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 county
having 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 by
the 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, or
through a location used for the passage of people, livestock, or
vehicles.
"Dam" means a dam or other structure and its appurtenances that
impounds a small lake at the lake's outlet.
"Maintenance" means work on a drain as described in section
34(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 under
different ownership;
(2) was established by the mutual consent of all the owners; and
(3) was not established under or made subject to any drainage
statute.
"Open drain" means a natural or artificial open channel that:
(1) carries surplus water; and
(2) was established under or made subject to any drainage
statute.
"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) or
more persons jointly; and
(2) was not established under or made subject to any drainage
statute.
"Reconstruction" means work on a drain as described in section
34(b) of this chapter to correct any of the problems with the drain
that are enumerated in that section up to and including the discharge
portion of the drain.
"Regulated drain" means an open drain, a tiled drain, or a
combination of the two.
"Rural drain" means a regulated drain that provides adequate
drainage or impounds water for rural land.
"Rural land" means affected land that:
(1) will not appreciably benefit from more drainage than is
necessary to expediently remove water after frequent or
periodic flooding; and
(2) is generally used for crop production, pasture, forest, or
similar 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 that
are under different ownership or a tract of land that is owned by
a not-for-profit corporation having more than one (1) member;
(3) is not constructed, reconstructed, or maintained under this
chapter as part of an open drain;
(4) is not a private crossing, control dam, or other permanent
structure 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 or
control 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 drainage
statute.
"Urban land" means affected land that:
(1) will appreciably benefit from drainage that will provide the
maximum practicable protection against flooding or the
impounding of water in a small lake; and
(2) is used or will in the reasonably foreseeable future be used
generally for commercial, industrial, large estate, higher density
residential, or similar purposes.
"Watershed" means an area of land from which all runoff water
drains to a given point or that is affected by a small lake. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.166-1983, SEC.2; P.L.205-1984, SEC.1.
IC 36-9-27-2.5 "Dam" defined; certain sections not applicable; designation as
regulated 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, and
sections 56 through 66 of this chapter do not apply to a dam.
(b) Any owner may petition a board to designate a dam as a
regulated drain, and any board may assume jurisdiction over a dam
in the same manner that an owner may petition and the board may
assume jurisdiction over a mutual drain. A board does not otherwise
have jurisdiction over a dam.
(c) A board may reconstruct or maintain a dam over which the
board has assumed jurisdiction, but an agency may not construct a
new dam. As added by P.L.166-1983, SEC.3.
IC 36-9-27-3 Authority to exercise rights and powers of political subdivisions
and state
Sec. 3. (a) The rights and powers of a political subdivision under
this chapter as an owner shall be exercised on behalf of the political
subdivision 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 this
chapter shall be exercised on behalf of the state by the director of the
department, office, or institution charged by law with the
maintenance, supervision, or control of the affected land owned by
the 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 Drainage
Board" (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, the
drainage board consists of either:
(1) the county executive; or
(2) three (3) or five (5) persons, at least one (1) of whom must
be a member of the executive, appointed by the executive;
at the option of the executive. Appointees under subdivision (2) must
be resident freeholders of the county who are knowledgeable in
drainage matters. Freeholders appointed to the board serve for terms
of three (3) years, with their initial appointments made so as to
provide for staggering of terms on an annual basis. In addition, the
county surveyor serves on the board as an ex officio, nonvoting
member.
(b) In a county having a consolidated city, the board of public
works of the consolidated city comprises the drainage board, subject
to IC 36-3-4-23.
(c) In a county having a consolidated city, the department of
public works of the consolidated city has all the powers, duties, and
responsibilities of the county surveyor under this chapter, subject to
IC 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 less
than three (3) because of disqualifications, the board shall
immediately certify that fact to the circuit court of the county. The
court shall then restore the membership of the board to three (3) by
appointing the appropriate number of resident freeholders of the
county to serve as special members for the particular drainage
proceedings.
(b) A special member of the board has the same duties and powers
as a regular member of the board, and is entitled to a per diem, to be
paid as an expense of the board, in an amount fixed by the county
fiscal body for each day or major part of a day spent in actual
attendance at any meeting of the board or in the performance of
official 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, by
electing one (1) of its members as chairman and one (1) of its
members as vice chairman. At the same time, the board shall elect a
secretary, 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, if
the surveyor's office is not adequate, the county executive shall
provide 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 written
notice setting forth the time, date, and place of the meeting to each
member not less than five (5) days before the date of the meeting. A
member may waive the mailing of notice of a special meeting by
filing a written waiver with the secretary or by his presence at the
meeting.
(e) Meetings of the board may be adjourned from day to day or to
a day certain without written notice being given.
(f) All meetings of the board must be open to the public, and the
minutes of the meetings are open to public inspection.
(g) A majority of the voting members of the board constitutes a
quorum, and the concurrence of a majority of the voting members
present at a meeting is necessary to authorize any action under this
chapter. 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 to
enforce 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 by
P.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 employed
by the board under this chapter shall be paid at a rate equal to that
provided by law for state employees for each mile necessarily
traveled while performing the duties of his office.
(b) The county fiscal body may provide the members of the
county executive who serve as members of the board with per diem
for their services as members of the board, in an amount fixed by the
county fiscal body for each day or major part of a day devoted to the
work of the board.
(c) Each appointed freeholder member serving on the board is
entitled to a per diem in an amount fixed by the county fiscal body
for 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 money
appropriated from the county general fund. Claims for expense
reimbursements 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 that
includes three (3) or more counties in a drainage basin of more than
one hundred thousand (100,000) acres.
(b) Whenever it appears, in any proceeding for the construction,
reconstruction, or maintenance of a regulated drain, that a member
of the board has an interest in the proceedings because of his
ownership of real property affected by the drain, that member shall
immediately disqualify himself from serving on the board in those
proceedings. However, the fact that county highways will be affected
by any proceedings does not disqualify a regular member of the
board. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.350-1985, SEC.1.
IC 36-9-27-13 Certain counties; county drainage advisory committees
established; powers and duties
Sec. 13. (a) This section applies to a county having a population
of more than four hundred thousand (400,000) but less than seven
hundred 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. Committee
members serve for four (4) year terms. Members may not receive per
diem or mileage for service on the committee.
(c) The county drainage advisory committee shall advise and
assist the board in the performance of its powers, duties, and
functions. The board or the county legislative body may assign
responsibilities to the committee concerning drainage. The
committee may select one (1) of its members as chairman and may
meet 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 any
proceedings instituted under this chapter may affect land in more
than one (1) county, he shall immediately forward notification of that
fact to the chairman of the board of each county in which the land is
located, by certified mail with return receipt requested. The notice
must state the number of counties involved and fix a date, hour, and
place for a meeting of a joint board. The date for the meeting may
not be less than twenty (20) nor more than thirty (30) days after the
notice is mailed.
(b) After the notice is given, all proceedings in the matter shall be
heard and determined by a board appointed from the membership of
the board of each county in which lands that may be affected are
located, as follows:
(1) If land in two (2) counties may be affected, the chairman of
the board of each county shall appoint two (2) of the members
of his board, other than the county surveyor, to serve on the
joint board. In addition, a fifth member shall be appointed by
the four (4) members of the joint board. The fifth member must
reside in a county that is not affected by the drainage problem.
(2) If land in more than two (2) counties may be affected, the
chairman of the board of each county shall appoint one (1) of
the members of his board, other than the county surveyor, to
serve on the joint board. If, as a result of the appointments, the
board has an even number of members, the members of the joint
board shall appoint an additional member to the joint board.
The additional member must reside in a county that is not
affected by the drainage problem.
(3) The surveyor of the county having the greatest length of
drain or proposed drain serves as an ex officio member of the
joint board, and has the same duties, powers, and
responsibilities he would have if the proposed construction,
reconstruction, or maintenance affected lands lying solely
within one (1) county.
(c) A joint board may authorize the employment of one (1) or
more persons to assist the county surveyor who serves on the board
in the performance of his duties in connection with the joint board.
The joint board shall set the rate of compensation for the assistants
and authorize an advance on the general drain improvement fund of
each county in proportion to the apparent percentage of the total land
area in each county to be affected by the drain. The cost of the
assistants and the advance is a part of the operating expense of the
joint board, which shall be finally adjusted and allocated as provided
in subsection (e).
(d) Whenever the county surveyor finds that a joint board should
be appointed and that:
(1) the area of affected land in his county exceeds eighty
percent (80%) of the total area of land affected by the drain; or
(2) ninety percent (90%) or more of the length of the affected
drain lies within his county;
he may request in writing that each board in the lesser affected
county or counties waive the right to be represented on a joint board
and 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 a
lesser affected county, shall be forwarded by certified mail with
return receipt requested to the chairman of the board of each lesser
affected county. If the surveyor does not receive a negative response
to his request from the board of a lesser affected county within thirty
(30) days, the surveyor may request his board to resolve itself as the
board for the proceedings. The board shall serve notice only on the
board of a lesser affected county and shall certify to the auditor of
that county a single claim for all benefits in that county, unless the
surveyor or board of that county furnishes to the board full and
acceptable information concerning all individual parcels of affected
land in that county, including maps.
(e) If the joint board proceeds with the proposed improvement or
maintenance, all operating expense of the joint board, including the
compensation of the fifth member appointed under subsection (b)(1)
and the additional member appointed under subsection (b)(2) shall
be:
(1) divided among the counties represented on it in the same
proportion that the total land assessment allocated to each
county bears to the total cost of the improvement or
maintenance; or
(2) paid from the joint drain's maintenance fund after the fund
is established and maintenance funds are collected.
If the joint board does not proceed, all operating expense of the joint
board shall be apportioned by the joint board to the counties
represented on it as justice requires.
(f) To the extent applicable, a joint board is governed by the
provisions 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 the
proceedings of a board that serves one (1) county. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.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 jurisdiction
of the board and subject to this chapter, except as otherwise provided
by 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 this
chapter.
(b) Land drained by a private or mutual drain is subject to
assessment for the construction, or reconstruction, or maintenance of
a regulated drain if the land is also drained by the regulated drain. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.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 mutual
drain, and outlet that drain into a regulated drain that is subject
to this chapter; and
(2) the construction or extension will not go through land
owned by other persons;
the owner shall file with the county surveyor having jurisdiction of
the regulated drain for permission to connect his drain with the
regulated drain.
(b) The owner shall file with his request the plans and
specifications of the private or mutual drain that will be constructed
or extended. However, if the private or mutual drain will have a tiled
outlet 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 is
adequate to handle the additional flow of water, if any, that would
result from the connection, and that no harmful pollution is likely to
result from the connection, he shall grant the request.
(d) If the county surveyor determines that the regulated drain is
not adequate to handle the additional flow of water resulting from the
connection without being reconstructed, he shall deny the request,
and the request may not be granted until the regulated drain is
reconstructed 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 or
mutual drain request the board in writing to assume jurisdiction over
the private or mutual drain, the board shall refer the request to the
county surveyor, who shall determine whether the private or mutual
drain meets the standards of design and construction established
under section 29 of this chapter.
(b) If the surveyor determines that the private or mutual drain
meets the standards of design and construction, he shall make a
written report of that fact to the board, which shall issue an order
granting the request. The drain becomes a regulated drain when the
request is granted.
(c) If the surveyor determines that the private or mutual drain does
not meet the standards of design and construction, he shall make a
written report of that fact to the board, which shall deny the request. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.276-2001, SEC.12.
IC 36-9-27-19 Mutual drains; conversion to regulated drain; procedure upon
request by single owner
Sec. 19. (a) Any owner affected by a mutual drain may file a
written request with the board to make the mutual drain a regulated
drain under this chapter. Upon receipt of such a request, the board
shall fix the date, time, and place for a hearing, which may not be
less than thirty (30) days after receipt of the request.
(b) At least twenty (20) days before the date of the hearing, the
owner making the request shall give the owners of all land affected
by the request notice of the date, time, place, and purpose of the
hearing. Service of the notice shall be made in the manner set forth
in section 58 of this chapter or in the manner summonses are served
in civil actions.
