CHAPTER 27. DRAINAGE LAW
IC 36-9-27
Chapter 27. Drainage Law
IC 36-9-27-1
Application of chapter
Sec. 1. This chapter applies to all counties. However, sections 6,7, 9, 10, 30, 31, and 32 of this chapter do not apply to a countyhaving a consolidated city.
As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-2
Definitions
Sec. 2. As used in this chapter:
"Affected land" means land within a watershed that is affected bythe construction, reconstruction, or maintenance of a regulated drain.
"Board" refers to the drainage board of a county.
"Crossing" means a drainage structure that passes over, under, orthrough a location used for the passage of people, livestock, orvehicles.
"Dam" means a dam or other structure and its appurtenances thatimpounds a small lake at the lake's outlet.
"Maintenance" means work on a drain as described in section34(c) of this chapter for any of the purposes stated in that section.
"Mutual drain" means a drain that:
(1) is located on two (2) or more tracts of land that are underdifferent ownership;
(2) was established by the mutual consent of all the owners; and
(3) was not established under or made subject to any drainagestatute.
"Open drain" means a natural or artificial open channel that:
(1) carries surplus water; and
(2) was established under or made subject to any drainagestatute.
"Owner" refers to the owner of any interest in land.
"Private drain" means a drain that:
(1) is located on land owned by one (1) person or by two (2) ormore persons jointly; and
(2) was not established under or made subject to any drainagestatute.
"Reconstruction" means work on a drain as described in section34(b) of this chapter to correct any of the problems with the drainthat are enumerated in that section up to and including the dischargeportion of the drain.
"Regulated drain" means an open drain, a tiled drain, or acombination of the two.
"Rural drain" means a regulated drain that provides adequatedrainage or impounds water for rural land.
"Rural land" means affected land that:
(1) will not appreciably benefit from more drainage than isnecessary to expediently remove water after frequent or
periodic flooding; and
(2) is generally used for crop production, pasture, forest, orsimilar purposes.
"Small lake" means a lake, pond, or similar body of water that:
(1) covers less than twenty (20) acres;
(2) is surrounded by two (2) or more tracts of affected land thatare under different ownership or a tract of land that is owned bya not-for-profit corporation having more than one (1) member;
(3) is not constructed, reconstructed, or maintained under thischapter as part of an open drain;
(4) is not a private crossing, control dam, or other permanentstructure referred to under section 72 of this chapter;
(5) is not owned by a state or any of its political subdivisions;and
(6) is not designed and constructed primarily for reduction orcontrol of pollutants or cooling before discharge of a liquid.
"Tiled drain" means a tiled channel that:
(1) carries surplus water; and
(2) was established under or made subject to any drainagestatute.
"Urban land" means affected land that:
(1) will appreciably benefit from drainage that will provide themaximum practicable protection against flooding or theimpounding of water in a small lake; and
(2) is used or will in the reasonably foreseeable future be usedgenerally for commercial, industrial, large estate, higher densityresidential, or similar purposes.
"Watershed" means an area of land from which all runoff waterdrains to a given point or that is affected by a small lake.
As added by Acts 1981, P.L.309, SEC.101. Amended byP.L.166-1983, SEC.2; P.L.205-1984, SEC.1.
IC 36-9-27-2.5
"Dam" defined; certain sections not applicable; designation asregulated drain; jurisdiction
Sec. 2.5. (a) For the purposes of this chapter, a reference to"drain", "drainage", or "ditch" is deemed to include a "dam".However, sections 16(b), 17, 21, 22, 23, 24, 26, 27, 28, 54, andsections 56 through 66 of this chapter do not apply to a dam.
(b) Any owner may petition a board to designate a dam as aregulated drain, and any board may assume jurisdiction over a damin the same manner that an owner may petition and the board mayassume jurisdiction over a mutual drain. A board does not otherwisehave jurisdiction over a dam.
(c) A board may reconstruct or maintain a dam over which theboard has assumed jurisdiction, but an agency may not construct anew dam.
As added by P.L.166-1983, SEC.3.
IC 36-9-27-3 Authority to exercise rights and powers of political subdivisionsand state
Sec. 3. (a) The rights and powers of a political subdivision underthis chapter as an owner shall be exercised on behalf of the politicalsubdivision by:
(1) the works board, for a municipality;
(2) the executive, for a county or a township; and
(3) the fiscal body, for any other political subdivision.
(b) The rights and powers of the state as an owner under thischapter shall be exercised on behalf of the state by the director of thedepartment, office, or institution charged by law with themaintenance, supervision, or control of the affected land owned bythe state.
As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-4
Establishment
Sec. 4. There is established in each county a drainage board,which shall act in the name of "The __________ County DrainageBoard" (designating the name of the county).
As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-5
Composition
Sec. 5. (a) Except in a county having a consolidated city, thedrainage board consists of either:
(1) the county executive; or
(2) three (3) or five (5) persons, at least one (1) of whom mustbe a member of the executive, appointed by the executive;
at the option of the executive. Appointees under subdivision (2) mustbe resident freeholders of the county who are knowledgeable indrainage matters. Freeholders appointed to the board serve for termsof three (3) years, with their initial appointments made so as toprovide for staggering of terms on an annual basis. In addition, thecounty surveyor serves on the board as an ex officio, nonvotingmember.
(b) In a county having a consolidated city, the board of publicworks of the consolidated city comprises the drainage board, subjectto IC 36-3-4-23.
