspection committee of the
drainage authority or a drainage inspector appointed by the
drainage authority.
Subd. 2. [DRAINAGE INSPECTOR REPORT.] For each drainage
system that the board designates and requires the drainage
inspector to examine, the drainage inspector shall make a
drainage inspection report in writing to the board after
examining a drainage system, designating portions that need
repair and the location and nature of the repair. The board
shall consider the drainage inspection report at its next
meeting and may repair all or any part of the drainage system as
provided under this chapter.
Subd. 3. [INSPECTION REPORT TO DRAINAGE AUTHORITY.] If the
inspection committee or drainage inspector reports, in writing,
to the drainage authority that repairs are necessary on a
drainage system and the report is approved by the drainage
authority, the repairs must be made under this section.
Subd. 4. [REPAIRS LESS THAN $20,000.] If the drainage
authority finds that the estimated cost of repairs and
maintenance of one drainage system for one year will be less
than $20,000, it may have the repair work done by hired labor
and equipment without advertising for bids or entering into a
contract for the repair work.
Subd. 5. [ANNUAL REPAIR ASSESSMENT LEVY LIMITS.] The
drainage authority may give notice of and hold a hearing on the
repair levy before ordering the levy of an assessment for
repairs. In one calendar year the drainage authority may not
levy an assessment for repairs or maintenance on one drainage
system for more than 20 percent of the benefits of the drainage
system or $20,000, whichever is greater, except for a repair
made after a disaster under subdivision 6 or under the petition
procedure.
Subd. 6. [REPAIR AND CONSTRUCTION AFTER DISASTER.] The
drainage authority may repair and reconstruct the drainage
system without advertising for bids and without regard to the
$20,000 limitation if:
(1) a drainage system is destroyed or impaired by floods,
natural disaster, or unforeseen circumstances;
(2) the area where the drainage system is located has been
declared a disaster area by the President of the United States
and federal funds are available for repair or reconstruction;
and
(3) the public interests would be damaged by repair or
reconstruction being delayed.
Sec. 82. [106A.711] [COST APPORTIONMENT FOR JOINT COUNTY
DRAINAGE SYSTEMS.]
Subdivision 1. [REPAIR COST STATEMENT.] For a joint county
drainage system the auditor of a county that has made repairs
may present a repair cost statement at the end of each year, or
other convenient period after completion, to each affected
county. The repair cost statement must show the nature and cost
of the repairs to the drainage systems and must be based on the
original apportionment of cost following the establishment of
the drainage system. If a board approves the repair costs, the
statement must be paid to the county submitting the statement.
Subd. 2. [REPAIR COST STATEMENT NOT PAID.] (a) If a county
does not pay the repair cost statement, the board of an affected
county may petition the joint county drainage authority. The
petition must:
(1) show the nature and necessity of the repairs made to
the drainage system in the county during the period;
(2) show the cost of the repairs; and
(3) request the drainage authority to apportion the costs,
by order, among the affected counties.
(b) When the petition is filed, the drainage authority
shall, by order, set a time and location for a hearing to
apportion the costs, and direct the auditor to give notice of
the hearing to each affected county by publication and notice by
mail to its auditor. At or before the hearing, the auditor of
each affected county, except the petitioner, shall file with the
drainage authority a statement showing:
(1) all repairs made to the drainage system in that county,
not previously reimbursed;
(2) the nature and necessity of the repairs; and
(3) the cost of the repairs.
(c) The drainage authority has jurisdiction over the
affected counties and shall hear all interested parties. The
drainage authority shall determine which repairs were necessary
and reasonable and proper costs. For the allowed repairs the
drainage authority shall balance the accounts among the affected
counties, by charging each county with its proportionate share
of the cost of all repairs made and crediting each county with
the amount paid for the repairs. The drainage authority shall
order a just reimbursement among the affected counties. A
certified copy of the order must be filed by the auditor with
the auditors of affected counties, and the boards shall make the
required reimbursement.
Sec. 83. [106A.715] [PROCEDURE FOR REPAIR BY PETITION.]
Subdivision 1. [REPAIR PETITION.] An individual or an
entity interested in or affected by a drainage system may file a
petition to repair the drainage system. The petition must state
that the drainage system needs repair. The auditor shall
present the petition to the board at its next meeting or, for a
joint county drainage system, to the drainage authority within
ten days after the petition is filed.
Subd. 2. [ENGINEER AND REPAIR REPORT.] If the drainage
authority determines that the drainage system needs repair, the
drainage authority shall appoint an engineer to examine the
drainage system and make a repair report. The report must show
the necessary repairs, the estimated cost of the repairs, and
all details, plans, and specifications necessary to prepare and
award a contract for the repairs. The drainage authority may
give notice and order a hearing on the petition before
appointing the engineer.
Subd. 3. [NOTICE OF HEARING.] When the repair report is
filed, the auditor shall promptly notify the drainage authority.
The drainage authority in consultation with the auditor shall
set a time, by order, not more than 30 days after the date of
the order for a hearing on the repair report. At least ten days
before the hearing, the auditor shall give notice by mail of the
time and location of the hearing to the petitioners, owners of
property, and political subdivisions likely to be affected by
the repair in the repair report.
Subd. 4. [HEARING ON REPAIR REPORT.] (a) The drainage
authority shall make findings and order the repair to be made if:
(1) the drainage authority determines from the repair
report and the evidence presented that the repairs recommended
are necessary for the best interests of the affected property
owners; or
(2) the repair petition is signed by the owners of at least
26 percent of the property area affected by and assessed for the
original construction of the drainage system, and the drainage
authority determines that the drainage system is in need of
repair so that it no longer serves its original purpose and the
cost of the repair will not exceed the total benefits determined
in the original drainage system proceeding.
(b) The order must direct the auditor and the chairman of
the board or, for a joint county drainage system, the auditors
of the affected counties to proceed and prepare and award a
contract for the repair of the drainage system. The contract
must be for the repair in the repair report and as determined
necessary by the drainage authority, and be prepared in the
manner provided in this chapter for the original drainage system
construction.
Subd. 5. [APPORTIONMENT OF REPAIR COST FOR JOINT COUNTY
DRAINAGE SYSTEM.] For the repair of a joint county drainage
system, the drainage authority shall, by order, apportion the
repair cost among affected counties in the same manner required
in the original construction of the drainage system.
Subd. 6. [REPAIR BY RESLOPING DITCHES, LEVELING WASTE
BANKS, AND REMOVING TREES.] (a) For a drainage system that is to
be repaired by resloping ditches, leveling waste banks, or
removing trees, before ordering the repair, the drainage
authority must appoint viewers to assess and report on damages
and benefits if it determines:
(1) that the resloping, leveling, and tree removal will
require the taking of any property not contemplated and included
in the original proceeding for the establishment of the drainage
system; and
(2) that any waste bank leveling will directly benefit
property where the bank leveling is specified.
(b) The viewers shall assess and report damages and
benefits as provided by sections 44 and 45 and the drainage
authority shall hear and determine the damages and benefits as
provided in sections 46, 48, and 49. Damages must be paid as
provided by section 44 as a part of the cost of the repair, and
benefits must be added to the benefits previously determined as
the basis for the pro rata assessment for the repair of the
drainage system for the repair proceeding only.
Sec. 84. [106A.721] [REPLACEMENT AND HYDRAULIC CAPACITY OF
BRIDGES AND CULVERTS.]
Subdivision 1. [REPORT ON HYDRAULIC CAPACITY.] If the
engineer determines in a drainage system repair proceeding that
because of added property under section 88 or otherwise, a
bridge constructed or replaced or culvert installed or replaced
as a part of a drainage system provides inadequate hydraulic
capacity for the efficient operation of the drainage system to
serve its original purpose, the engineer shall make a hydraulic
capacity report to the drainage authority. The hydraulic
capacity report must include plans and specifications for the
recommended replacement bridges and culverts, the necessary
details to make and award a contract, and the estimated cost.
Subd. 2. [NOTICE.] When the hydraulic capacity report is
filed, the auditor shall promptly notify the drainage authority.
The drainage authority in consultation with the auditor shall,
by order, set a time not more than 30 days after the date of the
order, for a hearing on the report. At least ten days before
the hearing, the auditor shall give notice by mail of the time
and location of the hearing to the petitioners, owners of
property, and political subdivisions likely to be affected by
the repair in the repair report. The notice may be given in
conjunction with and as a part of the repair report notice, but
the notice must specifically state that increasing the hydraulic
capacity will be considered by the drainage authority at the
hearing.
Subd. 3. [REPORT HEARING.] At the hearing on the hydraulic
capacity report, the drainage authority shall hear all
interested parties. If the drainage authority finds that
existing bridges and culverts provide insufficient hydraulic
capacity for the efficient operation of the drainage system as
originally constructed or subsequently improved, the drainage
authority shall make findings accordingly, and may order that
the hydraulic capacity be increased by constructing bridges or
installing culverts of a sufficient capacity. The drainage
authority shall determine and include in the order the type and
plans for the replacement bridges or culverts. The order must
direct the state, political subdivision, railroad company, or
other entity to construct bridges or culverts required by the
order for its road or right-of-way within a reasonable time
stated in the order. The auditor shall notify the state,
political subdivision, railroad company, or other entity to
construct the bridges and culverts in accordance with the order.
Subd. 4. [CONSTRUCTION NOT COMPLETED WITHIN SPECIFIED
TIME.] If the work is not done within the time specified, the
drainage authority may order the bridges and culverts built and
the cost collected as an assessment for benefits.
Subd. 5. [REQUEST FOR CULVERT OR BRIDGE TO BE INSTALLED AS
PART OF REPAIR.] If a political subdivision, railroad company,
or other entity, at the hearing or when notified to construct a
bridge or install a culvert, requests that the bridge or culvert
be installed as part of the repair of the drainage system, the
drainage authority may, by order, direct the cost of the
construction and installation assessed and collected from the
political subdivision, railroad company, or other entity in the
manner provided by section 86.