(c) Any owner affected by the mutual drain may, on or before the
date of the hearing, file with the board written evidence for or against
the granting of the request. At the hearing the board shall consider all
of the evidence filed, and if it finds that:
(1) the owners of more than fifty percent (50%) in acreage of
the affected land will be benefited if the drain is made a
regulated drain under this chapter; and
(2) the benefit to owners benefited is likely to be greater than
the damages to owners damaged by reason of the mutual drain
being made a regulated drain;
it shall make written findings to that effect and issue an order
granting the request.
(d) Before adjourning the hearing, the board shall announce its
findings and order. This announcement constitutes notice to all
affected persons, and, if judicial review is not requested under
section 106 of this chapter within twenty (20) days after the date of
notice, 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 jurisdiction
over ditches and drains located in a municipality or a sanitary
district, if that jurisdiction is accepted by the municipality or sanitary
district. As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-20.5 Drain maintenance fund; transfer of jurisdiction over drain to
municipality or sanitary district
Sec. 20.5. (a) A municipal or sanitary district drain maintenance
fund is established for each drain:
(1) that is subject to assessments by the board for periodic
maintenance and repair; and
(2) jurisdiction over which is transferred by the board to a
municipality or sanitary district under section 20 of this chapter.
(b) Except as provided in subsections (c) and (d), on or after the
date the board transfers jurisdiction over a drain to the municipality
or sanitary district, the county treasurer shall transfer the following
to the municipal or sanitary district drain maintenance fund
established under this section:
(1) The balance of the maintenance fund established under
section 44 of this chapter.
(2) Except as provided in subsection (e), any assessments for
periodic maintenance of the drain that:
(A) were imposed before the date on which the board
transfers jurisdiction of the drain; and
(B) are collected after the date on which the board transfers
jurisdiction of the drain.
(c) Except as provided in subsection (d), if the board transfers
jurisdiction 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 established
under section 44 of this chapter that bears the same proportion
to the balance in the fund that the length of the part of the drain
transferred to the municipality or sanitary district bears to the
total length of the drain; and
(2) except as provided in subsection (e), the proportion
determined under subdivision (1) of any assessments for
periodic maintenance of the drain that:
(A) were imposed before the date on which the board
transfers 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 which
jurisdiction over part of a drain is transferred may agree in writing to
an apportionment of the maintenance fund and outstanding
assessments different from the apportionment under subsection (c)
based on disproportionate maintenance requirements between the
part of the drain transferred and the part remaining under the
jurisdiction of the board. Subject to subsection (e), a county treasurer
who receives a written agreement under this subsection shall transfer
under subsection (b) the amounts specified in the agreement.
(e) If payment for maintenance work for a drain was made from
the general drain improvement fund under section 45 of this chapter,
the county treasurer shall transfer all or part of the assessment
described in subsection (b)(2) to the general drain improvement fund
to reimburse the fund for all or part of the cost of the maintenance
work.
(f) The expenses of a municipal or sanitary district drain
maintenance fund established by subsection (a) shall be paid from
the fund. The municipality or sanitary district to which jurisdiction
over a drain is transferred shall deposit money in the fund established
for the drain under subsection (a) in accordance with IC 5-13-6. Any
interest earned by the fund shall be credited to the fund. Any balance
remaining in the fund at the end of a fiscal year shall be carried over
in the fund for the following fiscal year.
(g) A municipal or sanitary district drain maintenance fund
established under subsection (a) is subject to the use of the
municipality or the sanitary district for the necessary or proper
repair, maintenance, study, or evaluation of the particular drain or
combination of drains for which the fund was established whenever
the municipality or sanitary district finds that it is necessary. Except
as provided in subsection (h), payment for all the maintenance work
for a drain or combination of drains shall be made out of the
municipal or sanitary district drain maintenance fund established for
the drain or combination of drains under subsection (a).
(h) If the balance of a maintenance fund is not sufficient to pay for
all of the maintenance work, the municipality or sanitary district
shall pay for any deficiency from the funds used by the municipality
or the sanitary district to pay for maintenance work on drains that are
not subject to a municipal or sanitary district maintenance fund. A
drain maintenance fund shall close upon payment of all money in the
fund.
(i) If the amount of funds on deposit in a municipal or sanitary
district drain maintenance fund is less than five hundred dollars
($500), the balance of the municipal or sanitary district drain
maintenance fund may be transferred to the fund used by the
municipality or the sanitary district to pay for maintenance work on
drains that are not subject to a municipal or sanitary district
maintenance 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 board
to a municipality or sanitary district under section 20 of this chapter,
the municipality or sanitary district has, with respect to that drain, the
same right of entry and right-of-way powers over and upon private
land that are given to the county surveyor or drainage board under
section 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 of
lands benefited by regulated drains
Sec. 21. (a) A drain that is located partly or wholly within the
corporate boundaries of a municipality is subject to this chapter only
if 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 directly
or indirectly into a regulated drain that is subject to this chapter, the
board shall assess the land benefited by the municipal drain to the
extent that it is benefited by the construction, reconstruction, or
maintenance of the regulated drain.
(c) This subsection applies to any parcel of land that is partly
within the corporate boundaries of a municipality having a drain
affected by subsection (b). Notwithstanding section 38 of this
chapter, the drainage board may make only one (1) assessment for
the same purpose on each individual drain on the parcel. For
purposes of making this one (1) assessment, the total acreage of the
parcel must be considered to be located where most of the land in the
parcel is situated, either within the boundaries or outside the
boundaries. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.200-1988, SEC.1; P.L.3-1990, SEC.137.
IC 36-9-27-22 Construction, reconstruction, or maintenance of municipal drains
flowing into regulated drains; procedure
Sec. 22. (a) A municipality acting under a statute other than this
chapter may not construct, reconstruct, or maintain a drain that:
(1) is located party or wholly within the corporate boundaries
of the municipality; and
(2) will flow directly or indirectly into a regulated drain that is
subject to this chapter;
without the written approval of the board.
(b) The municipality shall file with the board a written request for
consent 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 another
qualified person, of the amount of water that will be discharged
into the regulated drain as a result of the proposed construction,
reconstruction, or maintenance.
(c) The board shall refer the request for consent to the county
surveyor, who shall determine whether the regulated drain is
adequate to handle the additional flow of water, if any, that would
result from the construction, reconstruction, or maintenance
proposed by the municipality. If the surveyor finds that the regulated
drain is adequate to handle the additional flow of water, he shall
make a written report of that fact to the board, which shall issue its
order consenting to the construction, reconstruction, or maintenance
by the municipality. If the surveyor finds that the regulated drain is
not adequate, he shall:
(1) prepare a preliminary plan for the reconstruction of the
regulated drain so that it will be adequate to handle the
additional 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 of
the reconstruction of the regulated drain, the county surveyor shall
prepare final plans and specifications for the work, reestimate the
cost of the work except for damages to affected land, and file the
plans and estimate with the board. The board shall determine the
amount of damages sustained by any owner as a result of the
reconstruction of the regulated drain and shall serve upon each owner
a notice:
(1) describing the owner's lands;
(2) stating the amount of each owner's damages;
(3) explaining the injury upon which the determination was
based; and
(4) stating the date, time, and place of a hearing by the board on
objections to the amount of damages.
The notice shall be served and the hearing held in accordance with
sections 49 through 52 of this chapter.
(e) The board shall add the damages to affected land to the county
surveyor's reestimation of the costs of the reconstruction and shall
certify that amount to the municipality. When the municipality pays
the amount certified by the board into the office of the county
treasurer for the use of the board in the reconstruction of the
regulated drain, the board shall issue an order consenting to the use
of the regulated drain by the municipality and shall proceed with the
reconstruction of the regulated drain in accordance with the plans
and specifications of the surveyor.
(f) After the contracts for the reconstruction are let in accordance
with sections 77 through 79 of this chapter, the board shall compute
the actual cost of the reconstruction. If the actual cost is less than the
estimated cost, the excess shall be returned to the municipality on
certification by the board to the county auditor of the amount to be
returned. If the actual cost of the reconstruction is more than the
estimated cost, the board shall certify that fact to the municipality,
which shall immediately pay the difference into the office of the
country treasurer.
(g) When the board consents to a request made by a municipality
under subsection (b), the board shall fix the annual assessment
against the municipality for the periodic maintenance of the regulated
drain in accordance with sections 38 through 43 of this chapter.
(h) This section does not prohibit a municipality from petitioning
the board for the construction of a new regulated drain under sections
54 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; water
pollution control; procedure
Sec. 23. (a) Whenever:
(1) a person wants to connect a drain with a regulated drain that
is subject to this chapter; and
(2) the connection would result in the discharge into the
regulated drain of liquid wastes that would cause or contribute
to pollution of the receiving waters;
the person seeking the connection must obtain written approval from
the department of environmental management for the discharge, and
shall file that written approval with the board having jurisdiction of
the regulated drain when filing his request to connect.
(b) The board may deny a connection request, even though
approval of the department of environmental management is given
or is not required.
(c) The board shall deny a connection request whenever the
approval of the department of environmental management is required
and is not obtained.
(d) The provisions of this section requiring department of
environmental management approval do not apply to the discharge
of sewage from a single or two (2) family residence. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.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 conservancy
district is not subject to this chapter if:
(1) the drain has been designated for construction,
reconstruction, or maintenance in the district plan of the
conservancy district; and
(2) the district plan was approved before January 1, 1966.
However, if the drain has a direct or indirect outlet into any other
drain that is subject to this chapter, the board shall assess the district
for any benefits it receives from the construction, reconstruction, or
maintenance of the other drain.
(b) A court may not approve the district plan or an amendment to
the district plan of a conservancy district if it includes the
construction, reconstruction, or maintenance of a regulated drain in
the district, unless written approval for the district to perform the
work is filed with the court by the board or by the department of
natural resources.
(c) When a drain located in a conservancy district is not subject
to this chapter, the district, with the approval of the court having
jurisdiction over the district, may file a written request with the
board for the board to assume jurisdiction over the drain. The drain
becomes 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 chapter
is included in a flood control project approved by the department of
natural resources, the drain ceases to be subject to this chapter. The
construction, reconstruction, and maintenance of such a drain is the
responsibility of the local agency that constructs and maintains the
project. As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-26 Drains under jurisdiction of certain drainage maintenance and
repair districts and associations; exemption from chapter
Sec. 26. A drain that is under the jurisdiction of:
(1) a drainage maintenance and repair district established under
IC 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 under
this chapter, and the district or association is solely responsible for
the maintenance of the drain. However, if the drain flows directly or
indirectly into a regulated drain that is subject to this chapter, the
board shall assess the land within the district or association for any
benefits it receives from the construction, reconstruction, or
maintenance 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; transfer
of funds and administration
Sec. 26.5. (a) A county executive may change a regulated drain
that is subject to this chapter into a drain that is subject to the
jurisdiction of a drainage maintenance and repair district under
IC 14-27-8.
(b) When a drain that is subject to assessments for periodic
maintenance and repair under this chapter becomes subject to the
jurisdiction of a drainage maintenance and repair district under
IC 14-27-8, the county treasurer shall transfer all money in the drain's
maintenance fund established under section 44 of this chapter to the
drain's drainage maintenance fund established under IC 14-27-8-19.
(c) The county executive shall establish procedures for the
transition of a drain from administration under this chapter to
administration 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 drainage
maintenance and repair district established under IC 13-2-21 (before
its repeal) or under IC 14-27-8 is not active and is not properly
maintaining the drains under its control may be filed with the board
by:
(1) the owners of fifty-one percent (51%) in area of the land
located in the district; or
(2) fifty-one percent (51%) of the owners of land located in the
district.
When the statement is filed, the board may file with the court that
established the district a complaint that sets forth the allegations in
the statement and requests the court to dissolve the district.
