Pursuing a motion for summary disposition in response to a complaint challenging the sufficiency of a petition and the practicability hearing that followed, The Hubbard Law Firm succeeded in getting an intercounty drain project promptly back on track. In a decision issued from the bench on June 20, 2011, Genesee County Circuit Court Judge Geoffrey Neithercut ruled that a single Saginaw County township validly petitioned for a maintenance and improvement project on the Misteguay Creek Intercounty Drain. The Judge also rejected Plaintiffs' claims that more than one practicability hearing is required if lands may be subsequently added to the drainage district or some project cost estimates exceed those initially discussed.

"The Plaintiffs may have been confused about the process established by the Drain Code and the current procedural posture of the Misteguay Creek petition," Hubbard Law Firm attorney Michael Woodworth said. "Judge Neithercut's ruling will allow the drainage board to conduct a necessity hearing and continue its compliance with state law." Woodworth and his partner Michelle Brya represented the district and its drainage board in court.

The Misteguay Intercounty Drain, which has been in existence for more than 100 years, drains properties in Genesee, Saginaw and Shiawassee Counties.           

A bill is being proposed that would amend the Natural Resources and Environmental Protection Act ("NREPA") by altering the procedure by which a lake improvement board may be dissolved.  Currently, for a public inland lake, a public hearing to dissolve a lake improvement board must be held upon petition of 2/3 of the property owners owning land abutting the lake.  This legislation would add a similar provision requiring a public hearing to be called upon petition of the property owners who have been assessed at least 2/3 of the cost of the most recent improvements, excluding the amount assessed to local units at large.  (This allows property owners whose property is not abutting the lake but who are being assessed the same opportunity to petition for the dissolution of a lake board.)

The Oakland County Board of Commissioners appointed Oakland County Water Resources Commissioner John P. McCulloch to the Huron-Clinton Metropolitan Authority Board of Commissioners.  On May 15, 2012 Peter S. Walters vacated the position that McCulloch will fill.

McCulloch is both a CPA and an attorney. As the Oakland County Water Resources commissioner, he is responsible for the operation of wastewater treatment plants, water treatment plants, miles of storm water collection facilities, and sewer collection facilities.

As reported by the Davidson Index, the Karegnondi Water Authority, consisting of Jeff Wright, Genesee County Drain Commissioner, John Cosens, Lapeer County Drain Commissioner, Dale Kirbyson, Lapeer City Manager, Greg Alexander, Sanilac County Drain Commissioner and Flint Mayor Dayne Walling, will hold its initial meeting later this month.

The water authority is moving forward with plans for a water intake pipeline.  The new pipeline hopes to avoid increased water rates from the City of Detroit, which could increase by up to 15% per year.  According to the report, the pipeline could save local residents millions of dollars in water costs over time.

The project will require the installation of a water intake structure, pipelines and pumping stations over the next several years.  The Davidson Index reported Wright as saying, "Our goal, if everything works as scheduled, would be starting construction of the intake this same time next year."

The projects are designed to increase capacity and energy efficiency. "The two projects together will save the county approximately $155,000 a year once they're completed," said Genesee County Drain Commission engineer Lynnette Meinz, as quoted by the report.

In response, Macomb County Public Works Commissioners Anthony Marrocco authorized the use of emergency drain funds to reconstruct a 70-foot section of the Harrington Drain, located in Clinton Township.  The reclamation project included the installation of two rows of gabions filled with 160,000 pounds of limestone along the erosion area.  Further, deep-rooted native plants and three different species of trees were planted above the gabions.  These "live stakes" will take root and provide increased stabilization of the bank.

“The reconstruction job was superb and I’m confident this will solve the erosion problem,” Marrocco said. “We are also confident the stream bank stabilization will be permanent.”  For a full report, please visit the Macomb Daily.

In Dalton Enterprises v Dalton Township, the Michigan Court of Appeals affirmed a Michigan Tax Tribunal Decision upholding a special assessment levied to defray the cost of a sanitary sewer improvement project in Muskegon County.

