The Institute's Public Trust Alliance has joined with other grassroots groups to reform the Michigan Drain Code. This outdated law is responsible for property destruction, wetlands loss, and water pollution from stormwater drainage projects in suburbanizing areas — which the Drain Code forces local landowners, not real estate developers, to pay.

Much of Michigan literally was built on the 19th-century idea that channeling water out of sight is the answer to all the flooding challenges that come with putting barns, roads, and now subdivisions and shopping malls on a bunch of swampland.

It’s becoming clear, however, that Michigan can no longer drain and pave over its rain-absorbing wetlands and simply shoot the stormwater downstream.

Fifty percent of the state’s wetlands, mostly in highly populated southeast Michigan, have been drained, according to the U.S. Fish and Wildlife Service. As a result, water channeled out of one subdivision floods other backyards. And stormwater volumes, which have reached hurricane force in many suburbanized areas, are tearing up riverbanks and polluting waterways.

Watershed Moment
The Michigan Legislature this fall will consider a proposal for taking a new water management concept to the state’s local governments. The intent is to break through the “drainage at all costs” mindset by bringing communities together to work out their common water problems.

The attention legislators are paying to this issue is commendable. Stormwater pollution, wetland destruction, and the costs these development side effects impose on property owners and taxpayers are issues close to home for voters. However, the current proposal, part of a new draft of a frontier-era law called the Michigan Drain Code, is seriously flawed.

House Bill 4803 does not give communities real tools for cooperating regionally on cost-effective, environmentally-sound solutions to related water problems. It simply paints a thin layer of regional sensibility over a harmful law.

The Drain Code gives local authorities, called drain commissioners, license to drain wetlands, concentrate stormwater, and channel it downstream with no respect for costs to taxpayers, property destruction, and environmental protection.

HB 4803 does nothing substantive to change that. Lawmakers would serve their communities better if they recognize that the “watershed management” they seek is not possible inside the current Drain Code, which encourages authorities to shift, rather than face, the flooding and pollution costs that come with development.

“Watershed management” is the term for the 21st-century reality that the simplest and most cost-effective way to prevent flooding and keep water clean is for communities to work together. Towns and counties with rainwater and groundwater flowing toward the same river or lake basin are in a common watershed.

When communities start thinking in watershed terms, they recognize that one township’s wetland may be another’s flood control. And they see that the quality of the water in lakes and rivers in their entire area depends on how each community handles stormwater and erosion coming from new development.
Cost-effective, democratic watershed management requires strong public involvement and control, extensive communication among local governments, and a firm commitment to environmental quality. Yet HB 4803’s “watershed management” chapter has none of that.

Same Old Story
Rather than bringing communities together, HB 4803 actually gives single municipalities the power to force their own water management proposals onto other communities and make them pay for the work. These watershed-wide projects would be exempt from most state and federal environmental laws, just like drain projects are now. HB 4803 also puts the Department of Agriculture, which has no mandate to protect Michigan’s water quality or wildlife, in charge of overseeing the projects.

Most troubling, HB 4803 ignores the pressing need for the kind of citizen oversight and appeal rights that could prevent such ongoing Drain Code boondoggles as the Mill Creek battle north of Detroit.

Drain officials from Lapeer County and the state Agriculture Department want to spend $4 million dredging and straightening Mill Creek, mostly in neighboring St. Clair County, to relieve minor flooding in Lapeer. Engineering studies show the enlarged creek would regularly dump floodwaters from its endpoint onto the village of Yale in St. Clair. Officials also have decided that St. Clair should pay two-thirds of the project’s cost.

St. Clair residents, townships, and the county’s own drain commissioner have spent 10 years and more than $100,000 in actual and donated legal fees to promote a $200,000 alternative to Lapeer’s flood problem that would cause minimal damage to the environment. But state and Lapeer County officials have been able to ignore them because the Drain Code gives the public no real rights to participate in or appeal project decisions.

Dogged citizen persistence and common sense may yet win out — state and Lapeer County drain officials have depleted their budget for fighting the public and have agreed to try the low-cost alternative.

Temptation
The Drain Code is a serious problem for everyone working to bring the concept of watershed management into practice. It lacks due process, environmental accountability, and fiscal responsibility.

But with the cherry of “watershed management” on top, HB 4803 can be tempting for financial reasons. Don Stypula of the Michigan Municipal League says that some local officials are attracted to it because they face new federal requirements for major water and sewer improvements. Watershed-wide commissions, made possible under the bill, would give them a way to finance the work without having to ask residents to vote themselves new taxes.

But by leaving all the Drain Code’s flaws in full force, HB 4803 would create, in effect, a super level of government with broad taxing authority but no more accountability to the public than drain commissioners have had for more than 100 years. Lawmakers should rewrite the Drain Code to require environmental protection, public participation, and procedures for stopping costly and damaging projects. They also should work to promote regional cooperation on watershed solutions to flooding and pollution problems. To be successful, however, they must give up on the antiquated Drain Code as their basis.

CONTACTS: Terry Gill, League of Women Voters of Michigan, 810-387-3379; Patty Cantrell at the Institute, 231-882-4723 x18.