(b) The drainage maintenance and repair district shall be named
defendant 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 be
found.
The issues shall be considered closed by a general denial, without the
filing on any specific pleadings.
(c) The court shall hear the action without a jury. A change of
venue 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 the
jurisdiction of the district become regulated drains subject to this
chapter 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 of
jurisdiction by board; procedure
Sec. 28. (a) A written statement alleging that an association
established under Acts 1913, c. 165 for the purpose of maintaining
and repairing a drain is not active and is not properly maintaining the
drain 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 the
association; or
(2) fifty-one percent (51%) of the members of the association.
When the statement is filed, the board may notify the association of
its 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 the
matter, and shall be:
(1) served personally or by registered mail upon any director or
officer of the association who did not sign the statement filed
with the board; or
(2) published in accordance with IC 5-3-1, if such a director or
officer cannot be found.
(c) On or before the date of the hearing, any member of the
association 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 that
is subject to this chapter. The finding and order shall be marked filed
and shall be announced publicly at the hearing. The board shall then
publish 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 be
requested by any member of the association within twenty (20) days
after publication of the notice. The drain becomes subject to this
chapter when the order becomes final and conclusive.
(e) If the board finds that the allegations in the statement are not
true, 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 the
construction, reconstruction, and maintenance of all regulated drains
or proposed regulated drains in the county, and he shall:
(1) investigate, evaluate, and survey all regulated drains or
proposed regulated drains, and prepare all reports, plans,
profiles, and specifications necessary or incident to any
proposed construction, reconstruction, or maintenance of
regulated drains;
(2) prepare and make public standards of design, construction,
and maintenance that will apply to all regulated drains and their
appurtenances, taking into consideration in preparing these
standards the published recommendations made by Purdue
University, the American Society of Agricultural Engineers, the
American Society of Civil Engineers, the United States
Department of Agriculture, the department of natural resources,
the United States Army Corps of Engineers, and other reliable
sources of information;
(3) supervise all construction, reconstruction, and maintenance
work 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 of
this chapter concerning all urban drains under his jurisdiction.
In preparing plans under subdivision (1), the surveyor shall, when
feasible, include the seeding of the banks of all open drains. The
surveyor shall, when feasible, use United States Geological Survey
data on plans and profiles prepared under subdivision (1). As added by Acts 1981, P.L.309, SEC.101. Amended by
P.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 under
IC 25-21.5 or IC 25-31 and that statute prohibits an unregistered
person from performing any function that the county surveyor is
directed to do under this chapter, the surveyor shall employ and fix
the compensation of a person who is so registered to work with the
surveyor in performing those functions. However, if the county
surveyor does not employ a registered person within one (1) year of
the acceptance of a petition for construction or reconstruction of a
drain, the board may make the appointment of a registered person
that this section requires.
(b) The person employed by the surveyor, who shall be known as
a qualified deputy, shall file with the county surveyor the original of
all plans, specifications, and other documents made by the person in
performing the work for which the person was employed. Those
plans, specifications, and other documents become a part of the
permanent file of the surveyor's office, which the surveyor shall
maintain for the use of the board as provided in section 109 of this
chapter.
(c) The rate of compensation paid to a qualified deputy shall be
assessed against the drainage project for which the deputy was
employed.
(d) This subsection applies whenever the county surveyor is not
registered under IC 25-21.5 or IC 25-31, and the county surveyor has
not employed a registered person as provided in subsection (a). If the
county has a full-time employee who is registered as a land surveyor
under IC 25-21.5 or as a professional engineer under IC 25-31, the
board may, subject to the approval of the county executive and the
county surveyor, designate that person to perform the functions of
the county surveyor under this chapter that are allowed under the
employee's license as a land surveyor or professional engineer. If a
designation is made and approved under this subsection, the county
surveyor may not employ a registered person under subsection (a) to
perform that same function. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.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 in
any county, the board shall employ and fix the compensation of a
part-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 or
become a resident of Indiana, shall perform the functions required of
the 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 to
advance the work of construction or of reconstruction, as determined
from 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 the
employment of an engineer, firm of engineers, or land surveyor as a
contract deputy to perform the necessary work, including:
(1) the preparation of the surveyor's report or specified parts of
it; and
(2) the supervision of the construction or reconstruction.
(b) A contract deputy shall be employed by contract. Each
contract must be for work on a specific drainage project, and may be
on a per project fee basis or on a per diem basis of compensation.
(c) A contract deputy must have the same qualifications as an
engineer or surveyor employed or appointed by the board under
section 30 or 31 of this chapter.
(d) The original of all plans, specifications, and other documents
made by a contract deputy in performing the work for which he was
employed, or facsimiles of them in reproducible form, shall be
transmitted to the board and shall be permanently retained by the
board or by the surveyor in the manner in which similar documents
prepared by the surveyor or the board are retained.
(e) The compensation of a contract deputy shall be assessed
against the drainage project for which the deputy was employed, and
may be paid from the general drain improvement fund before the
order for the construction or reconstruction. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.206-1984, SEC.2.
IC 36-9-27-33 Right of entry over private land; extension of spoil banks beyond
right-of-way
Sec. 33. (a) The county surveyor, the board, or an authorized
representative of the surveyor or the board acting under this chapter
has the right of entry over and upon land lying within seventy-five
(75) feet of any regulated drain. The seventy-five (75) foot limit shall
be 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 beyond
the 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 report
on the construction, reconstruction, or maintenance.
(c) All persons exercising the right given by this section shall, to
the extent possible, use due care to avoid damage to crops, fences,
buildings, and other structures outside of the right-of-way, and to
crops and approved structures inside the right-of-way. The county
surveyor shall give oral or written notice of the entry on the land to
the property owner of record, and in the case of a municipality, to the
executive of that municipality. The notice must state the purpose for
the entry.
(d) The owners of land over which the right-of-way runs may use
the land in any manner consistent with this chapter and the proper
operation of the drain. Permanent structures may not be placed on
any right-of-way without the written consent of the board.
Temporary structures may be placed upon or over the right-of-way
without the written consent of the board, but shall be removed
immediately by the owner when so ordered by the board or by the
county surveyor. Crops grown on a right-of-way are at the risk of the
owner, and, if necessary in the reconstruction or maintenance of the
drain, may be damaged without liability on the part of the surveyor,
the board, or their representatives. Trees, shrubs, and woody
vegetation may not be planted in the right-of-way without the written
consent of the board, and trees and shrubs may be removed by the
surveyor if necessary to the proper operation or maintenance of the
drain.
(e) This subsection applies to new regulated drains established
after September 1, 1984, and to urban drains. The board may reduce
the seventy-five (75) foot requirement of subsections (a) and (b) to
any distance of not less than twenty-five (25) feet from the top of
each bank of an open ditch and fifteen (15) feet from the center line
of any tiled drain as measured at right angles.
(f) The surveyor, the board, or an authorized representative of the
surveyor or the board acting under this chapter does not commit
criminal trespass under IC 35-43-2-2. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.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 drains
in 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 drains
under 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 designed
and constructed;
(2) it no longer conforms to the maps, profiles, and plans
prepared at the time when the legal drain was established; or
(3) topographical or other changes have made the drain
inadequate to properly drain the lands affected without
extensive repairs or changes, including:
(A) converting all or part of an open drain to a tiled drain or
a tiled drain to an open drain;
(B) adding an open drain to a tiled drain or a tiled drain to an
open 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 drainage
control dams;
(H) providing for erosion control and for grade stabilization
structures; or
(I) making any major change to a drainage system that would
be 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 to
perform the function for which it was designed and constructed, and
to properly drain all affected land under current conditions, by
periodically:
(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 was
designed and constructed, or it has become inadequate to
properly drain all affected land under current conditions;
(2) the expense of reconstruction outweighs the benefits of
reconstruction; and
(3) the vacation will not be detrimental to the public welfare. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.166-1983, SEC.6.
IC 36-9-27-35 Submission of classifications and order of work priority of drains
to board; notice and hearing on classification and reclassification
requests
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 county
having 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 by
the 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, or
through a location used for the passage of people, livestock, or
vehicles.
"Dam" means a dam or other structure and its appurtenances that
impounds a small lake at the lake's outlet.
"Maintenance" means work on a drain as described in section
34(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 under
different ownership;
(2) was established by the mutual consent of all the owners; and
(3) was not established under or made subject to any drainage
statute.
"Open drain" means a natural or artificial open channel that:
(1) carries surplus water; and
(2) was established under or made subject to any drainage
statute.
"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) or
more persons jointly; and
(2) was not established under or made subject to any drainage
statute.
"Reconstruction" means work on a drain as described in section
34(b) of this chapter to correct any of the problems with the drain
that are enumerated in that section up to and including the discharge
portion of the drain.
"Regulated drain" means an open drain, a tiled drain, or a
combination of the two.
"Rural drain" means a regulated drain that provides adequate
drainage or impounds water for rural land.
"Rural land" means affected land that:
(1) will not appreciably benefit from more drainage than is
necessary to expediently remove water after frequent or
periodic flooding; and
(2) is generally used for crop production, pasture, forest, or
similar 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 that
are under different ownership or a tract of land that is owned by
a not-for-profit corporation having more than one (1) member;
(3) is not constructed, reconstructed, or maintained under this
chapter as part of an open drain;
(4) is not a private crossing, control dam, or other permanent
structure 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 or
control 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 drainage
statute.
"Urban land" means affected land that:
(1) will appreciably benefit from drainage that will provide the
maximum practicable protection against flooding or the
impounding of water in a small lake; and
(2) is used or will in the reasonably foreseeable future be used
generally for commercial, industrial, large estate, higher density
residential, or similar purposes.
"Watershed" means an area of land from which all runoff water
drains to a given point or that is affected by a small lake. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.166-1983, SEC.2; P.L.205-1984, SEC.1.
IC 36-9-27-2.5 "Dam" defined; certain sections not applicable; designation as
regulated 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, and
sections 56 through 66 of this chapter do not apply to a dam.
(b) Any owner may petition a board to designate a dam as a
regulated drain, and any board may assume jurisdiction over a dam
in the same manner that an owner may petition and the board may
assume jurisdiction over a mutual drain. A board does not otherwise
have jurisdiction over a dam.
(c) A board may reconstruct or maintain a dam over which the
board has assumed jurisdiction, but an agency may not construct a
new dam. As added by P.L.166-1983, SEC.3.
IC 36-9-27-3 Authority to exercise rights and powers of political subdivisions
and state
Sec. 3. (a) The rights and powers of a political subdivision under
this chapter as an owner shall be exercised on behalf of the political
subdivision 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 this
chapter shall be exercised on behalf of the state by the director of the
department, office, or institution charged by law with the
maintenance, supervision, or control of the affected land owned by
the 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 Drainage
Board" (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, the
drainage board consists of either:
(1) the county executive; or
(2) three (3) or five (5) persons, at least one (1) of whom must
be a member of the executive, appointed by the executive;
at the option of the executive. Appointees under subdivision (2) must
be resident freeholders of the county who are knowledgeable in
drainage matters. Freeholders appointed to the board serve for terms
of three (3) years, with their initial appointments made so as to
provide for staggering of terms on an annual basis. In addition, the
county surveyor serves on the board as an ex officio, nonvoting
member.
(b) In a county having a consolidated city, the board of public
works of the consolidated city comprises the drainage board, subject
to IC 36-3-4-23.
(c) In a county having a consolidated city, the department of
public works of the consolidated city has all the powers, duties, and
responsibilities of the county surveyor under this chapter, subject to
IC 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 less
than three (3) because of disqualifications, the board shall
immediately certify that fact to the circuit court of the county. The
court shall then restore the membership of the board to three (3) by
appointing the appropriate number of resident freeholders of the
county to serve as special members for the particular drainage
proceedings.
