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Taxation Without Representation

Problem #1 with the Michigan Drain Code

December 1, 1999 | By Patty Cantrell
Great Lakes Bulletin News Service

Case Study #1
Taxation Without Representation

Problem #1 with the Michigan Drain Code

  • Taxation Without Representation

Reform Recommendations

  • Provide public with details of project cost, scope, and route before making drain decisions.
  • Base "determination of necessity" on cost-benefit analyses, environmental effects, and public comments.

All Pay and No Say
Farmers foot sprawl bill

The quiet, countryside around Hayworth Creek, in Clinton County north of Lansing, turned loud and dusty during the summer of 1999. Bulldozers knocked down a swath of trees for 12 miles along the creek, and earth movers began dredging the bottom of the once tranquil waterway. Hayworth Creek is now a stormwater canal, complete with a 30-foot access road along its banks for heavy equipment use.

Stormwater runoff from new suburban sprawl around the Lansing bedroom community of St. Johns is the reason for wrecking the stream, says Clinton County drain commissioner Tom O'Bryant. "We've got a lot more runoff from these houses that are going in everywhere down here."

Developers dividing up the land are not the ones covering the $2.2 million cost of the project, however. Instead, longtime rural landowners along Hayworth Creek are paying the price, through drain tax assessments and property losses, because local officials are using an old law in new and damaging ways.

Thrown Out of Court
This incredible cost shift from suburban to rural residents is made possible by the Michigan Drain Code, the turn-of-the-century law that governs stormwater drainage in the state. The Drain Code does not require county drain commissioners to justify the costs of projects, consider alternatives, or follow environmental laws. It also prevents citizens from doing anything about it, as Hayworth Creek residents have discovered.

After finally learning, in the fall of 1998, just how expensive and damaging the project would be, 176 Hayworth landowners asked a circuit court judge to order further study of costs, benefits, and alternatives. But the judge threw out the landowners' case that winter because, under the Drain Code, they have no legal right to challenge the project.

The only thing the law allows drain taxpayers to appeal is whether some kind any kind of drainage is necessary. And the only time they can contest this narrow question is 10 days after a three-member board appointed by the drain commissioner meets to "determine necessity."

This critical meeting, however, comes long before drain commissioners can provide essential information about the estimated costs of projects. (It was more than a year, in the Hayworth case, before residents received any information about the financial and environmental bill they would pay.) Even so, the Michigan Drain Code gives county drain commissioners the authority to proceed, literally, at any cost once they have the "determination of necessity" in hand.

No Alternatives Allowed
Dairy farmer Jack Anderson is one of 2,600 landowners along Hayworth who agree St. Johns needs to address stormwater problems, which are growing along with the town. But Mr. Anderson and his rural neighbors do not think the drain commissioner needs to spend $2.2 million of their hard-earned money, and tear up 16 miles of stream, on a project that will only encourage more suburbs and stormwater runoff.

"There's more than one way to handle flooding problems," Mr. Anderson says. "But the drain commissioner is barging ahead no matter if the benefits are related to the costs at all." Or if larger and larger stormwater drains are the answer, he adds. "We could channelize all the way to Lake Michigan, but that doesn't take into account other needs we have for streams aesthetic, farming, recreation."

No End in Sight
No one knows how much the Hayworth Drain will ultimately cost or how big it will eventually be. Cost overruns, future enlargements, and untold environmental damage are routine in drain work. The Michigan Drain Code, which was designed in the 19th Century to speed up swamp drainage for settlers, gives 21st Century communities no way to save their streams or their bank accounts.

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