(c) In a county having a consolidated city, the department ofpublic works of the consolidated city has all the powers, duties, andresponsibilities of the county surveyor under this chapter, subject toIC 36-3-4-23.
As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-6
Special members; appointment; powers and duties; compensation
Sec. 6. (a) When the membership of the board is reduced to lessthan three (3) because of disqualifications, the board shallimmediately certify that fact to the circuit court of the county. The
court shall then restore the membership of the board to three (3) byappointing the appropriate number of resident freeholders of thecounty to serve as special members for the particular drainageproceedings.
(b) A special member of the board has the same duties and powersas a regular member of the board, and is entitled to a per diem, to bepaid as an expense of the board, in an amount fixed by the countyfiscal body for each day or major part of a day spent in actualattendance at any meeting of the board or in the performance ofofficial business of the board.
As added by Acts 1981, P.L.309, SEC.101. Amended by P.L.45-1990,SEC.9.
IC 36-9-27-7
Officers; meetings; quorum; approval of actions
Sec. 7. (a) The board shall organize at a meeting each January, byelecting one (1) of its members as chairman and one (1) of itsmembers as vice chairman. At the same time, the board shall elect asecretary, who need not be a member of the board.
(b) The county surveyor may not hold an office on the board.
(c) The board shall fix the time and dates for regular meetings,which shall be held in the office of the county surveyor. However, ifthe surveyor's office is not adequate, the county executive shallprovide an adequate meeting place.
(d) Special meetings of the board may be called by the chairman,any two (2) members, or the county surveyor, by mailing a writtennotice setting forth the time, date, and place of the meeting to eachmember not less than five (5) days before the date of the meeting. Amember may waive the mailing of notice of a special meeting byfiling a written waiver with the secretary or by his presence at themeeting.
(e) Meetings of the board may be adjourned from day to day or toa day certain without written notice being given.
(f) All meetings of the board must be open to the public, and theminutes of the meetings are open to public inspection.
(g) A majority of the voting members of the board constitutes aquorum, and the concurrence of a majority of the voting memberspresent at a meeting is necessary to authorize any action under thischapter.
As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-8
Power to sue
Sec. 8. The board may bring civil actions in its own name toenforce any of the provisions of this chapter.
As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-9
Employment of attorney
Sec. 9. The board may employ and fix the compensation of an
attorney to represent and advise the board.
As added by Acts 1981, P.L.309, SEC.101. Amended byP.L.137-1989, SEC.17.
IC 36-9-27-10
Compensation of members and employees
Sec. 10. (a) Each member of the board and each person employedby the board under this chapter shall be paid at a rate equal to thatprovided by law for state employees for each mile necessarilytraveled while performing the duties of his office.
(b) The county fiscal body may provide the members of thecounty executive who serve as members of the board with per diemfor their services as members of the board, in an amount fixed by thecounty fiscal body for each day or major part of a day devoted to thework of the board.
(c) Each appointed freeholder member serving on the board isentitled to a per diem in an amount fixed by the county fiscal bodyfor each day or major part of a day devoted to the work of the board.
As added by Acts 1981, P.L.309, SEC.101. Amended by P.L.45-1990,SEC.10.
IC 36-9-27-11
Payment of expenses
Sec. 11. All expenses of the board shall be paid from moneyappropriated from the county general fund. Claims for expensereimbursements and per diem must be:
(1) accompanied by an itemized written statement;
(2) approved by a recorded motion of the board; and
(3) allowed as provided by statute.
As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-12
Conflicts of interest
Sec. 12. (a) This section does not apply to a joint board thatincludes three (3) or more counties in a drainage basin of more thanone hundred thousand (100,000) acres.
(b) Whenever it appears, in any proceeding for the construction,reconstruction, or maintenance of a regulated drain, that a memberof the board has an interest in the proceedings because of hisownership of real property affected by the drain, that member shallimmediately disqualify himself from serving on the board in thoseproceedings. However, the fact that county highways will be affectedby any proceedings does not disqualify a regular member of theboard.
As added by Acts 1981, P.L.309, SEC.101. Amended byP.L.350-1985, SEC.1.
IC 36-9-27-13
Certain counties; county drainage advisory committeesestablished; powers and duties Sec. 13. (a) This section applies to a county having a populationof more than four hundred thousand (400,000) but less than sevenhundred thousand (700,000).
(b) There is established a county drainage advisory committee.The executive of each township in the county shall appoint one (1)resident of his township to serve on the committee. Committeemembers serve for four (4) year terms. Members may not receive perdiem or mileage for service on the committee.
(c) The county drainage advisory committee shall advise andassist the board in the performance of its powers, duties, andfunctions. The board or the county legislative body may assignresponsibilities to the committee concerning drainage. Thecommittee may select one (1) of its members as chairman and maymeet at his call or at the call of any three (3) of its members.
As added by Acts 1981, P.L.309, SEC.101. Amended by P.L.12-1992,SEC.186.
IC 36-9-27-14
Proceedings affecting more than one county; joint boards
Sec. 14. (a) Whenever it appears to the county surveyor that anyproceedings instituted under this chapter may affect land in morethan one (1) county, he shall immediately forward notification of thatfact to the chairman of the board of each county in which the land islocated, by certified mail with return receipt requested. The noticemust state the number of counties involved and fix a date, hour, andplace for a meeting of a joint board. The date for the meeting maynot be less than twenty (20) nor more than thirty (30) days after thenotice is mailed.
