Dear Citizen,

Your community is either considering a drain project, or a petition has been submitted to your County Drain Commissioner requesting a drain project. The Michigan Drain Code Coalition provides you with the following information to help you understand the implications of a drain project in your community.
 
 

What is a Drain Project?

A drain project, undertaken by a county drain commissioner, is a public works project designed to prevent flooding, provide better drainage for agriculture or development, or solve an existing flooding or drainage problem. "Drains" may include roadside ditches, agricultural drains, tiling systems under agricultural or developed land, creeks, rivers and lakes. Drain projects can be extremely expensive and can have significant environmental impacts. Drainage activities in Michigan are governed by the Michigan Drain Code.

How Does a Drain Project Begin?

Drain projects are started when a "petition" is submitted to a county drain office, usually administered by an elected drain commissioner, or sometimes a drainage board. The petition states that a drainage problem exists that the petitioners would like the county drain commissioner to solve. The drain commissioner decides whether the petition is "practical" if an entirely new drainage district is involved.

Who Can Petition for a Drain Project?

Landowners, road commissions, county board of health, municipalities or developers.

Who Pays for Drain Projects?

Land owners in a given Drainage District pay for drain projects within their district. Large projects may be bonded, and payments spread over a number of years. There is no standardized method for determining how much each landowner pays. Each county drain commissioner has his or her own method for determining assessments.

Drain commissioners charge landowners based upon the "benefits" received from a drain project. Since the Michigan Drain Code provides no definition of "benefit," all landowners within the district pay, whether they believe they benefit or not.

Who Decides Whether to Do a Drain Project?

Once petitioned, a "Board of Determination" (3 untrained citizens from outside your community) will decide whether or not a drain project is necessary. They are provided no engineering analysis of the drainage problem, no formal description of the proposed project, no cost-benefit analysis, and no detailed budget. They may, however, be provided very basic descriptions of the problem, a recommended solution, and a ballpark estimate of costs, which may or may not be compiled by a qualified engineer.

The Board of Determination meeting provides you your only opportunity to ask questions, pose alternatives, and object to a "proposed" project before it has been determined necessary. However, your comments will likely not be recorded in the meeting minutes, and the Board of Determination and the drain commissioner may or may not take them into consideration.

Boards of Determination usually determine that a drainage project is necessary. If they decide the project is not necessary, the petitioners must pay all costs incurred by the county drain commissioner in connection with the petition. Often, the only way to prevent a drain project from occurring is for a large group of vocal and angry citizens to object strenuously enough that the drain commissioner fears for his or her re-election.

Can the Public Appeal the Board’s Decision?

After the Board of Determination determines a drain project is necessary, the public has 10 days to appeal. The public may only appeal the finding of necessity, nothing else - not the scope of the proposed project, its costs, or its environmental impacts. After this 10 day appeal period is over, the county drain commissioner gains total control of the project, and no further public input is required by law. The drain commissioner may seek input, but is under no obligation to consider or act on the input.

Can the Project Grow?

Since the scope of the project is not defined at the time of the Board of Determination meeting, drain projects often change dramatically from what the petitioners intended. The project may get larger or smaller.
 
 

Who Determines What Needs to Be Done?

Once a project is determined necessary, the county drain commissioner decides how to solve the problem. He or she usually contracts out various parts of the project, including engineering analysis, project management, and construction. As Michigan law does not require drain commissioners to have any specific educational qualifications, commissioners often rely heavily on their selected engineers and contractors to help them decide how to solve a problem.

Can the Public Stop a Project or Appeal the Scope of a Project?

Once in the hands of a county drain commissioner, the only way the public can stop a drain project is to sue in circuit court. Suit must be filed within 10 days of the Board of Determination’s finding of necessity. The public may not appeal or challenge the project’s scope, costs or environmental impacts (these aspects of a project are rarely finalized within the 10 day appeal period, anyway).

Is a Cost-Benefit Analysis Done?

Not usually. The public may request one, but the drain commissioner is under no obligation to provide one. A common complaint about drain projects in Michigan is that millions of dollars may be spent to solve very small and isolated problems. In addition, drain problems caused by a specific private development may be paid for by the public.

What Does a Drain Project Entail?

There are no state guidelines or "best management practices" for drain work in Michigan. As a result, methods used by drain commissioners vary widely. Since drain commissioners usually rely on engineers to recommend a solution, projects often entail a significant amount of "engineering," meaning that less invasive and less expensive solutions are often overlooked.

Many drain projects feature the "widening, deepening and straightening" of streams to increase the volume and speed of water flowing downstream. This often involves removal of streamside vegetation (including live trees and shrubs), dredging and considerable excavation.

Are the Environmental Impacts of a Drain Project Taken Into Consideration?

Rarely. Most drain projects are exempt from state and federal environmental laws. Many activities considered standard practice in Michigan are illegal in other states due to their extreme environmental impacts. While some drain commissioners say they will consider environmental impacts, many will not take the time or spend additional funds to prevent environmental harm.

What Kind of Environmental Impacts Might Occur as a Result of a Drain Project?

Drain projects often have significant environmental impacts, including the loss of habitat for aquatic insects, birds, mammals and fish. Loss of habitat results from the removal of streamside and in-stream vegetation, flattening of the river bottom (which removes deep pools that provide sanctuary to fish during low water seasons), removal of rocks and boulders (water bubbling over rocks oxygenates the water), increase in water speed, increase in water temperature (runoff from hot pavement can be fatal to cold water species), and more. In many cases in Michigan, drain projects have resulted in lowered water tables, drained wetlands and loss of esthetic value of natural streams.

Since downstream impacts are rarely taken into consideration, drain projects may result in increased erosion, increased siltation, and increased flooding. One of the main problems with the way Michigan manages drainage is that drain work often simply pushes the problem downstream, onto the next drainage district.

What Can I Do To Change All This?

Drain projects in Michigan are ruled by the Michigan Drain Code, an antiquated law which has outlived its usefulness, and now often causes more harm (and cost) than good. Citizens have very few rights under the Drain Code, and the environment has almost none.

Since most drain commissioners are elected officials, the only way to change the way drainage is accomplished in your county is to elect a new drain commissioner. While your county commissioners can do little to help you fight unfair, unnecessary or excessive drain projects, you should let them know how you feel about any particular project.

The Michigan Drain Code Coalition is working to encourage reform of this law. You can help this effort by letting the Coalition know that you’d like to be made aware of issues and proposed legislation regarding drainage in Michigan. You can also help by calling your state legislators, and county and township officials. Encourage them to support significant reform of the Drain Code, ensuring both citizens’ rights and environmental protection.