(b) A special member of the board has the same duties and powers
as a regular member of the board, and is entitled to a per diem, to be
paid as an expense of the board, in an amount fixed by the county
fiscal body for each day or major part of a day spent in actual
attendance at any meeting of the board or in the performance of
official 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, by
electing one (1) of its members as chairman and one (1) of its
members as vice chairman. At the same time, the board shall elect a
secretary, 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, if
the surveyor's office is not adequate, the county executive shall
provide 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 written
notice setting forth the time, date, and place of the meeting to each
member not less than five (5) days before the date of the meeting. A
member may waive the mailing of notice of a special meeting by
filing a written waiver with the secretary or by his presence at the
meeting.
(e) Meetings of the board may be adjourned from day to day or to
a day certain without written notice being given.
(f) All meetings of the board must be open to the public, and the
minutes of the meetings are open to public inspection.
(g) A majority of the voting members of the board constitutes a
quorum, and the concurrence of a majority of the voting members
present at a meeting is necessary to authorize any action under this
chapter. 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 to
enforce 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 by
P.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 employed
by the board under this chapter shall be paid at a rate equal to that
provided by law for state employees for each mile necessarily
traveled while performing the duties of his office.
(b) The county fiscal body may provide the members of the
county executive who serve as members of the board with per diem
for their services as members of the board, in an amount fixed by the
county fiscal body for each day or major part of a day devoted to the
work of the board.
(c) Each appointed freeholder member serving on the board is
entitled to a per diem in an amount fixed by the county fiscal body
for 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 money
appropriated from the county general fund. Claims for expense
reimbursements 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 that
includes three (3) or more counties in a drainage basin of more than
one hundred thousand (100,000) acres.
(b) Whenever it appears, in any proceeding for the construction,
reconstruction, or maintenance of a regulated drain, that a member
of the board has an interest in the proceedings because of his
ownership of real property affected by the drain, that member shall
immediately disqualify himself from serving on the board in those
proceedings. However, the fact that county highways will be affected
by any proceedings does not disqualify a regular member of the
board. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.350-1985, SEC.1.
IC 36-9-27-13 Certain counties; county drainage advisory committees
established; powers and duties
Sec. 13. (a) This section applies to a county having a population
of more than four hundred thousand (400,000) but less than seven
hundred 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. Committee
members serve for four (4) year terms. Members may not receive per
diem or mileage for service on the committee.
(c) The county drainage advisory committee shall advise and
assist the board in the performance of its powers, duties, and
functions. The board or the county legislative body may assign
responsibilities to the committee concerning drainage. The
committee may select one (1) of its members as chairman and may
meet 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 any
proceedings instituted under this chapter may affect land in more
than one (1) county, he shall immediately forward notification of that
fact to the chairman of the board of each county in which the land is
located, by certified mail with return receipt requested. The notice
must state the number of counties involved and fix a date, hour, and
place for a meeting of a joint board. The date for the meeting may
not be less than twenty (20) nor more than thirty (30) days after the
notice is mailed.
(b) After the notice is given, all proceedings in the matter shall be
heard and determined by a board appointed from the membership of
the board of each county in which lands that may be affected are
located, as follows:
(1) If land in two (2) counties may be affected, the chairman of
the board of each county shall appoint two (2) of the members
of his board, other than the county surveyor, to serve on the
joint board. In addition, a fifth member shall be appointed by
the four (4) members of the joint board. The fifth member must
reside in a county that is not affected by the drainage problem.
(2) If land in more than two (2) counties may be affected, the
chairman of the board of each county shall appoint one (1) of
the members of his board, other than the county surveyor, to
serve on the joint board. If, as a result of the appointments, the
board has an even number of members, the members of the joint
board shall appoint an additional member to the joint board.
The additional member must reside in a county that is not
affected by the drainage problem.
(3) The surveyor of the county having the greatest length of
drain or proposed drain serves as an ex officio member of the
joint board, and has the same duties, powers, and
responsibilities he would have if the proposed construction,
reconstruction, or maintenance affected lands lying solely
within one (1) county.
(c) A joint board may authorize the employment of one (1) or
more persons to assist the county surveyor who serves on the board
in the performance of his duties in connection with the joint board.
The joint board shall set the rate of compensation for the assistants
and authorize an advance on the general drain improvement fund of
each county in proportion to the apparent percentage of the total land
area in each county to be affected by the drain. The cost of the
assistants and the advance is a part of the operating expense of the
joint board, which shall be finally adjusted and allocated as provided
in subsection (e).
(d) Whenever the county surveyor finds that a joint board should
be appointed and that:
(1) the area of affected land in his county exceeds eighty
percent (80%) of the total area of land affected by the drain; or
(2) ninety percent (90%) or more of the length of the affected
drain lies within his county;
he may request in writing that each board in the lesser affected
county or counties waive the right to be represented on a joint board
and 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 a
lesser affected county, shall be forwarded by certified mail with
return receipt requested to the chairman of the board of each lesser
affected county. If the surveyor does not receive a negative response
to his request from the board of a lesser affected county within thirty
(30) days, the surveyor may request his board to resolve itself as the
board for the proceedings. The board shall serve notice only on the
board of a lesser affected county and shall certify to the auditor of
that county a single claim for all benefits in that county, unless the
surveyor or board of that county furnishes to the board full and
acceptable information concerning all individual parcels of affected
land in that county, including maps.
(e) If the joint board proceeds with the proposed improvement or
maintenance, all operating expense of the joint board, including the
compensation of the fifth member appointed under subsection (b)(1)
and the additional member appointed under subsection (b)(2) shall
be:
(1) divided among the counties represented on it in the same
proportion that the total land assessment allocated to each
county bears to the total cost of the improvement or
maintenance; or
(2) paid from the joint drain's maintenance fund after the fund
is established and maintenance funds are collected.
If the joint board does not proceed, all operating expense of the joint
board shall be apportioned by the joint board to the counties
represented on it as justice requires.
(f) To the extent applicable, a joint board is governed by the
provisions 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 the
proceedings of a board that serves one (1) county. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.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 jurisdiction
of the board and subject to this chapter, except as otherwise provided
by 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 this
chapter.
(b) Land drained by a private or mutual drain is subject to
assessment for the construction, or reconstruction, or maintenance of
a regulated drain if the land is also drained by the regulated drain. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.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 mutual
drain, and outlet that drain into a regulated drain that is subject
to this chapter; and
(2) the construction or extension will not go through land
owned by other persons;
the owner shall file with the county surveyor having jurisdiction of
the regulated drain for permission to connect his drain with the
regulated drain.
(b) The owner shall file with his request the plans and
specifications of the private or mutual drain that will be constructed
or extended. However, if the private or mutual drain will have a tiled
outlet 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 is
adequate to handle the additional flow of water, if any, that would
result from the connection, and that no harmful pollution is likely to
result from the connection, he shall grant the request.
(d) If the county surveyor determines that the regulated drain is
not adequate to handle the additional flow of water resulting from the
connection without being reconstructed, he shall deny the request,
and the request may not be granted until the regulated drain is
reconstructed 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 or
mutual drain request the board in writing to assume jurisdiction over
the private or mutual drain, the board shall refer the request to the
county surveyor, who shall determine whether the private or mutual
drain meets the standards of design and construction established
under section 29 of this chapter.
(b) If the surveyor determines that the private or mutual drain
meets the standards of design and construction, he shall make a
written report of that fact to the board, which shall issue an order
granting the request. The drain becomes a regulated drain when the
request is granted.
(c) If the surveyor determines that the private or mutual drain does
not meet the standards of design and construction, he shall make a
written report of that fact to the board, which shall deny the request. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.276-2001, SEC.12.
IC 36-9-27-19 Mutual drains; conversion to regulated drain; procedure upon
request by single owner
Sec. 19. (a) Any owner affected by a mutual drain may file a
written request with the board to make the mutual drain a regulated
drain under this chapter. Upon receipt of such a request, the board
shall fix the date, time, and place for a hearing, which may not be
less than thirty (30) days after receipt of the request.
(b) At least twenty (20) days before the date of the hearing, the
owner making the request shall give the owners of all land affected
by the request notice of the date, time, place, and purpose of the
hearing. Service of the notice shall be made in the manner set forth
in section 58 of this chapter or in the manner summonses are served
in civil actions.
(c) Any owner affected by the mutual drain may, on or before the
date of the hearing, file with the board written evidence for or against
the granting of the request. At the hearing the board shall consider all
of the evidence filed, and if it finds that:
(1) the owners of more than fifty percent (50%) in acreage of
the affected land will be benefited if the drain is made a
regulated drain under this chapter; and
(2) the benefit to owners benefited is likely to be greater than
the damages to owners damaged by reason of the mutual drain
being made a regulated drain;
it shall make written findings to that effect and issue an order
granting the request.
(d) Before adjourning the hearing, the board shall announce its
findings and order. This announcement constitutes notice to all
affected persons, and, if judicial review is not requested under
section 106 of this chapter within twenty (20) days after the date of
notice, 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 jurisdiction
over ditches and drains located in a municipality or a sanitary
district, if that jurisdiction is accepted by the municipality or sanitary
district. As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-20.5 Drain maintenance fund; transfer of jurisdiction over drain to
municipality or sanitary district
Sec. 20.5. (a) A municipal or sanitary district drain maintenance
fund is established for each drain:
(1) that is subject to assessments by the board for periodic
maintenance and repair; and
(2) jurisdiction over which is transferred by the board to a
municipality or sanitary district under section 20 of this chapter.
(b) Except as provided in subsections (c) and (d), on or after the
date the board transfers jurisdiction over a drain to the municipality
or sanitary district, the county treasurer shall transfer the following
to the municipal or sanitary district drain maintenance fund
established under this section:
(1) The balance of the maintenance fund established under
section 44 of this chapter.
(2) Except as provided in subsection (e), any assessments for
periodic maintenance of the drain that:
(A) were imposed before the date on which the board
transfers jurisdiction of the drain; and
(B) are collected after the date on which the board transfers
jurisdiction of the drain.
(c) Except as provided in subsection (d), if the board transfers
jurisdiction 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 established
under section 44 of this chapter that bears the same proportion
to the balance in the fund that the length of the part of the drain
transferred to the municipality or sanitary district bears to the
total length of the drain; and
(2) except as provided in subsection (e), the proportion
determined under subdivision (1) of any assessments for
periodic maintenance of the drain that:
(A) were imposed before the date on which the board
transfers 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 which
jurisdiction over part of a drain is transferred may agree in writing to
an apportionment of the maintenance fund and outstanding
assessments different from the apportionment under subsection (c)
based on disproportionate maintenance requirements between the
part of the drain transferred and the part remaining under the
jurisdiction of the board. Subject to subsection (e), a county treasurer
who receives a written agreement under this subsection shall transfer
under subsection (b) the amounts specified in the agreement.
(e) If payment for maintenance work for a drain was made from
the general drain improvement fund under section 45 of this chapter,
the county treasurer shall transfer all or part of the assessment
described in subsection (b)(2) to the general drain improvement fund
to reimburse the fund for all or part of the cost of the maintenance
work.
(f) The expenses of a municipal or sanitary district drain
maintenance fund established by subsection (a) shall be paid from
the fund. The municipality or sanitary district to which jurisdiction
over a drain is transferred shall deposit money in the fund established
for the drain under subsection (a) in accordance with IC 5-13-6. Any
interest earned by the fund shall be credited to the fund. Any balance
remaining in the fund at the end of a fiscal year shall be carried over
in the fund for the following fiscal year.
(g) A municipal or sanitary district drain maintenance fund
established under subsection (a) is subject to the use of the
municipality or the sanitary district for the necessary or proper
repair, maintenance, study, or evaluation of the particular drain or
combination of drains for which the fund was established whenever
the municipality or sanitary district finds that it is necessary. Except
as provided in subsection (h), payment for all the maintenance work
for a drain or combination of drains shall be made out of the
municipal or sanitary district drain maintenance fund established for
the drain or combination of drains under subsection (a).
