Rep. Hamilton has introduced HB 1415 which makes tweaks to Indiana’s drainage law. Long time readers may know that drainage law is near and dear to my heart. It’s an important part of what county government does, and if it’s working properly, there’s a great chance you haven’t given it a second thought. Proper functioning of the regulated drains is one of the things people who sneer at government rarely consider. It’s the sort of issue that, in my mind, seriously undermines libertarianism as a viable view of government. The fact is that water is something that doesn’t respect property rights and, therefore, has to be dealt with as a community. And, by and large, local government has dealt with it. As the climate changes, the reality is that here in Indiana, we’ll likely have to deal with a lot more water. Much of the drainage system we have in place is getting old and is breaking down.
In broad terms, here is how the regulated drain process works: a drain is usually a combination of tile and open drain that serves a watershed. The main channels that serve a number of properties will usually be regulated – under government control. (This is distinct from private drains – serving just one parcel; or mutual drains – serving two or more parcels but not under government control.) When making decisions about whether to construct, reconstruct, or maintain a regulated drain, the drainage board, with the assistance of the county surveyor, is to determine how much the project will cost and then determine whether the benefits outweigh the costs. (Costs include the labor and materials as well as damage to landowners from the project.) The drainage board is also charged with allocating the percentage of the total benefits enjoyed by each landowner based on a variety of criteria. The Drainage Code provides a non-exclusive list of benefits to be considered: the increase in value to the land, the number of acres served by the drain, the volume of water drained, soil type, elimination or reduction in floods, and how the land is situated in relation to the main trunk of the drain. Multiply the percentage by the cost, and that’s the drainage assessment imposed on the landowner.
There are three main types of assessments: construction, reconstruction, and maintenance. Construction is for the creation of new drains, reconstruction is for major repairs, and maintenance is for things like clearing and spraying an existing drain.
HB 1145 specifies that flood damage benefits and reduction in undesirable environmental effect such as soil erosion; transport of nutrients, pesticides and other chemicals; downstream flooding; and failure to store water where useful as factors to be considered when deciding whether to construct, reconstruct, or impose a maintenance rate on the drain. These are valid considerations, but I’m not sure I love how the legislation is structured. Rather than putting flood reduction and mitigation of environmental problems in the bucket of benefits a drainage board can consider, it seems to list them as separate considerations. And, instead of being part of the big picture consideration as to whether the costs of the project outweigh the benefits, the legislation would add a new concept of “reasonable cost.” I think this legislation will be confusing to drainage boards trying to figure out how flood control and environmental concerns are supposed to fit into the existing scheme.
One addition that I think is beneficial, however, is the provision that tells the Surveyor that when determining what method of construction, reconstruction, or maintenance is “best and cheapest” (the phrase in the code now), he or she can consider flood control, public health, and limiting undesirable environmental effects as part of what constitutes the “best” method. Without that sort of context, the emphasis may be on “cheapest” rather than “best.”