Drain Code Bill Harnesses Unconstrained Tax Power to a New Environmental Mission

Among the class of "things most people don’t know that can hurt them" is the nearly unlimited power of Michigan’s county drain commissioners to levy property tax assessments.

This power was granted in the 19th century in order to convert a peninsula that was mostly "swampland" into one that is mostly farmland. This was accomplished through a network of "drains," essentially drainage ditches, that were constructed to remove the standing water present when settlers arrived, and the storm water that arrives every time there are heavy rains. To build and maintain the drains, county drain commissioners were granted extraordinary taxing power, which they retain. This power is so absolute that taxpayers who believe they have been treated unfairly by drain assessments are essentially without effective recourse.

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In the 21st century our state faces new concerns and challenges, among them environmental issues and the mandates of federal environment laws. Included in the latter are "Phase II Storm Water Quality" regulations. These regulations have municipal water and sewer officials scratching their heads over how to comply without imposing new fees and taxes on residents.

Unlike drain commissioners, municipalities are far more constrained by the democratic process when it comes to levying new property taxes. Obstacles like the Municipal Finance Act, the state Tax Tribunal, the Supreme Court’s Bolt "Rain Tax" decision, and the Headlee amendment to the state constitution limit tax levies and debt, give recourse to property owners treated unfairly, and even require messy and inconvenient elections that don’t always pass. Stuck between the rock of unfunded federal mandates and the hard place of popular aversion to higher property taxes, municipal officials have struck on a novel solution: Shift the responsibility to county drain commissions, an entity far less constrained by the will of the people.

The vehicle for the shift is a proposed revision to the 1956 state "drain code," which is now pending before the state Senate. This is the most recent of a series of bills introduced every two years that are essentially written by the association representing drain commissioners and the contractors who benefit from drain tax revenues. Not surprisingly, rather than address the property rights, taxpayer and environmental concerns inherent in the current system, each of these bills has expanded the power of drain commissioners, making the aforementioned concerns even more acute, not less. All of these proposals have eventually been spiked on the two-pronged fork of environmental and taxpayer opposition.

The current version, Senate Bill 217, follows its predecessors in expanding drain commission powers and further eroding taxpayer redress, but adds a new twist: Drain commissioners would be free to assume the duty of building and paying for any new stormwater management systems needed to comply with the looming federal mandates. They also could levy assessments for things like public stormwater education and universal septic inspections that are currently outside their domain.

This is a really nifty solution for municipal officials, who would be able to avoid either reordering spending priorities or convincing taxpayers that taxes or fees must increase to meet federal standards. The drain commissioners and the contractors they employ also think it’s dandy, because all that unconstrained tax-and-spend authority would be unleashed in pursuit of a new mission — building stormwater management systems — which is only vaguely related to their original purpose. Property-tax payers could find themselves socked with draconian new assessments without any democratic recourse. Potentially lower cost local solutions would be bypassed in favor of heavy-handed drain commissions subject to even less accountability than under current law.

Remember — it was the unique importance of draining land for an agricultural economy that formed the rationale for this unconstrained taxing power. Converting a township or county from an economically unproductive "swamp" into a thriving agricultural community was a public good considered too important to be limited by the potential obstacles of democratic processes.

Whether such reasoning was justified or not can be argued. What can’t be argued is that the imposition of such unconstrained taxing power teetered precariously on the line between good and bad government. After all, other states managed to drain their land without similar limits on democratic recourse.

But now this extraordinary power may be extended even farther — to a new mission of meeting federal stormwater management mandates. Surprisingly, there has been very little discussion or even acknowledgement of this issue. Certainly, taxpayers have no idea what may be heading their way, and it’s likely that most legislators don’t appreciate this aspect of the bill either. They should make an effort to do so, because they will have some serious explaining to do if their constituents suddenly find themselves socked with huge new assessments for which they did not vote, which they cannot contest, and to which their homes and their incomes will be permanently bound.

These are just some of my concerns with this legislation. There are also serious environmental issues that could be made worse if our state moves in this direction. Instead of exacerbating old drain code problems and creating new ones, we should seek new approaches to develop a system appropriate for 21st century challenges.


Sue Julian is president of the Michigan Drain Code Coalition and is on the board of the Michigan Environmental Council. On March 9, Ms. Julian addressed a Mackinac Center "Issues & Ideas" luncheon in Lansing on revising the drain code to meet the challenges of the 21st century. This article is based on her address.