Sec. 85. [106A.725] [COST OF REPAIR.]
All fees and costs incurred for proceedings relating to the
repair of a drainage system, including inspections, engineering,
viewing, and publications, are costs of the repair and must be
assessed against the property and entities benefited.
Sec. 86. [106A.731] [ASSESSMENT; BONDS.]
Subdivision 1. [APPORTIONMENT OF ASSESSMENTS.] If there is
not enough money in the drainage system account to make a
repair, the board shall apportion and assess the costs of the
repairs pro rata on all property and entities that have been
assessed benefits for the drainage system.
Subd. 2. [NUMBER OF INSTALLMENTS.] The assessments may be
paid in annual installments specified in the assessment order.
If the assessments are not more than 50 percent of the original
cost of the drainage system, the installments may not exceed
ten. If the assessments are greater than 50 percent of the
original cost of the drainage system, the board may order the
assessments to be paid in 15 or less installments.
Subd. 3. [INTEREST ON ASSESSMENTS.] If the order provides
for payment in installments, interest on unpaid assessments from
the date of the order for assessments must be set by the board
in the order. The interest rate may not exceed seven percent
per year and must be collected with each installment.
Subd. 4. [COLLECTION OF ASSESSMENTS.] If the assessment is
not payable in installments, a lien does not need to be filed,
and the assessment, plus interest from the date of the order to
August 15 of the next calendar year, must be entered on the tax
lists for the year. The assessment and interest are due and
payable with and as a part of the real estate taxes for the
year. If an assessment is levied and payable in installments,
the auditor shall file for the record in the county recorder's
office an additional tabular statement in substance as provided
in section 67, and all the provisions of sections 68, 69, and 70
relating to collection and payment must apply to the
assessment. Upon the filing of the tabular statement, the
installment and interest are due and payable and must be entered
on the tax lists and collected in the same manner as the
original lien.
Subd. 5. [CONDITIONS TO SELL BONDS FOR REPAIR.] If a
contract for drainage system repair has been entered into under
this chapter or the repair has been ordered to be constructed by
hired labor and equipment, and the board has ordered the
assessments to be paid in installments, the board may issue and
sell bonds, as provided by section 74.
Subd. 6. [REPAIR OF STATE DRAINAGE SYSTEM WHEN NO BENEFITS
WERE ASSESSED.] For the repair of a drainage system established
by the state where benefits were not assessed to the property,
the drainage authority shall proceed to appoint viewers to
determine the benefits resulting from the repair and collect
assessments for the repair as provided in this chapter.
Sec. 87. [106A.735] [DRAINAGE SYSTEM REPAIR FUND.]
Subdivision 1. [AUTHORITY AND LIMITS OF FUND.] To create a
repair fund for a drainage system to be used only for repairs,
the drainage authority may apportion and assess an amount
against all property and entities assessed for benefits in
proceedings for establishment of the drainage system, including
property not originally assessed and subsequently found to be
benefited according to law. The fund may not exceed 20 percent
of the assessed benefits of the drainage system or $40,000,
whichever is greater. If the account in a fund for a drainage
system exceeds the larger of 20 percent of the assessed benefits
of the drainage system or $40,000, assessments for the fund may
not be made until the account is less than the larger of 20
percent of the assessed benefits or $40,000. Assessments must
be made pro rata according to the determined benefits.
Assessments may be made payable, by order, in equal annual
installments. The auditor shall file a tabular statement as
provided in section 86, subdivision 4, with the county recorder.
Assessments must be collected as provided in section 86.
Subd. 2. [TRANSFER OF DRAINAGE SYSTEM.] If a drainage
system within the county has been taken over by a watershed
district under section 112.65, subdivision 1, or if
responsibility for repair and maintenance of the drainage system
has been assumed by any other governing body, the board may
transfer any remaining surplus of the drainage system repair
fund to the repair fund of the watershed district or to the
appropriate fund of any existing governing body having
responsibility for repair and maintenance of the drainage system.
Sec. 88. [106A.741] [INCLUSION OF PROPERTY THAT HAS NOT
BEEN ASSESSED BENEFITS.]
Subdivision 1. [CONSIDERATION BY ENGINEER.] In a
proceeding to repair a drainage system, if the engineer
determines or is made aware that property that was not assessed
for benefits for construction of the drainage system has been
drained into the drainage system or has otherwise benefited from
the drainage system, the engineer shall submit a map with the
repair report. The map must show all public and private main
ditches and drains that drain into the drainage system, all
property affected or otherwise benefited by the drainage system,
and the names of the property owners to the extent practicable.
The property owners must be notified of the hearing on the
repair report at least ten days before the hearing. The auditor
must give notice of the time and location of the hearing by mail.
Subd. 2. [APPOINTMENT OF VIEWERS.] At the hearing on the
repair report, if the drainage authority determines that
property not assessed for benefits for the construction of the
drainage system has been benefited by the drainage system, the
drainage authority shall appoint viewers as provided by section
42 before the repair contract is awarded. The viewers shall
determine the benefits to all property and entities benefited by
the original construction of the drainage system and not
assessed for benefits arising from its construction. The
viewers shall make a viewers' repair report to the drainage
authority as provided by section 44. When the viewers' repair
report is filed, the auditor shall give notice of a hearing as
required by section 46 and the drainage authority has
jurisdiction of each tract of property described in the viewers'
report as provided in section 47.
Subd. 3. [VIEWERS' REPAIR REPORT HEARING.] At the hearing
on the viewers' repair report, the drainage authority shall hear
all interested parties and determine the benefits to property
and entities benefited by the original construction of the
drainage system and not assessed for benefits.
Subd. 4. [APPEAL OF ASSESSMENT ORDER.] A person may appeal
from the order determining the assessments as provided by
section 18.
Subd. 5. [PROPERTY BENEFITED IN HEARING ORDER INCLUDED IN
FUTURE PROCEEDINGS.] For the repair of the drainage system under
this section that included the property that was not assessed
and in all future proceedings relating to repairing, cleaning,
improving, or altering the drainage system, the property
benefited in the viewers' report hearing is part of the property
benefited by the drainage system and must be assessed in the
same manner provided for the assessment of the property
originally assessed for and included in the drainage system.
Sec. 89. [106A.745] [COST OF REPAIR EXCEEDING BENEFITS.]
If the cost of the repair of a drainage system exceeds the
benefits determined in the original proceedings for the
establishment of the drainage system, the requirements of
section 24 for improvements of drainage systems apply if:
(1) the repair will result in the drainage of 100 or more
acres of public waters in Anoka county;
(2) the public waters have existed for 15 or more years;
(3) the drainage system has not been substantially repaired
for more than 25 years; and
(4) the physical repair was not started before July 1, 1980.
CONSOLIDATION, DIVISION, AND ABANDONMENT OF
DRAINAGE SYSTEMS
Sec. 90. [106A.801] [CONSOLIDATION OR DIVISION OF DRAINAGE
SYSTEMS.]
Subdivision 1. [AUTHORITY TO CONSOLIDATE OR DIVIDE.] After
the benefited area of a drainage system has been redetermined by
the drainage authority under section 51 or in connection with
drainage proceedings, the drainage authority may divide one
system into two or more separate systems, consolidate two or
more systems, transfer part of one system to another, or attach
a part of a system that has been abandoned as provided in
section 91 or 92 to another system to provide for the efficient
administration of the system consistent with the redetermination
of the benefited area.
Subd. 2. [INITIATION OF ACTION.] The consolidation or
division may be initiated by the drainage authority on its own
motion or by any party interested in or affected by the drainage
system filing a petition. If the system is under the
jurisdiction of a drainage authority, the petition must be filed
with the auditor. If the system is under the jurisdiction of a
watershed board, the petition must be filed with the secretary
of the board.
Subd. 3. [HEARING.] (a) When a drainage authority or
watershed board directs by resolution or a petition is filed,
the drainage authority in consultation with the auditor or
secretary shall set a time and location for a hearing. The
auditor or secretary shall give notice by publication to all
persons interested in the drainage system. The drainage
authority may consolidate or divide drainage systems, by order,
if it determines that the division of one system into two or
more separate systems, the consolidation of two or more systems,
the transfer of part of one system to another, or the attachment
of a previously abandoned part of a system to another system:
(1) is consistent with the redetermination of the benefited
areas of the drainage system;
(2) would provide for the efficient administration of the
drainage system; and
(3) would be fair and equitable.
(b) An order to consolidate or divide drainage systems does
not release property from a drainage lien or assessment filed
for costs incurred on account of a drainage system before the
date of the order.
Sec. 91. [106A.805] [REMOVAL OF PROPERTY FROM AND PARTIAL
ABANDONMENT OF A DRAINAGE SYSTEM.]
Subdivision 1. [PETITION.] After the construction of a
drainage system, the owner of benefited property may petition
the drainage authority to remove property from the drainage
system or abandon any part of the drainage system that is not of
public benefit and utility and does not serve a substantial
useful purpose to property remaining in the system if:
(1) waters are diverted from property assessed for benefits
so that the drainage from the property does not use or affect
the drainage system; or
(2) a dam authorized by law is constructed in the drainage
system so that the property above the dam cannot use or receive
benefits from the drainage system.
Subd. 2. [FILING.] If the drainage system is under the
jurisdiction of a drainage authority, the petition must be filed
with the auditor. If the system is under the jurisdiction of a
watershed district, the petition must be filed with the
secretary of the district.
Subd. 3. [HEARING.] (a) When the petition is filed, the
drainage authority in consultation with the auditor or the
secretary shall set a time and location for a hearing on the
partial abandonment petition and shall give notice by
publication of the hearing to all persons interested in the
drainage system.
