Legislative Analysis
Phone: (517) 373-8080
DRAIN CODE AMENDMENTS
http://www.house.mi.gov/hfa
House Bill 5188 (H-2) as reported from committee Analysis available at
Sponsor: Rep. Amos O’Neal http://www.legislature.mi.gov
House Bill 5189 as reported from committee
Sponsor: Rep. Robert J. Bezotte
House Bill 5190 as reported from committee
Sponsor: Rep. Jenn Hill
Committee: Local Government and Municipal Finance
Complete to 6-18-24
SUMMARY:
House Bills 5188, 5189, and 5190 would amend the Drain Code to increase certain expenditure
and assessment limits, clarify certain procedures related to revising drainage district
boundaries, and modify the amount that certain drainage board and board of determination
members can be compensated for their service, respectively.
House Bill 5188 would amend Chapter 8 (Cleaning, Widening, Deepening, Straightening and
Extending Drains) of the Drain Code to increase the amount that a drain commissioner or
drainage board can spend on necessary maintenance and repairs without being subject to the
Drain Code’s petition requirements and to modify a provision limiting the amount that a
drainage district can be assessed when its fund is below a certain threshold.
The Drain Code provides that the maximum amount that a drain commissioner or drainage
board can assess in a single year is generally based on the amount that a commissioner or board
can spend per mile or fraction of a mile of a drain on necessary maintenance or repairs. 1
(Additional money needed for maintenance or repair must be approved by any substantially
affected township, city, or village or must be requested and paid for by a public corporation.)
House Bill 5188 would increase this expenditure limit from $5,000 per mile or fraction of a
mile of the drain to $10,000 per mile or fraction of a mile, 2 and beginning January 1, 2025, the
state treasurer would have to annually adjust the limit to reflect the cumulative percentage
change in the Consumer Price Index 3 since January 1, 2024. The Michigan Department of
Agriculture and Rural Development (MDARD) would have to post and maintain the adjusted
limit, as reported by the state treasurer, on its website.
1
The maximum assessment is based on the total number of miles of the drain, not the actual number of miles subject
to the inspection, repair or maintenance. The property subject to assessment is based on the areas of the district
benefited by the inspection, repair, or maintenance, not the actual location of the inspection, repair, or maintenance.
2
The maximum expenditure is based on the total length of the drain, not the portion of the drain that was inspected,
maintained, or repaired. The maximum expenditure per mile also does not include any inspection, engineering, or
legal fees or the cost of publication and mailing.
3
Consumer Price Index would be defined by HB 5188 as the most comprehensive and recently available index of
consumer prices for the state of Michigan from the federal Bureau of Labor Statistics.
House Fiscal Agency Page 1 of 7
 Additionally, under the code, when a drainage district’s drain fund contains less than $5,000
per mile or fraction of a mile of a drain, the drain commissioner or drainage board, as
appropriate, can only assess the district up to $2,500 per mile or fraction of a mile in a single
year for drain inspection, repair, and maintenance.
House Bill 5188 would double these amounts, allowing a drain commissioner or board to assess
a district up to $5,000 per mile or fraction of a mile when the drain fund is below $10,000 per
mile or fraction of a mile of a drain.
MCL 280.196
House Bill 5189 would amend Chapter 6 (Intercounty Drains) and Chapter 8 (Cleaning,
Widening, Deepening, Straightening and Extending Drains) of the Drain Code to modify the
procedures to revise the boundaries of a drainage district to add land from one or more counties
not originally a part of the district or to remove all land in one or more counties from the
district.
Petition and determination
Currently, after receiving a petition for addition or removal, a drain commissioner must mail a
copy of the petition to the MDARD director and the drain commissioner of each county where
the existing or proposed revised drainage district is located. After receiving a petition, the
MDARD director must call a meeting of the drainage board. 4
House Bill 5189 would require a petition to specifically identify the county or counties to be
removed or added, and the drain commissioner would have to provide a notice to the MDARD
director and affected drain commissioners that identifies the proposed county or counties and
includes a general description or map of the lands expected to constitute the drainage district.5
Notices for a drainage board meeting would also have to identify those counties and include a
general description or map.
If the drainage board determines that the addition or removal is necessary for the public health,
convenience, or welfare, it currently must enter an order to that effect and file a copy with the
drain commissioner of each county in the revised district. The board must also determine the
percentage of the construction costs that each county is responsible to pay. Once the order is
filed, the board constitutes the drainage board for the new district and has all the powers and
duties of a drainage board under the Drain Code.
