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Michigan’s drainage laws originated well before it achieved statehood, but are no historical artifact. Despite the long history of drainage law, many of the basic legal principles and procedures regarding drains are interrelated with Township activity. These laws are compiled in the Michigan’s Drain Code, which constantly evolves to meet the State’s needs. This E-Letter focuses on the basics of the Drain Code so that township officials have a working knowledge of the Drain Code and those that administer it.

1. The Many Roles of a Drain Commissioner

The Drain Code establishes the office of the Drain Commissioner. The Drain Commissioner has jurisdiction over county drains and drainage districts created under the Drain Code, including the maintenance of those drains and districts and construction of improvement projects. Construction, maintenance or improvements to a drain cost money. The Code allows Drain Commissioners to pay for the costs incurred by levying special assessments to the drainage district. The drainage district generally comprises the “watershed” of the drain. Drain Commissioners act as agents for drainage districts. Each drainage district is a separate corporate entity, with the ability to borrow money, enter into contracts, and acquire property by eminent domain.

If the drainage district covers more than one county, the Drain Commissioner from each county serves on an inter-county drainage board, and a designee of the Michigan Department of Agriculture and Rural Development serves as the drainage board chairperson. This drainage board assumes the same duties as a Drain Commissioner does for county drains.

The Drain Commissioner serves several other statutory roles:

• The Drain Commissioner is often the delegated authority under Part 307 (Inland Lake Levels) of NREPA responsible for maintaining lake levels and levying special assessments for costs involved.
• The Drain Commissioner is a member of lake improvement boards established under Part 309 (Inland Lake Improvements) of NREPA, along with appointed county commissioners, a representative from a local unit of government, and a lake owner representative.
• The Drain Commissioner is the only statutory member of the Department of Public Works Board. The remaining members are appointed by the county board of commissioners and serve three-year terms. Department of Public Works activities may include lake improvements, water, sanitary sewer, waste management, and erosion control.
• The Drain Commissioner is a statutory member of the County Parks and Recreation Commission. This Commission is charged with studying county park and recreation facilities, assessing the county’s needs in this area, and adopting plans to acquire property in furtherance of those needs.
• Many Drain Commissioners are appointed as the County Enforcing Agency under Part 91 of NREPA (Soil Erosion and Sedimentation Control). The County Enforcing Agent is responsible for the administration and enforcement of Part 91 of NREPA, and may charge fees, review plans, and issue permits.

Drain Commissioners have different titles in some counties. For instance, in Macomb and Saginaw Counties, the Public Works Commissioner performs the duties of the Drain Commissioner. But in Calhoun, Cass, Oakland, Ottawa and Washtenaw Counties, the duties of the Drain Commissioner are performed by the Water Resources Commissioner. Regardless of the label, each commissioner has that authority provided by the Drain Code.

2. The Many Types of Drains

Drains come in all forms, shapes, sizes, and functionality. A large majority of drains were originally established for agricultural purposes. However, as Michigan developed, so did drains, by taking the shape of sanitary sewer systems, combined sanitary sewer and storm systems, tile agricultural drainage systems, and storm water management facilities.

As environmental regulation increased relating to sanitary sewerage systems, many county drainage systems evolved into elaborate treatment/pumping facilities. Moreover, federal water quality regulations required many facilities to implement a “first-flush” treatment of stormwater. Today, detention and treatment facilities have taken the shape of rain gardens and other “low impact design” features, such as permeable pavement.

Types of drains include: open stormwater “ditches,” storm sewers, sanitary or combined sanitary and storm sewer systems, wastewater treatment facilities, wetland complexes, detention/retention ponds, pump stations, river restorations, levees, dikes and dams.

3. The Petition Process

How do drainage improvement projects proceed? First, a petition is filed with the Drain Commissioner. Petitions can be filed by property owners, municipalities, the county, the road commission, or MDOT. Specific petition requirements depend on whether it is for a new drain, maintenance or improvement of an existing drain, or for an intercounty drain.

After a petition is filed, the Drain Commissioner appoints a Board of Determination, made up of three property owners who own property in the county, but not in any municipalities in the drainage district. The Board holds a public hearing and determines whether the drain or maintenance and improvement of the drain is necessary for the public health, safety, or welfare. The Board also determines whether the municipalities in the drainage district are liable for an assessment at-large.

If the Board of Determination determines necessity, a property owner has 10 days to challenge the determination in circuit court. Townships (and other municipalities in the drainage district) have 20 days after notification of the determination of necessity to appeal the decision in probate court. If the necessity is not challenged, there is no other remedy under the Drain Code to “stop” a drain project if the proper procedures have been followed.