(b) After the notice is given, all proceedings in the matter shall beheard and determined by a board appointed from the membership ofthe board of each county in which lands that may be affected arelocated, as follows:
(1) If land in two (2) counties may be affected, the chairman ofthe board of each county shall appoint two (2) of the membersof his board, other than the county surveyor, to serve on thejoint board. In addition, a fifth member shall be appointed bythe four (4) members of the joint board. The fifth member mustreside in a county that is not affected by the drainage problem.
(2) If land in more than two (2) counties may be affected, thechairman of the board of each county shall appoint one (1) ofthe members of his board, other than the county surveyor, toserve on the joint board. If, as a result of the appointments, theboard has an even number of members, the members of the jointboard shall appoint an additional member to the joint board.The additional member must reside in a county that is notaffected by the drainage problem.
(3) The surveyor of the county having the greatest length ofdrain or proposed drain serves as an ex officio member of thejoint board, and has the same duties, powers, andresponsibilities he would have if the proposed construction,
reconstruction, or maintenance affected lands lying solelywithin one (1) county.
(c) A joint board may authorize the employment of one (1) ormore persons to assist the county surveyor who serves on the boardin the performance of his duties in connection with the joint board.The joint board shall set the rate of compensation for the assistantsand authorize an advance on the general drain improvement fund ofeach county in proportion to the apparent percentage of the total landarea in each county to be affected by the drain. The cost of theassistants and the advance is a part of the operating expense of thejoint board, which shall be finally adjusted and allocated as providedin subsection (e).
(d) Whenever the county surveyor finds that a joint board shouldbe appointed and that:
(1) the area of affected land in his county exceeds eightypercent (80%) of the total area of land affected by the drain; or
(2) ninety percent (90%) or more of the length of the affecteddrain lies within his county;
he may request in writing that each board in the lesser affectedcounty or counties waive the right to be represented on a joint boardand that the board of his county be the board for the proceedings.The request and all subsequent communications in the proceedings,including notice of any benefits or damages to the lands within alesser affected county, shall be forwarded by certified mail withreturn receipt requested to the chairman of the board of each lesseraffected county. If the surveyor does not receive a negative responseto his request from the board of a lesser affected county within thirty(30) days, the surveyor may request his board to resolve itself as theboard for the proceedings. The board shall serve notice only on theboard of a lesser affected county and shall certify to the auditor ofthat county a single claim for all benefits in that county, unless thesurveyor or board of that county furnishes to the board full andacceptable information concerning all individual parcels of affectedland in that county, including maps.
(e) If the joint board proceeds with the proposed improvement ormaintenance, all operating expense of the joint board, including thecompensation of the fifth member appointed under subsection (b)(1)and the additional member appointed under subsection (b)(2) shallbe:
(1) divided among the counties represented on it in the sameproportion that the total land assessment allocated to eachcounty bears to the total cost of the improvement ormaintenance; or
(2) paid from the joint drain's maintenance fund after the fundis established and maintenance funds are collected.
If the joint board does not proceed, all operating expense of the jointboard shall be apportioned by the joint board to the countiesrepresented on it as justice requires.
(f) To the extent applicable, a joint board is governed by theprovisions of this chapter concerning: (1) the powers, duties, and procedures of a board that serves one(1) county; and
(2) the rights and remedies of owners affected by theproceedings of a board that serves one (1) county.
As added by Acts 1981, P.L.309, SEC.101. Amended byP.L.225-1986, SEC.9; P.L.276-2001, SEC.11.
IC 36-9-27-15
Jurisdiction over regulated drains
Sec. 15. Each regulated drain in a county is under the jurisdictionof the board and subject to this chapter, except as otherwise providedby this chapter.
As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-16
Private and mutual drains exempt from chapter
Sec. 16. (a) Private and mutual drains are not subject to thischapter.
(b) Land drained by a private or mutual drain is subject toassessment for the construction, or reconstruction, or maintenance ofa regulated drain if the land is also drained by the regulated drain.
As added by Acts 1981, P.L.309, SEC.101. Amended byP.L.166-1983, SEC.4.
IC 36-9-27-17
Private and mutual drains; connection with regulated drains;procedure
Sec. 17. (a) Whenever:
(1) an owner wants to construct or extend a private or mutualdrain, and outlet that drain into a regulated drain that is subjectto this chapter; and
(2) the construction or extension will not go through landowned by other persons;
the owner shall file with the county surveyor having jurisdiction ofthe regulated drain for permission to connect his drain with theregulated drain.
(b) The owner shall file with his request the plans andspecifications of the private or mutual drain that will be constructedor extended. However, if the private or mutual drain will have a tiledoutlet of twelve (12) inches or less, and he alleges this in his request,no specifications need be filed.
(c) If the county surveyor determines that the regulated drain isadequate to handle the additional flow of water, if any, that wouldresult from the connection, and that no harmful pollution is likely toresult from the connection, he shall grant the request.
(d) If the county surveyor determines that the regulated drain isnot adequate to handle the additional flow of water resulting from theconnection without being reconstructed, he shall deny the request,and the request may not be granted until the regulated drain isreconstructed under sections 49 through 52 of this chapter.As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-18
Private and mutual drains; conversion to regulated drain;procedure upon request by all owners
Sec. 18. (a) Whenever all of the owners affected by a private ormutual drain request the board in writing to assume jurisdiction overthe private or mutual drain, the board shall refer the request to thecounty surveyor, who shall determine whether the private or mutualdrain meets the standards of design and construction establishedunder section 29 of this chapter.
(b) If the surveyor determines that the private or mutual drainmeets the standards of design and construction, he shall make awritten report of that fact to the board, which shall issue an ordergranting the request. The drain becomes a regulated drain when therequest is granted.