(h) If the balance of a maintenance fund is not sufficient to pay for
all of the maintenance work, the municipality or sanitary district
shall pay for any deficiency from the funds used by the municipality
or the sanitary district to pay for maintenance work on drains that are
not subject to a municipal or sanitary district maintenance fund. A
drain maintenance fund shall close upon payment of all money in the
fund.
(i) If the amount of funds on deposit in a municipal or sanitary
district drain maintenance fund is less than five hundred dollars
($500), the balance of the municipal or sanitary district drain
maintenance fund may be transferred to the fund used by the
municipality or the sanitary district to pay for maintenance work on
drains that are not subject to a municipal or sanitary district
maintenance 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 board
to a municipality or sanitary district under section 20 of this chapter,
the municipality or sanitary district has, with respect to that drain, the
same right of entry and right-of-way powers over and upon private
land that are given to the county surveyor or drainage board under
section 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 of
lands benefited by regulated drains
Sec. 21. (a) A drain that is located partly or wholly within the
corporate boundaries of a municipality is subject to this chapter only
if 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 directly
or indirectly into a regulated drain that is subject to this chapter, the
board shall assess the land benefited by the municipal drain to the
extent that it is benefited by the construction, reconstruction, or
maintenance of the regulated drain.
(c) This subsection applies to any parcel of land that is partly
within the corporate boundaries of a municipality having a drain
affected by subsection (b). Notwithstanding section 38 of this
chapter, the drainage board may make only one (1) assessment for
the same purpose on each individual drain on the parcel. For
purposes of making this one (1) assessment, the total acreage of the
parcel must be considered to be located where most of the land in the
parcel is situated, either within the boundaries or outside the
boundaries. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.200-1988, SEC.1; P.L.3-1990, SEC.137.
IC 36-9-27-22 Construction, reconstruction, or maintenance of municipal drains
flowing into regulated drains; procedure
Sec. 22. (a) A municipality acting under a statute other than this
chapter may not construct, reconstruct, or maintain a drain that:
(1) is located party or wholly within the corporate boundaries
of the municipality; and
(2) will flow directly or indirectly into a regulated drain that is
subject to this chapter;
without the written approval of the board.
(b) The municipality shall file with the board a written request for
consent 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 another
qualified person, of the amount of water that will be discharged
into the regulated drain as a result of the proposed construction,
reconstruction, or maintenance.
(c) The board shall refer the request for consent to the county
surveyor, who shall determine whether the regulated drain is
adequate to handle the additional flow of water, if any, that would
result from the construction, reconstruction, or maintenance
proposed by the municipality. If the surveyor finds that the regulated
drain is adequate to handle the additional flow of water, he shall
make a written report of that fact to the board, which shall issue its
order consenting to the construction, reconstruction, or maintenance
by the municipality. If the surveyor finds that the regulated drain is
not adequate, he shall:
(1) prepare a preliminary plan for the reconstruction of the
regulated drain so that it will be adequate to handle the
additional 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 of
the reconstruction of the regulated drain, the county surveyor shall
prepare final plans and specifications for the work, reestimate the
cost of the work except for damages to affected land, and file the
plans and estimate with the board. The board shall determine the
amount of damages sustained by any owner as a result of the
reconstruction of the regulated drain and shall serve upon each owner
a notice:
(1) describing the owner's lands;
(2) stating the amount of each owner's damages;
(3) explaining the injury upon which the determination was
based; and
(4) stating the date, time, and place of a hearing by the board on
objections to the amount of damages.
The notice shall be served and the hearing held in accordance with
sections 49 through 52 of this chapter.
(e) The board shall add the damages to affected land to the county
surveyor's reestimation of the costs of the reconstruction and shall
certify that amount to the municipality. When the municipality pays
the amount certified by the board into the office of the county
treasurer for the use of the board in the reconstruction of the
regulated drain, the board shall issue an order consenting to the use
of the regulated drain by the municipality and shall proceed with the
reconstruction of the regulated drain in accordance with the plans
and specifications of the surveyor.
(f) After the contracts for the reconstruction are let in accordance
with sections 77 through 79 of this chapter, the board shall compute
the actual cost of the reconstruction. If the actual cost is less than the
estimated cost, the excess shall be returned to the municipality on
certification by the board to the county auditor of the amount to be
returned. If the actual cost of the reconstruction is more than the
estimated cost, the board shall certify that fact to the municipality,
which shall immediately pay the difference into the office of the
country treasurer.
(g) When the board consents to a request made by a municipality
under subsection (b), the board shall fix the annual assessment
against the municipality for the periodic maintenance of the regulated
drain in accordance with sections 38 through 43 of this chapter.
(h) This section does not prohibit a municipality from petitioning
the board for the construction of a new regulated drain under sections
54 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; water
pollution control; procedure
Sec. 23. (a) Whenever:
(1) a person wants to connect a drain with a regulated drain that
is subject to this chapter; and
(2) the connection would result in the discharge into the
regulated drain of liquid wastes that would cause or contribute
to pollution of the receiving waters;
the person seeking the connection must obtain written approval from
the department of environmental management for the discharge, and
shall file that written approval with the board having jurisdiction of
the regulated drain when filing his request to connect.
(b) The board may deny a connection request, even though
approval of the department of environmental management is given
or is not required.
(c) The board shall deny a connection request whenever the
approval of the department of environmental management is required
and is not obtained.
(d) The provisions of this section requiring department of
environmental management approval do not apply to the discharge
of sewage from a single or two (2) family residence. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.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 conservancy
district is not subject to this chapter if:
(1) the drain has been designated for construction,
reconstruction, or maintenance in the district plan of the
conservancy district; and
(2) the district plan was approved before January 1, 1966.
However, if the drain has a direct or indirect outlet into any other
drain that is subject to this chapter, the board shall assess the district
for any benefits it receives from the construction, reconstruction, or
maintenance of the other drain.
(b) A court may not approve the district plan or an amendment to
the district plan of a conservancy district if it includes the
construction, reconstruction, or maintenance of a regulated drain in
the district, unless written approval for the district to perform the
work is filed with the court by the board or by the department of
natural resources.
(c) When a drain located in a conservancy district is not subject
to this chapter, the district, with the approval of the court having
jurisdiction over the district, may file a written request with the
board for the board to assume jurisdiction over the drain. The drain
becomes 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 chapter
is included in a flood control project approved by the department of
natural resources, the drain ceases to be subject to this chapter. The
construction, reconstruction, and maintenance of such a drain is the
responsibility of the local agency that constructs and maintains the
project. As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-26 Drains under jurisdiction of certain drainage maintenance and
repair districts and associations; exemption from chapter
Sec. 26. A drain that is under the jurisdiction of:
(1) a drainage maintenance and repair district established under
IC 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 under
this chapter, and the district or association is solely responsible for
the maintenance of the drain. However, if the drain flows directly or
indirectly into a regulated drain that is subject to this chapter, the
board shall assess the land within the district or association for any
benefits it receives from the construction, reconstruction, or
maintenance 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; transfer
of funds and administration
Sec. 26.5. (a) A county executive may change a regulated drain
that is subject to this chapter into a drain that is subject to the
jurisdiction of a drainage maintenance and repair district under
IC 14-27-8.
(b) When a drain that is subject to assessments for periodic
maintenance and repair under this chapter becomes subject to the
jurisdiction of a drainage maintenance and repair district under
IC 14-27-8, the county treasurer shall transfer all money in the drain's
maintenance fund established under section 44 of this chapter to the
drain's drainage maintenance fund established under IC 14-27-8-19.
(c) The county executive shall establish procedures for the
transition of a drain from administration under this chapter to
administration 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 drainage
maintenance and repair district established under IC 13-2-21 (before
its repeal) or under IC 14-27-8 is not active and is not properly
maintaining the drains under its control may be filed with the board
by:
(1) the owners of fifty-one percent (51%) in area of the land
located in the district; or
(2) fifty-one percent (51%) of the owners of land located in the
district.
When the statement is filed, the board may file with the court that
established the district a complaint that sets forth the allegations in
the statement and requests the court to dissolve the district.
(b) The drainage maintenance and repair district shall be named
defendant 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 be
found.
The issues shall be considered closed by a general denial, without the
filing on any specific pleadings.
(c) The court shall hear the action without a jury. A change of
venue 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 the
jurisdiction of the district become regulated drains subject to this
chapter 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 of
jurisdiction by board; procedure
Sec. 28. (a) A written statement alleging that an association
established under Acts 1913, c. 165 for the purpose of maintaining
and repairing a drain is not active and is not properly maintaining the
drain 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 the
association; or
(2) fifty-one percent (51%) of the members of the association.
When the statement is filed, the board may notify the association of
its 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 the
matter, and shall be:
(1) served personally or by registered mail upon any director or
officer of the association who did not sign the statement filed
with the board; or
(2) published in accordance with IC 5-3-1, if such a director or
officer cannot be found.
(c) On or before the date of the hearing, any member of the
association 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 that
is subject to this chapter. The finding and order shall be marked filed
and shall be announced publicly at the hearing. The board shall then
publish 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 be
requested by any member of the association within twenty (20) days
after publication of the notice. The drain becomes subject to this
chapter when the order becomes final and conclusive.
(e) If the board finds that the allegations in the statement are not
true, 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 the
construction, reconstruction, and maintenance of all regulated drains
or proposed regulated drains in the county, and he shall:
(1) investigate, evaluate, and survey all regulated drains or
proposed regulated drains, and prepare all reports, plans,
profiles, and specifications necessary or incident to any
proposed construction, reconstruction, or maintenance of
regulated drains;
(2) prepare and make public standards of design, construction,
and maintenance that will apply to all regulated drains and their
appurtenances, taking into consideration in preparing these
standards the published recommendations made by Purdue
University, the American Society of Agricultural Engineers, the
American Society of Civil Engineers, the United States
Department of Agriculture, the department of natural resources,
the United States Army Corps of Engineers, and other reliable
sources of information;
(3) supervise all construction, reconstruction, and maintenance
work 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 of
this chapter concerning all urban drains under his jurisdiction.
In preparing plans under subdivision (1), the surveyor shall, when
feasible, include the seeding of the banks of all open drains. The
surveyor shall, when feasible, use United States Geological Survey
data on plans and profiles prepared under subdivision (1). As added by Acts 1981, P.L.309, SEC.101. Amended by
P.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 under
IC 25-21.5 or IC 25-31 and that statute prohibits an unregistered
person from performing any function that the county surveyor is
directed to do under this chapter, the surveyor shall employ and fix
the compensation of a person who is so registered to work with the
surveyor in performing those functions. However, if the county
surveyor does not employ a registered person within one (1) year of
the acceptance of a petition for construction or reconstruction of a
drain, the board may make the appointment of a registered person
that this section requires.
(b) The person employed by the surveyor, who shall be known as
a qualified deputy, shall file with the county surveyor the original of
all plans, specifications, and other documents made by the person in
performing the work for which the person was employed. Those
plans, specifications, and other documents become a part of the
permanent file of the surveyor's office, which the surveyor shall
maintain for the use of the board as provided in section 109 of this
chapter.
(c) The rate of compensation paid to a qualified deputy shall be
assessed against the drainage project for which the deputy was
employed.
(d) This subsection applies whenever the county surveyor is not
registered under IC 25-21.5 or IC 25-31, and the county surveyor has
not employed a registered person as provided in subsection (a). If the
county has a full-time employee who is registered as a land surveyor
under IC 25-21.5 or as a professional engineer under IC 25-31, the
board may, subject to the approval of the county executive and the
county surveyor, designate that person to perform the functions of
the county surveyor under this chapter that are allowed under the
employee's license as a land surveyor or professional engineer. If a
designation is made and approved under this subsection, the county
surveyor may not employ a registered person under subsection (a) to
perform that same function. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.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 in
any county, the board shall employ and fix the compensation of a
part-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 or
become a resident of Indiana, shall perform the functions required of
the 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 to
advance the work of construction or of reconstruction, as determined
from 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 the
employment of an engineer, firm of engineers, or land surveyor as a
contract deputy to perform the necessary work, including:
(1) the preparation of the surveyor's report or specified parts of
it; and
(2) the supervision of the construction or reconstruction.