(b) At the hearing, the drainage authority shall make
findings and shall direct, by order, that the petitioners'
property is removed from the drainage system if the drainage
authority determines:
(1) that the waters from the petitioners' property have
been diverted from the drainage system, or that a dam has been
lawfully constructed and the property cannot use the drainage
system;
(2) that the property is not benefited by the drainage
system and does not use or affect the drainage system; and
(3) that removing the property from the drainage system
will not prejudice the property owners and property remaining in
the system.
(c) The drainage authority shall make findings and direct,
by order, that part of the drainage system be abandoned if the
drainage authority determines that part of the drainage system
does not serve a substantial useful purpose to any property
remaining in the system and is not of a substantial public
benefit and utility.
Subd. 4. [EFFECT OF REMOVING PROPERTY FROM DRAINAGE
SYSTEM.] The property that has been removed from the drainage
system is not affected by the drainage system at any later
proceeding for the repair or improvement of the drainage system
and a drainage lien or assessment for repairs or improvements
may not be made against the property that has been removed on or
after the date of the order.
Subd. 5. [LIENS AND ASSESSMENTS ON PROPERTY REMOVED OR
ABANDONED.] An order under this section does not release the
property from a drainage lien filed on account of the drainage
system before the date of the order. An order under this
section does not release the property from any assessment or a
drainage lien filed on or after the date of the order for costs
incurred on account of the drainage system before the date of
the order.
Sec. 92. [106A.811] [ABANDONMENT OF DRAINAGE SYSTEM.]
Subdivision 1. [DRAINAGE LIEN PAYMENT PERIOD MUST EXPIRE.]
After the period originally fixed or subsequently extended to
pay the assessment of the drainage liens expires, a drainage
system may be abandoned as provided in this section.
Subd. 2. [PETITIONERS.] A petition must be signed by at
least 51 percent of the resident property owners assessed for
the construction of the drainage system or by the owners of not
less than 51 percent of the area of the property assessed for
the drainage system. For the purpose of the petition, the
county is the resident owner of all tax forfeited property held
by the state and assessed benefits for the drainage system, and
the board may execute the petition for the county as a resident
owner.
Subd. 3. [PETITION.] The petition must designate the
drainage system proposed to be abandoned and show that the
drainage system is not of public benefit and utility because the
agricultural property that used the drainage system has been
generally abandoned or because the drainage system has ceased to
function and its restoration is not practical.
Subd. 4. [FILING PETITION; JURISDICTION.] If all property
assessed for benefits in the drainage system is in one county,
the petition must be filed with the auditor unless the petition
is signed by the board, in which case the petition must be made
to the district court of the county and filed with the clerk of
court. If property assessed for benefits is in two or more
counties, the petition must be filed with the auditor. When the
petition is filed, the drainage authority in consultation with
the auditor, or the clerk with the approval of the court, shall
set a time and location for a hearing on the petition. The
auditor or clerk shall give notice by publication of the time
and location of the abandonment hearing to all persons
interested. The drainage authority or the district court where
the petition is properly filed has jurisdiction of the petition.
Subd. 5. [ABANDONMENT HEARING.] (a) At the hearing, the
drainage authority or court shall examine the petition and
determine whether it is sufficient and shall hear all interested
parties.
(b) If a property owner assessed benefits for the drainage
system appears and makes a written objection to the abandonment
of the drainage system, the drainage authority or court shall
appoint three disinterested persons as viewers to examine the
property and report to the drainage authority or court. The
hearing must be adjourned to make the examination and report.
The viewers, if appointed, shall proceed to examine the property
of the objecting owner and report as soon as possible to the
drainage authority or court with the description and situation
of the property and whether the drainage system drains or
otherwise affects the property.
(c) At the adjourned hearing, the drainage authority or
court shall consider the viewers' report and all evidence
offered, and:
(1) if the drainage authority determines that the drainage
system serves any useful purpose to any property or the general
public, the petition for abandonment must be denied; or
(2) if the drainage authority determines that the drainage
system does not serve any useful purpose to any affected
property and is not of public benefit and utility, the drainage
authority or court shall make findings and shall, by order,
abandon the drainage system.
Subd. 6. [EFFECT OF ABANDONMENT.] After abandonment of a
drainage system, a repair petition for the drainage system may
not be accepted and the responsibility of the drainage authority
for the maintenance of the drainage system ends.
Sec. 93. Minnesota Statutes 1984, section 40.072,
subdivision 3, is amended to read:
Subd. 3. [PRELIMINARY PROGRAM PLANS; APPLICATION FOR
FEDERAL OR OTHER AID; COOPERATION WITH OTHER AGENCIES; REPORT
AND RECOMMENDATIONS TO THE COUNTY BOARD; ADOPTION OF IMPROVEMENT
WORK PLAN.] After adoption of the resolution recommending the
improvement work unit and program as provided in subdivision 2,
with amendments thereto, if any, the board or boards, when the
board or boards of county commissioners by resolution so
directs, may make or cause to be made such further surveys and
studies as may be necessary and thereupon make or cause to be
made a preliminary general plan for carrying out the program for
the improvement work unit as set forth in the resolution or any
part thereof, with cost estimates therefor. The board or
boards, at the direction of the county board or boards, may make
application for federal aid, state aid, or aid available from
any other source for the works embraced in the program or any
part thereof under Public Law 566 or any act amendatory thereof
or supplementary thereto or any other applicable federal or
state law, and may take all steps necessary to determine whether
such aid will be available and the amount thereof. The board
may consider how the cost of the works of improvement or any
part thereof above prospective federal or other aid may be met
from the funds of the district or from the proceeds of
assessments on benefited property or otherwise, and make
estimates therefor. If the cooperation or joint action of any
adjacent soil and water conservation district or any other
public agency is desirable for any purpose under the program or
in connection therewith, the board, at the direction of the
county board or boards, may negotiate with the authorities
concerned for such cooperation or joint action as authorized in
this chapter, and acts amendatory thereof, or as otherwise
provided by law. Upon completion of the foregoing steps as far
as necessary, the board or boards may make and file a report,
summarizing its findings thereon and its recommendations for
further action on the program or any part thereof. The board or
boards shall make the plan together with the preliminary general
plan for the improvement work unit available to the county board
or boards and to all other public agencies and persons
concerned, and may give such publicity thereto as the district
board deems advisable. The report shall contain substantially
the same engineering information required by section 112.49,
subdivisions 1 and 2. The board or boards shall transmit a copy
of the report and preliminary plan to any regional development
agency created by Minnesota law for the region in which each
project is located, and in those cases where the plan involves a
project for which a permit is required from the commissioner of
natural resources under chapter 105, or for which proceedings
will be instituted under chapter 106 sections 1 to 92, to the
commissioner of natural resources and to the water resources
board. The water resources board shall review the report and
plan and, if it concludes that the plan is inconsistent with
systematic administration of state water policy, shall report
its conclusion to the board or boards and the commissioner of
natural resources within 60 days after receiving the report and
plan. Thereafter the board or boards may modify and retransmit
the report and preliminary plan to the water resources board, or
may request a hearing on the report and plan before the water
resources board. The water resources board shall hear the
matter in the same manner, and follow the same procedures, as
provided in sections 105.76 to 105.79, for the hearing of cases
where it consents to intervention proceedings. Except where the
water resources board concludes that the report and plan are
inconsistent with state water policy, the district board or
boards, with the approval of the county board or boards, may
adopt and sponsor the improvement work unit and a program of
work for the unit.
Sec. 94. Minnesota Statutes 1984, section 40.072,
subdivision 4, is amended to read:
Subd. 4. [ACTION ON WORK PROJECT PURSUANT TO REPORT;
PETITION AND HEARING.] The county board or boards, acting
jointly under section 471.59, may take action on a project
within the improvement work unit for construction or
installation of works of improvement or part thereof pursuant to
the recommendations in the report only upon a petition for a
project signed by at least 25 percent of the owners of the land
over which the proposed improvement work passes or upon which it
is located, or by the owners of at least 30 percent of the area
of such land, describing such land and requesting the county
board or joint county board to hold a hearing on the
practicability and desirability of carrying out the project in
accordance with the preliminary plan and the recommendations in
the report of the district board or boards. If the report
specifies that any part of the cost of the project is to be paid
from the proceeds of assessments on benefited property, one or
more of the petitioners, upon the filing of the petition and
before any action is taken thereon, shall file a bond to the
county or counties acting jointly conditioned as provided by
section 106.041 22 in the case of a county drainage system, to
be approved by the chairman of the board. The county board or
joint county board shall set a time and place for the hearing on
the petition, and cause notice thereof to be given as provided
in section 106.101 33, subdivision 1. If upon the hearing the
county board or joint county board finds that the carrying out
of the project as requested in the petition will be feasible, in
accordance with the recommendations of the report, and in
furtherance of the objectives and purposes therein set forth,
and that the estimated cost will not exceed the funds which may
reasonably be expected to be available for payment thereof, the
county board or joint county board may adopt a resolution so
determining and directing further action on the project as
hereinafter provided. By such resolution the county board or
joint county board shall determine the amount to be paid from
the respective sources of available or potentially available
funds, including federal aid, district funds, assessments on
benefited property, and other funds, if any. The amount payable
from district funds may be commensurate with but shall not
exceed the value of the general public benefit of the project to
the district as determined by the board or boards.