Instead, House Bill 5189 would require a drainage board to make its determination by a
majority vote. The board would then have to issue an order to that effect and follow all
applicable procedures to revise the district’s boundaries, as listed below. 6
4
Notices for a drainage board meeting and all other proceedings are required to be provided in accordance with the
Drain Code’s procedures for adding or removing one or more counties to or from a drainage district. House Bill 5189
would instead require notices of the meeting to be provided in accordance with the procedures under which a drainage
board must call a meeting.
5
The bill would require the petition copies and notices to be provided by certified mail.
6
If the petition is combined with a petition to make other improvements to the drain, the drainage board would
additionally be required to follow all applicable procedures to determine the practicability of the improvements before
taking further action.
House Fiscal Agency HBs 5188 (H-2), 5189, and 5190 as reported Page 2 of 7
 Boundary revision
After the receipt of a petition filed under Chapter 8 (Cleaning, Widening, Deepening,
Straightening and Extending Drains), the Drain Code authorizes a drain commissioner or
drainage board to retain a licensed surveyor or engineer to survey the drain, review the district
boundaries, or, if necessary, lay out a revised drainage district. If the results of a survey, review,
or inspection suggest that the boundaries of a drainage district should be revised, the boundaries
must be revised to include all lands benefited by the drain as recommended by the surveyor or
engineer.
House Bill 5189 would instead provide that after an inspection of a drain or after receiving a
petition to take action on a drain, consolidate drainage districts, take action to move surplus
water across adjacent land for highway construction or maintenance, or purify the flow of a
drain due to illegal pollution, a drain commissioner could hire a licensed surveyor or engineer
to review the district’s boundaries and lay out a revised drainage district as necessary. If the
review suggests that the boundaries should be revised, a drain commissioner or drainage board
chairperson would still be required to either hold a day of review 7 of the district boundaries or
convene a board of determination or the drainage board, but the boundaries would no longer
have to be revised in accordance with the surveyor or engineer’s recommendations.
If a drain commissioner or drainage board determines after an inspection and the review that a
drainage district’s boundaries should be revised to add or remove a county, then the following
procedures currently apply:
• The drain commissioner or drainage board must notify the MDARD director and the
drain commissioner of each county where lands are proposed to be added or removed.
• The MDARD director must call a drainage board meeting, which must include the
commissioner of each county where the existing or proposed drainage district is
located.
• At least 10 days before the meeting, the drainage board must provide notice of the
meeting to the appropriate entities and individuals.
• At the meeting, all landowners in the existing or proposed district that would be liable
for assessment and any affected municipality can advocate for or against the addition
or removal.
• The board must consider all evidence offered and determine whether the addition or
removal is just and equitable, and if it determines as such it must file an order to that
effect.
• The order must give the drain a name or number, describe the route of the drain, and
describe drainage district boundaries, and if the district is an intercounty drain, the
order must designate the members constituting the revised drainage board and
determine the apportionment between counties.
• A copy of the order must be filed with the drain commissioner of each county liable
for assessments.
• If the revised district is an intercounty district, the revised drainage board constitutes
the drainage board for the district once the order is filed, and it must either revise the
district boundaries or hold a day of review.
7
HB 5189 would provide that notice of a day of review must be sent to the required entities by first-class mail, as is
current law, or certified mail.
House Fiscal Agency HBs 5188 (H-2), 5189, and 5190 as reported Page 3 of 7
 • If the revised district is a single-county drainage district, then the original drainage
board must either revise the district boundaries or hold a day of review, and the drain
commissioner retains all powers and duties with respect to the drain.
House Bill 5189 would specify that those procedures apply in the order listed above, and it
would provide that a drain commissioner could appeal the apportionments or revised
boundaries to an arbitration board after receiving a copy of an order issued by a drainage board.
It would also require the order to designate a name or number for the drainage district (in
addition to the drain itself) and identify each county added to or removed from the district.
MCL 280.135 and 280.197
House Bill 5190 would amend Chapter 4 (County Drains), Chapter 16 (Special County
Commissioner), Chapter 19 (Consolidated Districts), Chapter 20 (Intracounty Drains; Public
Corporations), and Chapter 21 (Intercounty Drains; Public Corporations) of the Drain Code,
primarily to modify compensation-related provisions for public officials serving in various
oversight roles.