(b) A contract deputy shall be employed by contract. Each
contract must be for work on a specific drainage project, and may be
on a per project fee basis or on a per diem basis of compensation.
(c) A contract deputy must have the same qualifications as an
engineer or surveyor employed or appointed by the board under
section 30 or 31 of this chapter.
(d) The original of all plans, specifications, and other documents
made by a contract deputy in performing the work for which he was
employed, or facsimiles of them in reproducible form, shall be
transmitted to the board and shall be permanently retained by the
board or by the surveyor in the manner in which similar documents
prepared by the surveyor or the board are retained.
(e) The compensation of a contract deputy shall be assessed
against the drainage project for which the deputy was employed, and
may be paid from the general drain improvement fund before the
order for the construction or reconstruction. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.206-1984, SEC.2.
IC 36-9-27-33 Right of entry over private land; extension of spoil banks beyond
right-of-way
Sec. 33. (a) The county surveyor, the board, or an authorized
representative of the surveyor or the board acting under this chapter
has the right of entry over and upon land lying within seventy-five
(75) feet of any regulated drain. The seventy-five (75) foot limit shall
be 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 beyond
the 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 report
on the construction, reconstruction, or maintenance.
(c) All persons exercising the right given by this section shall, to
the extent possible, use due care to avoid damage to crops, fences,
buildings, and other structures outside of the right-of-way, and to
crops and approved structures inside the right-of-way. The county
surveyor shall give oral or written notice of the entry on the land to
the property owner of record, and in the case of a municipality, to the
executive of that municipality. The notice must state the purpose for
the entry.
(d) The owners of land over which the right-of-way runs may use
the land in any manner consistent with this chapter and the proper
operation of the drain. Permanent structures may not be placed on
any right-of-way without the written consent of the board.
Temporary structures may be placed upon or over the right-of-way
without the written consent of the board, but shall be removed
immediately by the owner when so ordered by the board or by the
county surveyor. Crops grown on a right-of-way are at the risk of the
owner, and, if necessary in the reconstruction or maintenance of the
drain, may be damaged without liability on the part of the surveyor,
the board, or their representatives. Trees, shrubs, and woody
vegetation may not be planted in the right-of-way without the written
consent of the board, and trees and shrubs may be removed by the
surveyor if necessary to the proper operation or maintenance of the
drain.
(e) This subsection applies to new regulated drains established
after September 1, 1984, and to urban drains. The board may reduce
the seventy-five (75) foot requirement of subsections (a) and (b) to
any distance of not less than twenty-five (25) feet from the top of
each bank of an open ditch and fifteen (15) feet from the center line
of any tiled drain as measured at right angles.
(f) The surveyor, the board, or an authorized representative of the
surveyor or the board acting under this chapter does not commit
criminal trespass under IC 35-43-2-2. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.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 drains
in 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 drains
under 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 designed
and constructed;
(2) it no longer conforms to the maps, profiles, and plans
prepared at the time when the legal drain was established; or
(3) topographical or other changes have made the drain
inadequate to properly drain the lands affected without
extensive repairs or changes, including:
(A) converting all or part of an open drain to a tiled drain or
a tiled drain to an open drain;
(B) adding an open drain to a tiled drain or a tiled drain to an
open 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 drainage
control dams;
(H) providing for erosion control and for grade stabilization
structures; or
(I) making any major change to a drainage system that would
be 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 to
perform the function for which it was designed and constructed, and
to properly drain all affected land under current conditions, by
periodically:
(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 was
designed and constructed, or it has become inadequate to
properly drain all affected land under current conditions;
(2) the expense of reconstruction outweighs the benefits of
reconstruction; and
(3) the vacation will not be detrimental to the public welfare. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.166-1983, SEC.6.
IC 36-9-27-35 Submission of classifications and order of work priority of drains
to board; notice and hearing on classification and reclassification
requests
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 county
having 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 by
the 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, or
through a location used for the passage of people, livestock, or
vehicles.
"Dam" means a dam or other structure and its appurtenances that
impounds a small lake at the lake's outlet.
"Maintenance" means work on a drain as described in section
34(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 under
different ownership;
(2) was established by the mutual consent of all the owners; and
(3) was not established under or made subject to any drainage
statute.
"Open drain" means a natural or artificial open channel that:
(1) carries surplus water; and
(2) was established under or made subject to any drainage
statute.
"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) or
more persons jointly; and
(2) was not established under or made subject to any drainage
statute.
"Reconstruction" means work on a drain as described in section
34(b) of this chapter to correct any of the problems with the drain
that are enumerated in that section up to and including the discharge
portion of the drain.
"Regulated drain" means an open drain, a tiled drain, or a
combination of the two.
"Rural drain" means a regulated drain that provides adequate
drainage or impounds water for rural land.
"Rural land" means affected land that:
(1) will not appreciably benefit from more drainage than is
necessary to expediently remove water after frequent or
periodic flooding; and
(2) is generally used for crop production, pasture, forest, or
similar 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 that
are under different ownership or a tract of land that is owned by
a not-for-profit corporation having more than one (1) member;
(3) is not constructed, reconstructed, or maintained under this
chapter as part of an open drain;
(4) is not a private crossing, control dam, or other permanent
structure 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 or
control 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 drainage
statute.
"Urban land" means affected land that:
(1) will appreciably benefit from drainage that will provide the
maximum practicable protection against flooding or the
impounding of water in a small lake; and
(2) is used or will in the reasonably foreseeable future be used
generally for commercial, industrial, large estate, higher density
residential, or similar purposes.
"Watershed" means an area of land from which all runoff water
drains to a given point or that is affected by a small lake. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.166-1983, SEC.2; P.L.205-1984, SEC.1.
IC 36-9-27-2.5 "Dam" defined; certain sections not applicable; designation as
regulated 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, and
sections 56 through 66 of this chapter do not apply to a dam.
(b) Any owner may petition a board to designate a dam as a
regulated drain, and any board may assume jurisdiction over a dam
in the same manner that an owner may petition and the board may
assume jurisdiction over a mutual drain. A board does not otherwise
have jurisdiction over a dam.
(c) A board may reconstruct or maintain a dam over which the
board has assumed jurisdiction, but an agency may not construct a
new dam. As added by P.L.166-1983, SEC.3.
IC 36-9-27-3 Authority to exercise rights and powers of political subdivisions
and state
Sec. 3. (a) The rights and powers of a political subdivision under
this chapter as an owner shall be exercised on behalf of the political
subdivision 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 this
chapter shall be exercised on behalf of the state by the director of the
department, office, or institution charged by law with the
maintenance, supervision, or control of the affected land owned by
the 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 Drainage
Board" (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, the
drainage board consists of either:
(1) the county executive; or
(2) three (3) or five (5) persons, at least one (1) of whom must
be a member of the executive, appointed by the executive;
at the option of the executive. Appointees under subdivision (2) must
be resident freeholders of the county who are knowledgeable in
drainage matters. Freeholders appointed to the board serve for terms
of three (3) years, with their initial appointments made so as to
provide for staggering of terms on an annual basis. In addition, the
county surveyor serves on the board as an ex officio, nonvoting
member.
(b) In a county having a consolidated city, the board of public
works of the consolidated city comprises the drainage board, subject
to IC 36-3-4-23.
(c) In a county having a consolidated city, the department of
public works of the consolidated city has all the powers, duties, and
responsibilities of the county surveyor under this chapter, subject to
IC 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 less
than three (3) because of disqualifications, the board shall
immediately certify that fact to the circuit court of the county. The
court shall then restore the membership of the board to three (3) by
appointing the appropriate number of resident freeholders of the
county to serve as special members for the particular drainage
proceedings.
(b) A special member of the board has the same duties and powers
as a regular member of the board, and is entitled to a per diem, to be
paid as an expense of the board, in an amount fixed by the county
fiscal body for each day or major part of a day spent in actual
attendance at any meeting of the board or in the performance of
official 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, by
electing one (1) of its members as chairman and one (1) of its
members as vice chairman. At the same time, the board shall elect a
secretary, 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, if
the surveyor's office is not adequate, the county executive shall
provide 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 written
notice setting forth the time, date, and place of the meeting to each
member not less than five (5) days before the date of the meeting. A
member may waive the mailing of notice of a special meeting by
filing a written waiver with the secretary or by his presence at the
meeting.
(e) Meetings of the board may be adjourned from day to day or to
a day certain without written notice being given.
(f) All meetings of the board must be open to the public, and the
minutes of the meetings are open to public inspection.
(g) A majority of the voting members of the board constitutes a
quorum, and the concurrence of a majority of the voting members
present at a meeting is necessary to authorize any action under this
chapter. 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 to
enforce 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 by
P.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 employed
by the board under this chapter shall be paid at a rate equal to that
provided by law for state employees for each mile necessarily
traveled while performing the duties of his office.
(b) The county fiscal body may provide the members of the
county executive who serve as members of the board with per diem
for their services as members of the board, in an amount fixed by the
county fiscal body for each day or major part of a day devoted to the
work of the board.
(c) Each appointed freeholder member serving on the board is
entitled to a per diem in an amount fixed by the county fiscal body
for 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 money
appropriated from the county general fund. Claims for expense
reimbursements 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 that
includes three (3) or more counties in a drainage basin of more than
one hundred thousand (100,000) acres.
(b) Whenever it appears, in any proceeding for the construction,
reconstruction, or maintenance of a regulated drain, that a member
of the board has an interest in the proceedings because of his
ownership of real property affected by the drain, that member shall
immediately disqualify himself from serving on the board in those
proceedings. However, the fact that county highways will be affected
by any proceedings does not disqualify a regular member of the
board. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.350-1985, SEC.1.
IC 36-9-27-13 Certain counties; county drainage advisory committees
established; powers and duties
Sec. 13. (a) This section applies to a county having a population
of more than four hundred thousand (400,000) but less than seven
hundred 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. Committee
members serve for four (4) year terms. Members may not receive per
diem or mileage for service on the committee.
(c) The county drainage advisory committee shall advise and
assist the board in the performance of its powers, duties, and
functions. The board or the county legislative body may assign
responsibilities to the committee concerning drainage. The
committee may select one (1) of its members as chairman and may
meet 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 any
proceedings instituted under this chapter may affect land in more
than one (1) county, he shall immediately forward notification of that
fact to the chairman of the board of each county in which the land is
located, by certified mail with return receipt requested. The notice
must state the number of counties involved and fix a date, hour, and
place for a meeting of a joint board. The date for the meeting may
not be less than twenty (20) nor more than thirty (30) days after the
notice is mailed.
(b) After the notice is given, all proceedings in the matter shall be
heard and determined by a board appointed from the membership of
the board of each county in which lands that may be affected are
located, as follows:
(1) If land in two (2) counties may be affected, the chairman of
the board of each county shall appoint two (2) of the members
of his board, other than the county surveyor, to serve on the
joint board. In addition, a fifth member shall be appointed by
the four (4) members of the joint board. The fifth member must
reside in a county that is not affected by the drainage problem.
(2) If land in more than two (2) counties may be affected, the
chairman of the board of each county shall appoint one (1) of
the members of his board, other than the county surveyor, to
serve on the joint board. If, as a result of the appointments, the
board has an even number of members, the members of the joint
board shall appoint an additional member to the joint board.
The additional member must reside in a county that is not
affected by the drainage problem.
(3) The surveyor of the county having the greatest length of
drain or proposed drain serves as an ex officio member of the
joint board, and has the same duties, powers, and
responsibilities he would have if the proposed construction,
reconstruction, or maintenance affected lands lying solely
within one (1) county.
(c) A joint board may authorize the employment of one (1) or
more persons to assist the county surveyor who serves on the board
in the performance of his duties in connection with the joint board.
