Taxation without representation---That's the Drain Code!
The Drain Code has evolved from a document that helped the majority "tame"
the swamp wilderness of Michigan 150 years ago to a document that responds
to water problems of individuals and small geographic areas. Along
the way, it has become anti-property rights, anti-due process, and anti-citizen's
rights.
It's time for a change! Read below for The Hayworth
Story!
Drain Comissioners can tax, condemn property, regulate actions on private
and public property and hold land or easements in perpetuity in the name
of a drainage district. Why does Michigan have a law that allows
one person so much power with no checks and balances?
The Hayworth Story
by Gayle Miller
In a biting February wind, Gwen Stillwell stands at the frozen edge
of Hayworth Creek, the tumbling stream that cuts across the Stillwell’s
farm in Clinton County. Reminiscing about bringing her grandchildren down
to the creek, she said "We wanted them to see it one last time before it’s
destroyed."
For the last year, Stillwell and her husband Duane have lived in dread
of the bulldozers which are scheduled to demolish the pastoral stream where
her grandchildren play in the summer. The work is supposed to improve the
drainage of surface water on land ten miles to the east, at the creek’s
headwaters, just north of St. Johns. It’s been nearly 60 years since Hayworth
Creek was last "improved" for drainage, and the stream is just beginning
to recover. Mature hardwoods once again line its banks, and the dark shadows
of trout slide through the deep pools.
The Stillwells have fought valiantly to stop the project. A tiny woman
in her seventies, Stillwell is fiercely opposed to the drain project. "We
spend all this money to keep the environment in good shape," said Stillwell.
"We passed a bond issue in Michigan, we recycle, and do all sorts of things
to help the environment, and he’s (the county drain commissioner) coming
along and devastating it. I just can’t understand it."
Stillwell blames Tom O’Bryant, the Clinton County drain commissioner
for much of what is happening to Hayworth Creek. She also blames the Michigan
Drain Code, the state law that governs drainage in Michigan, which she
insists is illegal and unconstitutional.
Small Problem, Big Solution
The project began in 1997 when landowners contacted O’Bryant about drain
improvements. Muck farms and roads at the headwaters of Hayworth Creek,
an area that used to be wetlands, regularly flood during heavy rains. "I
don’t know anything about drainage," says Dick Woodhams, who farms approximately
300 acres just north of St. Johns. "But something needed to be done. Every
time it rains hard, the water runs right up over the roads."
As required by the Michigan Drain Code, the Woodhams, their neighbor
Larry Kus, and a few other nearby farmers and family members submitted
a petition to the drain commissioner’s office in 1997. No one was prepared
for what was to happen as a result of the request.
"It didn’t start that big," said Kus. "It started smaller and blew
into a big deal. We’ve complained about it for 15 years, but now it’s being
done."
To initiate the drain project, O’Bryant convened a three member "Board
of Determination" to meet on October 1, 1997. As is often the case, the
meeting took place at 9:30 a.m., when many interested citizens couldn’t
attend. Yet according to Stillwell, more than 100 residents were in attendance.
The Board’s job was to decide if a drainage project was necessary to
solve the flooding problem. Board members, selected and compensated by
the drain commissioner, have no training and no vested interest in the
outcome of the decision. They receive no information upon which to base
their determination - no analysis of the problem, no engineering study,
no project description, no cost-benefit analysis, no environmental impact
statement, not even a proposed budget. They’re essentially supposed to
determine if an unspecified drain project will solve an unspecified problem.
Despite their lack of information or training, the Hayworth Board of
Determination decided that a drain project would, indeed, --stop the flooding.
While a number of residents spoke out against the project, none of their
comments were recorded in meeting minutes. According to the Drain Code,
neither the drain commissioner nor the Board are under any obligation to
respond to or address citizen concerns. With the determination of necessity
made, residents heard no more about the project for nearly a year.
In September of 1998, O’Bryant held a second public information meeting.
Again citizens packed the house, but according to those in attendance,
little rational discussion took place. Tempers flared when O’Bryant and
his engineers recommended a massive, $3.8 million reconstruction of the
entire 16 mile stream.
Citizens were again invited to make comments, but most decisions regarding
the project had already been made. "We weren’t final at that point," said
O’Bryant. "But we were 90% designed by that second meeting."
Knowing that O’Bryant doesn’t have to listen to citizens frustrates
many residents, including Jack Anderson who owns and farms nearly 600 acres
in the drainage district. The Michigan Drain Code currently allows county
drain commissioners almost total control of drain projects, and the ability
to pass the costs on to landowners.
