Illinois Drainage Law: ► General Principles ► Drainage Districts ► Critique/Questions

1. Illinois Drainage Law:►General Principles►Drainage Districts ►Critique/Questions By Donald L. Uchtmann Emeritus Prof. of Agricultural Law (Thanks to James D. Cottrell, Esq. for his earlier review and suggestions regarding this presentation)

2. This Presentation Based on . . . Illinois Drainage Law By Uchtmann & Gehris Available Online at: www.farmdoc.uiuc.edu/legal/drainage_law.html Uchtmann

3. Drainage Law Overview: • Local Ordinances are important, e.g., Storm-water Detention/Management Ordinances • State laws are important, especially the Illinois Drainage Code and court decisions • Federal laws are important, e.g. • Wetlands provisions of ‘85 Farm Bill: Tie wetlands protection to Ag Program Benefits • Clean Water Act: Drainage improvements may require a Section 404 Permit from Army Corps of Engineers Uchtmann

4. Illinois’ Civil Law Rule(circa. 1800s): Where the natural flow is from one tract (the higher or “dominant tenement”) across another tract (the lower or “servient tenement”) . . . Owners of higher land have a legal right to have water drain as it would naturally Owners of lower land have a legal duty not to obstruct the natural flow Uchtmann

5. Illustration of Civil Law Rule Uchtmann

6. Improving Drainage - The “Good Husbandry” Rule (Peck v. Herrington, 1884): • Higher landowner can improve drainage in the interests of good husbandry; i.e. higher owner can increase flows onto lower land if necessary to develop higher land for agricultural purposes • e.g. drain or fill ponds • e.g. accelerate flow by tiling or ditching • But there are limitations . . . Uchtmann

7. Limitations on Ag Drainage Improvements .. . . • Can not bring water in from another watershed • Must discharge at point where water naturally enters lower land Possibility of Limitations in Other Laws, e.g., • Local Ordinances, e.g., storm-water detention • Federal Laws, e.g., wetlands protection Uchtmann

8. What about Increased Flow From Non-Ag Development? Illinois Supreme Court: The right to improve drainage goes beyond improving the higher land for agriculture, but the increased flows must be reasonable. -- Templeton v. Huss (Ill. Sup. Ct. 1974) So for non-ag development, the “reasonableness” limitation is a third limitation under state law Uchtmann

9. Effect of Templeton . . . • For non-ag development . . . • No water from another watershed • No discharge unless at natural drainage point • No unreasonable increase in flows • Also, remember . . . • Federal Wetlands Protections may apply, e.g., a permit from the Corps may be required • Local Ordinances may apply, e.g., storm-water detention requirements Uchtmann

10. Easements of Drainage & Obstruction • Legal rights and duties under the Civil Law Rule can be altered by Easements • Express Grant • E.g., Lower owner may grant higher owner an easement to discharge at other than point of natural drainage • E.g., Higher owner may grant lower owner an easement to obstruct the natural drainage • Prescription (the 20-year rule) • E.g., Higher owner discharges to lower owner at other than point of natural drainage (without permission) for 20 years • E.g., Lower owner obstructs natural drainage for 20 yrs Uchtmann

11. Statutory Enlargements of State LawThe Illinois Drainage Code • Right to extend a covered drain across the land of another (after court procedure) • If no outlet except through neighbor, and if no consent • Then petition court, post bond, pay expenses, pay damages, etc. • Rights and duties in “Mutual Drains” • right to maintain as originally established • duty not to interfere with flow of water • no outside connection unless all consent Uchtmann

12. Example of Mutual Drain Uchtmann

13. Federal Laws to Protect Wetlands • Wetlands and the 1985 Farm Bill (as amended), i.e., “Swampbuster” • Section 404 of Federal Clean Water Act (as amended) Uchtmann

14. IDNR Regulation Through Its Division of Water Resources • The IL Dept. of Natural Resources has regulatory jurisdiction over most construction activity in the floodways of streams draining • In a rural area, more than ten square miles • In an urban area, more than one square mile • Permits may be required See www.dnr.illinois.gov/WaterResources/Pages/FAQ%27s.aspx Uchtmann

15. Policy Question • Could a region, such as East Central Illinois (formally a swamp), have been transformed into one of the most productive agricultural areas of the world solely by landowners acting cooperatively and using the “law of natural drainage”? Uchtmann

16. Local Drainage Districts: • IL Law: Drainage District can be created if the benefits of the proposed drainage district improvements exceed the costs • Districts can compel all landowners benefitted to pay a fair share of the costs (but not more than the value of benefits) • Effect of District on Civil Law Rule, etc.: • District subject to Civil Law Rule; Permit Requirements; etc. • But Districts have power of Eminent Domain Uchtmann