The joint board shall set the rate of compensation for the assistants
and authorize an advance on the general drain improvement fund of
each county in proportion to the apparent percentage of the total land
area in each county to be affected by the drain. The cost of the
assistants and the advance is a part of the operating expense of the
joint board, which shall be finally adjusted and allocated as provided
in subsection (e).
(d) Whenever the county surveyor finds that a joint board should
be appointed and that:
(1) the area of affected land in his county exceeds eighty
percent (80%) of the total area of land affected by the drain; or
(2) ninety percent (90%) or more of the length of the affected
drain lies within his county;
he may request in writing that each board in the lesser affected
county or counties waive the right to be represented on a joint board
and 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 a
lesser affected county, shall be forwarded by certified mail with
return receipt requested to the chairman of the board of each lesser
affected county. If the surveyor does not receive a negative response
to his request from the board of a lesser affected county within thirty
(30) days, the surveyor may request his board to resolve itself as the
board for the proceedings. The board shall serve notice only on the
board of a lesser affected county and shall certify to the auditor of
that county a single claim for all benefits in that county, unless the
surveyor or board of that county furnishes to the board full and
acceptable information concerning all individual parcels of affected
land in that county, including maps.
(e) If the joint board proceeds with the proposed improvement or
maintenance, all operating expense of the joint board, including the
compensation of the fifth member appointed under subsection (b)(1)
and the additional member appointed under subsection (b)(2) shall
be:
(1) divided among the counties represented on it in the same
proportion that the total land assessment allocated to each
county bears to the total cost of the improvement or
maintenance; or
(2) paid from the joint drain's maintenance fund after the fund
is established and maintenance funds are collected.
If the joint board does not proceed, all operating expense of the joint
board shall be apportioned by the joint board to the counties
represented on it as justice requires.
(f) To the extent applicable, a joint board is governed by the
provisions 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 the
proceedings of a board that serves one (1) county. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.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 jurisdiction
of the board and subject to this chapter, except as otherwise provided
by 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 this
chapter.
(b) Land drained by a private or mutual drain is subject to
assessment for the construction, or reconstruction, or maintenance of
a regulated drain if the land is also drained by the regulated drain. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.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 mutual
drain, and outlet that drain into a regulated drain that is subject
to this chapter; and
(2) the construction or extension will not go through land
owned by other persons;
the owner shall file with the county surveyor having jurisdiction of
the regulated drain for permission to connect his drain with the
regulated drain.
(b) The owner shall file with his request the plans and
specifications of the private or mutual drain that will be constructed
or extended. However, if the private or mutual drain will have a tiled
outlet 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 is
adequate to handle the additional flow of water, if any, that would
result from the connection, and that no harmful pollution is likely to
result from the connection, he shall grant the request.
(d) If the county surveyor determines that the regulated drain is
not adequate to handle the additional flow of water resulting from the
connection without being reconstructed, he shall deny the request,
and the request may not be granted until the regulated drain is
reconstructed 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 or
mutual drain request the board in writing to assume jurisdiction over
the private or mutual drain, the board shall refer the request to the
county surveyor, who shall determine whether the private or mutual
drain meets the standards of design and construction established
under section 29 of this chapter.
(b) If the surveyor determines that the private or mutual drain
meets the standards of design and construction, he shall make a
written report of that fact to the board, which shall issue an order
granting the request. The drain becomes a regulated drain when the
request is granted.
(c) If the surveyor determines that the private or mutual drain does
not meet the standards of design and construction, he shall make a
written report of that fact to the board, which shall deny the request. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.276-2001, SEC.12.
IC 36-9-27-19 Mutual drains; conversion to regulated drain; procedure upon
request by single owner
Sec. 19. (a) Any owner affected by a mutual drain may file a
written request with the board to make the mutual drain a regulated
drain under this chapter. Upon receipt of such a request, the board
shall fix the date, time, and place for a hearing, which may not be
less than thirty (30) days after receipt of the request.
(b) At least twenty (20) days before the date of the hearing, the
owner making the request shall give the owners of all land affected
by the request notice of the date, time, place, and purpose of the
hearing. Service of the notice shall be made in the manner set forth
in section 58 of this chapter or in the manner summonses are served
in civil actions.
(c) Any owner affected by the mutual drain may, on or before the
date of the hearing, file with the board written evidence for or against
the granting of the request. At the hearing the board shall consider all
of the evidence filed, and if it finds that:
(1) the owners of more than fifty percent (50%) in acreage of
the affected land will be benefited if the drain is made a
regulated drain under this chapter; and
(2) the benefit to owners benefited is likely to be greater than
the damages to owners damaged by reason of the mutual drain
being made a regulated drain;
it shall make written findings to that effect and issue an order
granting the request.
(d) Before adjourning the hearing, the board shall announce its
findings and order. This announcement constitutes notice to all
affected persons, and, if judicial review is not requested under
section 106 of this chapter within twenty (20) days after the date of
notice, 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 jurisdiction
over ditches and drains located in a municipality or a sanitary
district, if that jurisdiction is accepted by the municipality or sanitary
district. As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-20.5 Drain maintenance fund; transfer of jurisdiction over drain to
municipality or sanitary district
Sec. 20.5. (a) A municipal or sanitary district drain maintenance
fund is established for each drain:
(1) that is subject to assessments by the board for periodic
maintenance and repair; and
(2) jurisdiction over which is transferred by the board to a
municipality or sanitary district under section 20 of this chapter.
(b) Except as provided in subsections (c) and (d), on or after the
date the board transfers jurisdiction over a drain to the municipality
or sanitary district, the county treasurer shall transfer the following
to the municipal or sanitary district drain maintenance fund
established under this section:
(1) The balance of the maintenance fund established under
section 44 of this chapter.
(2) Except as provided in subsection (e), any assessments for
periodic maintenance of the drain that:
(A) were imposed before the date on which the board
transfers jurisdiction of the drain; and
(B) are collected after the date on which the board transfers
jurisdiction of the drain.
(c) Except as provided in subsection (d), if the board transfers
jurisdiction 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 established
under section 44 of this chapter that bears the same proportion
to the balance in the fund that the length of the part of the drain
transferred to the municipality or sanitary district bears to the
total length of the drain; and
(2) except as provided in subsection (e), the proportion
determined under subdivision (1) of any assessments for
periodic maintenance of the drain that:
(A) were imposed before the date on which the board
transfers 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 which
jurisdiction over part of a drain is transferred may agree in writing to
an apportionment of the maintenance fund and outstanding
assessments different from the apportionment under subsection (c)
based on disproportionate maintenance requirements between the
part of the drain transferred and the part remaining under the
jurisdiction of the board. Subject to subsection (e), a county treasurer
who receives a written agreement under this subsection shall transfer
under subsection (b) the amounts specified in the agreement.
(e) If payment for maintenance work for a drain was made from
the general drain improvement fund under section 45 of this chapter,
the county treasurer shall transfer all or part of the assessment
described in subsection (b)(2) to the general drain improvement fund
to reimburse the fund for all or part of the cost of the maintenance
work.
(f) The expenses of a municipal or sanitary district drain
maintenance fund established by subsection (a) shall be paid from
the fund. The municipality or sanitary district to which jurisdiction
over a drain is transferred shall deposit money in the fund established
for the drain under subsection (a) in accordance with IC 5-13-6. Any
interest earned by the fund shall be credited to the fund. Any balance
remaining in the fund at the end of a fiscal year shall be carried over
in the fund for the following fiscal year.
(g) A municipal or sanitary district drain maintenance fund
established under subsection (a) is subject to the use of the
municipality or the sanitary district for the necessary or proper
repair, maintenance, study, or evaluation of the particular drain or
combination of drains for which the fund was established whenever
the municipality or sanitary district finds that it is necessary. Except
as provided in subsection (h), payment for all the maintenance work
for a drain or combination of drains shall be made out of the
municipal or sanitary district drain maintenance fund established for
the drain or combination of drains under subsection (a).
(h) If the balance of a maintenance fund is not sufficient to pay for
all of the maintenance work, the municipality or sanitary district
shall pay for any deficiency from the funds used by the municipality
or the sanitary district to pay for maintenance work on drains that are
not subject to a municipal or sanitary district maintenance fund. A
drain maintenance fund shall close upon payment of all money in the
fund.
(i) If the amount of funds on deposit in a municipal or sanitary
district drain maintenance fund is less than five hundred dollars
($500), the balance of the municipal or sanitary district drain
maintenance fund may be transferred to the fund used by the
municipality or the sanitary district to pay for maintenance work on
drains that are not subject to a municipal or sanitary district
maintenance 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 board
to a municipality or sanitary district under section 20 of this chapter,
the municipality or sanitary district has, with respect to that drain, the
same right of entry and right-of-way powers over and upon private
land that are given to the county surveyor or drainage board under
section 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 of
lands benefited by regulated drains
Sec. 21. (a) A drain that is located partly or wholly within the
corporate boundaries of a municipality is subject to this chapter only
if 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 directly
or indirectly into a regulated drain that is subject to this chapter, the
board shall assess the land benefited by the municipal drain to the
extent that it is benefited by the construction, reconstruction, or
maintenance of the regulated drain.
(c) This subsection applies to any parcel of land that is partly
within the corporate boundaries of a municipality having a drain
affected by subsection (b). Notwithstanding section 38 of this
chapter, the drainage board may make only one (1) assessment for
the same purpose on each individual drain on the parcel. For
purposes of making this one (1) assessment, the total acreage of the
parcel must be considered to be located where most of the land in the
parcel is situated, either within the boundaries or outside the
boundaries. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.200-1988, SEC.1; P.L.3-1990, SEC.137.
IC 36-9-27-22 Construction, reconstruction, or maintenance of municipal drains
flowing into regulated drains; procedure
Sec. 22. (a) A municipality acting under a statute other than this
chapter may not construct, reconstruct, or maintain a drain that:
(1) is located party or wholly within the corporate boundaries
of the municipality; and
(2) will flow directly or indirectly into a regulated drain that is
subject to this chapter;
without the written approval of the board.
(b) The municipality shall file with the board a written request for
consent 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 another
qualified person, of the amount of water that will be discharged
into the regulated drain as a result of the proposed construction,
reconstruction, or maintenance.
(c) The board shall refer the request for consent to the county
surveyor, who shall determine whether the regulated drain is
adequate to handle the additional flow of water, if any, that would
result from the construction, reconstruction, or maintenance
proposed by the municipality. If the surveyor finds that the regulated
drain is adequate to handle the additional flow of water, he shall
make a written report of that fact to the board, which shall issue its
order consenting to the construction, reconstruction, or maintenance
by the municipality. If the surveyor finds that the regulated drain is
not adequate, he shall:
(1) prepare a preliminary plan for the reconstruction of the
regulated drain so that it will be adequate to handle the
additional 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 of
the reconstruction of the regulated drain, the county surveyor shall
prepare final plans and specifications for the work, reestimate the
cost of the work except for damages to affected land, and file the
plans and estimate with the board. The board shall determine the
amount of damages sustained by any owner as a result of the
reconstruction of the regulated drain and shall serve upon each owner
a notice:
(1) describing the owner's lands;
(2) stating the amount of each owner's damages;
(3) explaining the injury upon which the determination was
based; and
(4) stating the date, time, and place of a hearing by the board on
objections to the amount of damages.
The notice shall be served and the hearing held in accordance with
sections 49 through 52 of this chapter.
(e) The board shall add the damages to affected land to the county
surveyor's reestimation of the costs of the reconstruction and shall
certify that amount to the municipality. When the municipality pays
the amount certified by the board into the office of the county
treasurer for the use of the board in the reconstruction of the
regulated drain, the board shall issue an order consenting to the use
of the regulated drain by the municipality and shall proceed with the
reconstruction of the regulated drain in accordance with the plans
and specifications of the surveyor.
