Bill Text: IN SB0282 | 2010 | Regular Session | Engrossed
Bill Title: Storm water management.
Spectrum: Slight Partisan Bill (Republican 3-1)
Status: (Engrossed - Dead) 2010-02-18 - Committee report: do pass, adopted [SB0282 Detail]
Download: Indiana-2010-SB0282-Engrossed.html
Citations Affected: IC 36-9.
Synopsis: Storm water management. Grants authority to the drainage
board to receive complaints concerning, investigate, and order the
removal of certain stormwater related nuisances caused by artificial
conveyances directed at or near the property line. Provides that,
regarding removal of stormwater nuisances and right of entry, the
county drainage board and the county surveyor have similar authority
as with respect to obstruction of mutual drains and natural surface
watercourses. Prohibits construction of the law as authorizing a person
to engage in activity requiring a permit from a state or federal agency
before the person obtains the permit.
Effective: July 1, 2010.
(HOUSE SPONSORS _ BISCHOFF, SMITH M, CHEATHAM, HINKLE)
January 11, 2010, read first time and referred to Committee on Energy and Environmental
Affairs.
January 21, 2010, reported favorably _ Do Pass.
February 1, 2010, read second time, amended, ordered engrossed.
February 2, 2010, engrossed. Read third time, passed. Yeas 41, nays 9.
February 8, 2010, read first time and referred to Committee on Natural Resources.
February 18, 2010, reported _ Do Pass.
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A BILL FOR AN ACT to amend the Indiana Code concerning local
government.
(b) The term includes piping, ditches, swales, curbs, gutters, catch basins, channels, storm drains, downspouts, roadways, and any other similar method.
(1) periodically or continuously contains moving water; and
(2) has a defined bed and banks that serve to confine the water.
(1) Conduits and appurtenant features.
(2) Canals.
(3) Channels.
(4) Ditches.
(5) Storage facilities.
(6) Swales.
(7) Streams.
(8) Culverts.
(9) Roadways.
(10) Pumping stations.
(1) that arises out of or is related to stormwater that is transferred through an artificial conveyance that:
(A) is directed to the property of another person;
(B) discharges stormwater at or near the property line of another person; and
(C) accelerates or increases the flow of stormwater onto another person's property; and
(2) to which one (1) or both of the following apply:
(A) The condition is injurious to health.
(B) The condition substantially obstructs the free use of property.
(1) is at least seasonally wet;
(2) is usually vegetated;
(3) is a conduit for stormwater flow; and
(4) conducts stormwater into primary drainage channels.
(1) a person who owns a tract of land seeks the removal of:
(A) a stormwater nuisance; or
(B) an obstruction from a drain or natural surface watercourse located outside the person's tract in order to promote better drainage of the person's tract; and
(2) the owner of the land on which the stormwater nuisance or obstruction is located, upon request, does not remove the stormwater nuisance or obstruction;
the person seeking the removal of the stormwater nuisance or obstruction may file a petition under this chapter asking the drainage board in the county in which the stormwater nuisance or obstruction is located to remove, or authorize or order the removal of, the stormwater nuisance or obstruction under this chapter.
(1) A general description of the tract of land owned by the petitioner.
(2) A general explanation of the need for the removal of the stormwater nuisance or obstruction.
(3) A general description of the site of the stormwater nuisance or obstruction.
(1) a drain; or
(2) a natural surface watercourse;
the county surveyor of the county in which the stormwater nuisance or obstruction is alleged to exist shall promptly investigate whether the stormwater nuisance or obstruction exists.
(b) If the county surveyor, upon investigation, finds an existing:
(A) stormwater nuisance; or
(B) obstruction in a drain or natural surface watercourse;
in the location alleged in the petition, the county surveyor shall report the existence of the stormwater nuisance or obstruction to the
drainage board.
(c) Upon receiving a report from the county surveyor under
subsection (b), the drainage board shall:
(1) set a date for a hearing on the petition; and
(2) serve notice of the hearing on each owner of the land on which
the stormwater nuisance or obstruction exists who can be
identified in the records of the county. recorder.
(d) The hearing must be held at least thirty (30) days but less than
ninety (90) days after the date of the filing of the petition.
(e) Notice of a hearing must be mailed to each respondent with
return receipt requested.
(1) the obstruction of a drain or a natural surface watercourse that is alleged in the petition exists; and
(2) the removal of the obstruction will:
(A) promote better drainage of the petitioner's land; and
(B) not cause unreasonable damage to the land of the respondents;
the drainage board shall find for the petitioner.
(b) If, after a hearing held under this chapter, the drainage board is unable to make the findings described in subsection (a), the drainage board shall deny the petition.
(1) the stormwater nuisance that is alleged in the petition exists; and
(2) the removal of the stormwater nuisance will:
(A) remove the negative impact from the petitioner's land; and
(B) not cause unreasonable damage to the land of the respondents;
the drainage board shall find for the petitioner.
(b) If, after a hearing held under this chapter, the drainage board is unable to make the findings described in subsection (a), the drainage board shall deny the petition.
FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 15. If the drainage
board finds for the petitioner under section 14(a) of this chapter, the
board shall determine, based upon a preponderance of the evidence,
whether the:
(1) stormwater nuisance; or
(2) obstruction of the drain or natural surface watercourse;
was created intentionally by any of the respondents.
(1) for the petitioner under section 14(a) of this chapter; and
(2) under section 15 of this chapter that the:
(A) stormwater nuisance; or
(B) obstruction of the drain or natural surface watercourse;
was created intentionally by at least one (1) of the respondents;
the drainage board shall enter an order directing the respondents to remove the stormwater nuisance or obstruction at their own expense, or directing the county surveyor to remove the stormwater nuisance or obstruction at the expense of the respondents.
(b) A respondent against whom an order is entered under subsection (a) is subject to an action under section 22 of this chapter if the respondent fails to pay the amount for which the respondent is responsible under the order.
(1) finds for the petitioner under section 14(a) of this chapter; and
(2) does not find under section 15 of this chapter that the:
(A) stormwater nuisance; or
(B) obstruction of the drain or
was created intentionally by any of the respondents;
the drainage board shall enter an order under section 18 or 19 of this chapter concerning the removal of the stormwater nuisance or obstruction.
(1) a petition filed under this chapter concerns a drain or the removal of a stormwater nuisance; and
(2) the drainage board:
(A) finds for the petitioner under section 14(a) of this chapter; but
(B) does not find under section 15 of this chapter that the
stormwater nuisance or the obstruction of the drain was
created intentionally by any of the respondents;
the drainage board shall enter an order under subsection (b).
(b) Upon a determination made under subsection (a), the drainage
board shall enter an order:
(1) authorizing the petitioner to remove the stormwater nuisance
or obstruction;
(2) authorizing the respondents to remove the stormwater
nuisance or obstruction;
(3) directing the county surveyor to remove the stormwater
nuisance or obstruction; or
(4) directing that the stormwater nuisance or obstruction be
removed through the joint efforts of at least two (2) of the persons
referred to in this subsection.
(c) If an order is issued under subsection (b), the costs of removing
the obstruction must be borne by the owners of all the tracts of land
that are benefited by the drain. The order of the board must do the
following:
(1) Identify all tracts of land that are benefited by the drain or the
removal of the stormwater nuisance.
(2) Identify the owners of the tracts of land referred to in
subdivision (1):
(A) who are known to the drainage board; or
(B) whose identity can be determined through the records of
the county. auditor.
(3) Apportion the costs of removing the obstruction among the
tracts of land that are benefited by the drain or the removal of
the stormwater nuisance, assigning to each tract a certain
percentage of the total costs.
(4) Order the owners of each tract of land referred to in
subdivision (1) to pay an amount equal to the product of the total
costs of removing the obstruction multiplied by the percentage
assigned to the tract under subdivision (3).
(d) The percentage of the total costs assigned to a tract under
subsection (c)(3) must correspond to the ratio of the total length of the
drain to the length of the particular segment of the drain that benefits
the tract.
or obstruction exists seeking to have the order entered by the drainage
board vacated.
(b) An action filed under subsection (a) must be based on at least
one (1) of the following assertions: by the respondent:
(1) The drainage board lacked authority to act under this chapter.
(2) The drainage board erred in making the findings described in
section 14(a) of this chapter.
(3) The respondent Compensation should have been awarded
compensation for harm and inconvenience, or the amount
awarded to the respondent for harm and inconvenience is
insufficient.
(4) The drainage board did not follow the procedure required by
this chapter.
(1) shall enter an order vacating the order of the drainage board directing the county surveyor to remove the stormwater nuisance or obstruction; and
(2) may issue an injunction against the removal of the stormwater nuisance or obstruction;
if the court makes a finding under subsection (b).
(b) The court is required or authorized to act under subsection (a) if the court finds that the drainage board:
(1) was clearly in error in making its findings under section 14(a) of this chapter with respect to the alleged stormwater nuisance or obstruction; or
(2) exceeded its authority or discretion under the law in authorizing the removal of the stormwater nuisance or obstruction.
(1) a county surveyor;
(2) a member of a drainage board; or
(3) an authorized representative of a county surveyor or drainage board;
has a right of entry over and upon a tract of land containing a drain, artificial conveyance,
(b) The right of entry granted by this section is limited to the land lying within seventy-five (75) feet of the drain, artificial conveyance,
or natural surface watercourse, or alleged cause of the stormwater
nuisance. The seventy-five (75) feet must 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; and
(3) the edge of any artificial conveyance or natural surface
watercourse or of the alleged cause of the stormwater
nuisance;
as determined by the county surveyor.
(c) A person exercising a right of entry under this section shall, to
the extent possible, use due care to avoid damage to:
(1) crops, fences, buildings, and other structures located outside
the right-of-way; and
(2) crops and approved structures located inside the right-of-way.
(d) Before exercising a right of entry under this section, an
individual must give oral or written notice of the entry on the land to
the property owner of record. The notice must state the purpose for the
entry.
(e) A right of entry under this section is not criminal trespass under
IC 35-43-2-2, and an individual exercising a right of entry under this
section may not be arrested or prosecuted for criminal trespass under
IC 35-43-2-2.
