C. Determining the Correct Drainage Authority

C. Determining the Correct Drainage Authority

The legal concept of jurisdiction is built on having a statutorily authorized body adopt findings and make decisions. Determining what drainage authority has jurisdiction over a petition for a drainage project or repair is crucial.¹⁶⁸ Determining the proper drainage authority depends on two equal factors:

1. The type of petition being filed; and
   
2. The location of the public drainage system.
   

1. County Drainage Authority

In the case of a drainage project or repair for a system that is physically located within a single county, benefits a watershed within a single county, and where no watershed district has been organized, the drainage authority for the drainage project or repair is the county board of commissioners.¹⁶⁹ The county board has authority to conduct drainage work and to levy assessments, charges or other taxes only within the geographic limits of the county.¹⁷⁰

2. Joint County Drainage Authority

In the case of a drainage project involving a drainage system located in two or more counties, or which benefits a watershed in two or more counties, the drainage authority is a joint county drainage authority, consisting of representatives from each of the county boards..¹⁷¹ When a petition for a proposed joint county drainage project is filed, the board where the petition 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 joint meeting to serve as the joint county drainage authority.¹⁷²

A joint county drainage authority consists of five county commissioners, at least one from each county where property is affected by the drainage system.173 The statute provides no other guidance on how the joint county drainage authority is to be established. It is common practice, where only two counties are involved, to have three members from the county where the petition is filed (the county with the largest area of property in the drainage system) and two members from the other county.

The statute also provides little direction on the requirement that the county boards “meet jointly,” which for some county drainage authorities has raised practical application issues. It is not uncommon for a county to have joint county drainage systems with more than one of its neighboring counties. Some of the issues that arise for which there is no statutory or case law guidance are:

• Must the members meet in person, or can they meet through an electronic format, or meet as independent county boards and then ratify each other’s actions?
  
• If a drainage project proceeding takes longer than one year, do the boards have to meet jointly and create a new joint board every time, or can the boards, after establishment of the first joint board, annually re-appoint the board from their current members?
  
• Can the individual boards designate the district from which their representative on the joint board will serve no matter if the commissioner from that district changes during the process?
  
• Is it wise to appoint a commissioner from a district other than where the property affected by the proposed system is located, so as to avoid conflicts? Or is it wise to appoint the commissioner from the district where property is affected so as to involve the official elected by the people in that district? If so, how do you then address potential conflicts of interest?
  

The joint county drainage authority is duly established when: a petition for a proposed joint county drainage project is filed in the county with the largest area of property in the system; the county boards of each county affected have met jointly and have considered the petition and have found it to meet statutory requirements; and the affected county boards have appointed five commissioners, as appropriate, from their members to serve on the joint county drainage authority.

3. Watershed District Drainage Authority

i. Obtaining Jurisdiction as Drainage Authority

Whether a watershed district is the proper drainage authority with jurisdiction over a drainage project or repair proceeding is dependent upon three factors:

• Whether the drainage system exists, or is proposed to be constructed, within the boundaries of an established watershed district;
  
• The type of project under petition; and
  
• Whether the joint county or county drainage authority has transferred authority over the drainage system to the watershed district.
  

When a watershed district is established, it has no jurisdiction as the drainage authority over existing public drainage systems until the respective joint county or county boards transfer to the watershed district all or certain joint county or county drainage systems within the watershed district.¹⁷⁴ The transfer is not automatic. The respective county or joint county board may transfer their authority over a drainage system to a watershed district board of managers only by resolution and after a public hearing.¹⁷⁵

Exercising its authority as a watershed district and not as a drainage authority, the board of managers may construct, clean, repair, alter, abandon, consolidate, reclaim, or change the course or terminus of any public ditch, drain, sewer, river, watercourse, natural or artificial, within the watershed district.¹⁷⁶ Any such action must be done in a manner consistent with the public drainage code to protect the property rights of the landowners assessed benefits and awarded damages on the system.

If a joint county or county drainage authority has transferred a drainage system to a watershed district, then petitions for drainage projects (construction of a new drainage system, improvement of a drainage system, improvement of an outlet, or a lateral) and petitions for repairs must be filed with the watershed district.¹⁷⁷ The proceedings for petitions to construct, improve, or repair drainage systems must conform to the drainage code, except for repairs that are performed pursuant to Minn. Stat. § 103D.621, subd. 4.¹⁷⁸

A watershed district does have jurisdiction over all new drainage systems and improvements to existing systems within its boundaries, but must proceed according to the procedures under Minn. Stat. § 103E.¹⁷⁹ Jurisdiction over a petition for the construction of new drainage systems, the improvements of existing drainage systems, or the improvement of existing drainage systems as an outlet in the watershed district is established by filing the petition with the board of managers of the watershed district.¹⁸⁰ While the statute does not address an officer of the watershed district with whom to file the petition as it does for the county, presumably one would file the petition with the secretary of the board of managers.

By definition, construction of a new lateral is construction of a new drainage project.¹⁸¹ A lateral connects property in the vicinity of an existing drainage system with the existing drainage system.¹⁸² Once the lateral is constructed, it is a part of the ditch or tile referred to as the “drainage system.”¹⁸³ A petition for a lateral to an existing drainage system under the jurisdiction of a joint county or county drainage authority must be filed with the county, unless the lateral is within the jurisdiction of a watershed district. Or, if the existing drainage system has already been transferred to the watershed district as drainage authority, the petition for a lateral must be filed with the watershed district board of managers.¹⁸⁴

When a county or joint county drainage authority retains jurisdiction over an existing system that has been partially improved by drainage proceedings before the watershed district, the watershed district is responsible for maintenance and repair of all improvements they undertake.¹⁸⁵ Assessments for repair of improvements must be based on the benefits determined for the improvement.¹⁸⁶