Sec. 95. Minnesota Statutes 1984, section 40.072,
subdivision 5, is amended to read:
Subd. 5. [ACTION ON PROJECT WITHOUT ASSESSMENTS.] If no
part of the project cost is to be paid from assessments on
benefited property, the county board or joint county board may
proceed with complete surveys and detailed plans and
specifications and make its order establishing the project. The
order shall contain findings substantially conforming to those
required by section 106.201 49, subdivision 2. Notice
summarizing the findings and order shall be served upon those
persons entitled to receive notice of a county drainage project
pursuant to section 106.171 46, in the manner therein provided
unless such notice is waived in writing by each person entitled
to receive such notice. The waiver of notice shall be filed
with the county auditor. Unless an appeal is taken within 30
days after the notice is given, the county board or joint county
board may proceed to acquire necessary rights or property,
procure materials, let contracts, and take any other steps
appropriate to complete the project. The county board or joint
county board may delegate its duties and powers under this
subdivision to the district board or joint district board
provided that the district board or joint district board shall
not exercise the power of eminent domain.
Sec. 96. Minnesota Statutes 1984, section 40.072,
subdivision 6, is amended to read:
Subd. 6. [ACTION ON PROJECT WITH ASSESSMENTS.] If any part
of the cost of the project is to be paid from the proceeds of
assessments on benefited property, viewers shall be appointed as
provided in section 106.141 42, and shall report as required by
sections 106.151 and 106.161 43, 44, and 45. The board or joint
board of county commissioners shall direct the petitioners or,
with its consent, the board or joint board of supervisors, to
provide such engineering services as may be necessary to produce
final plans adequate for the construction of the proposed
improvement. The county board or joint county board shall then
give notice of and conduct a final hearing substantially in
accordance with sections 106.171 46 to 106.191 49 inclusive, as
in the case of a county drainage proceeding, so far as these
sections are consistent with this chapter, and acts amendatory
thereof. If it is determined that the total benefits to
property are not as much as the amount payable from the proceeds
of assessments as specified in the report of the board or boards
under subdivision 3, the petition shall be dismissed and further
action on the project discontinued except as hereinafter
provided, unless the county board or joint county board shall
determine that the deficiency may be met by increasing the
amount payable from district funds or other funds, subject to
the limitations hereinbefore prescribed, in which case further
action for completion of the project may be taken as herein
provided. If it is determined that the total benefits to
property are as much as or more than the amount payable from the
proceeds of assessments as specified in the report and that the
other applicable requirements of law have been complied with,
the county board or joint county board shall by order containing
such findings establish the project as reported or amended and
adopt and confirm the viewers' report as made or amended. If
the total amount of benefits to be assessed upon property
pursuant to the viewers' report as so adopted and confirmed is
greater than the amount specified as payable from such
assessments in the report of the board or boards under
subdivision 3, the county board or joint county board may reduce
the amounts payable from other sources of funds accordingly in
such proportions as it may determine. Further action shall be
taken thereon as provided in chapter 106 sections 1 to 92, so
far as appropriate, except that each tract of land affected
shall be assessed for the full amount of benefits, less damages,
if any, as shown by the viewers' report as adopted and
confirmed, unless the total amount of such benefits, less
damages, exceeds the total actual cost of the project to be paid
from the proceeds of assessments, in which case such cost shall
be prorated for assessment purposes as provided in
section 106.341 67. Upon filing of the viewers' report as
provided in this section the county board of each county
affected shall provide funds to meet its proportionate share of
the total cost of the improvement, as shown by the report and
order of the county board or joint county board, and for such
purposes is authorized to issue bonds of the county in such
amount as may be necessary in the manner provided in section
106.411 74.
The provision of section 106.411 74 requiring the county
board to let a contract for construction before issuing bonds
shall not be applicable to bonds issued to provide the funds
required to be furnished by this section.
The county board or joint county board, pursuant to
agreement with the district board or boards, may by resolution
direct the district to undertake, construct, install, maintain,
and operate the work of improvement upon terms mutually agreed
upon. However, if it is necessary to acquire property by
eminent domain, the county, or the counties acting jointly,
shall exercise the power of eminent domain and shall convey the
property to the district or districts pursuant to the agreement.
If, pursuant to an agreement, the responsibility for a work
of improvement is vested in a district or districts, the
respective county treasurers shall transmit the proceeds of all
related assessments or bond issues, when collected, to the
treasurer of the district, who shall credit the same to the
proper funds under the direction of the district board.
Sec. 97. Minnesota Statutes 1984, section 40.072,
subdivision 9, is amended to read:
Subd. 9. [REPAIR.] The term "repair" used in this section
means restoring the project works of improvement or any part
thereof as nearly as practicable to the same condition as when
originally constructed or subsequently improved.
After the construction of a project has been completed and
accepted by the board of the county or district having authority
over the project, the board shall maintain the same or such part
thereof as lies within its jurisdiction and provide the repairs
required to render it efficient to answer its purpose. This
board shall have, exercise, and perform the powers and duties of
the county board drainage authority under section 106.471
sections 80 to 89, except as follows. If this board is a board
of a soil and water conservation district, the financing of
repairs which require assessments and bond issues shall be the
responsibility of the county board or joint county board in a
manner similar to that provided for the financing of the cost of
original construction of the project and as provided in section
106.471 sections 80 to 89, so far as appropriate.
Sec. 98. Minnesota Statutes 1984, section 40.073, is
amended to read:
40.073 [APPEALS.]
Any person aggrieved by an order of the board or joint
board of county commissioners in any proceedings undertaken
pursuant to section 40.072, subdivisions 5 or 6, may appeal to
the district court upon the grounds and in the manner provided
by section 106.631 sections 18 and 19, for a county drainage
proceeding. Notices required by section 106.631 sections 18 and
19, to be filed with the county auditor shall also be filed with
the board or joint board of supervisors. No appeal shall be
permitted from an order of the board or joint board of county
commissioners or the board or joint board of supervisors made
pursuant to section 40.072, subdivisions 5 or 6 which dismisses
a petition or refuses to establish a project.
Sec. 99. Minnesota Statutes 1984, section 88.43,
subdivision 2, is amended to read:
Subd. 2. [BENEFITS; ASSESSMENT; LIEN.] If any clearing or
other improvement of land made by any town or city benefits any
person, or benefits some and damages others, then the amount of
both such benefits and damages shall be ascertained in the same
manner as provided by law with respect to damages in
condemnation proceedings by right of eminent domain. All
provisions of law relating to the determination of the amount of
damages in condemnation proceedings shall apply to the
determination of the value of benefits under this section, as
far as practicable. Any benefits so found shall be assessed
against, and be a lien upon, the real property so benefited and
shall be noted upon the public records and collected upon the
same terms and in substantially the same manner as now provided
by law for the collection of ditch and drainage assessments
pursuant to chapter 106 sections 1 to 92.
Sec. 100. Minnesota Statutes 1984, section 97.484, is
amended to read:
97.484 [ASSESSMENTS TO BE PAID FROM FUND.]
Any assessments against the State of Minnesota under the
provisions of sections 106.381, or 106.671 and 106.672 3,
subdivision 2; 5; 44, subdivision 1; or section 70, shall be
paid from moneys in the Wildlife Acquisition Fund herein created
on all such lands or properties heretofore or hereafter acquired
for wildlife habitat.
Sec. 101. Minnesota Statutes 1984, section 97.50,
subdivision 1, is amended to read:
Subdivision 1. [POWERS.] The commissioner, director, game
refuge patrolmen, and conservation officers are authorized to:
(1) execute and serve all warrants and processes issued by
any court having jurisdiction under any law relating to wild
animals, wild rice, use of water, conservation, protection or
control of public waters, state-owned dams or other works
affecting public waters or water pollution, in the same manner
as a constable or sheriff;
(2) arrest, without a warrant, any person detected in the
actual violation of any provisions of chapters 84, 97 to 102,
105 and 106 sections 1 to 92, and section 609.68; and
(3) take the person before any court in the county in which
the offense was committed and make proper complaint.
When a person who is arrested for any violation of the
provisions of law listed in clause (2), which is punishable as a
misdemeanor, is not taken into custody and immediately taken
before a court, the arresting officer shall prepare, in
quadruplicate, written notice to appear before a court. The
notice shall be in the form and has the effect of a summons and
complaint. It shall contain the name and address of the person
arrested, the offense charged, and the time and the place he is
to appear before the court. This place must be before a court
which has jurisdiction within the county in which the offense is
alleged to have been committed.
In order to secure release, without being taken into
custody and immediately taken before the court, the arrested
person must give his written promise to appear before the court
by signing, in quadruplicate, the written notice prepared by the
arresting officer. The officer shall retain the original of the
notice and deliver the copy marked "SUMMONS" to the person
arrested. The officer shall then release the person from
custody.
On or before the return day, the officer shall return the
notice or summons to the court before whom it is returnable. If
the person summoned fails to appear on the return day, the court
shall issue a warrant for his arrest. Upon his or her arrest,
proceedings shall be had as in other cases.
Sec. 102. Minnesota Statutes 1984, section 105.42,
subdivision 1, is amended to read:
Subdivision 1. It shall be unlawful for the state, any
person, partnership, association, private or public corporation,
county, municipality or other political subdivision of the
state, to construct, reconstruct, remove, abandon, transfer
ownership, or make any change in any reservoir, dam or waterway
obstruction on any public water; or in any manner, to change or
diminish the course, current or cross-section of any public
waters, wholly or partly within the state, by any means,
including but not limited to, filling, excavating, or placing of
any materials in or on the beds of public waters, without a
written permit from the commissioner previously obtained.
Application for such permit shall be in writing to the
commissioner on forms prescribed by him. No permit shall be
required for work in altered natural watercourses which are part
of drainage systems established pursuant to chapters 106
and sections 1 to 92 and chapter 112 when the work in the waters
is undertaken pursuant to those chapters.
This section does not apply to any public drainage system
lawfully established under the provisions of chapter 106
sections 1 to 92 which does not substantially affect any public
waters.
The commissioner, subject to the approval of the county
board, shall have power to grant permits under such terms and
conditions as he shall prescribe, to establish, construct,
maintain and control wharfs, docks, piers, levees, breakwaters,
basins, canals and hangars in or adjacent to public waters of
the state except within the corporate limits of cities.
