Michigan Farm Bureau’s grassroots policy on agricultural drainage states, “To assist farmers and our members with gaining a better understanding of the Drain Code of 1956, we direct MFB to create an educational series that is made available to the general public.” To help make that happen, this is the first in an occasional series to answer questions, provide helpful resources, and give farmers some tips for interacting with drain commissioners, legislators, road commissions, and contractors.
First, while you’re practicing social distancing, I can’t recommend enough that you watch “The Importance of Michigan Drain Commissioners.” It gives a great overview of what Drain Commissioners do and why, and the issues they face in both urban and rural settings. If you’re a glutton for punishment, you can also check out the actual Drain Code, though even that only scratches the surface of the regulations drain commissioners must follow.
While the best source for answers is always your county drain commissioner, following are answers to some common questions I get about drainage. If you have other drainage-related questions or ideas of other topics to highlight in the series, send them to me at [email protected] or call me at 517-679-5332.
Q. Can I dredge or reshape a county drain, especially if it runs through my property?
A. Only with permission and sometimes permits. Most county drains in Michigan are regulated by the Michigan Department of Environment, Great Lakes, and Energy (MDEGLE) as Waters of the State (which are not the same as Waters of the United States, so their definition won’t change with the new EPA rule). Drain commissioners must follow specific practices for the work they do, so they get exemptions from many of the permits required under state law. However, if you are performing work on a county drain, you do not get those same exemptions unless you are working under contract and supervision of the drain commissioner. That means you may be required to get a permit from MDEGLE for independent work.
Q. Can I connect tile outlets, ag drains, or grassed waterways to a county drain?
A. Only with permission from the drain commissioner. Your drain commissioner may instruct you to get a permit from MDEGLE, or to work with their office to make sure your activity doesn’t destabilize the drain bank. They also need to know about the potential for increased flow into the drain to prevent downstream flooding problems.
Q. I planted crops near a county drain and now my drain commissioner is telling me they’re going to do work that will damage them. Can they do that?
A. Yes, drain commissioners have the right to work within easements any time. It is still your property, and under the Drain Code you do still have the right to use it, but drain easements are legally binding: they allow the drain commissioner access, state that you cannot put any permanent structures in them, and do not give you legal or financial protection for crops you plant inside them. That said, it never hurts to talk to your drain commissioner if their work is close to harvest—they’re not required to delay but they may be willing to do so. The width of an easement can vary (it might be 50 or even 150 feet from the center of the drain, or as one drain easement I’ve seen memorably states, “the distance required for a wagon and hitched team to complete a turn”), so it may be helpful to ask your drain commissioner how wide the easement is so you can make planting and harvest plans.
Q. Can I water or cross my livestock in a county drain, or install a dam to irrigate out of it?
A. Usually not. The Drain Code states the landowner is responsible to pay for any damage livestock do to the drain, so even though it’s not strictly forbidden, drain commissioners discourage landowners from allowing livestock access. If you need to water them in or cross them through a county drain, talk to your drain commissioner—they may be willing to work with you to install a livestock crossing or some other solution for your livestock to prevent you from having to pay for frequent damage. The situation is similar with dams—you may be able to get permission from your drain commissioner to install a dam for seasonal irrigation, but remember, most of these drains are Waters of the State, so without that permission you would need a permit from MDEGLE to install it.