Extension of Existing Drain Held to Require ILSA Permit

The Michigan Court of Appeals has ruled that a project to extend an existing drain was not exempt from the permitting requirements of the Inland Lakes and Streams Act, currently codified as Part 301 of the Natural Resources and Environmental Protection Act (ILSA).

The Kiesel Intercounty Drain Drainage District (Kiesel) was established in 1969 to provide drainage for approximately six square miles of land in Bay and Midland Counties. Construction of the drainage project was interrupted on several occasions, but eventually the portions of the drain in Bay County were completed and, in 1990, Kiesel obtained the necessary rights of way to complete the portion of the drain planned for Midland County. The Michigan Department of Natural Resources (MDNR), however, notified Kiesel that Kiesel could not complete the Midland County portion of the drain unless Kiesel obtained a permit under the Wetland Protection Act (currently codified as Part 303 of the Natural Resources and Environmental Protection Act) (Wetland Act). The Michigan Department of Agriculture also notified Kiesel that a permit under ILSA would be required to complete the project.

Kiesel initially applied for a permit for a scaled down version of the project, but the permit was denied. Kiesel then filed a lawsuit in Midland County Circuit Court seeking a declaration that the Midland County portion of the drainage project was exempt from permitting requirements under both ILSA and the Wetland Act. The trial court, on cross motions for summary disposition, initially ruled that because the project was an extension of a drain, permits under both ILSA and The Wetland Act were required. Upon a motion by Kiesel, the trial court reconsidered its decision in light of the Michigan Court of Appeals decision in MDNR v. Huron County Road Comm'n, 212 Mich. App. 510 (1995). In Huron County, the court of appeals ruled that a project to extend an existing drain and to add a 1,200 foot branch drain was exempt from Wetland Act permit requirements under the Wetland Act's exemption for "maintenance, operation or improvement which includes straightening, widening, or deepening" of an existing drain. The court of appeals ruled that exempt maintenance and improvement activities were not limited to straightening, widening, or deepening an existing drain, but could also include extending an existing drain. Also, in the Huron County opinion, the court of appeals ruled for similar reasons that the same project was exempt from ILSA permitting requirements under the ILSA exemption for "maintenance and improvement" of a drain constructed before January 1, 1973.

In light of the decision in Huron County, the trial court reconsidered its earlier decision and granted summary judgment to Kiesel, ruling that the Midland County portion of the drainage project was exempt from both Wetland Act and ILSA permitting requirements as maintenance and improvement of an existing drain. MDNR then appealed.

By the time the court of appeals heard this appeal, the Michigan Supreme Court had vacated the decision in Huron County, without analysis. 451 Mich. 909 (1996). In reviewing this appeal, the court of appeals focused on a provision of ILSA that had not been brought to its attention by the litigants in the Huron County case or the litigants in the Kiesel appeal. Section 30102(d) of ILSA states that an ILSA permit is required before anyone may "create, enlarge or diminish an inland lake or stream." The court held that, in light of this provision, the extension or enlargement of an existing drain could not be exempt from ILSA permitting requirements as maintenance and improvement of an existing drain. Therefore, the court ruled that the Midland County portion of the Kiesel drain was subject to ILSA permitting requirements. The court of appeals also held that it was unnecessary for that court to determine whether a Wetland Act permit also was required for the Kiesel project, given that the project could not go forward until Kiesel obtains the necessary ILSA permit.

Kiesel Intercounty Drain Drainage Dist. v. Department of Natural Resources, 227 Mich. App. 327 (1998)
This article was prepared by S. Lee Johnson, a partner in our Environmental Department, and previously appeared in the June, 1998 edition of the Michigan Environmental Compliance Update, a monthly newsletter prepared by the Environmental Department and published by M. Lee Smith Publishers.

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