Sec. 103. Minnesota Statutes 1984, section 105.471, is
amended to read:
105.471 [VENUE OF ACTIONS AGAINST COMMISSIONER; DRAINAGE
AND CLASSIFICATION OF PUBLIC WATERS.]
Notwithstanding any other law to the contrary, any action
for declaratory judgment that is commenced under chapter 555 by
or against the commissioner to determine the validity of the
commissioner's final decision regarding the classification of
any waters of the state as public waters pursuant to sections
105.38 to 105.391, or the drainage of waterbasins or
watercourses as provided in section 106.021 sections 2 and 3,
subdivision 1, shall be venued in the county where the water,
watercourse or waterbasin is located, if the water, watercourse
or waterbasin is located in one county, or in the judicial
district where the majority of the water, watercourse or
waterbasin is located, if the water, watercourse or waterbasin
is located in more than one county.
Sec. 104. Minnesota Statutes 1984, section 105.74, is
amended to read:
105.74 [ADDITIONAL DUTIES OF BOARD.]
In addition to duties elsewhere prescribed, the board has
the function defined in sections 105.72 to 105.79 when the
decision of the agency in a proceeding involves a question of
water policy in one or more of the areas of water conservation,
water pollution, preservation and management of wildlife,
drainage, soil conservation, public recreation, forest
management, and municipal planning under any of the following:
Sections 84.57, 97.48, subdivision 13, 105.41, 105.42, 105.43,
105.44, 105.64, 106.021, 106.671 2, 3, 115.04, 115.05, and
chapter 110.
Sec. 105. Minnesota Statutes 1984, section 105.81, is
amended to read:
105.81 [PETITION; BOND; INVESTIGATION; REPORT; HEARING;
ORDER.]
For the purpose of conserving and making more adequate use
of our water resources, any person, public or municipal
corporation, governmental subdivision, the state or any of its
departments or agencies, the commissioner of natural resources
and the United States or any of its agencies, may petition the
county board in the case of a system lying wholly within one
county or the district court in the case of a drainage system
affecting two or more counties for the installation of dams or
other control works in said ditches to impound or divert waters
for any beneficial use. Said petition shall contain the
location of the installation, plans and specifications for the
proposed structure, and a map of the areas likely to be affected
by the impoundment or diversion. The petitioner shall agree to
be responsible for the cost of installation and construction of
the structure. Upon filing of the petition, the petitioners
shall file a bond as provided in sections 106.041 and 106.051 22
and 23. No bond shall be required if the petition is filed by
the state, any of its departments or agencies, the commissioner
of natural resources, the United States or any of its agencies,
and cities. Said petition shall also be accompanied by a permit
from the commissioner of natural resources as required in
sections 105.41 and 105.42.
On receipt of the petition, bond, and permit, if required,
the board or court shall appoint an engineer to investigate the
effect of the proposed installation and file a report of his
findings. Upon filing of the engineer's report, notice shall be
given and a public hearing held as provided in section 106.101
33. If at this hearing it appears from the engineer's report
and other evidence presented that such installation will be of a
public or private benefit and that it will not impair the
utility of the ditch or deprive affected land owners of the
benefit thereof, the board or court shall issue a permit
authorizing its installation. Before the petitioner shall
install or construct any impoundment or diversion, he shall
obtain such rights-of-way and flowage easements from all owners
of land to be affected thereby.
The order of the court modifying the ditch system shall
provide that all construction and subsequent maintenance and
repairs of the ditch modification shall be done and performed by
the petitioner without any cost to the owners of lands and
properties previously within the drainage system.
Sec. 106. Minnesota Statutes 1984, section 111.09,
subdivision 2, is amended to read:
Subd. 2. [CHIEF ENGINEER, ATTORNEY.] The board may employ
a chief engineer and an attorney, and such other engineers and
attorneys or agents or assistants as are needful and necessary
and shall provide for their compensation. All such expenses
shall be, as far as practicable, as a part of the costs of each
improvement upon which such engineer and attorney perform
services, and as far as applicable shall be governed by section
106.431 76.
Sec. 107. Minnesota Statutes 1984, section 111.11, is
amended to read:
111.11 [ESTABLISHMENT OF DISTRICT; CLASSES.]
After the organization of the board of directors of any
drainage and conservancy district organized under the provisions
of sections 111.02 to 111.42 and upon filing with the clerk of
the board a petition signed by not less than 25 freeholders of
the district (but in no event shall more than 25 percent of the
owners of the property affected be required), or by the board of
county commissioners of any county, or the council of any city
likely to be affected by the proposed improvement therein,
asking for the construction within the limits of the conservancy
district of any of the improvements authorized by the provisions
of sections 111.02 to 111.42 relative to drainage, regulation,
control, or conservation of the waters of any lake, pond, marsh,
or body of water, river, stream, watercourse, ditch, or drain
within the district which may cover the whole or any part of the
improvement contemplated when the district was organized,
therein describing the need of the proposed improvement, the
extent thereof, and describing in general terms the bodies of
water, streams, or watercourses proposed to be improved, or
reservoirs or other improvements constructed; and, if the
construction of a ditch or drain as a part of the proposed
improvement contemplated, a description of the starting point,
the general course and termination thereof shall be given
therein, or if the contemplated improvements require that any
ditch or drain established and constructed under any law of this
state, or any portion thereof, be utilized for the protection of
fires in areas subject to destruction or damage by fire or for
irrigation, all as specified, a description of such ditch and
drain, or the portions thereof so required, and a general
description of such areas, protection whereof from fire is
sought, or irrigation is sought, setting forth the reasons and
necessity for such improvements and that the same, if
constructed, will benefit public health and general welfare of
the inhabitants in that vicinity, and the petition is to be
accompanied by a bond signed by the petitioners, or any number
of them, or other parties in their behalf, in such sum as the
board of directors of such district may specify and such as it
shall approve, conditioned for payment of all costs or expenses
in connection with such improvements in the event the petition,
as therein set forth or subsequently modified, is not granted;
it shall be the duty of the board of directors of the district
to cause to be made, at the earliest possible date, by its
engineer, all necessary surveys, maps, plats, profiles, and
plans covering the proposed improvements so as to fully inform
the board as to the merits and practicability of proposed
improvements, and, in making the surveys, plats, profiles, and
report, the engineer shall, so far as practicable, conform to
the requirements of General Statutes 1923, Section 6678, and the
board shall have authority to correct, change, or modify the
proposed improvements, as outlined in the petition, and if the
report of the engineer is favorable to the construction of the
improvements, and is approved by the board of directors, the
board shall, with the least possible delay, appoint three
disinterested citizens of the state to act as viewers, and the
viewers so selected shall, after subscribing an oath to
faithfully and impartially perform their duties, proceed to
personally inspect and examine all lands, highways, and other
property likely to be affected by the improvements, or that may
be used or taken for the construction or maintenance thereof and
shall, in the performance of their duties so far as practicable
comply with the provisions of sections 106.141 and 106.151 42 to
45 and make and file with the clerk of the board with such plans
and specifications a detailed statement showing the actual
benefits and damages that will result to individuals, property,
or corporations from the construction of the improvements, and a
list of lands and other property, including highways and
corporations, that will be actually benefited or damaged, and
the amount thereof, and include lands, roads, corporations, and
other property receiving actual benefits by way of drainage or
control of flood waters, or by regulation, conservation, and
application of waters for fire protection and irrigation, as
hereinbefore authorized, and lands or water powers further down
the valley and include all lands to which a drainage outlet is
supplied by such improvement by way of increased facilities for
drainage or control of flood waters or protection from fire or
for irrigation, and all such property and corporations shall be
assessable for the cost of the proposed improvement in
proportion to the actual benefits received, as finally
determined by the court; provided, the board of directors of the
district may elect to levy no assessment under this section upon
water powers, but collect for such improvement as otherwise
provided in sections 111.02 to 111.42. General Statutes 1923,
Sections 6681 and 6682, so far as applicable, shall apply to and
govern the work of the viewers under sections 111.02 to 111.42.
In any case where fire protection is part of the relief prayed
for in the petition and the utilization of any existing ditch or
drain, or any portion thereof, is alleged to be necessary
thereto, the petition for such improvements, before being
presented to the board of directors, shall be signed by not less
than 50 percent of the resident freeholders (but in no event
shall more than 25 signers be required) whose lands are affected
by the ditch or drain, or portion thereof, to be utilized, and
approved by resolution of the board of county commissioners of
each county wherein the same is located.
Sec. 108. Minnesota Statutes 1984, section 111.13, is
amended to read:
111.13 [MODIFICATIONS, APPROVAL OR REJECTION.]
At the time and place specified in the notice, the court
shall hear all parties interested for and against the granting
of the petition and confirming the reports, and may order and
direct the modification of the plans and specifications and the
assessments of benefits and damages and amend or change the list
of property reported as assessable for the construction and
maintenance thereof, or may recommit the same to the engineer or
viewers, or both, for changes. If upon full hearing the court
shall find that the improvement will be conducive to the public
health and promote the general welfare and cause the protection
and reclamation of wet or overflowed lands or the control of
flood waters in streams, channels, and reservoirs, or aid in the
prevention of fires in the areas, or any purpose authorized by
sections 111.02 to 111.42, in the drainage and conservancy
district and that the benefits resulting therefrom will be
greater than the costs of the construction and damages, and a
sum equal to 15 percent of the cost of the construction,
exclusive of damages, for maintenance, then the court shall make
its findings accordingly and order and direct the construction
of the improvement and confirm the report of the engineer and
the findings and report of the board or the viewers with
reference to benefits and damages and lands assessable, and may,
by this order, authorize the board of the district to construct
the whole or any part of the improvement petitioned for or to
let contracts for the improvement ordered as a whole or for
different parts thereof separately. All persons, parties, or
corporations affected by the order shall have the right to
appeal on questions of benefits and damages in the manner now
provided for appeals in the case of judicial ditches, pursuant
to provisions of section 106.631 sections 18 and 19.