(c) If the surveyor determines that the private or mutual drain doesnot meet the standards of design and construction, he shall make awritten report of that fact to the board, which shall deny the request.
As added by Acts 1981, P.L.309, SEC.101. Amended byP.L.276-2001, SEC.12.
IC 36-9-27-19
Mutual drains; conversion to regulated drain; procedure uponrequest by single owner
Sec. 19. (a) Any owner affected by a mutual drain may file awritten request with the board to make the mutual drain a regulateddrain under this chapter. Upon receipt of such a request, the boardshall fix the date, time, and place for a hearing, which may not beless than thirty (30) days after receipt of the request.
(b) At least twenty (20) days before the date of the hearing, theowner making the request shall give the owners of all land affectedby the request notice of the date, time, place, and purpose of thehearing. Service of the notice shall be made in the manner set forthin section 58 of this chapter or in the manner summonses are servedin civil actions.
(c) Any owner affected by the mutual drain may, on or before thedate of the hearing, file with the board written evidence for or againstthe granting of the request. At the hearing the board shall consider allof the evidence filed, and if it finds that:
(1) the owners of more than fifty percent (50%) in acreage ofthe affected land will be benefited if the drain is made aregulated drain under this chapter; and
(2) the benefit to owners benefited is likely to be greater thanthe damages to owners damaged by reason of the mutual drainbeing made a regulated drain;
it shall make written findings to that effect and issue an ordergranting the request.
(d) Before adjourning the hearing, the board shall announce itsfindings and order. This announcement constitutes notice to all
affected persons, and, if judicial review is not requested undersection 106 of this chapter within twenty (20) days after the date ofnotice, the findings and order are conclusive.
As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-20
Drains located in municipalities or sanitary districts;relinquishment of jurisdiction by board
Sec. 20. A board may, by resolution, relinquish its jurisdictionover ditches and drains located in a municipality or a sanitarydistrict, if that jurisdiction is accepted by the municipality or sanitarydistrict.
As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-20.5
Drain maintenance fund; transfer of jurisdiction over drain tomunicipality or sanitary district
Sec. 20.5. (a) A municipal or sanitary district drain maintenancefund is established for each drain:
(1) that is subject to assessments by the board for periodicmaintenance and repair; and
(2) jurisdiction over which is transferred by the board to amunicipality or sanitary district under section 20 of this chapter.
(b) Except as provided in subsections (c) and (d), on or after thedate the board transfers jurisdiction over a drain to the municipalityor sanitary district, the county treasurer shall transfer the followingto the municipal or sanitary district drain maintenance fundestablished under this section:
(1) The balance of the maintenance fund established undersection 44 of this chapter.
(2) Except as provided in subsection (e), any assessments forperiodic maintenance of the drain that:
(A) were imposed before the date on which the boardtransfers jurisdiction of the drain; and
(B) are collected after the date on which the board transfersjurisdiction of the drain.
(c) Except as provided in subsection (d), if the board transfersjurisdiction over part of a drain to a municipality or sanitary district,the county treasurer shall transfer under subsection (b):
(1) the part of the balance in the maintenance fund establishedunder section 44 of this chapter that bears the same proportionto the balance in the fund that the length of the part of the draintransferred to the municipality or sanitary district bears to thetotal length of the drain; and
(2) except as provided in subsection (e), the proportiondetermined under subdivision (1) of any assessments forperiodic maintenance of the drain that:
(A) were imposed before the date on which the boardtransfers jurisdiction of part of the drain; and
(B) are collected after the date on which the board transfers
jurisdiction of part of the drain.
(d) The board and a municipality or sanitary district to whichjurisdiction over part of a drain is transferred may agree in writing toan apportionment of the maintenance fund and outstandingassessments different from the apportionment under subsection (c)based on disproportionate maintenance requirements between thepart of the drain transferred and the part remaining under thejurisdiction of the board. Subject to subsection (e), a county treasurerwho receives a written agreement under this subsection shall transferunder subsection (b) the amounts specified in the agreement.
(e) If payment for maintenance work for a drain was made fromthe general drain improvement fund under section 45 of this chapter,the county treasurer shall transfer all or part of the assessmentdescribed in subsection (b)(2) to the general drain improvement fundto reimburse the fund for all or part of the cost of the maintenancework.
(f) The expenses of a municipal or sanitary district drainmaintenance fund established by subsection (a) shall be paid fromthe fund. The municipality or sanitary district to which jurisdictionover a drain is transferred shall deposit money in the fund establishedfor the drain under subsection (a) in accordance with IC 5-13-6. Anyinterest earned by the fund shall be credited to the fund. Any balanceremaining in the fund at the end of a fiscal year shall be carried overin the fund for the following fiscal year.
(g) A municipal or sanitary district drain maintenance fundestablished under subsection (a) is subject to the use of themunicipality or the sanitary district for the necessary or properrepair, maintenance, study, or evaluation of the particular drain orcombination of drains for which the fund was established wheneverthe municipality or sanitary district finds that it is necessary. Exceptas provided in subsection (h), payment for all the maintenance workfor a drain or combination of drains shall be made out of themunicipal or sanitary district drain maintenance fund established forthe drain or combination of drains under subsection (a).
(h) If the balance of a maintenance fund is not sufficient to pay forall of the maintenance work, the municipality or sanitary districtshall pay for any deficiency from the funds used by the municipalityor the sanitary district to pay for maintenance work on drains that arenot subject to a municipal or sanitary district maintenance fund. Adrain maintenance fund shall close upon payment of all money in thefund.
