Q: What role do the townships play in drainage issues?
A: The townships do not get directly involved in drainage issues unless the township roads are involved. As a general rule township roads are not supposed to interfere with the natural drainage. Therefore culverts or bridges are installed as needed. The township has the authority (with reservations) to install them. Further the township roads and right-of-way should not be used to alter the natural drainage.
Q: What is the law on who can drain their land?
A: The general rule is the lower agricultural property is burdened with an easement to take water from the dominant (upper) property owner as long as it is not in unusual or unnatural quantities, and does not cause unreasonable damages.
Q: Does the township board have the final decision as to whether or not a culvert needs to be installed or the size changed?
A: It depends on the particular county. State law provides the counties may establish drainage boards. Sometimes counties have a board made up of individuals from the county. This board may be advisory. Other times it is actually the county commission sitting as the drainage board. If the county has a drainage board then the township must be cognizant of those requirements and meet them. The county has been given a role to oversee drainage by state law.
To the best of my knowledge many, but not all counties, have such drainage ordinances. If the county does not have a drainage ordinance, then either the township board or the court is the determining factor as to the installation or modification of a culvert. If the county has a drainage board then their authority supersedes the township.
Q: What do the county ordinances require?
A: Generally the ordinances I have read state that if it is simply a replacement of an existing culvert of the same size no permit is needed by the township. However a permit is needed for installation of a new culvert or replacement with a larger or smaller sized culvert. The rationale is that the county is trying to develop a county-wide drainage scheme and therefore needs to know what is in place.
Q: What authority does the township have in determining whether or not to install a culvert?
A: The township board must be concerned about two factors-what is the natural drainage and decisions must not be arbitrary and capricious. In other words, not trying to alter what Mother Nature has created for drainage. It should use the same standard for each and every location. All requests for culverts to be removed or the size changed should be reviewed in the same manner for each and every circumstance irrespective of the damage which may occur or the parties involved.
Q: What should the township do if a road is flooded?
A: The first concern should be public safety. Depending upon how badly the road is flooded, it should either be signed as flooded or “Road Closed” and barricades placed so that nobody is endangered due to the water. Depending upon the seriousness it may be a situation where the road is not flooded but the structure of the road is effected in such a manner that it may be best to temporarily close the road to allow time to dry out. This is not only for public safety but also to insure the integrity of the road and potentially reducing future repair costs.
Q: What should the township do when faced with a request for a culvert and the landowners on both sides threaten a lawsuit.
A. The township may want to consider requiring the parties to initiate a lawsuit prior to doing anything. Obviously the township would be brought into the lawsuit as would the other landowner. However, then the issue could be resolved once and for all. This would eliminate the potential of putting in the culvert and subsequently having the Court order it to be removed.