If any ditch or drain, or any portion thereof, mentioned in
the petition and reports is proper to be utilized for any of the
objects or purposes of sections 111.02 to 111.42, the court
shall include in its findings all matters in respect thereto and
in and by the order fix and limit the use and application of the
same therefor, taking care not to destroy the ditch, or any part
thereof, so used for the purposes for which it was established.
Upon the entry of the order, the board of directors of the
district shall have and exercise all the authority thereover
theretofore vested in any public corporation or administrative
body as to such ditch or drain, or portion thereof, and be
charged with all the duties of any such public corporation or
administrative body as to the upkeep, repair, and maintenance of
any such ditch, or the part thereof taken under sections 111.02
to 111.42.
Sec. 109. Minnesota Statutes 1984, section 111.30, is
amended to read:
111.30 [APPORTIONMENT OF COSTS.]
At the time set for hearing on the report and petition of
the board of directors of any district and the report of the
engineer asking for the establishment of any improvement under
the provisions of sections 111.02 to 111.42, or at any time
subsequent thereto, upon five days' notice, in writing, to the
auditor of each county containing property affected by such
improvement, the court shall apportion the amount of the total
costs of the construction of the improvements among the counties
affected in proportion to the benefits received and shall fix
and determine the amount to be paid by each and, upon similar
notice to the auditor, the judge of the district court may, at
any time, modify his order as justice may require, or make
additional orders covering additional expense. The word
"expense", as used in this section, shall be construed to mean
every item of cost of the improvement from its inception to its
completion and all fees and expenses paid or incurred, including
all damages awarded; and, upon the filing of the order, or a
certified copy thereof, with the auditor of each county
affected, together with a list of all property in the county
affected and a statement of all benefits and damages affecting
the same, and such other information as the court, by order, may
direct, it shall be the duty of the county board of each county
to provide the necessary funds to meet the proportionate share
of the cost of the improvement, as specified in the order, in
the same manner as now provided in the case of judicial ditch
proceedings, under section 106.411 74. Immediately, or at the
earliest date possible following the letting of contracts for
the construction of the improvement by the board of directors of
the district, it shall cause to be made and filed, with its
clerk and with the auditor of each county affected, a statement
showing the total cost of the improvement, including expenses as
nearly as they can be ascertained, and the proportionate amount
that the property within each county affected shall be required
to pay on the basis fixed by the order of the court, together
with a list of all property benefited within such county; and
thereupon it shall become the duty of the auditor of each county
to cause to be made and recorded the tabular statement and lien
against the property benefited within the county the amount to
be paid by the property in the county, in accordance with the
provisions of sections 106.341, 106.351, and 106.361 67 and 68;
and it shall be the duty of the county commissioners of each
county to provide funds to meet the proportionate share of the
total cost of the improvement, as shown by the report of the
board of the drainage and conservancy district and the order of
the court, and the county board is authorized to exercise all
rights and authority in so doing now granted to the board of
county commissioners under the provisions of sections 106.341
and 106.411 67, subdivisions 1 and 2; and 74 and other
provisions relating to county and judicial ditch proceedings.
It shall be the duty of the respective county auditors and
county treasurers to levy and collect the amount shown in the
tabular statement and lien, as provided in sections 106.371 69
and 106.381 70. All moneys received by the treasurer of any
county from the sale of bonds, assessments, or otherwise for the
benefit of the district shall be by him accounted for and paid
over to the treasurer of the district.
Sec. 110. Minnesota Statutes 1984, section 111.31, is
amended to read:
111.31 [ASSESSMENTS.]
Upon the filing by the board of directors of a drainage and
conservancy district with the auditor of any county of a
statement as provided in section 111.30, giving a list of the
property and corporations benefited or damaged or otherwise
affected by any proposed improvement, it shall be the duty of
the auditor to assess the amount specified in such list against
the lands and municipalities or other corporations as therein
specified in accordance with the provisions of section 106.381
70, he shall proceed to levy and collect the sums specified in
the lists against the property and corporations in accordance
with the provisions thereof and, in the event the sum so
reported shall become a direct charge against the county, it may
be paid by such county out of its road and bridge fund, or
otherwise, as the county commissioners may direct, and may be
paid in whole or in instalments as may be specified by the board
of county commissioners of the county. No assessment shall be
levied against any property or corporation benefited under the
provisions of sections 111.02 to 111.42 in excess of the amounts
of benefits received as fixed by the order of the court
directing the construction of the improvement or subsequently
determined on appeal.
Sec. 111. Minnesota Statutes 1984, section 111.36, is
amended to read:
111.36 [NEGLECT OF AFFAIRS.]
The provisions of section 106.641 16 relating to the
obstruction or injury of work shall apply to any and all
improvements made or authorized under the provisions of sections
111.02 to 111.42, and any other provision contained in the laws
of this state relating to judicial or county ditches providing
for punishment for damages committed to or interfering with such
work shall apply to all improvements made under the provisions
of sections 111.02 to 111.42.
Sec. 112. Minnesota Statutes 1984, section 111.78, is
amended to read:
111.78 [LIENS TO BEAR INTEREST.]
The amount that each tract of land, public or private,
shall be liable for on account of the construction of works
authorized in sections 111.65 to 111.80 shall bear interest from
the date of the filing of the auditor's statement in the office
of the county recorder at the legal rate until paid.
Such liens may be paid to the county treasurer at any time
after the recording of the auditor's statement in the office of
the county recorder.
When payment of the full amount of the liens with interest
shall at any time be made the county auditor, upon presentation
of a receipt from the county treasurer to that effect, shall
issue under his hand a certificate of such payment and the same
when recorded in the office of the county recorder shall release
and discharge the lien of record.
On or before November 15 next following the filing by the
auditor of such statement, he shall enter on the tax lists of
the county the amount of the lien against each tract of land,
all of which shall be payable as directed by the court on such
tract, which shall be subject to and be collected with like
penalties as all other taxes.
The auditor of the county wherein the proceedings are held
is hereby authorized, upon order of the court, to issue warrants
of the county to pay the official costs of such proceedings and
when the costs are assessed against the lands in more than one
county such costs are to be determined and apportioned between
the counties affected in proportion to the benefits assessed
against the lands and property in such county. The issued
warrants are to draw interest at the legal rate, subject to
their payment as provided under section 106.451 78.
Sec. 113. Minnesota Statutes 1984, section 112.431,
subdivision 2, is amended to read:
Subd. 2. [DEFINITIONS.] (a) For the purpose of this
section the terms defined in this subdivision have the meanings
ascribed to them.
(b) "Drainage system" means a ditch as defined by section
106.011, subdivision 17 1, subdivision 11.
(c) "Watershed district" means any watershed district
established pursuant to the provisions of chapter 112, wholly or
partially in a metropolitan county.
(d) "Metropolitan county" means any one of the following
counties: Anoka, Carver, Dakota, Hennepin, Ramsey, Scott or
Washington.
(e) "Metropolitan area" means the combined area of the
metropolitan counties.
Sec. 114. Minnesota Statutes 1984, section 112.48,
subdivision 1, is amended to read:
Subdivision 1. After the overall plan of the district has
been prescribed by the board, as provided in section 112.46, a
petition may be filed with the managers for any project within
the district conforming in general with the plan. The petition
must be signed:
(1) By not less than 25 percent of the resident
freeholders, or by the owners of more than 25 percent of the
land within the limits of the area proposed to be improved
unless the project consists of the establishment of a drainage
system as defined in chapter 106 sections 1 to 92 or the
improvement of an existing drainage system;
(2) By a majority of the resident owners of the land over
which the proposed project passes or is located, or by the
owners of at least 60 percent of the area of the land, if the
project consists of the establishment of a drainage system as
defined in chapter 106 sections 1 to 92;
(3) By not less than 26 percent of the resident owners of
the property affected by the proposed project or over which the
proposed project passes or by the owners of not less than 26
percent of the area affected or over which the proposed project
passes if the project consists of the improvement of an existing
drainage system as defined in chapter 106 sections 1 to 92;
(4) By a county board of any county affected; or
(5) By the governing body of any city lying wholly or
partly within the area proposed to be improved; provided that if
the proposed project affects lands exclusively within a city,
the petition shall originate from the governing body of the city.
For the purpose of this subdivision, holders of easements
for electric or telephone transmission or distribution lines are
not considered freeholders or owners.
The petition shall contain the following:
(a) A description of the proposed project, and the purpose
to be accomplished;
(b) A description of the lands over which the proposed
project passes or is located;
(c) A general description of the part of the district which
will be affected, if less than the entire district;
(d) The need and necessity for the proposed improvement;
(e) That the proposed project will be conducive to public
health, convenience, and welfare;
(f) A statement that the petitioners will pay all costs and
expenses which may be incurred in case the proceedings are
dismissed or for any reason no construction contract is let for
the project.
Sec. 115. Minnesota Statutes 1984, section 112.50, is
amended to read:
112.50 [APPRAISALS.]
Subdivision 1. Upon the filing of the engineer's report
the managers shall, with the least possible delay, appoint three
disinterested resident freeholders of the state to act as
appraisers. These appraisers shall subscribe an oath to
faithfully and impartially perform their duties, and with or
without the engineer, shall determine the benefits or damages to
all lands and properties affected by the proposed project or
improvement, including lands owned by the state of Minnesota or
any department thereof, highways, and other property likely to
be affected by the proposed improvement or that may be used or
taken for the construction or maintenance thereof. Benefits and
damages to lands owned by the state of Minnesota or any
department thereof held and used for the purposes described in
section 106.672 sections 5 and 44, subdivision 1, shall be
determined subject to the provisions thereof, so far as
applicable. Each appraiser may be paid on a per diem basis for
every day necessarily engaged in the performance of his duties
and for his actual and necessary expenses. The compensation
shall be fixed by the managers, to be paid by the district and
included in the cost of improvement. The managers of the
watershed districts may in their discretion use the following
procedure for the purpose of determining benefits and damages.