(i) If the amount of funds on deposit in a municipal or sanitarydistrict drain maintenance fund is less than five hundred dollars($500), the balance of the municipal or sanitary district drainmaintenance fund may be transferred to the fund used by themunicipality or the sanitary district to pay for maintenance work ondrains that are not subject to a municipal or sanitary districtmaintenance fund, and the drain maintenance fund shall be closed.
As added by P.L.111-2003, SEC.1.
IC 36-9-27-20.6
Right of entry and right-of-way powers
Sec. 20.6. If jurisdiction over a drain is transferred by the boardto a municipality or sanitary district under section 20 of this chapter,the municipality or sanitary district has, with respect to that drain, thesame right of entry and right-of-way powers over and upon privateland that are given to the county surveyor or drainage board undersection 33 of this chapter.
As added by P.L.111-2003, SEC.2.
IC 36-9-27-21
Certain municipal drains exempt from chapter; assessment oflands benefited by regulated drains
Sec. 21. (a) A drain that is located partly or wholly within thecorporate boundaries of a municipality is subject to this chapter onlyif it was constructed by the municipality under this chapter, IC 19-4(repealed February 26, 1982), or a statute repealed by Acts 1965,c.305, s.1003.
(b) If a municipal drain not subject to this chapter flows directlyor indirectly into a regulated drain that is subject to this chapter, theboard shall assess the land benefited by the municipal drain to theextent that it is benefited by the construction, reconstruction, ormaintenance of the regulated drain.
(c) This subsection applies to any parcel of land that is partlywithin the corporate boundaries of a municipality having a drainaffected by subsection (b). Notwithstanding section 38 of thischapter, the drainage board may make only one (1) assessment forthe same purpose on each individual drain on the parcel. Forpurposes of making this one (1) assessment, the total acreage of theparcel must be considered to be located where most of the land in theparcel is situated, either within the boundaries or outside theboundaries.
As added by Acts 1981, P.L.309, SEC.101. Amended byP.L.200-1988, SEC.1; P.L.3-1990, SEC.137.
IC 36-9-27-22
Construction, reconstruction, or maintenance of municipal drainsflowing into regulated drains; procedure
Sec. 22. (a) A municipality acting under a statute other than thischapter may not construct, reconstruct, or maintain a drain that:
(1) is located party or wholly within the corporate boundariesof the municipality; and
(2) will flow directly or indirectly into a regulated drain that issubject to this chapter;
without the written approval of the board.
(b) The municipality shall file with the board a written request forconsent to use the regulated drain as an outlet, subject to this chapter.The request must be accompanied by:
(1) the plans and specifications for the proposed construction,and reconstruction, or maintenance; and (2) an estimate by the municipal civil engineer, or anotherqualified person, of the amount of water that will be dischargedinto the regulated drain as a result of the proposed construction,reconstruction, or maintenance.
(c) The board shall refer the request for consent to the countysurveyor, who shall determine whether the regulated drain isadequate to handle the additional flow of water, if any, that wouldresult from the construction, reconstruction, or maintenanceproposed by the municipality. If the surveyor finds that the regulateddrain is adequate to handle the additional flow of water, he shallmake a written report of that fact to the board, which shall issue itsorder consenting to the construction, reconstruction, or maintenanceby the municipality. If the surveyor finds that the regulated drain isnot adequate, he shall:
(1) prepare a preliminary plan for the reconstruction of theregulated drain so that it will be adequate to handle theadditional flow of water;
(2) estimate the total cost of the reconstruction;
(3) file the plan and estimate with the board; and
(4) serve a copy of the plan and estimate on the municipality.
(d) If the municipality binds itself by resolution to pay the cost ofthe reconstruction of the regulated drain, the county surveyor shallprepare final plans and specifications for the work, reestimate thecost of the work except for damages to affected land, and file theplans and estimate with the board. The board shall determine theamount of damages sustained by any owner as a result of thereconstruction of the regulated drain and shall serve upon each ownera notice:
(1) describing the owner's lands;
(2) stating the amount of each owner's damages;
(3) explaining the injury upon which the determination wasbased; and
(4) stating the date, time, and place of a hearing by the board onobjections to the amount of damages.
The notice shall be served and the hearing held in accordance withsections 49 through 52 of this chapter.
(e) The board shall add the damages to affected land to the countysurveyor's reestimation of the costs of the reconstruction and shallcertify that amount to the municipality. When the municipality paysthe amount certified by the board into the office of the countytreasurer for the use of the board in the reconstruction of theregulated drain, the board shall issue an order consenting to the useof the regulated drain by the municipality and shall proceed with thereconstruction of the regulated drain in accordance with the plansand specifications of the surveyor.
(f) After the contracts for the reconstruction are let in accordancewith sections 77 through 79 of this chapter, the board shall computethe actual cost of the reconstruction. If the actual cost is less than theestimated cost, the excess shall be returned to the municipality oncertification by the board to the county auditor of the amount to be
returned. If the actual cost of the reconstruction is more than theestimated cost, the board shall certify that fact to the municipality,which shall immediately pay the difference into the office of thecountry treasurer.
(g) When the board consents to a request made by a municipalityunder subsection (b), the board shall fix the annual assessmentagainst the municipality for the periodic maintenance of the regulateddrain in accordance with sections 38 through 43 of this chapter.
(h) This section does not prohibit a municipality from petitioningthe board for the construction of a new regulated drain under sections54 through 65 of this chapter.
