Draining a swampy issue | Michigan Farm News

Draining a swampy issue

Category: Crops

by Paul W. Jackson

Swampy-Issue_MFN_9.28.18
Marvin Cook could lose farm program eligibility at the end of September if a fight over this drain is not resolved.

There are two ways to resolve Marvin Cook’s interconnected trouble with a county drain and farm program payments.

Either he can sign an easement the Eaton County Drain Commission wants – and needs ‑ him to sign, or the disputing parties can sit down and talk to each other.

If neither happens, a third option is in play: Court.

There are two ways the complicated issue could end up resolved by a judge, according to John Brennan, the Drain Commission’s attorney, but it’s a last resort.

“We are willing to talk this out,” he said. We’re not trying to put up a wall. If Mr. Cook said he’d settle the whole thing for, say, $5,000, I may recommend that it be accepted. I represent a drainage district that doesn’t have funds for this, and they are public funds, not private. The Drain Commission is not in a position to pay him 10 grand for an easement that’s already helping him (because tiles on the farm go into the drain). So if it ends up in court, it would be because Mr. Cook sues us for trespass or something. The only way we would bring it to court would be in a condemnation action. At this point, that is an option for us, but not one we typically like to do.”

Cook, however, believes that he is entitled to much more than $5,000, since he has at least $20,000 in attorney fees and plenty more in consultant bills.

“I will not bend on them paying my legal fees for what they did,” Cook said. “I would sign the easement if they’d pay attorney fees. But the Drain Commission doesn’t want to recognize that their screw-up could cost me my program payments. The law is clear. The Drain Commission must have a written easement before they can set foot on my property. They don’t have a leg to stand on.”

The Drain Commission, conversely, insists that its legs are firmly planted on a verbal agreement which Cook said never happened. So the two parties spat.

“Shame on everybody in this case,” said Blain Becktold, former Farm Service Agency (FSA) employee and owner of Down on the Farm Consulting. He’s been working with Cook on his farm program and wetland issues for years, and is convinced that there’s much more at stake for Cook than for the Drain Commission. But unless something is resolved by the end of September, Cook may again lose his ability to qualify for farm program payments due to a damaged wetland on his property.

The problem is, he didn’t damage the mitigated part of his wetland. He damaged the first part, thinking he was within his rights to dig a trench around a collapsed drain. The Natural Resources Conservation Service (NRCS) disagreed and cut him off from eligibility for farm payments until he mitigated the wetland.

On that much, the two parties agree. But aside from that, they haven’t found much common ground.

Draining the wetland

The whole thing started many years ago when Cook decided he wanted to farm an area that was wet and unworkable since the 1960s, when his father owned the property near Sunfield.

But when Cook started working to fix the drainage problem in the area, he was informed by the Farm Service Agency (FSA) that he would either mitigate the wetland he’d destroyed or risk losing farm program payments.

Cook said he’d done nothing wrong, since the Day Drain, established in 1888, had failed due to “lack of maintenance” by the Drain Commission.

“I learned there was a damaged drain there years ago because the area was flooded and killing off vegetation,” Cook said. “I had always farmed around it. But in 2010, when it flooded, the NRCS (Natural Resources Conservation Service) said I abandoned the area, and if I wanted to continue to be eligible for farm payments, I’d have to mitigate it. So in 2016, that’s what we did.”

As Cook established a 1.45-acre wetland adjacent to the flooded area that held the failed drain, his farm payments were restored for 2017. But later that year, the Drain Commission started work on the drain through the area where Cook had tried to work, where the drain commission had a legal easement. Here’s where today’s argument began.

“We have full right-of-way through the wetland on Cook’s property,” said Eaton County Deputy Drain Commissioner Eric Deibel. “But when we got there, we became concerned with the soil conditions, and called Mr. Cook and said it would be better for us to relocate the drain outside the wetland. He never told us the property was in the Conservation Reserve Program. We explained what we wanted to do, and he gave us a verbal commitment on the phone.”

Cook denies that commitment ever took place.

Deibel, however, insists, and is backed up by attorney Brennan, that there are phone records that prove Cook and the Drain Commission had the conversation.

Believing they had a verbal agreement, and not knowing the extent of the mitigated portion of the wetland, the Drain Commission spent two weeks changing the drain’s course on the edge of Cook’s mitigated wetland.

The problem for the Drain Commission, Deibel said, was that if it fixed the drain where it already had a legal easement, repairs would have drained the wetland and gotten Cook into more trouble with the NRCS.

“We tried to go around it, but it came back to bite us in the butt,” Deibel said. “The drain works fine now, but the only problem is that we need a right-of-way on the area where we put in the new pipe before we can finish the wetland restoration work. So if Mr. Cook won’t sign that easement, our options are to remove what’s working (the new drain portion), fill in that wetland and go back in where we already have a right-of-way.”

That, of course, would drain the original part of the wetland and cause Cook to lose future farm program payments.

At this time, Becktold said, the Drain Commission only needs to take the next steps, such as spraying vegetation and planting trees and a wetland mix of grasses, to keep Cook in compliance with the farm bill’s wetland mitigation requirements. However, the Commission won’t do that until the easement is signed.

As you might expect, there are many other complications involved in this dispute. There are personality conflicts, bureaucracy and, of course, complications within the law. Becktold said he feels Cook acted in good faith when he stopped working to drain the original wetland, according to NRCS orders.

But the FSA didn’t agree, and he lost farm program eligibility from 2010 through 2016 before it was reinstated for the 2017 crop year. But now, eligibility is in jeopardy again, and it could be another complicated mess even if he signs the easement and applies for 2018 payments.

The essence of the issue, however, is that wetlands, which can relatively easily be restored, were destroyed. It’s also essential that someone pays for it.

“The (Drain Commission’s) contractor destroyed what Mr. Cook spent thousands of dollars to restore,” said Cook’s previous attorney, Mike Perry. “The Drain Commission is committed to restore what was damaged. The question is: who will pay for it?”

The Drain Commission has options. Most obviously, it can assess all the landowners in the drainage district for the work, including Cook, since he’s in the drainage district.

But after all those things are said and done, it boils down to one of two options, Becktold said: Talk to each other reasonably or go to court.

“The problem was that nobody had a meeting on the farm,” he said. “In the end, it probably was a good decision to move the pipe, but the proper paperwork still has to be done. I believe the holdup is on Cook’s end now. I’m not saying he is not justified in that, because I believe the Eaton County Drain Commission handled it totally wrong from the beginning. A phone call conversation is not the proper way to handle it. This is not the Drain Commission’s first rodeo. There should have been more than a phone call. On the other hand, Mr. Cook needs to look at the larger picture. He can’t farm that area anyway. What is he really losing?

Cook’s answer is that he’s losing money. But in the long run – very long, he said -‑ perhaps getting farm program payments, as well as payments from the new Trade Assistance Package, would make up for lost attorney fees and consultant and engineering work. But nothing is certain.

The entire case may end up in mediation, Cook said, and for all parties, that may be the best option.

That way, maybe all concerned parties will finally sit down, face-to-face, and talk about draining a swampy issue.