To simplify drainage system administration, transfer of an entire drainage system to the watershed district is an option that should be considered by the county or joint county drainage authority when the district acquires jurisdiction over a drainage system improvement.

ii. Petitions for Drainage Projects

The same format of petition filed with a county or joint county drainage authority is useable for drainage projects where the drainage authority is a watershed district. Minn. Stat. 103D—the chapter governing watershed districts generally—does permit the use of watershed district project petition for construction, maintenance, repair, or improvement of a watershed district for a purpose for which the watershed district is established.¹⁸⁷ This could include for repair of drainage systems under the jurisdiction of the watershed district or for the construction of new drainage systems or improvements within the boundaries of the watershed district. However, this conflicts with the text of Minn. Stat. 103D.625, subds. 3 & 4, which states that after the transfer of a drainage system to a watershed district is ordered, all proceedings for construction of new systems, and repair of existing systems (except for repairs done pursuant to Minn. Stat. 103D.621, subd. 4), are to conform to the drainage code.¹⁸⁸ Therefore, it is recommended that drafters of petitions for drainage projects and repairs strictly follow the petition requirements of the drainage code.

4. Water Management Authority

A water management authority is not a drainage authority under the drainage code; rather, it is a separate entity that has been transferred management authority over all or a portion of a drainage system based on independent authority conferred upon that entity.¹⁸⁹

Once the period fixed (or subsequently extended) to pay the assessment of drainage liens expires, all or part of a drainage system may be transferred from the jurisdiction of a drainage authority to a water management authority.¹⁹⁰ A water management authority may be a county or municipality, a watershed district, a watershed management organization, a storm water management district, a lake improvement district, a subordinate service district, a joint powers organization or other special district organized and formed according to law for the purpose of managing storm, surface, and flood waters, or with the authority to manage storm, surface, and flood waters.¹⁹¹

After a drainage system or a portion of a drainage system is transferred to a water management authority, the drainage system is no longer regulated under the drainage code.¹⁹² If only a portion of a drainage system is transferred, the remainder of the drainage system remains with the joint county, county, or watershed district drainage authority. In such a case, the water management authority, not the assessed landowners, may be assessed for improvements or repairs to the drainage system.¹⁹³

FOOTNOTES

¹⁶⁸ “Drainage Project” is defined in Minn. Stat. § 103E.005, subd. 11 (2015).
¹⁶⁹ Minn. Stat. § 103E.202, subd. 4 (2015).
¹⁷⁰ Swift v. Boyle, 481 N.W.2d 74, 78–9 (Minn. Ct. App. 1992) (holding that a single county ditch authority may not assess drainage outlet benefits to lands in another county).
¹⁷¹ Minn. Stat. § 103E.235 (2015).
¹⁷² Minn. Stat. § 103E.235, subd. 2 (2015).
¹⁷³ Minn. Stat. § 103E.235, subd. 2 (2015).
¹⁷⁴ Minn. Stat. § 103D.625, subd. 1 (2015).
¹⁷⁵ Minn. Stat. § 103D.625 (2015).
¹⁷⁶ Minn. Stat. § 103D.335, subd. 8 (2015).
¹⁷⁷ Minn. Stat. § 103D.625, subds. 1 & 3 (2015). Minn. Stat., Chapter 103E and 103D provide different definitions of the term “project.” Compare Minn. Stat. § 103E.005, subd. 11 (“‘Drainage project’ means a new drainage system, an improvement of a drainage system, an improvement of an outlet, or a lateral.”), with Minn. Stat. § 103D.011, subd. 21 (“‘Project’ means planning and development, construction, maintenance, repair, or improvement of a watershed district for a purpose for which the watershed district is established.”). In this section of the manual, “project” refers to the definition provided in the drainage code, under Minn. Stat. § 103E.005, subd. 11 (2015).
¹⁷⁸ Minn. Stat. § 103D.625, subds. 3 & 4 (2015).
¹⁷⁹ Minn. Stat. § 103D.625, subds. 3 & 4 (2015).
¹⁸⁰ Minn. Stat. § 103D.625, subd. 4 (2015).
¹⁸¹ See Minn. Stat. §§ 103E.005, subd. 11 (2015) (defining “drainage project” to mean “a new drainage system.”); 103E.005, subd. 12 (2015) (defining “drainage system” to mean “a system of ditch or tile, or both, to drain property, including laterals . . . .”).
¹⁸² Minn. Stat. § 103E.225, subd. 1 (2015).
¹⁸³ See Minn. Stat. § 103E.005, subd. 12 (2015) (“‘Drainage system means a system of ditch or tile, or both, to drain property, including laterals, improvements, and improvements of outlets, established and 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.”).
¹⁸⁴ Minn. Stat. § 103D.625, subd. 4 (2015).
¹⁸⁵ Minn. Stat. § 103D.625, subd. 2 (2015).
¹⁸⁶ Minn. Stat. § 103E.215, subd. 5 (2015); See Minn. Stat. § 103D.625, subd. 3 (2015) (“After the transfer is ordered, all proceedings for repair and maintenance must conform to chapter 103E, except for repairs and maintenance done pursuant to section 103D.621, subdivision 4.”).
¹⁸⁷ Minn. Stat. §§ 103D.705 & 103D.011, subd. 21 (2015).
¹⁸⁸ Minn. Stat. § 103D.625, subd. 3 (2015).
¹⁸⁹ Minn. Stat. § 103E.812 (2015).
¹⁹⁰ Minn. Stat. § 103E.812, subd. 1 (2015).
¹⁹¹ Minn. Stat. § 103E.005, subd. 29 (2015).
¹⁹² Minn. Stat. § 103E.812, subd. 8 (2015).
¹⁹³ Minn. Stat. § 103E.812, subd. 8 (2015).