Next, the Drain Commissioner determines the scope of the project, at which point the project is engineered and plans and specifications are prepared. Once the scope is determined, the Drain Commissioner issues a Final Order of Determination, and determines the route and course of the drain and the drainage district boundaries.

After signing the Final Order of Determination, the Drain Commissioner gives notice for the receiving of bids to construct, repair, or improve the drain. The Drain Commissioner also gives notice to all property owners and municipalities in the drainage district, and publishes notice of the project in a newspaper of general circulation.

Once bids are received and costs are calculated, the Drain Commissioner holds a Day of Review, a public meeting to hear objections to the project, including the apportionment of benefits and assessment of project costs. The Drain Commissioner can make revisions based on these objections.  A Day of Review must be held not less than five or more than 30 days after the bids for the project are received. Property owners and municipalities have only 10 days after the Day of Review to appeal the apportionment or assessment to the probate court. This apportionment percentage will be used for future maintenance projects until a new Day of Review is held for the drain.

To pay for the projects, drain assessments are placed on the winter tax roll and collected by the local municipality.

4. The Scope of a Drain Project

The Drain Commissioner determines the scope of a project. He or she is not limited by the petitioner’s specific requests for work or any statements by the Board of Determination. The Board of Determination only decides the necessity, and not what specific work should be performed.

Engineers are retained to study and determine the scope of the problem, and make recommendations to the Drain Commissioner as to project design alternatives. The engineer then proceeds with the preliminary and final designs and completes project bid documents.

The scope of a project includes considerations such as costs, permit issues, property acquisition, and stakeholder input. Township, road commission, and MDOT involvement at this level plays a substantial role in assisting the Drain Commissioner in determining the final project scope.

5. Important Timelines for Drain Projects

• Petition.  There is no expiration date on a petition.
• Board of Determination.  After the Board of Determination determines necessity of a project, a property owner has 10 days to challenge the determination in circuit court.  Townships (and other municipalities in the drainage district) have 20 days after notification of the determination of necessity for public health to appeal the decision giving rise to at-large assessments in probate court.
  • If the decision of necessity is not challenged, there is no other remedy under the Drain Code to “stop” a drain project if the proper procedures have been followed.
• Engineering and Scope Decisions.  There is no set timeline for this process and timing is dependent upon issues such as permitting and property acquisition.
• Final Order of Determination.  There is a long line of case law that provides for a stopping point for drain controversies so that projects can move forward.  The statute of limitations for making claims about errors in drain proceedings up to the Final Order of Determination is included in Section 161 of the Drain Code, and is generally 10 days after the Final Order of Determination has been signed by the Drain Commissioner.
• Bid Letting.  After the Final Order of Determination is signed, the Drain Commissioner can bid out the project after proper notice.  There is no set timeline after the Final Order of Determination is signed for the Drain Commissioner to move forward.
• Day of Review.  A Day of Review must be held not less than 5 or more than 30 days after the bid letting.  Property owners and municipalities have only 10 days after the Day of Review to appeal the apportionment/assessment to the probate court.  This apportionment percentage will be used for future maintenance projects until a new Day of Review is held for the Drain.

6. Drain Work without a Petition

Some drainage work does not require a petition, and does not go through the petition process. This is the case if:

• Maintenance costs are under $5,000 a mile. Drain Commissioners may expend up to $5,000 per mile of established drain each year for maintenance purposes without a petition. Additional costs can be incurred for purposes of inspection of the drains.
• A Township resolution allows the Drain Commissioner to exceed the maintenance expenditure limitation. Maintenance in excess of $5,000 per mile can be performed with a resolution from each municipality affected by more than 20% of the cost. Township resolutions may be specific as to the dollar amount for the expenditure, may be for more than one year, or may delineate the work above the maintenance amount that is approved. The resolution language is normally agreed upon based on the relationship with the township and the Drain Commissioner.
• The work is performed under an agreement. Certain work can be performed by agreement in instances where an entity agrees to pay for improvements. Examples include relocating or enclosing drains to allow for development of a parcel. New drains can also be established through agreements where the developer voluntarily agrees to the establishment of a drain and a special assessment district on the property.

7. Drain Special Assessments

Drain assessments are based on an apportionment of benefit. This means that the Drain Commissioner gives each property and governmental entity a percentage of the benefit of a drain or drain project. The assessment levied is the percentage multiplied by the project cost (with applicable interest). The apportionment must always equal 100%, such that if the Drain Commissioner reduces someone’s percentage, someone else’s must increase to reach 100%. How are benefits determined?