At the time of the second public meeting, Anderson’s potential assessment
for the project was estimated to be as high as $25,000. More recent
estimates place it closer to $12,000. Yet the project is unlikely to benefit
him. "I never have any problems since the creek running through my land
is a good working channel, but I have to pay to solve upstream problems.
I get hit every time. I know there has to be drain projects, but it seems
there must be a better way to determine how it should be done. The drain
commissioner should not have the sole say in the district. He has ultimate
authority, and it just doesn’t seem right to me," said Anderson.
Citizens Are Shut Out
O’Bryant’s solution to the Hayworth flooding problem includes the elimination
of trees along streambanks, removal of log jams and sand bars, repairing
banks, the construction of detention ponds, dredging to deepen the channel,
and the replacement or repair of numerous bridges and culverts.
"That is the largest project that this county will ever see," said
O’Bryant of Hayworth Creek. "You may see one that’s more money, but you
won’t see one that’s 16 miles long."
In another attempt to explain the drain project to angry residents,
O’Bryant wrote a column in the local newspaper. He blamed the size of the
project on drain work done in 1979 that left the upper reaches of the creek
with little grade of fall, making the water move slowly. O’Bryant noted
the lack of erosion controls leading to sedimentation in the creek, larger
farm fields with fewer fence rows to absorb water, more agricultural drainage
tiles, and the growth and development of the city of St. Johns. [Ed.
Note: It is ironic that the drain commissioner is the official Soil
and Sedimentation Act Local Enforcing Agent--the person responsible for
preventing sedimentation is the person criticizing excessive sedimentation!] The explanations did not satisfy residents. In November of 1998, 176
landowners organized and filed suit in Clinton County Circuit Court to
stop the project. The citizens’ suit addressed a number of issues, including
that the project was too ambitious; that the problem didn’t justify the
expensive solution; that dredging might contaminate groundwater; that the
city of St. Johns wasn’t paying its fair share of the costs; that the problem
was upstream rather than downstream; and more.
For the Hayworth citizens, however, it was too late. Having missed
the appeal period following the Board of Determination meeting, the case
was dismissed. As documented in court records, Judge Randy Tahvonen informed
the group they had no legal right to appeal the project at that point,
and chastised them for trying to represent themselves.
According to the Michigan Drain Code, the only opportunity citizens
have to legally challenge a proposed drain project is during the 10 days
following the "determination of necessity." The law, however, does not
take into account that, as in the Hayworth case, project information was
not made available to the public until a year after the appeal period ended.
"To our surprise, we found that the only involvement we rural property
owners were allowed was to pay the bills. The Hayworth Drain Project, and
the way it is being handled, is taxation without representation," Stillwell
said about the case.
The Sacrifice of Living Streams
Work on the Hayworth finally started in February of 1999. On a sunny day
in April, Gwen Stillwell stood defiantly by as the bulldozers and front
end loaders churned their way across the stream and began clearing her
property. The formerly quiet woods rang with the cracks of splitting timber
as the trees fell in the path of the bulldozers.
Since then, the intensity of the landowners’ anger has grown as thousands
of standing trees became giant brush piles and the environmental damage
of the work became obvious. O’Bryant’s approach to drain improvement is
heavy-handed and includes the construction of a dirt road along one side
of the stream and "channelization." Channelizing is a process that features
grading stream banks to uniform 2-to-1 slopes, eliminating obstacles such
as natural bends and rocks, and removing streamside vegetation - all in
an effort to increase the speed of water flowing down stream.
The process turns living rivers into what one Michigan Department of
Environmental Quality (MDEQ) biologist calls an "ecological desert." Lack
of streamside vegetation robs the water of nutrients for insects, which
normally form the foundation of a stream’s food chain. Removal of overhanging
trees causes "thermal pollution," ruining cold-water streams. Sun and runoff
from hot pavement turns water temperatures lethal. Oxygen levels plummet
with the elimination of rocks and obstructions over which water normally
tumbles and becomes aerated. Aquatic animals that would usually survive
dry spells in the deep pools of a natural riverbed, find themselves high
and dry as a result of uniformly flat channel bottoms.
Stream channelization has been widely criticized by conservation experts
for more than a decade as causing more harm than good. Books like The
River Killers by Martin Heuvelmans and Channelized Rivers by
Andrew Brookes site case studies from around the world highlighting the
destructive impacts of channelization, including increased erosion and
more frequent flooding.