As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-23
Requests to connect private drains with regulated drains; waterpollution control; procedure
Sec. 23. (a) Whenever:
(1) a person wants to connect a drain with a regulated drain thatis subject to this chapter; and
(2) the connection would result in the discharge into theregulated drain of liquid wastes that would cause or contributeto pollution of the receiving waters;
the person seeking the connection must obtain written approval fromthe department of environmental management for the discharge, andshall file that written approval with the board having jurisdiction ofthe regulated drain when filing his request to connect.
(b) The board may deny a connection request, even thoughapproval of the department of environmental management is givenor is not required.
(c) The board shall deny a connection request whenever theapproval of the department of environmental management is requiredand is not obtained.
(d) The provisions of this section requiring department ofenvironmental management approval do not apply to the dischargeof sewage from a single or two (2) family residence.
As added by Acts 1981, P.L.309, SEC.101. Amended byP.L.143-1985, SEC.202.
IC 36-9-27-24
Drains located in conservancy districts; jurisdiction
Sec. 24. (a) A regulated drain that is located within a conservancydistrict is not subject to this chapter if:
(1) the drain has been designated for construction,reconstruction, or maintenance in the district plan of theconservancy district; and
(2) the district plan was approved before January 1, 1966.
However, if the drain has a direct or indirect outlet into any otherdrain that is subject to this chapter, the board shall assess the districtfor any benefits it receives from the construction, reconstruction, ormaintenance of the other drain. (b) A court may not approve the district plan or an amendment tothe district plan of a conservancy district if it includes theconstruction, reconstruction, or maintenance of a regulated drain inthe district, unless written approval for the district to perform thework is filed with the court by the board or by the department ofnatural resources.
(c) When a drain located in a conservancy district is not subjectto this chapter, the district, with the approval of the court havingjurisdiction over the district, may file a written request with theboard for the board to assume jurisdiction over the drain. The drainbecomes subject to this chapter when the request is filed.
As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-25
Drains included in flood control projects; exemption from chapter
Sec. 25. Whenever a regulated drain that is subject to this chapteris included in a flood control project approved by the department ofnatural resources, the drain ceases to be subject to this chapter. Theconstruction, reconstruction, and maintenance of such a drain is theresponsibility of the local agency that constructs and maintains theproject.
As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-26
Drains under jurisdiction of certain drainage maintenance andrepair districts and associations; exemption from chapter
Sec. 26. A drain that is under the jurisdiction of:
(1) a drainage maintenance and repair district established underIC 13-2-21 (before its repeal) or under IC 14-27-8; or
(2) an association established under Acts 1913, c. 165;
is not subject to annual assessments for periodic maintenance underthis chapter, and the district or association is solely responsible forthe maintenance of the drain. However, if the drain flows directly orindirectly into a regulated drain that is subject to this chapter, theboard shall assess the land within the district or association for anybenefits it receives from the construction, reconstruction, ormaintenance of the regulated drain.
As added by Acts 1981, P.L.309, SEC.101. Amended by P.L.1-1995,SEC.88.
IC 36-9-27-26.5
Change of drain and drainage maintenance jurisdiction; transferof funds and administration
Sec. 26.5. (a) A county executive may change a regulated drainthat is subject to this chapter into a drain that is subject to thejurisdiction of a drainage maintenance and repair district underIC 14-27-8.
(b) When a drain that is subject to assessments for periodicmaintenance and repair under this chapter becomes subject to thejurisdiction of a drainage maintenance and repair district under
IC 14-27-8, the county treasurer shall transfer all money in the drain'smaintenance fund established under section 44 of this chapter to thedrain's drainage maintenance fund established under IC 14-27-8-19.
(c) The county executive shall establish procedures for thetransition of a drain from administration under this chapter toadministration under IC 14-27-8.
As added by P.L.154-1993, SEC.5. Amended by P.L.1-1995, SEC.89;P.L.97-2004, SEC.132.
IC 36-9-27-27
Dissolution of certain drainage maintenance and repair districts;procedure
Sec. 27. (a) A written statement alleging that a drainagemaintenance and repair district established under IC 13-2-21 (beforeits repeal) or under IC 14-27-8 is not active and is not properlymaintaining the drains under its control may be filed with the boardby:
(1) the owners of fifty-one percent (51%) in area of the landlocated in the district; or
(2) fifty-one percent (51%) of the owners of land located in thedistrict.
When the statement is filed, the board may file with the court thatestablished the district a complaint that sets forth the allegations inthe statement and requests the court to dissolve the district.
(b) The drainage maintenance and repair district shall be nameddefendant in the action, and a summons shall be served:
(1) on any commissioner of the district; or
(2) on the district by publication if a commissioner cannot befound.
The issues shall be considered closed by a general denial, without thefiling on any specific pleadings.
(c) The court shall hear the action without a jury. A change ofvenue from the county may not be granted.
(d) If the court finds that the allegations in the complaint are true,it shall dissolve the district. All the drains formerly under thejurisdiction of the district become regulated drains subject to thischapter when the district is dissolved.
As added by Acts 1981, P.L.309, SEC.101. Amended by P.L.1-1995,SEC.90.
IC 36-9-27-28
Drains maintained by certain associations; assumption ofjurisdiction by board; procedure
Sec. 28. (a) A written statement alleging that an associationestablished under Acts 1913, c. 165 for the purpose of maintainingand repairing a drain is not active and is not properly maintaining thedrain may be filed with the board by:
(1) members of the association who own fifty-one percent(51%) in area of the land within the jurisdiction of theassociation; or (2) fifty-one percent (51%) of the members of the association.
