H. Adoption of Findings and Order Revision as of 22:18, 18 October 2016 by Bfische (talk | contribs) (Updated exhibit/template link and corresponding text-- 10/18)(diff) ← Older revision | Latest revision (diff) | Newer revision → (diff) H. Adoption of Findings and Order

H. Adoption of Findings and Order

A motion for approval of the engineer’s preliminary survey report must describe any changes that must be made in the proposed drainage project from those outline in the petition, including changes necessary to minimize or mitigate adverse impacts on the environment.⁶⁶³ To approve the engineer’s preliminary survey, the drainage authority must make the following determinations:

1. the the proposed drainage project outlined in the petition, or modified and recommended by the engineer, is feasible⁶⁶⁴;
   
2. There is necessity for the proposed drainage project⁶⁶⁵;
   
3. The proposed drainage project will be of public benefit and promote the public health, after considering the environmental, land use, and multipurpose water management criteria in Minn. Stat. § 103E.015, subd. 1;⁶⁶⁶ and
   
4. The outlet is adequate.⁶⁶⁷
   

Changes may be stated by describing them in general terms or filing a map that outlines the changes in the proposed drainage project with the order.⁶⁶⁸ The drainage authority then must direct the engineer to proceed with a detailed survey⁶⁶⁹ and must order the appointment of viewers.⁶⁷⁰

After the open meeting has adjourned, the petitioners’ attorney should prepare detailed findings and a proposed order which should be presented, after approval by the drainage authority’s legal counsel, at an open meeting of the drainage authority with or without notice. It is recommended the drainage authority pass a resolution authorizing the chairperson to sign the findings and the order.

A sample Findings and Order Directing the Engineer to Proceed with a Detailed Survey and Appointing Viewers is found in Template F.

The order and accompanying documents must be filed with the auditor or watershed district secretary.⁶⁷¹

FOOTNOTES

⁶⁶³ Minn. Stat. § 103E.261, subd. 5(a) (2015).
⁶⁶⁴ Minn. Stat. § 103E.261, subd. 5(a)(1) (2015).
⁶⁶⁵ Minn. Stat. § 103E.261, subd. 5(a)(2) (2015).
⁶⁶⁶ Minn. Stat. § 103E.261, subd. 5(a)(3) (2015).
⁶⁶⁷ Minn. Stat. § 103E.261, subd. 5(a)(4) (2015). Minn. Stat. § 103E.261, subd. 4(a)(4) (2015). Whether the outlet for a drainage project is adequate contemplates whether there is potential for flooding of the system or lands downstream of the project for 5-, 10-, 25-, and 50-year flood events. Minn. Stat. § 103E.015, subd. 1(4) (2015). The Minnesota Supreme Court has previously stated that the consideration of whether an outlet is adequate includes the contemplation of whether the drainage project will cause “excessive erosion” of the downstream drainage ditch. See Edwards v. Massett, 164 N.W.2d 382 (Minn. 1969) (holding that downstream landowners must raise concerns about erosion issues at the time the drainage system is being petitioned for establishment, and that takings claims after the drainage system is established are barred). Historically, the focus of the adequacy of the outlet has been on flooding impacts. See Titrud v. Achterkirch, 213 N.W.2d 408, 413 (Minn. 1973); Oltman v. Ohlen, 257 N.W.2d 338, 341 (Minn. 1977). Water quality, fish and wildlife resources, and environmental impact considerations on the outlet of a drainage system are covered separately under Minn. Stat. § 103E.015, subd. 1 (2015). ⁶⁶⁸ Minn. Stat. § 103E.261, subd. 5(b) (2015).
⁶⁶⁹ Minn. Stat. § 103E.265, subd. 1 (2015).
⁶⁷⁰ Minn. Stat. § 103E.305, subd. 1 (2015).
⁶⁷¹ Minn. Stat. § 103E.261, subd. 5(b) (2015).