17. Local Districts, Cont’d: • Oversight by Circuit Court Judges • Cost of District’s works and maintenance borne by land benefited • Assessments: Original, Annual Maintenance, Additional; Cannot exceed benefits (and generally proportional to …) • Commissioners: Elected or Appointed • Districts need a Drainage Dist. Engineer and a Drainage District Attorney Uchtmann

18. Drainage Maintenance • Statutory duty to keep drainage system in repair • Without court permission: May repair, maintain, operate or improve drainage system so long as: • No substantial or material alteration, enlargement or extension of the drainage system; and • No additional assessments required to fund the maintenance (i.e., the existing annual maintenance assessment is adequate) Uchtmann

19. Environmental Values • Statutory duty to protect environmental values: • “In performing any of the duties and in exercising any of the powers provided by this Code, the commissioners shall use all practicable means and measures, including consideration of alternative methods of providing the necessary drainage, to protect such environmental values as trees and fish and wildlife habitat, and to avoid erosion and pollution of the land, water or air.” Uchtmann

20. Drainage Law Summary • Local, State and Federal important • Basic State Law of Drainage: Civil Law Rule • Additional rights to improve natural drainage • Limitations on drainage improvements • Easements of Drainage or Obstruction • Statutory Enlargements: • Extending Covered Drain; Mutual Drains • Drainage Districts • Federal Environmental Considerations • Swampbuster provisions of the Food Security Act • Section 404 of the Clean Water Act Uchtmann

21. Critique of Drainage Law in IL • The “reasonableness” concept • Where used? Is it fair? Is the concept easy to use? Should the “reasonableness” limitation apply to proposed agricultural drainage improvements? • Benefits v Costs calculation • Where used? Appropriate costs considered by court? Does any regulatory body consider a wider range of costs, e.g., downstream flooding or hypoxia in Gulf of Mexico? Uchtmann

22. Critique/Questions, Cont’d • Is the goal is to get rid of excess water as quickly as possible? • If so, do hundreds of local drainage districts coordinate effectively to accomplish this goal within a river basin? • Is this the correct goal, from a policy standpoint? • In regulating new non-ag development, Local Governments require storm water detention basins to protect the interests of their citizens. Is this needed re ag drainage improvements? If so, should/could Drainage Districts do it? Uchtmann

23. THANK YOUIllinois Drainage Law … By Donald L. Uchtmann Emeritus Prof. of Agricultural Law Department of ACE, U. of Illinois

24. Federal Swampbuster Program 1985 Food Security Act(as amended) • Production on converted wetlands precludes participation in USDA loan and payment programs • “Any person who in any crop year produces an ag… commodity on converted wetland, ... shall be (1) in violation of this section; and (2) ineligible for loans or payments in an amount … determined by the Secretary to be proportionate to the severity of the violation. • Retroactive revocation of benefits Uchtmann

25. Federal Clean Water Act: Sec. 404 Permit Requirements • Generally requires permits to discharge dredged & fill material into waters of the U.S., including wetlands • Some Important Exceptions • Maintenance of Drainage Ditches; even extensive maintenance to return to original depth • Maintenance of Structures e.g. Levees • Not Exempt from Permitting • Construction of new ditches or draining existing wetland with installation of new tile • “Maintenance” that may impair the flow or circulation of navigable waters Uchtmann

26. Individual & General 404 Permits Some activities have been previously authorized by nationwide or regional permits (no further Corps approvals required). Others may qualify for abbreviated permit processing. Suggestion: Call first and, if verbal approval given, send a confirmatory letter. Uchtmann

27. Joint Permit Application Form • Satisfies Corps, IDNR, IL EPA • Note that IL divided among numerous Corps Districts: • Rock Island, St. Louis • Louisville • Memphis, Chicago Uchtmann

28. Corps of Engineers Districts in Illinois: Rock Island St. Louis Memphis Louisville Chicago Note: Corps Districts follow watersheds Chicago Rock Island ← St.Louis Louisville Memphis Uchtmann

29. Future Corps Jurisdiction Over Relatively Small Wetland Areas? • Supreme Court Case decided January 9, 2001* • Court ruled that Clean Water Act does not authorize the federal government to regulate the dredging and filling of isolated ponds and wetlands present in this case • Court overturned 15-year old environmental regulation • Proper scope of Corps jurisdiction (and US EPA jurisdiction) remains a volatile political issue! Uchtmann