When the statement is filed, the board may notify the association ofits intention to declare the drain to be subject to this chapter.
(b) The notice must fix a date, time, and place for a hearing on thematter, and shall be:
(1) served personally or by registered mail upon any director orofficer of the association who did not sign the statement filedwith the board; or
(2) published in accordance with IC 5-3-1, if such a director orofficer cannot be found.
(c) On or before the date of the hearing, any member of theassociation may file written evidence with the board.
(d) If the board finds that the allegations in the statement are true,it shall issue an order declaring the drain to be a regulated drain thatis subject to this chapter. The finding and order shall be marked filedand shall be announced publicly at the hearing. The board shall thenpublish a notice setting forth its order in accordance with IC 5-3-1.Judicial review of the order under section 106 of this chapter may berequested by any member of the association within twenty (20) daysafter publication of the notice. The drain becomes subject to thischapter when the order becomes final and conclusive.
(e) If the board finds that the allegations in the statement are nottrue, it shall dismiss the proceedings.
As added by Acts 1981, P.L.309, SEC.101. Amended by Acts 1981,P.L.45, SEC.74.
IC 36-9-27-29
County surveyors; powers and duties
Sec. 29. The county surveyor is the technical authority on theconstruction, reconstruction, and maintenance of all regulated drainsor proposed regulated drains in the county, and he shall:
(1) investigate, evaluate, and survey all regulated drains orproposed regulated drains, and prepare all reports, plans,profiles, and specifications necessary or incident to anyproposed construction, reconstruction, or maintenance ofregulated drains;
(2) prepare and make public standards of design, construction,and maintenance that will apply to all regulated drains and theirappurtenances, taking into consideration in preparing thesestandards the published recommendations made by PurdueUniversity, the American Society of Agricultural Engineers, theAmerican Society of Civil Engineers, the United StatesDepartment of Agriculture, the department of natural resources,the United States Army Corps of Engineers, and other reliablesources of information;
(3) supervise all construction, reconstruction, and maintenancework performed under this chapter;
(4) catalog and maintain a record of all surveying notes, plans,profiles, and specifications of all regulated drains in the county,and of all mutual and private drains when available; and (5) perform the functions set forth in sections 67 through 69 ofthis chapter concerning all urban drains under his jurisdiction.
In preparing plans under subdivision (1), the surveyor shall, whenfeasible, include the seeding of the banks of all open drains. Thesurveyor shall, when feasible, use United States Geological Surveydata on plans and profiles prepared under subdivision (1).
As added by Acts 1981, P.L.309, SEC.101. Amended byP.L.166-1983, SEC.5.
IC 36-9-27-30
Qualified deputies; appointment; duties; compensation
Sec. 30. (a) Whenever the county surveyor is not registered underIC 25-21.5 or IC 25-31 and that statute prohibits an unregisteredperson from performing any function that the county surveyor isdirected to do under this chapter, the surveyor shall employ and fixthe compensation of a person who is so registered to work with thesurveyor in performing those functions. However, if the countysurveyor does not employ a registered person within one (1) year ofthe acceptance of a petition for construction or reconstruction of adrain, the board may make the appointment of a registered personthat this section requires.
(b) The person employed by the surveyor, who shall be known asa qualified deputy, shall file with the county surveyor the original ofall plans, specifications, and other documents made by the person inperforming the work for which the person was employed. Thoseplans, specifications, and other documents become a part of thepermanent file of the surveyor's office, which the surveyor shallmaintain for the use of the board as provided in section 109 of thischapter.
(c) The rate of compensation paid to a qualified deputy shall beassessed against the drainage project for which the deputy wasemployed.
(d) This subsection applies whenever the county surveyor is notregistered under IC 25-21.5 or IC 25-31, and the county surveyor hasnot employed a registered person as provided in subsection (a). If thecounty has a full-time employee who is registered as a land surveyorunder IC 25-21.5 or as a professional engineer under IC 25-31, theboard may, subject to the approval of the county executive and thecounty surveyor, designate that person to perform the functions ofthe county surveyor under this chapter that are allowed under theemployee's license as a land surveyor or professional engineer. If adesignation is made and approved under this subsection, the countysurveyor may not employ a registered person under subsection (a) toperform that same function.
As added by Acts 1981, P.L.309, SEC.101. Amended byP.L.206-1984, SEC.1; P.L.76-1989, SEC.5; P.L.2-1997, SEC.84;P.L.2-1998, SEC.88; P.L.241-1999, SEC.4.
IC 36-9-27-31
Counties without elected surveyors; employment of engineers or
surveyors by board
Sec. 31. If for any reason there is no elected county surveyor inany county, the board shall employ and fix the compensation of apart-time or full-time engineer or surveyor. The engineer or surveyor,who must be registered under IC 25-21.5 or IC 25-31 and must be orbecome a resident of Indiana, shall perform the functions required ofthe county surveyor in this chapter.
As added by Acts 1981, P.L.309, SEC.101. Amended by P.L.2-1997,SEC.85.
IC 36-9-27-32
Contract deputies; appointment; powers and duties; compensation
Sec. 32. (a) Whenever the board finds that it is necessary toadvance the work of construction or of reconstruction, as determinedfrom the long-range plan established under section 36 of this chapter,to a degree inconsistent with the work load of the county surveyor,the board shall publicly declare an emergency and shall authorize theemployment of an engineer, firm of engineers, or land surveyor as acontract deputy to perform the necessary work, including:
(1) the preparation of the surveyor's report or specified parts ofit; and
(2) the supervision of the construction or reconstruction.