(f) After the contracts for the reconstruction are let in accordance
with sections 77 through 79 of this chapter, the board shall compute
the actual cost of the reconstruction. If the actual cost is less than the
estimated cost, the excess shall be returned to the municipality on
certification by the board to the county auditor of the amount to be
returned. If the actual cost of the reconstruction is more than the
estimated cost, the board shall certify that fact to the municipality,
which shall immediately pay the difference into the office of the
country treasurer.
(g) When the board consents to a request made by a municipality
under subsection (b), the board shall fix the annual assessment
against the municipality for the periodic maintenance of the regulated
drain in accordance with sections 38 through 43 of this chapter.
(h) This section does not prohibit a municipality from petitioning
the board for the construction of a new regulated drain under sections
54 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; water
pollution control; procedure
Sec. 23. (a) Whenever:
(1) a person wants to connect a drain with a regulated drain that
is subject to this chapter; and
(2) the connection would result in the discharge into the
regulated drain of liquid wastes that would cause or contribute
to pollution of the receiving waters;
the person seeking the connection must obtain written approval from
the department of environmental management for the discharge, and
shall file that written approval with the board having jurisdiction of
the regulated drain when filing his request to connect.
(b) The board may deny a connection request, even though
approval of the department of environmental management is given
or is not required.
(c) The board shall deny a connection request whenever the
approval of the department of environmental management is required
and is not obtained.
(d) The provisions of this section requiring department of
environmental management approval do not apply to the discharge
of sewage from a single or two (2) family residence. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.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 conservancy
district is not subject to this chapter if:
(1) the drain has been designated for construction,
reconstruction, or maintenance in the district plan of the
conservancy district; and
(2) the district plan was approved before January 1, 1966.
However, if the drain has a direct or indirect outlet into any other
drain that is subject to this chapter, the board shall assess the district
for any benefits it receives from the construction, reconstruction, or
maintenance of the other drain.
(b) A court may not approve the district plan or an amendment to
the district plan of a conservancy district if it includes the
construction, reconstruction, or maintenance of a regulated drain in
the district, unless written approval for the district to perform the
work is filed with the court by the board or by the department of
natural resources.
(c) When a drain located in a conservancy district is not subject
to this chapter, the district, with the approval of the court having
jurisdiction over the district, may file a written request with the
board for the board to assume jurisdiction over the drain. The drain
becomes 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 chapter
is included in a flood control project approved by the department of
natural resources, the drain ceases to be subject to this chapter. The
construction, reconstruction, and maintenance of such a drain is the
responsibility of the local agency that constructs and maintains the
project. As added by Acts 1981, P.L.309, SEC.101.
IC 36-9-27-26 Drains under jurisdiction of certain drainage maintenance and
repair districts and associations; exemption from chapter
Sec. 26. A drain that is under the jurisdiction of:
(1) a drainage maintenance and repair district established under
IC 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 under
this chapter, and the district or association is solely responsible for
the maintenance of the drain. However, if the drain flows directly or
indirectly into a regulated drain that is subject to this chapter, the
board shall assess the land within the district or association for any
benefits it receives from the construction, reconstruction, or
maintenance 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; transfer
of funds and administration
Sec. 26.5. (a) A county executive may change a regulated drain
that is subject to this chapter into a drain that is subject to the
jurisdiction of a drainage maintenance and repair district under
IC 14-27-8.
(b) When a drain that is subject to assessments for periodic
maintenance and repair under this chapter becomes subject to the
jurisdiction of a drainage maintenance and repair district under
IC 14-27-8, the county treasurer shall transfer all money in the drain's
maintenance fund established under section 44 of this chapter to the
drain's drainage maintenance fund established under IC 14-27-8-19.
(c) The county executive shall establish procedures for the
transition of a drain from administration under this chapter to
administration 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 drainage
maintenance and repair district established under IC 13-2-21 (before
its repeal) or under IC 14-27-8 is not active and is not properly
maintaining the drains under its control may be filed with the board
by:
(1) the owners of fifty-one percent (51%) in area of the land
located in the district; or
(2) fifty-one percent (51%) of the owners of land located in the
district.
When the statement is filed, the board may file with the court that
established the district a complaint that sets forth the allegations in
the statement and requests the court to dissolve the district.
(b) The drainage maintenance and repair district shall be named
defendant 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 be
found.
The issues shall be considered closed by a general denial, without the
filing on any specific pleadings.
(c) The court shall hear the action without a jury. A change of
venue 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 the
jurisdiction of the district become regulated drains subject to this
chapter 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 of
jurisdiction by board; procedure
Sec. 28. (a) A written statement alleging that an association
established under Acts 1913, c. 165 for the purpose of maintaining
and repairing a drain is not active and is not properly maintaining the
drain 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 the
association; or
(2) fifty-one percent (51%) of the members of the association.
When the statement is filed, the board may notify the association of
its 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 the
matter, and shall be:
(1) served personally or by registered mail upon any director or
officer of the association who did not sign the statement filed
with the board; or
(2) published in accordance with IC 5-3-1, if such a director or
officer cannot be found.
(c) On or before the date of the hearing, any member of the
association 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 that
is subject to this chapter. The finding and order shall be marked filed
and shall be announced publicly at the hearing. The board shall then
publish 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 be
requested by any member of the association within twenty (20) days
after publication of the notice. The drain becomes subject to this
chapter when the order becomes final and conclusive.
(e) If the board finds that the allegations in the statement are not
true, 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 the
construction, reconstruction, and maintenance of all regulated drains
or proposed regulated drains in the county, and he shall:
(1) investigate, evaluate, and survey all regulated drains or
proposed regulated drains, and prepare all reports, plans,
profiles, and specifications necessary or incident to any
proposed construction, reconstruction, or maintenance of
regulated drains;
(2) prepare and make public standards of design, construction,
and maintenance that will apply to all regulated drains and their
appurtenances, taking into consideration in preparing these
standards the published recommendations made by Purdue
University, the American Society of Agricultural Engineers, the
American Society of Civil Engineers, the United States
Department of Agriculture, the department of natural resources,
the United States Army Corps of Engineers, and other reliable
sources of information;
(3) supervise all construction, reconstruction, and maintenance
work 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 of
this chapter concerning all urban drains under his jurisdiction.
In preparing plans under subdivision (1), the surveyor shall, when
feasible, include the seeding of the banks of all open drains. The
surveyor shall, when feasible, use United States Geological Survey
data on plans and profiles prepared under subdivision (1). As added by Acts 1981, P.L.309, SEC.101. Amended by
P.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 under
IC 25-21.5 or IC 25-31 and that statute prohibits an unregistered
person from performing any function that the county surveyor is
directed to do under this chapter, the surveyor shall employ and fix
the compensation of a person who is so registered to work with the
surveyor in performing those functions. However, if the county
surveyor does not employ a registered person within one (1) year of
the acceptance of a petition for construction or reconstruction of a
drain, the board may make the appointment of a registered person
that this section requires.
(b) The person employed by the surveyor, who shall be known as
a qualified deputy, shall file with the county surveyor the original of
all plans, specifications, and other documents made by the person in
performing the work for which the person was employed. Those
plans, specifications, and other documents become a part of the
permanent file of the surveyor's office, which the surveyor shall
maintain for the use of the board as provided in section 109 of this
chapter.
(c) The rate of compensation paid to a qualified deputy shall be
assessed against the drainage project for which the deputy was
employed.
(d) This subsection applies whenever the county surveyor is not
registered under IC 25-21.5 or IC 25-31, and the county surveyor has
not employed a registered person as provided in subsection (a). If the
county has a full-time employee who is registered as a land surveyor
under IC 25-21.5 or as a professional engineer under IC 25-31, the
board may, subject to the approval of the county executive and the
county surveyor, designate that person to perform the functions of
the county surveyor under this chapter that are allowed under the
employee's license as a land surveyor or professional engineer. If a
designation is made and approved under this subsection, the county
surveyor may not employ a registered person under subsection (a) to
perform that same function. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.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 in
any county, the board shall employ and fix the compensation of a
part-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 or
become a resident of Indiana, shall perform the functions required of
the 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 to
advance the work of construction or of reconstruction, as determined
from 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 the
employment of an engineer, firm of engineers, or land surveyor as a
contract deputy to perform the necessary work, including:
(1) the preparation of the surveyor's report or specified parts of
it; and
(2) the supervision of the construction or reconstruction.
(b) A contract deputy shall be employed by contract. Each
contract must be for work on a specific drainage project, and may be
on a per project fee basis or on a per diem basis of compensation.
(c) A contract deputy must have the same qualifications as an
engineer or surveyor employed or appointed by the board under
section 30 or 31 of this chapter.
(d) The original of all plans, specifications, and other documents
made by a contract deputy in performing the work for which he was
employed, or facsimiles of them in reproducible form, shall be
transmitted to the board and shall be permanently retained by the
board or by the surveyor in the manner in which similar documents
prepared by the surveyor or the board are retained.
(e) The compensation of a contract deputy shall be assessed
against the drainage project for which the deputy was employed, and
may be paid from the general drain improvement fund before the
order for the construction or reconstruction. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.206-1984, SEC.2.
IC 36-9-27-33 Right of entry over private land; extension of spoil banks beyond
right-of-way
Sec. 33. (a) The county surveyor, the board, or an authorized
representative of the surveyor or the board acting under this chapter
has the right of entry over and upon land lying within seventy-five
(75) feet of any regulated drain. The seventy-five (75) foot limit shall
be 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 beyond
the 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 report
on the construction, reconstruction, or maintenance.
(c) All persons exercising the right given by this section shall, to
the extent possible, use due care to avoid damage to crops, fences,
buildings, and other structures outside of the right-of-way, and to
crops and approved structures inside the right-of-way. The county
surveyor shall give oral or written notice of the entry on the land to
the property owner of record, and in the case of a municipality, to the
executive of that municipality. The notice must state the purpose for
the entry.
(d) The owners of land over which the right-of-way runs may use
the land in any manner consistent with this chapter and the proper
operation of the drain. Permanent structures may not be placed on
any right-of-way without the written consent of the board.
Temporary structures may be placed upon or over the right-of-way
without the written consent of the board, but shall be removed
immediately by the owner when so ordered by the board or by the
county surveyor. Crops grown on a right-of-way are at the risk of the
owner, and, if necessary in the reconstruction or maintenance of the
drain, may be damaged without liability on the part of the surveyor,
the board, or their representatives. Trees, shrubs, and woody
vegetation may not be planted in the right-of-way without the written
consent of the board, and trees and shrubs may be removed by the
surveyor if necessary to the proper operation or maintenance of the
drain.
(e) This subsection applies to new regulated drains established
after September 1, 1984, and to urban drains. The board may reduce
the seventy-five (75) foot requirement of subsections (a) and (b) to
any distance of not less than twenty-five (25) feet from the top of
each bank of an open ditch and fifteen (15) feet from the center line
of any tiled drain as measured at right angles.
(f) The surveyor, the board, or an authorized representative of the
surveyor or the board acting under this chapter does not commit
criminal trespass under IC 35-43-2-2. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.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 drains
in 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 drains
under 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 designed
and constructed;
(2) it no longer conforms to the maps, profiles, and plans
prepared at the time when the legal drain was established; or
(3) topographical or other changes have made the drain
inadequate to properly drain the lands affected without
extensive repairs or changes, including:
(A) converting all or part of an open drain to a tiled drain or
a tiled drain to an open drain;
(B) adding an open drain to a tiled drain or a tiled drain to an
open 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 drainage
control dams;
(H) providing for erosion control and for grade stabilization
structures; or
(I) making any major change to a drainage system that would
be 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 to
perform the function for which it was designed and constructed, and
to properly drain all affected land under current conditions, by
periodically:
(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 was
designed and constructed, or it has become inadequate to
properly drain all affected land under current conditions;
(2) the expense of reconstruction outweighs the benefits of
reconstruction; and
(3) the vacation will not be detrimental to the public welfare. As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.166-1983, SEC.6.
IC 36-9-27-35 Submission of classifications and order of work priority of drains
to board; notice and hearing on classification and reclassification
requests