Channelization essentially sacrifices all of a stream’s other uses
and benefits (recreation, aesthetics and wildlife habitat to name a few)
for the short term goal of improving drainage for a limited geographic
area. While many states abandoned the practice years ago in favor of less
intrusive methods of drainage improvement, many Michigan drain commissioners,
like O’Bryant, still use the antiquated channelization techniques. O’Bryant’s
concession to modern day environmental concerns is to remove the trees
from only one side of the river, rather than both.
According to O’Bryant, removal of the trees is necessary. "In order
to get to the stream (with heavy equipment), sometimes you have to remove
them (the trees) along the banks, and then once that’s done we maintain
that right of way," said O’Bryant. "Some people think it’s a driveway,
but we leave it there so we can run a tractor across it or an ATV...and
then we spray it." O’Bryant sprays the graded streambank with herbicides
to prevent trees and other vegetation from growing back.
From O’Bryant’s point of view, cutting the trees down reduces the number
of limbs that could eventually fall into the stream and slow the water’s
flow. He prefers to plant streambanks with seed he gets from Pheasants
Forever, an organization that promotes habitat expansion for the imported
game bird. "We use grasses that hold soils very well," he said. One of
the major goals of the project, O’Bryant said, is to "repair banks to lessen
soil erosion problems. Our ultimate goal is to keep the soil out of the
stream."
Drainage in Michigan: It Doesn’t Have to Make Sense
His explanations make no sense to landowners like the Stillwells who live
more than ten miles downstream from the flood-prone areas. Citizens can’t
understand why O’Bryant removes streamside vegetation to control erosion.
The landowners’ gut feeling about the loss of vegetation is confirmed
by Dr. Eckhart Dersch, a soil and water conservation expert in the Department
of Resource Development at Michigan State University. "The significance
of that land (the streamside, "riparian" zone) is that it is really the
last defense for protecting a water body. It is the last chance for surface
water to be intercepted sufficiently to drop out sediment and some of the
pollutants and contaminants. The vegetation in a riparian zone becomes
very, very important."
At the home of Joe and Marge Rausch, neighbors gathered with State
Representative Valde Garcia (R-St. Johns) to survey and discuss the damage
of O’Bryant’s bulldozing. "When I asked O’Bryant why they had to take all
of our trees, he pointed up at our house and said that if he didn’t do
this, our house would be in the creek within a few years,’ said Marge Rausch,
a soft spoken woman of about 45. "That’s ridiculous - there’s no way."
Homes near the Rausch’s are set far back from the river, atop large
hills. Footpaths wander through mature hardwoods down to the edge of a
broad river channel. For the most part, residents have left streambanks
undisturbed, and homes are not visible from the river. Before O’Bryant’s
crews did their work, the water had been shaded by trees, creating good
habitat for steelhead salmon and birds.
Now, however, thousands of once healthy trees, as far as 40 feet away
from the water, have been left to decay along the stream. The banks are
ragged, stripped of vegetation. Sandy, dry and exposed, the loose soil
puffs into the air at each footstep. Already, heavy rainfalls and wind
have carried large quantities of soil into the creek, including many whole
trees. Tracks of bulldozers can be seen leading into the creek on one side,
and out on the other - a polluting practice which is illegal, except under
the Michigan Drain Code. Landowners complain that they can’t even
salvage their trees, since stones and sand embedded in the bark from bulldozing
ruins chain saws.
"It just doesn’t make any sense," says Gary Schneider whose property
backs up to the river. "I don’t know what he thinks he’s doing. This
creek doesn’t need cleaning. He (O’Bryant) kept telling me about 100 year
storms in 10 days that could fill this channel. All I’ve got to say
is that if we have that much rain, we all better be in one heck of a big
boat."
Schneider and retired farmer Clem Feldpausch believe the upstream flooding
is not the fault their section of the stream, but the culvert which allows
the water to flow under US-27. Their claim appears to have validity. The
downstream channel is more than 30 feet wide. The water flows swiftly along
a rocky bottom, providing good fish habitat. Ten miles upstream, however,
where the river flows through the 20 foot culvert under the highway, the
stream, which has been reduced to nothing more than a straightened ditch,
is sluggish and narrow enough to step across. Two dams less than 1/4 mile
downstream from the highway again squeeze the channel to six feet or less.
