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Environmental

Down the drain code

Critics say revisions give only the illusion of progress.

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Published 2/23/2000

At a northern Michigan golf resort a couple summers back, the Michigan Association of County Drain Commissioners enacted a mock public meeting.

The character Ben Dover was described in a handout as a "perpetual victim" who is "tired of paying for drain projects." Dick Morer represented Michigan Conversation Group, "an association that likes to talk about environmental issues." Don Stream "says it’s okay to do a job so long as he doesn’t get any more water dumped on him." Mr. Ciara Club and his wife, Ima Dogooder, don’t want drain work to down trees on their property. Their attorney is Will Soo.

The role-playing skit provides a rare look at MACDC – a private organization of public officials and drain project contractors. But the association does much more than play golf and ridicule citizens. These are the people who are helping to revise Michigan’s drain code. And critics say the resulting legislation, now before lawmakers, is no laughing matter.

Drain what?

Unlike drain laws in other states, Michigan’s code gives drain commissioners, who are typically elected countywide without much opposition, broad authority to determine the scope and cost of drain projects and who will pay for them. MACDC is acting to preserve that power in the first full overhaul of the drain code since 1956. In the mid-1990s, with the help of state Department of Agriculture grants of $50,000, a MACDC committee studied the code to recommend revisions, many of which are before the Legislature in a bill sponsored by state Rep. Michael Green, R-Tuscola.

Green says a 284-page bill is bound to have opponents, even if it addresses the crucial issues of citizen input and the environment. Proponents tout the bill’s enhanced notification process for public hearings and the required evaluation of projects’ environmental impacts.

However, correspondence between Green’s office and MACDC’s general counsel, Geoffrey Seidlein, shows cooperation in crafting a bill that, critics argue, makes a bad law worse – increasing drain commissioners’ power while decreasing accountability; giving citizens’ rights and the environment lip service.

The legislation passed the House Dec. 7 and is expected to go before the Senate next month. In addition to codifying commissioners’ sole authority over the scope of drain projects, it would eliminate commissioners’ annual reporting requirements except at the request of a body such as a county board of commissioners.

To address environmental protection, the legislation calls for an evaluation of drain projects’ impact on "natural resources."

Michigan Land Use Institute economic analyst Patty Cantrell says there is no requirement to act on evaluations, a problem given that most drains are exempt from the Wetlands Protection Act and the Inland Lakes and Streams Act.

Pay or sell

According to House legislative analyst Susan Ekstrom, the legislation could trigger at least one constitutional issue by attempting to give drain commissioners statutory authority to take private land for drains that wouldn’t necessarily have a public purpose. The new proposal would allow drain work for "public health, safety, or welfare or for agriculture," as opposed to the current "public health, convenience and welfare" standard.

"The way I read it," Ekstrom says, "drain commissioners could condemn private land, under the bill, for private businesses – namely private sector farms or farm businesses."

Farmers are divided. The Michigan Farm Bureau supports the bill; the Michigan Farmers Union and the statewide farmers’ Citizens Committee for Drain Code Reform are opposed.

Paul Beach, who raises soybeans and other crops near Saginaw, says the bill would continue to force farmers to pay for drain work that can bankrupt farmers, leaving their land to urban sprawl.

"There’s no vote, so it can cost as much as the drain commissioner says it’s going to be," said Beach. "You can either pay it or sell your farm."

Bill McMaster, who chairs Taxpayers United Inc., says the legislation threatens to violate the state constitution’s 1978 Headlee Amendment, which prohibits any tax without a vote. In the legislation, all of the code’s old language referring to "drain taxes" has been changed to read "special assessments."

MACDC’s Seidlein says drain commissioners’ "special assessments" are not taxes, but fees charged to those who reap the benefits of drain projects.

Benefits?

Under the current law and proposed revisions, commissioners determine who pays for projects based on who they decide benefits. A proposed revision defines "benefit" to include "negative consequences of the project," including increased flooding and reduced natural resources.

"How in the heck can you assess someone for a loss of value on their property?" asks Terry Gill, a St. Clair County resident who has spent years fighting an intercounty drain project that she says threatened to flood her hometown of Yale.

Sue Julian, a Holly resident and coordinator for the statewide citizens group Michigan Drain Code Coalition, says the bottom line is that commissioners would retain complete discretion over who pays for drain work.

"There is a one-person taxing authority. And they can condemn land."

Seidlein said he could not predict how a loss of property value would affect a special assessment in every situation.

It is easier to see how MACDC’s "associate" members – including engineering contractors, bonding agents and law firms – stand to benefit from the provisions to boost drain-related business. Those include streamlining the approval of new drain work, raising the ceiling on drainage projects that skirt public bidding from $5,000 to $10,000, and doubling permissible drain maintenance from $2,500 to $5,000 per mile. Drain maintenance and engineering work are not subject to public bidding, regardless of cost.

A 1998 issue of the MACDC’s Pipeline magazine isn’t subtle about urging commissioners to watch out for contractors. After listing companies new to the association, it asks drain commissioners to "keep in mind all of the following contractors who have joined the association when you are advertising and bidding your drain work."

In return, associate members help sponsor junkets such as the 1997 summer conference. They also lend muscle to MACDC’s attempts to influence public policy.

In MACDC’s 1998 member directory, then MACDC President Cindy Sullivan wrote, "We have ... emerged as an important and significant political power in county and state government. This growth would not have been possible without the generous support of our associate members."

That year, a bill proposed by former Democratic state Rep. Karen Willard competed with one similar to Green’s current bill. Both bills died without a vote. Willard, who left the Legislature because of term limits, says she isn’t surprised there is only one drain code proposal under the current Republican-controlled Legislature.

The Land Use Institute’s Cantrell put it this way: "Year after year, drain code reform is the domain of drain commissioners and their associate members. ... There’s a lot of power to be preserved. Drain building is big business."


According to a role-playing exercise for drain commissioners and contractors: "Ms. Dogooder is a family doctor that works at the Free Clinic in nearby Big City. ... When Ms. Dogooder is not busy with the articles for the Greenpeace newsletter and macrame, she keeps a close eye on the evil doings of the Drain Commissioner. ... Mr. (Ciarra) Club is married to Ms. Dogooder. ... He is a philosopher who stays home and cares for the children and carves furniture. Mr. Club is most proud of his college days when he was involved in the protesting of just about anything involving the government."

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