Upon the filing of the engineer's report the managers with the
assistance of the engineer shall determine the benefits or
damages to all lands and properties affected by the proposed
project or improvement, including lands owned by the state of
Minnesota or any department thereof, highways, and other
property likely to be affected by the proposed improvement or
that may be used or taken from the construction or maintenance
thereof. Benefits and damages to lands owned by the state of
Minnesota or any department thereof held and used for the
purposes described in section 106.672 sections 5 and 44,
subdivision 1 shall be determined subject to the provisions
thereof, so far as applicable. The managers shall also
determine the amount to be paid and generally assessed by the
watershed district for the basic water management portion of the
improvement projects.
Sec. 116. Minnesota Statutes 1984, section 112.501,
subdivision 1, is amended to read:
Subdivision 1. Where the proposed improvement, includes or
prays for the construction or improvement of any ditch, stream,
river, or watercourse, or any structures for the control or
alleviation of damages from flood waters, the appraisers shall
be governed by section 106.151 sections 43 to 45.
Sec. 117. Minnesota Statutes 1984, section 112.541, is
amended to read:
112.541 [PROCEDURE WHEN CONTRACT IS NOT LET.]
If after the receipt of the bids, no bids are received
except for a price more than 30 percent in excess of the
engineers estimate as contained in his report, or for a price in
excess of the benefits, less damages and other costs, the
managers shall follow the procedure described in section 106.241
57.
Sec. 118. Minnesota Statutes 1984, section 112.59, is
amended to read:
112.59 [CONTROL OF CONTRACTS.]
In all cases where contracts are let by the managers, they
shall have full control of all matters pertaining thereto. If a
contractor fails to complete the improvement within the time or
in the manner specified in the contract, the managers may extend
the time for completion or may refuse an extension of time or
may cancel the contract and readvertise and relet the contract.
They may require the surety for the contractor to complete the
improvement or proceed to have the contract otherwise completed
at the expense of the contractor and his surety. They may take
such other action with reference thereto that the occasion may
require in the interest of the district. The provisions of
chapter 106 sections 1 to 92, so far as pertinent, apply to and
govern the relations between the engineer and the contractor,
including the examination and report of the engineer and the
amount and time of payment. The managers shall keep an accurate
account of all expenses incurred, which shall include the
compensation of the engineer and his assistants, the
compensation and expenses of the appraisers as provided in
section 112.50, the compensation of petitioners' attorney, the
cost of petitioners' bond, the fees of all county officials
necessitated by the improvement which shall be in addition to
all fees otherwise allowed by law, and the time and expenses of
all employees of the district, including the expenses of the
managers while engaged in any improvement. The fees and expenses
provided for herein shall be audited, allowed and paid upon the
order of the managers and shall be charged to and be treated as
a part of the cost of the improvement.
Sec. 119. Minnesota Statutes 1984, section 112.60,
subdivision 1, is amended to read:
Subdivision 1. Upon the filing by the managers with the
auditor of any county of a statement listing the property and
corporations benefited or damaged or otherwise affected by any
improvement as found by the appraisers and approved by the
managers, he shall assess the amount specified in such list
against the lands and municipalities or other corporations as
therein specified in accordance with the pertinent provisions of
chapter 106 sections 1 to 92.
Sec. 120. Minnesota Statutes 1984, section 112.60,
subdivision 2, is amended to read:
Subd. 2. Upon filing of the statement as provided in
subdivision 1 the county board of each county affected shall
provide funds to meet its proportionate share of the total cost
of the improvements, as shown by the report and order of the
managers of the district, and for such purposes is authorized to
issue bonds of the county in such amount as may be necessary in
the manner provided by section 106.411 74. In the event an
improvement is to be constructed under the provisions of section
112.69, the provisions of section 106.411 74 requiring the
county board to let a contract for construction before issuing
bonds shall not be applicable to bonds issued to provide the
funds required to be furnished by this section.
Sec. 121. Minnesota Statutes 1984, section 112.60,
subdivision 3, is amended to read:
Subd. 3. The respective county auditors and county
treasurers shall levy and collect the amount shown in the
tabular statement and lien as provided in sections 106.341 67 to
106.401 73. All moneys received by the treasurer of any county
from the sale of bonds, assessments, or otherwise, for the
benefit of the district shall be by him accounted for and paid
over to the treasurer of the district.
Sec. 122. Minnesota Statutes 1984, section 112.64,
subdivision 2, is amended to read:
Subd. 2. For the purpose of creating a maintenance fund
for normal and routine maintenance of a project, the board of
managers is authorized to apportion and assess the amount of the
fund against all the parcels of land and municipal corporations
previously assessed for benefits in proceedings for the
construction of the project. The assessment shall be made pro
rata according to benefits determined. No assessment for the
benefit of the maintenance fund shall be made when the fund
exceeds 20 percent of the original cost of construction of the
project. Upon receiving the assessment order from the board of
managers, the auditors of the counties affected shall file for
record in the office of the county recorder for the county a
tabular lien statement covering the assessment. The assessment
shall be collected as provided in the order in the same manner
as provided in section 106.471 86. Before ordering the levy of
an assessment for the benefit of the maintenance fund, the board
of managers, in its discretion, may give notice of a hearing on
the matter.
Sec. 123. Minnesota Statutes 1984, section 112.64,
subdivision 3, is amended to read:
Subd. 3. If the engineer certifies to the board of
managers, in his annual report or otherwise, that an improvement
of the district is in such a state of disrepair that it cannot
be restored by normal and routine maintenance to the same
condition as when originally constructed or subsequently
improved, or that a ditch or channel must be widened or
deepened, or that any improvement of the district must be
altered or improved, in order to attain the level of operating
efficiency contemplated at the time of the original
construction, the board of managers, before ordering any repairs
other than normal and routine maintenance, shall order the
engineer to prepare and submit to the board of managers
technical and cost specifications on the work necessary to
restore, or improve the improvement to the desired level of
operating efficiency. Upon receiving the engineer's report, the
board of managers shall set a date for hearing on the report and
give notice of the hearing in the same manner as in the original
proceeding on the construction of the improvement. If upon
hearing the board of managers finds that the repair or
improvement is in compliance with the provisions, is necessary
to accomplish the purposes of this chapter, and that the cost of
the repair or improvement will not exceed its benefits, they may
order the repair or improvement and assess the cost against the
benefited properties. The cost shall be apportioned and
assessed pro rata upon all lands and property that were assessed
for the construction of the improvement. No single levy for
repair shall exceed the amount of benefits originally
determined. The board of managers shall file a copy of the
order for levy with the auditor of each county which contains
affected properties. The auditor shall extend the levy against
affected properties as in proceedings for the levy, assessment
and collection of taxes levied in drainage proceedings conducted
under chapter 106 sections 1 to 92.
Sec. 124. Minnesota Statutes 1984, section 112.65,
subdivision 1, is amended to read:
Subdivision 1. The managers of a district shall take over
when directed by the district court or county board any judicial
or county drainage system within the district, together with the
right to repair and maintain the same. Such transfer may be
initiated by the district court or county board, or such
transfer may be initiated by a petition from any person having
an interest in the drainage system or by the managers. No such
transfer shall be made until the district court or county board
has held a hearing thereon. Due notice of the proposed transfer
together with the time and place of hearing shall be given by
two weeks published notice in a legal newspaper of general
circulation in the area involved. All interested persons may
appear and be heard. Following the hearing, the district court
or county board shall make its order directing that the managers
of a district take over the affected judicial or county drainage
system, unless it appears that the take over would not be in the
public welfare or public interest and would not serve the
purpose of this chapter. When the transfer is directed all
proceedings for repair and maintenance shall thereafter conform
to the provisions of chapter 106 sections 1 to 92.
Sec. 125. Minnesota Statutes 1984, section 161.28,
subdivision 1, is amended to read:
Subdivision 1. [PETITION.] Upon the filing of a petition
by the commissioner with the appropriate county auditor setting
forth that it would be advantageous or desirable in the
construction or maintenance of a trunk highway to make a minor
alteration or change in a public drainage system directly
affecting a trunk highway and that the alteration or change will
not affect the functioning or efficiency of the public drainage
system, the auditor shall fix a time and place for hearing and
give notice of the hearing by publication, as defined in section
106.171 46. Upon the filing of the petition the commissioner
shall also file a plan showing in detail the alteration or
change petitioned for. If upon the hearing it appears to the
county board or joint county ditch authority that the alteration
or change in the public drainage system will not affect or
impair the efficiency of the drainage system, the board or
authority shall make its order allowing the commissioner to make
the alteration or change petitioned for. Upon the making of the
order by the county board or the joint county ditch authority,
the commissioner may proceed at the sole cost and expense of the
state to make the alterations or changes as may be in the order
allowed, damages, if any, for any additional lands necessary for
the change or alteration being first duly paid or secured. Upon
completion of the alteration or change the commissioner shall
file with the appropriate auditor a map drawn to scale showing
the change or alteration made and shall also file a profile of
all lines of the alteration or change in the ditch showing
graphically the elevation of the ground and gradient, whether
open or tiled, the size of tile, and the bottom width and side
slope of open ditch sections, and such other information as may
appear necessary for understanding. Upon the completion of the
alteration or change herein provided for, the ditch shall
thereafter include such alteration or change as a part of it
with the same force and effect as though it had been originally
so constructed and established.