(b) A contract deputy shall be employed by contract. Eachcontract must be for work on a specific drainage project, and may beon a per project fee basis or on a per diem basis of compensation.
(c) A contract deputy must have the same qualifications as anengineer or surveyor employed or appointed by the board undersection 30 or 31 of this chapter.
(d) The original of all plans, specifications, and other documentsmade by a contract deputy in performing the work for which he wasemployed, or facsimiles of them in reproducible form, shall betransmitted to the board and shall be permanently retained by theboard or by the surveyor in the manner in which similar documentsprepared by the surveyor or the board are retained.
(e) The compensation of a contract deputy shall be assessedagainst the drainage project for which the deputy was employed, andmay be paid from the general drain improvement fund before theorder for the construction or reconstruction.
As added by Acts 1981, P.L.309, SEC.101. Amended byP.L.206-1984, SEC.2.
IC 36-9-27-33
Right of entry over private land; extension of spoil banks beyondright-of-way
Sec. 33. (a) The county surveyor, the board, or an authorizedrepresentative of the surveyor or the board acting under this chapterhas the right of entry over and upon land lying within seventy-five(75) feet of any regulated drain. The seventy-five (75) foot limit shallbe measured at right angles to:
(1) the center line of any tiled drain; and (2) the top edge of each bank of an open drain;
as determined by the surveyor.
(b) Spoil bank spreading resulting from the construction,reconstruction, or maintenance of an open drain may extend beyondthe seventy-five (75) foot right-of-way if:
(1) the county surveyor finds that the extension is necessary;and
(2) the extension has been provided for in the engineer's reporton the construction, reconstruction, or maintenance.
(c) All persons exercising the right given by this section shall, tothe extent possible, use due care to avoid damage to crops, fences,buildings, and other structures outside of the right-of-way, and tocrops and approved structures inside the right-of-way. The countysurveyor shall give oral or written notice of the entry on the land tothe property owner of record, and in the case of a municipality, to theexecutive of that municipality. The notice must state the purpose forthe entry.
(d) The owners of land over which the right-of-way runs may usethe land in any manner consistent with this chapter and the properoperation of the drain. Permanent structures may not be placed onany right-of-way without the written consent of the board.Temporary structures may be placed upon or over the right-of-waywithout the written consent of the board, but shall be removedimmediately by the owner when so ordered by the board or by thecounty surveyor. Crops grown on a right-of-way are at the risk of theowner, and, if necessary in the reconstruction or maintenance of thedrain, may be damaged without liability on the part of the surveyor,the board, or their representatives. Trees, shrubs, and woodyvegetation may not be planted in the right-of-way without the writtenconsent of the board, and trees and shrubs may be removed by thesurveyor if necessary to the proper operation or maintenance of thedrain.
(e) This subsection applies to new regulated drains establishedafter September 1, 1984, and to urban drains. The board may reducethe seventy-five (75) foot requirement of subsections (a) and (b) toany distance of not less than twenty-five (25) feet from the top ofeach bank of an open ditch and fifteen (15) feet from the center lineof any tiled drain as measured at right angles.
(f) The surveyor, the board, or an authorized representative of thesurveyor or the board acting under this chapter does not commitcriminal trespass under IC 35-43-2-2.
As added by Acts 1981, P.L.309, SEC.101. Amended byP.L.206-1984, SEC.3; P.L.76-1989, SEC.6.
IC 36-9-27-34
Classification of drains by county surveyor
Sec. 34. (a) The county surveyor shall classify all regulated drainsin the county as:
(1) drains in need of reconstruction;
(2) drains in need of periodic maintenance; or (3) drains that should be vacated.
The surveyor shall also consider the designation of urban drainsunder section 67 of this chapter.
(b) A regulated drain is in need of reconstruction when:
(1) it will not perform the function for which it was designedand constructed;
(2) it no longer conforms to the maps, profiles, and plansprepared at the time when the legal drain was established; or
(3) topographical or other changes have made the draininadequate to properly drain the lands affected withoutextensive repairs or changes, including:
(A) converting all or part of an open drain to a tiled drain ora tiled drain to an open drain;
(B) adding an open drain to a tiled drain or a tiled drain to anopen drain;
(C) increasing the size of the tile;
(D) deepening or widening an open drain;
(E) extending the length of a drain;
(F) changing the course of a drain;
(G) constructing drainage detention basins and drainagecontrol dams;
(H) providing for erosion control and for grade stabilizationstructures; or
(I) making any major change to a drainage system that wouldbe of public utility.
(c) A regulated drain is in need of periodic maintenance when,with or without the use of mechanical equipment, it can be made toperform the function for which it was designed and constructed, andto properly drain all affected land under current conditions, byperiodically:
(1) cleaning it;
(2) spraying it;
(3) removing obstructions from it; and
(4) making minor repairs to it.
(d) A regulated drain should be vacated when:
(1) the drain does not perform the function for which it wasdesigned and constructed, or it has become inadequate toproperly drain all affected land under current conditions;
(2) the expense of reconstruction outweighs the benefits ofreconstruction; and
(3) the vacation will not be detrimental to the public welfare.
As added by Acts 1981, P.L.309, SEC.101. Amended byP.L.166-1983, SEC.6.
IC 36-9-27-35
Submission of classifications and order of work priority of drainsto board; notice and hearing on classification and reclassificationrequests