The Hayworth landowners are at a loss as to what to do. "We’re paying
to have him destroy our trees," fumes Feldpausch. "If they’re not hurting
anything, I can’t see why they take ‘em out. He’s taxing us and we have
no control over it - he’s levying a tax."
Representative Garcia sympathized with residents’ complaints, but acknowledged
that he is unable to do much for them. Everything O’Bryant is doing to
the creek is legal under the Drain Code. Garcia encouraged the citizens
to work toward changing the law and admits that, "Sometimes it takes years
to get justice."
No Accountability of the Water Kings
Seeking to understand the rationale behind the removal of trees and habitat
destruction, a number of residents tried to obtain the engineering plans
for the Hayworth Creek Drain Project. They were denied. "We went to Tom
O’Bryant’s office three times to get the plans, but they were never available
to us," said Ruth Feldpausch, Clem’s wife.
Subsequent Freedom of Information Act (FOIA) requests asking for details
about the project also yielded nothing. According to O’Bryant’s written
response to the FOIA, "There is no formal, written engineering analysis,"
"...we have no formal document that describes the cause of flooding," and
regarding a description of how current work will solve the flooding problems,
"There is no formal document that pertains to this issue." O’Bryant has
since stopped commenting on the project.
The lack of documentation on the Hayworth project is evidence of the
nearly nonexistent public accountability Michigan drain commissioners enjoy.
Their powerful positions lead some county drain commissioners to think
of themselves as "Water Kings." A few even introduce themselves as such
in public, and revel in the fact that no one can challenge their work.
As powerful as they are, however, drain commissioners usually don’t
have any environmental engineering experience. As a result, engineering
firms often suggest, design, and implement entire projects. Since the public
has no legal recourse to challenge a project’s scope, engineers may consider
only the most costly and elaborate solutions. No incentives exist to force
drain commissioners to look at less expensive alternatives, such as purchasing
flooding rights or requiring new development to restrict stormwater flow
to pre-development amounts.
Stillwell has tried numerous times to get the MDEQ to intervene in
the Hayworth project, but has had no luck. "When you talk to the government
about this, they just ignore you," Stillwell said. "They pass the buck
from one to another; they either don’t have the money or the authority,
and don’t seem to want to get involved. It’s unreal."
The MDEQ may avoid drain issues since work on existing drains, such
as the Hayworth, are largely exempt from the MDEQ’s environmental oversight.
Only one portion of O’Bryant’s project requires permits; the construction
of two detention ponds in old gravel pits, to catch and hold water during
heavy storm events. However, a pond between Airport and DeWitt Roads was
nearly complete in March, work having proceeded without the required permits.
Dave Pingel, of the MDEQ’s Land and Water Management Division, who
is responsible for issuing the permit, said that if O’Bryant is "working
without benefit of a permit, he is technically in violation of the law."
Pingel admits, however, that even if O’Bryant completes the pond without
a permit, the MDEQ would probably just "issue the permit after the fact."
Time for Reform
The biggest irony of the Hayworth drain project lies hidden in a 1993 DEQ
Surface Water Quality Division report, rating the biological health of
Hayworth Creek. The report classifies the stream’s condition as generally
poor, especially at the creek’s headwaters where the flooding occurs. According
to the report, "The headwater area drains extensive muck farms and has
been severely degraded by channelization, lack of a greenbelt and 2-3 feet
of fine organic sediment."
In a classic case of adding insult to injury, the report indicates
that the Hayworth’s flooding problems have, in fact, been caused by the
very forces that now seek to fix them: the farmers at the creek’s headwaters
and the county Drain office.
Apparently feeling no responsibility for the creek’s problems or the
destruction of downstream property, many of the muck farmers who petitioned
for the drain improvement project still plow their fields to the very edge
of the stream-turned-ditch, allowing a continuing flow of sediment into
the stream. Farming is unlikely to continue for long, however, as the improved
drainage will allow the same landowners to easily sell their property at
prime development prices. The Meijer chain of superstores has purchased
200 acres nearby. It won’t be long before the muck farms at the headwaters
of Hayworth creek are replaced with acres of parking lots.
Hayworth Creek has been significantly altered and damaged over the
years in a continuing quest for better drainage of land that was once a
swamp. Now, as the St. Johns community booms with new subdivisions and
discount stores, Clinton County residents will see more streams turned
into ditches, and more assessments - unless there is significant change
in the Michigan Drain Code. Only a new state law will force drain commissioners
to treat Michigan’s streams as more than simply sewers for surface water.