Petitioner Dalton Enterprises argued the special assessment was invalid because the assessment amount was not reasonably proportionate to the benefit derived from the sewer improvement.  A special assessment will be declared invalid when "the party challenging the assessments demonstrates that there is a substantial or unreasonable disproportionality between the amount assessed and the value which accrues to the land as a result of the improvements."

Here, the only evidence submitted by Petitioner regarding the proportionality of the assessment was a property owner's lay opinion that the value of his property decreased due to the sanitary sewer improvement.  The Court found the property owner's testimony insufficient to demonstrate a "substantial or unreasonable disproportionality" between the amount assessed and the value accrued to the property as a result of the improvement.

The Petitioner further argued that the special assessment and connection charge violated the Headlee Amendment, Article 9, Section 31 of the Michigan Constitution.  The Headlee Amendment prohibits the levying of a tax by a unit of local government without voter approval; however, Michigan courts have recognized a distinction between a special assessment and a tax.  A special assessment defrays the cost of a specific project while a tax serves a general revenue raising purpose.  Because a special assessment is not a tax, a special assessment does not violate the Headlee Amendment.

To determine whether the connection charge is a valid user fee or an unauthorized tax, the court applied a three part test as outlined by Bolt v City of Lansing, 459 Mich 152 (1998) that reviews: 1) whether the fee serves a regulatory, rather than revenue raising purpose; 2) whether the fee is proportionate to the costs of the service, and; 3) whether the fee is voluntary as opposed to compulsory.

Here the court found that the connection charge clearly satisfied the first two criteria because the project served a regulatory purpose by protecting the public health, safety and welfare and, based on expert testimony, its costs were proportionate to the benefit derived.  However, the third factor was not in dispute, connecting to the system was mandatory.  Nevertheless, the failure to satisfy all three Bolt criteria does not mandate a conclusion that the connection charge constitutes a tax.  The Michigan Supreme Court has held that the three Bolt criteria are not to be considered in isolation.  Considering all the criteria together, the court concluded a connection charge was a valid user fee.

Currently, the Strategic Water Quality Initiatives Fund may only be used to provide municipalities low interest loans for sewage system improvements and for grants to assist municipalities in completing the loan application requirements.

Introduced by Senator Birkholz, Senate Bill 1442 would authorize the Department of Natural Resources and Environment (DNRE) to use up to $200 million from the Fund for other purposes.

Specifically, the bill would allow the DNRE to expend $100 million dollars to address nonpoint source water pollution.  If the Department can document that it has achieved certain performance objectives by January 1, 2013, the Department may expend an additional $100 million from the Fund.

Further, the bill would add MCL 324.5204C and allow the DNRE to expend up to $25 million from the Fund to provide Brownfield Development grants and loans to municipalities and Brownfield Redevelopment Authorities.  These grants and loans are to be used for response activities to address nonpoint source water pollution.

As it stands, the Michigan Municipal Bond Authority, in conjunction with the DNRE, makes $40 million available for eligible municipalities under the Strategic Water Quality Initiatives Grant Program.  Senate Bill 1443, introduced by Senator Gilbert, would provide $40 million dollars in additional grant money.  Further, the bill would create the State Water Pollution Control Revolving Fund Advisory Committee within the DNRE.  The Committee would consist of a representative of the DNRE and additional members from at least the following organizations: American Council of Engineering Companies, American Waterworks Association, Michigan Townships Association, Michigan Chamber of Commerce, Michigan Infrastructure and Transportation Association, Michigan Water and Environment Association and others.

Hubbard attorneys Michelle M. Brya and Eric W. Misterovich discuss the challenges facing the newly established Wetland Advisory Council in Pipeline Magazine.

Shareholders Michelle Brya and Andria Ditschman, will be presenting a session entitled "Avoiding Pitfalls When Dealing With the Open Meetings Act and the Freedom of Information Act" at the Michigan Association of County Drain Commissioners Conference on February 17, 2010.  The Hubbard Law Firm currently serves as General Counsel for the Michigan Association of County Drain Commissioners and also represents over forty County Drain Commissioners throughout the state.