• The assessment to counties is based on the benefit to county roads. The county can pass on a portion of the assessment to the road commission, if desired.
• The assessment to MDOT is based on engineering calculations in the MDOT administrative rules (“14a calcs”). These calculations are based on runoff from state highways and specific special benefits constructed for the state highways.
• The assessment for villages, townships, and cities “at large” is based on public health. There is no specific formula for at-large percentages, which can vary depending on the project. Township-owned property used for public purposes is exempt from special assessment. At-large assessments are payable from a township’s general funds.
• The assessment for properties in the Drainage District are based on “benefits derived.” There is no definition of “benefit” in the Drain Code. Drain Commissioners often use the following factors in determining benefit to properties: acreage, zoning or property use, proximity to work performed, runoff, and flooding relief.

A township can appeal its apportionment of benefits to the Drain Commissioner at the Day of Review. If the Drain Commissioner does not revise the apportionment roll as requested, an appeal can be filed with the Probate Court within 10 days after the Day of Review. If an appeal is filed, the Probate Court will appoint a three-member Board of Review to review the apportionment roll. The Board of Review must not be held less than 10 or more than 15 days after the appeal is filed.

There is no requirement to send notices of the appeal to the other property owners and municipalities in the drainage district; the requirement is instead posting in five public places in each municipality in the drainage district. A township should always contact the Drain Commissioner after a Day of Review to see if an appeal is filed.

A Board of Review’s role is to review the apportionment. Accordingly, if the Board determines to lower a percentage, the roll must then be revised so that it equals 100%, impacting others in the drainage district.

8. Sanitary Sewer Projects

• Chapter 20 Drains.  Many sanitary sewer projects are administered under Chapter 20 of the Drain Code. Municipalities petition for the project, and a drainage board chaired by the Drain Commissioner administers the project.  The municipalities then assess the costs to the affected property owners.
• Contracts with DPW or Township.  Sanitary sewer facilities administered under the Drain Code can contract with other governmental entities to provide wastewater treatment services.
• Favorable Financing.  When the Drain Code is used, the county generally pledges its full faith and credit for financing purposes.  This may provide favorable rates for the project.
• Community Wastewater Systems.  These systems can be established, or be taken over if already constructed, as drains.  The Drain Commissioner then assumes jurisdiction to operate and maintain the community wastewater systems if a private association or developer is no longer able to effectively manage the operations.

9. Township Work on Drains

Section 196(10) of the Drain Code provides that the maintenance limitations do not apply if a public corporation (including a Township) performs work and does not charge the drainage district.  Townships can enter into agreements with Drain Commissioners to perform work on drains.

10. Working Relationships with your Drain Commissioner

Maintaining a good relationship and regular communication with the Drain Commissioner can lead to better outcomes for townships. Below are several benefits of a productive partnership:

• Drain Commissioners have tools available to assist townships. These include providing assistance on storm water management guidelines for new developments to prevent flooding issues, partnering by using drain projects as potential cost-shares for township grant projects, and coordinating drain projects with township improvement projects to reduce overall costs.
• Township officials can discuss project goals with the Drain Commissioner before filing a petition. A township can request that a Drain Commissioner inspect a drain. This inspection report will better help the township determine whether a petition should be filed. The township could also enter into an agreement for a study to be performed to see what possible solutions are available before a petition is filed.
• Township officials can meet with the Drain Commissioner before the Board of Determination holds a hearing. Because timelines are short after a Board of Determination is held, it is important for the township to discuss concerns about a potential project with the Drain Commissioner before the Board of Determination hearing takes place.
• If a township has an interest in whether a certain project moves forward, it can present information at a Board of Determination meeting. Presenting your point of view and any evidence to support your position is important. Board of Determination members are often township officials, and although they may or may not agree with your position, your arguments will be taken into consideration.
• Township officials can ask to meet with the Drain Commissioner to discuss the scope of a project. Coordination of a drain project with a local road, water, or sewer project can save everyone money. A township’s input as to future land use and development in the drainage district will help shape the scope of a drain project.
• Townships can help the Drain Commissioner’s office by providing information, such as township GIS or engineering information. This can reduce overall costs. Another example of township assistance to lessen project costs may be providing a site for spoil placement.
• Township officials can discuss assessments with the Drain Commissioner. Drain projects can be assessed for a period of one year, up to a period of 20 years. A township should discuss financing and assessment concerns with the Drain Commissioner.

By:      Stacy L. Hissong and Lauren K. Dutcher

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Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law, and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.