Citizen Guide to the Drain Code
This information is being provided to help you better understand the process, funding and other implications of a drain project in your neighborhood.
What is a Drain Project?
A drain project is the establishment, construction, maintenance or improvement of a drain designed to prevent flooding, decrease soil erosion and sedimentation and provide better drainage or agricultural lands, residential lands or other development. A “drain” may include roadside ditches, agricultural drains, tiling/enclosed systems under agricultural or developed land, creeks, rivers and lakes.
Who is in charge of Drains and Drain Projects?
Drainage activities are generally governed by the Michigan Drain Code and administered by the County Drain Commissioner, the elected official in charge. The Drain Commissioner has jurisdiction over all established county drains and performs the duties set forth in the Drain Code. Basically, the Drain Commissioner administers the establishment, construction, maintenance and improvement of county drains, and is responsible for the assessment of the costs incurred.
How Does a Drain Project Begin?
Generally, drain projects are started when a "petition" is submitted to the Drain Commissioner. The petition states that a drainage problem exists and the petitioners would like the Drain Commissioner to solve the problem. A petition can be filed on an existing drain for maintenance or improvements to be undertaken, or it can be filed for the establishment of a new drain.
For an existing drain, a petition must be signed by at least five property owners whose land is located in the drainage district and would be liable to be assessed for a portion of the costs of the project.
For a new drain, an application to establish a drainage district is required before you can petition to establish a County Drain. A drainage district is the area of land that benefits from the drain. The application must be signed by at least ten property owners in the township—five of whom must own land in the drainage district. After the application is received, the Drain Commissioner works with an engineer to determine the area which would be drained by and receive benefit from the new drain. If determined practical, the Drain Commissioner then formally establishes the drainage district boundary. A petition to locate, establish and construct the new drain is then required. The petition must be signed by 50% of the property owners whose property would be traversed by the new drain.
Who Can Petition for a Drain Project?
A petition can be filed by property owners in the Drainage District, a Township/City/Village, and the County Road Commission or the Michigan Department of Transportation.
Who Decides Whether to do a Drain Project?
Once petitioned, a "Board of Determination" convenes. The Board of Determination is a three-member board appointed by the Drain Commissioner. The members must be residents of the County but cannot own property in the Drainage District or in the Township/City/Village. The role of the Board of Determination is to receive testimony and evidence at a public hearing to determine:
a) Whether a project is necessary and conducive to the public health, convenience or welfare
b) Whether all or a portion of the project benefits the municipalities in the district for the protection of public health; and in some instances
c) Whether lands should be included in or added to a drainage district.
The Board of Determination does not determine the scope of the project or the cost of the project, and does not determine how much property owners and municipalities will be assessed for the project. The Drain Commissioner makes these decisions after the engineering is performed, but before construction occurs.
Who Receives Notice of a Board of Determination Hearing?
Notices for the Board of Determination hearings are sent to all property owners who own land within a current drainage district and whose lands are proposed to be added to the drainage district. All interested persons may testify at the Board of Determination, or may send written testimony to the Drain Commissioner prior to the Board of Determination hearing.
Can the Board’s Decision be Appealed?
If the Board of Determination determines a drain project is necessary, any aggrieved person has 10 days to appeal but they may only appeal the finding of necessity, since that is the only issue the Board of Determination is acting upon. After the 10th day appeal period is over, the Drain Commissioner may proceed with the project.
Can the Project Change?
Since the scope of the project may not be fully defined at the time of the Board of Determination meeting, drain projects may change in scope. The project may get larger or smaller.
Who Determines What Needs to be Done?
If the Board of Determination determines a drain project is necessary, the Drain Commissioner decides how to solve the problem. He may contract out various parts of the project, including engineering analysis, project management, and construction.
Who Pays for Drain Projects?
Land owners and municipalities within a given Drainage District pay for drain projects within the district. The cost of the project is shared by all the property owners within the district. Each property will be assigned its share, which is calculated on the “benefit” received by each property. The methods for determining benefits can be based on a variety of factors such as acreage and zoning/land use that treat all property owners fairly. Portions of drain project costs are also assigned to the Township/City/Village for public health benefit and to the County and the County Road Commission for benefit to county roads.
The Drain Commissioner will also determine the terms of payment for any assessment. Large projects may be financed by the issuance of notes or bonds, with the costs and assessment. Large projects may be financed by the issuance of notes or bonds, with the costs and assessments spread out over many years.
What is the Drain Commissioner allowed to do without a petition?
Michigan Drain Code allows the Drain Commissioner to expend, without petition, up to $5,000 per mile per drain in any one year for maintenance and repair.
If you believe that an official county drain would be beneficial to your property or would like to request maintenance of an existing county drain, please feel free to contact the Drain Commissioner’s Office for additional information and guidance.
Amendments to Drain Code effective December 30, 2013
1. Public Act 261 of 2013 (HB 4622)
Public Act 261 amends Section 197 of the Drain Code to allow revision of drainage district boundaries (both additions and deletions) at either the hearing of necessity with the Board of Determination or at a separate Day of Review of Drainage District Boundaries. The process for a Reconvened Board of Determination has been eliminated.
2. Public Act 262 of 2013 (HB 4793)
The Uniform Condemnation Procedures Act (UPCA), MCL 213.51 et seq, provides the procedure for all governmental agencies to utilize for condemnation of property in Michigan, including drainage districts. However, the Drain Code contains different procedures for condemnation of property for drain projects through the Probate Court. In 1986, the Michigan Attorney General issued Opinion No. 6336 stating that the UCPA procedures control condemnation of property under the Drain Code rather than the Drain Code provisions.
While the UCPA procedures control, various sections of the Drain Code involving condemnation were never repealed, and have served to cause confusion for courts and others trying to understand the process. Public Act 262 of 2013 amends Sections 75 and 128 of the Drain Code to state that the UCPA must be followed and repeals the following sections of the Drain Code relating to the old condemnation process: Sections 76 to 84, 86 to 88, and 129.