Consolidated districts
If multiple drainage districts are located in the same county and in the same or adjoining
drainage basins, those districts can be consolidated and organized as a single district upon filing
a petition for consolidation with the county drain commissioner. Petitions for consolidation
generally must be signed by at least 50 property owners within the proposed consolidated
district, although a petition can alternatively be signed by a city or township located within the
proposed consolidated district when authorized by its governing body. House Bill 5190 would
specify that the districts could be consolidated in whole or in part and that a village could also
sign a consolidation petition. 8
After a petition is filed, the drain commissioner must appoint a board of determination (a three-
member board of disinterested property owners) to determine whether the proposal is
conducive to public health, convenience, or welfare. The compensation of a member of the
board of determination is currently $8 per day with no additional allowance for mileage, subject
to increase by the county board of commissioners. Under House Bill 5190, the drain
commissioner would determine the reasonable compensation for a board of determination
member and approve any necessary expenses for each meeting.
Board of determination members
A board of determination is also convened after a petition is filed to locate, establish, and
construct a county drain. The per diem compensation and mileage and expense reimbursements
of each member of a board of determination for a county drain is currently the same as the
reimbursements for the county board of commissioners, and in counties where commissioners
are not paid on a per diem basis, the drain commissioner must set the compensation and mileage
and expense reimbursements. Under House Bill 5190, the county drain commissioner would
instead determine reasonable compensation for and approve necessary expenses of a board of
determination member for each meeting attended.
8
Other provisions in this section pertaining to the district consolidation process would also be amended to include
villages.
House Fiscal Agency HBs 5188 (H-2), 5189, and 5190 as reported Page 4 of 7
 Alternate drain commissioners
Currently, the salary of a county drain commissioner who is appointed to make an
apportionment on another commissioner’s behalf due to a conflict of interest or other
disqualification must be the same as what they receive regularly, in addition to any necessary
incurred expenses. House Bill 5190 would instead require the disqualified drain commissioner
to determine reasonable compensation for and approve necessary expenses of the appointed
commissioner.
Drainage board and augmented drainage board member compensation
The Drain Code provides that if two or more public corporations 9 file a petition to locate,
establish, and construct a county drain, then a drainage board (generally comprising the county
drain commissioner, the chairperson of the county board of commissioners, and the chairperson
of the board of county auditors) is created. The chairperson of a county board of commissioners
and any county commissioner serving on the drainage board currently can receive a per diem
of up to $25, excluding mileage and expenses, for attendance at a drainage board meeting.
Similarly, if two or more public corporations petition for an intercounty drain, then both a
drainage board (generally comprised of the MDARD director and the drain commissioner of
each involved county) and an augmented drainage board (generally comprising the drainage
board and the chairs of the board of county commissioners and the board of county auditors
for each county) are created. The chairperson of a board of county commissioners and any
county commissioner serving on an augmented drainage board currently can receive a per diem
of up to $25, excluding mileage and expenses, for attendance at an augmented drainage board
meeting.
Under House Bill 5190, drainage boards and augmented drainage boards, as applicable, would
determine reasonable compensation for and approve necessary expenses of the chairperson of
the county board of commissioners and any county commissioner who serves on the board for
each meeting attended. The bill would also remove a provision that currently requires the drain
commissioner of a county with a population of less than 500,000 to receive the same
compensation as other members of a drainage board.
MCL 280.72 et seq.
BRIEF DISCUSSION:
According to committee testimony, several counties have drains with estimated costs of
maintenance that are significantly higher than the maximum amount that can be spent on their
annual maintenance. Because going through the petition process under the Drain Code can take
multiple years and lead to increased administrative costs, supporters of House Bill 5188 argue
that increasing the annual maintenance limit is necessary to allow drain commissioners to
address more urgent maintenance needs and to resolve constituent confusion about why some
projects cannot be completed. Raising the limit would also account for the increased costs of
maintenance activities and could allow drain commissioners to consolidate more maintenance
projects, which could save costs and decrease assessments over time.
9
“Public corporation” includes the state of Michigan and a county, city, village, township, metropolitan district, or
authority created by or pursuant to state law.
House Fiscal Agency HBs 5188 (H-2),