Down the drain code

When settlers made their way west in the early 1800s, they told horror stories about the swampy, mosquito-infested land known as Michigan. Early wagon trains avoided the soggy wilderness west of Lake Huron and Lake Erie because it was virtually impossible to farm the low-lying ground.

So how did Michigan become one of the nation's top agricultural states?

Drains did it. Not the kind people hate to clean at home. Agricultural drains -- man-made ditches, dredged and straightened rivers -- turned wetlands into croplands.

Draining land to attract settlers was a high political and economic priority in the 1800s. Communities passed urgent laws giving local officials broad authority to build drains and tax property owners to pay for them.

Now, more than a century after drain laws were consolidated into the Michigan Drain Code, the state has a different problem: suburban sprawl and all the economic, environmental and social costs associated with it. A driving force behind this problem is the fact that real estate developers now use drain subsidies to grow subdivisions and strip malls on land that used to sprout potatoes and cabbage.

The Michigan Drain Code, perhaps the most antiquated and obscure land use law in the country, has become a convenient and hidden means for pushing wasteful, damaging and demoralizing development beyond the point where supply meets demand. In other words, the 19th century law has emerged as one of the most significant drivers of a costly pattern of development that communities throughout south-central and southeast Michigan are beginning to resent.

This fall, as sprawl climbs to the top of the state's political priorities, the Legislature is weighing changes in the drain code. The result will either be continued subsidies to drain land for development, or more public oversight and environmental stewardship. It is the first significant legislative review of the drain code since 1956.

The outcome of this debate is crucial to the state's future. Suburban sprawl sucks the economic life out of cities and older suburbs. New public services and infrastructure cost outlying communities more than they gain in property taxes. And when the flurry of construction dies down, residents look up to see the home they loved has disappeared. Gone are the open spaces and wildlife. Young families can't afford to buy the land their great-grandparents homesteaded. Soaring property values send them packing.

The proposal to amend the drain code that has received the most attention, HB 4337, is sponsored by Rep. Howard Wetters, D-Kawkawlin. Sen. Joel Gougeon, R-Bay City, has introduced a similar bill, SB 221, in the state Senate. Rather than cut the public drain subsidy to development, the Wetter bill actually increases the number of property owners drain commissioners can tax for drain work. The Wetters proposal also wastes taxpayer money by calling for certain environmental studies without stipulating that drain commissioners base their decisions on this vital information.

Both bills were heavily influenced by the Michigan Association of County Drain Commissioners and its long list of "associate members" in the building industry. The state Department of Agriculture also supports the bills. The department awarded this powerful lobby $49,500 and free department staff time to help rewrite the drain code.

A better and competing proposal is HB 6095, sponsored by Karen Willard, D-Algonac. It would make drain commissioners more accountable to the public by expanding the citizen appeal processes, making those who benefit the most from drains pay the largest share of costs, and by requiring drain commissioners to protect natural resources.

Many county drain commissioners already strive to make cost-effective, environmentally sensitive and fair decisions. But without reforms such as those in Rep. Willard's bill, citizens can only pray that their own county drain commissioners will take these concerns seriously.

The consequences of keeping the drain code in its frontier form are costly and unjust. One problem is that work on the vast majority of drains is exempt from certain state environmental statutes, particularly the Wetland Protection Act, and the Inland Lakes and Streams Act.

Second, farmers and others who must pay the cost have found there is, literally, nothing they can do about questionable drain decisions. Farmers, for example, simply want drain commissioners to clean drains that haven't been maintained. Instead, they often end up having to pay for major drain expansions because drain commissioners have sole authority to decide how extensive the work should be and how long it should continue.

Drain commissioners' broad authority to tax landowners and build drains at will was an important settlement-speeding tool 150 years ago. But it is folly now. Rep. Willard's HB 6095 is a historic opportunity to bring the drain code up to date with 21st century reality.

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