Sec. 126. Minnesota Statutes 1984, section 163.17, is
amended to read:
163.17 [DRAINAGE SYSTEMS AFFECTING HIGHWAYS; ALTERATIONS.]
Upon the filing of a resolution by the county board of any
county with the county auditor, in the case of a public ditch
system lying wholly within a county, or with the clerk of the
district court having jurisdiction over said ditch in the case
of a ditch system affecting two or more counties, therein
setting forth that it would be advantageous or desirable in the
construction or maintenance of a highway under the jurisdiction
of the county to make a minor alteration or change in a public
ditch system directly affecting the highway, and that the
alteration or change will not affect the functioning or
efficiency of the ditch system, it shall be the duty of the
auditor, or the clerk with the approval of the judge, to fix a
time and place for hearing thereon and to give notice of hearing
by publication as defined by section 106.011 1, subdivision 2
21. Upon the filing of the resolution, the board shall also
cause to be filed a plan showing in detail the alteration or
change therein described. If upon the hearing it shall appear
to the county board or district court that the alteration or
change in the public ditch system will not affect or impair the
efficiency of the ditch system, the board or court shall make
its order authorizing the county to cause the alteration or
change to be made. Upon the making of the order by the county
board or the court, the county board may proceed at the sole
cost and expense of the county to make the alterations or
changes as may be in the order allowed; damages, if any,
occasioned thereby being first duly paid or secured by the
county. Upon completion of the alteration or change, the county
board shall cause to be filed with the auditor or clerk, a map
and profile drawn to scale showing thereon the change or
alteration made. If the map and profile be filed with the
clerk, duplicates thereof shall also be filed with the auditor
of each county affected. Upon the completion of the alteration
or change herein provided for, the ditch shall thereafter
include the alteration or change as part thereof with the same
force and effect as though it had been originally so constructed
and established.
Sec. 127. Minnesota Statutes 1984, section 357.021,
subdivision 2, is amended to read:
Subd. 2. [FEE AMOUNTS.] The fees to be charged and
collected by the clerk of district court shall be as follows:
(1) In every civil action or proceeding in said court, the
plaintiff, petitioner, or other moving party shall pay, when the
first paper on his part is filed in said action, a fee of $20,
except that in an action for marriage dissolution, the fee is
$55.
The defendant or other adverse or intervening party, or any
one or more of several defendants or other adverse or
intervening parties appearing separately from the others, shall
pay, when the first paper on his or their part is filed in said
action, a fee of $15.
The party requesting a trial by jury shall pay $15.
The fees above stated shall be the full trial fee
chargeable to said parties irrespective of whether trial be to
the court alone, to the court and jury, or disposed of without
trial, and shall include the entry of judgment in the action,
but does not include copies or certified copies of any papers so
filed or proceedings under chapter 106 sections 1 to 92, except
the provisions therein as to appeals.
(2) Certified copy of any instrument from a civil or
criminal proceeding $5 and $3.50 for an uncertified copy.
(3) Issuing a subpoena $1 for each name.
(4) Issuing an execution and filing the return thereof;
issuing a writ of attachment, injunction, habeas corpus,
mandamus, quo warranto, certiorari, or other writs not
specifically mentioned, $5.
(5) Issuing a transcript of judgment, or for filing and
docketing a transcript of judgment from another court, $5.
(6) Filing and entering a satisfaction of judgment, partial
satisfaction or assignment of judgment, $5.
(7) Certificate as to existence or non-existence of
judgments docketed, $1 for each name certified to and $1 for
each judgment certified to.
(8) Filing and indexing trade name; or recording notary
commission; or recording basic science certificate; or recording
certificate of physicians, osteopaths, chiropractors,
veterinarians or optometrists, $5.
(9) For the filing of each partial, final, or annual
account in all trusteeships, $10.
(10) All other services required by law for which no fee is
provided such fee as compares favorably with those herein
provided, or such as may be fixed by rule or order of the court.
Sec. 128. Minnesota Statutes 1984, section 375.471, is
amended to read:
375.471 [LAND CONSERVATION AND UTILIZATION; FEDERAL AID.]
The county boards of the several counties which have been
designated as a resource conservation and development project
area under 7 USCA, Sec. 1011(e) and acts amendatory thereof, may
enter into agreements as necessary with the secretary of
agriculture of the United States and other agencies of the
federal government for the program of land conservation and land
utilization authorized by 7 USCA, Sec. 1010 and acts amendatory
thereof, to accept assistance for the program under 7 USCA, Sec.
1011 and acts amendatory thereof, to engage in works of
improvement as necessary for the purpose of the acts and to
cooperate with the secretary of agriculture and federal agencies
so that residents of this state obtain the benefits and
advantages available to them and intended by congress to be
available by the acts. The county boards shall comply with the
requirements of federal law and any rules and regulations
promulgated under it and with appropriate state laws to
accomplish the purposes intended by this section. If a
proceeding is instituted by petition for an improvement under
this section, it may be conducted by a board in the same manner
provided for the establishment of a drainage system under
chapter 106 sections 1 to 92. A majority of the landowners as
defined in section 106.031 21, subdivision 3, shall be required
for a valid petition. They may also proceed under authority
provided by other law.
Sec. 129. Minnesota Statutes 1984, section 471.345,
subdivision 3, is amended to read:
Subd. 3. [CONTRACTS OVER $15,000.] If the amount of the
contract is estimated to exceed $15,000, sealed bids shall be
solicited by public notice in the manner and subject to the
requirements of the law governing contracts by the particular
municipality or class thereof provided that with regard to
repairs and maintenance of ditches, bids shall not be required
if the estimated amount of the contract does not exceed the
amount specified in section 106.471, subdivision 2 81,
subdivisions 4, 5, and 6.
Sec. 130. Minnesota Statutes 1984, section 473.877,
subdivision 1, is amended to read:
Subdivision 1. [AUTHORITY.] Any agreement under section
471.59 to jointly or cooperatively manage or plan for the
management of surface water in a watershed delineated pursuant
to subdivision 2, as required by sections 473.875 to 473.883,
may provide, in addition to other provisions authorized by
section 471.59, for a joint board having:
(a) the authority to prepare, adopt, and implement a plan
for the watershed meeting the requirements of section 473.878;
(b) the authority to review and approve local water
management plans as provided in section 473.879;
(c) the authority of a watershed district under chapter 112
to regulate the use and development of land in the watershed
when one or more of the following conditions exists: (1) the
local government unit exercising planning and zoning authority
over the land under sections 366.10 to 366.19, 394.21 to 394.37,
or 462.351 to 462.364, does not have a local water management
plan approved and adopted in accordance with the requirements of
section 473.879 or has not adopted the implementation program
described in the plan; (2) an application to the local
government unit for a permit for the use and development of land
requires an amendment to or variance from the adopted local
water management plan or implementation program of the local
unit; (3) the local government unit has authorized the
organization to require permits for the use and development of
land;
(d) the authority of a watershed district under section
112.65 to accept the transfer of drainage systems in the
watershed, to repair, improve, and maintain the transferred
drainage systems, and to construct all new drainage systems and
improvements of existing drainage systems in the watershed,
provided that projects may be carried out under the powers
granted in chapter 106, 112, or 473 and sections 1 to 92 and
that proceedings of the board with respect to the systems must
be in conformance with the watershed plan adopted under section
473.878; and
(e) other powers necessary to exercise the authority under
clauses (a) to (c), including the power to enter into contracts
for the performance of functions with governmental units or
persons.
Sec. 131. Minnesota Statutes 1984, section 473.878,
subdivision 4, is amended to read:
Subd. 4. [CONTENTS.] The plan shall:
(a) Describe the existing physical environment, land use,
and development in the area and the environment, land use, and
development proposed in existing local and metropolitan
comprehensive plans;
(b) Present information on the hydrologic system and its
components, including any drainage systems previously
constructed under chapter 106 sections 1 to 92, and existing and
potential problems related thereto;
(c) State objectives and policies, including management
principles, alternatives and modifications, water quality, and
protection of natural characteristics;
(d) Set forth a management plan, including the hydrologic
and water quality conditions that will be sought and significant
opportunities for improvement;
(e) Describe the effect of the plan on existing drainage
systems;
(f) Describe conflicts between the watershed plan and
existing plans of local government units;
(g) Set forth an implementation program consistent with the
management plan, which includes a capital improvement program
and standards and schedules for amending the comprehensive plans
and official controls of local government units in the watershed
to bring about conformance with the watershed plan; and
(h) Set out a procedure for amending the plan.
Sec. 132. [EFFECT OF CHANGES IN THIS ACT.]
The legislature intends this act to be a clarification and
reorganization of the drainage law. The changes that have been
made are not intended to alter the drainage law and shall not be
construed by a court or other authority to alter the meaning of
the law.
Sec. 133. [REPEALER.]
Minnesota Statutes 1984, sections 106.011; 106.015; 106.021;
106.031; 106.041; 106.051; 106.061; 106.071; 106.081; 106.091;
106.101; 106.111; 106.121; 106.131; 106.141; 106.151; 106.161;
106.171; 106.181; 106.191; 106.201; 106.211; 106.221; 106.231;
106.241; 106.251; 106.261; 106.271; 106.281; 106.291; 106.301;
106.311; 106.321; 106.331; 106.341; 106.351; 106.361; 106.371;
106.381; 106.383; 106.391; 106.401; 106.411; 106.421; 106.431;
106.441; 106.451; 106.461; 106.465; 106.471; 106.481; 106.491;
106.501; 106.511; 106.521; 106.531; 106.541; 106.551; 106.561;
106.571; 106.581; 106.591; 106.601; 106.611; 106.621; 106.631;
106.641; 106.651; 106.652; 106.661; 106.671; 106.672; 106.673;
and 109.38 are repealed.
Approved May 21, 1985
Official Publication of the State of Minnesota
Revisor of Statutes