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Drain Code as a Weapon

February 27, 2013

Excerpts from article of PipeLine Magazine

During the first half of the last century, storm
sewers and drains were often one and the same.
– In a 1943 Michigan Supreme Court case, such a drain
was described like this: “It is admitted that the
emptying of the untreated sewage from the district
into Red Run Creek pollutes such creek and creates
an unsanitary condition and health menace. The
water in the creek is described as black in color
and as giving off an offensive odor. Along the
creek banks are deposits of solids from the sewage.
There was testimony that such untreated sewage
has also polluted the Clinton River and beaches of
Lake St. Clair near the mouth of the river.”
Fortunately, the days when raw sewage regularly ran
through drains are over. Yet, drains continue to be
vulnerable to a wide variety of pollutants and the
Drain Code is a tool in the Drain Commissioner’s
arsenal to keep storm water clean.

The Michigan Drain Code is separate from the
federal Clean Water Act administered by the EPA
or the state Natural Resources Environmental
Protection Act
under the jurisdiction of the state
Department of Environmental Quality. Still, many
provisions in the Drain Code specifically address
water quality issues.

Chapter 8: Cleaning, Widening, Deepening

A county drain can be established if the Board of
Determination decides that a drain is necessary
and conducive to public health, convenience,
or welfare. The public health component of a
drain provides sufficient authority for the Drain
Commissioner’s oversight of storm water quality.

Chapter 8 improvements are triggered when a
drain needs “cleaning out, relocating, widening,
deepening, straightening, tiling, extending, or
relocating along a highway, or requires structures
or mechanical devices that will properly purify
or improve the flow of the drain or pumping
equipment necessary to assist or relieve the
flow of the drain . . .” After a petition is filed
for the improvement of a drain, the Board of
Determination must apply the “public health,
convenience, or welfare” standard set forth in
Section 72.

If petitioners seek drain improvements based on
excessive pooling or polluted storm water run off,
necessity may be established. It is well-settled that
pooling of storm water increases the potential
breeding areas for mosquitoes, the disease vectors
for dengue hemorrhagic fever, West Nile virus,
and other infectious diseases.
Runoff from roofs, roads, and parking lots can contain
significant concentrations of copper, zinc, and lead,
which can have toxic effects in humans.

A Board of Determination, faced with evidence of
storm water pollution flowing into a public drain
may be justified in finding the project necessary as
long as the facts presented at the Board meeting
meet the statutory threshold that the drain
improvement sought is “necessary and conducive
to public health, convenience or welfare.” Once the
Order of Necessity is filed the Drain Commissioner
is empowered to build improvements that reduce
pollution in the drain.

Obstructions in Drains Include Pollution

Section 421 of Chapter 18 directs commissioners
to remove obstructions. Typically an obstruction is
considered a cement slab, lumber or a beaver dam.
However, pollution in the drain that requires a
clean-up that results in the lessening of the area of
the drain can also be deemed an obstruction. For
example, if there is a gasoline spill into a public
storm drain, that drain becomes obstructed. The
Drain Commissioner must then take steps to clean
the drain under section 421.
-Under the Drain Code, the person causing such obstruction
is liable for the expense attendant upon the removal of the
obstruction, including the charges of the Drain Commissioner.

Partnering with DEQ to Keep
Storm Drains Clean

Section 423 of the Code specifically authorizes the
Department of Environmental Quality to issue an
Order of Determination against one or more users
of the drain who are responsible for the discharge
of sewage or other waste into the drain.
A DEQ originated Order is the equivalent of a petition
calling for the construction of appropriate measures
by which unlawful discharge may be abated or
purified. The DEQ Order of Determination, under
Section 423, is equivalent to an Order of Necessity
by a Board of Determination pursuant to Section
72 or 191, whichever is applicable. Properly
applied, Section 423 codifies the alliance between
DEQ and the Drain Commissioner in identifying
polluters, cleaning up the water pollution and
making the polluters pay.

Public Corporations and Storm Water Quality

Chapters 20 and 21 of the Drain Code address
drains necessary for the public health that are to
be paid for wholly by public corporations. Chapter
20 involves intra-county drains and Chapter 21
addresses inter-county drains. Both Chapters
require public health necessities as a precondition
to a properly filed petition. Sections 491 and 541
allow a petition for the purpose of assuming
complete control over a natural water course in
the name of public health. The statutes intend
that the control exercised over the water course
have as its purpose the prevention or correction
of conditions that “cause or increase the danger of
flooding, pollution, desecration or obstruction” of
such water course.


In addition to Drain Code provisions that address
water quality issues, Drain Commissioners
may have other legal tools at their disposal to
assist them in executing their duties. These may
include drain office guidelines; municipal storm
water ordinances; crossing permits; connect and
discharge permits; and sedimentation and soil
erosion control permits; all of which allow the
drain office to oversee activities affecting public
drains. The Drain Code enables Drain/Water
Resources Commissioners many opportunities to
improve the quality of life for their constituents,
not the least of which is to ensure that water in the
drains runs clean.


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