HB-4688, As Passed Senate, December 19, 2008

SUBSTITUTE FOR

HOUSE BILL NO. 4688

     A bill to amend 1956 PA 40, entitled

"The drain code of 1956,"

by amending section 196 (MCL 280.196), as amended by 1989 PA 149.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 196. (1) An annual inspection may be made of all drains

laid out and constructed a drain established under this act.

Inspection shall also be made upon the request of the governing

body of a public corporation, as defined in section 461, served in

whole or in part by the drain to be inspected. For county drains,

the inspection shall be made by the drain commissioner, or a

competent person appointed by the drain commissioner. For

intercounty drains, the inspection shall be caused to be made by

the drainage board.

     (2) Surplus construction funds remaining after completion of

construction of a drain, or funds remaining after completion of

work performed under a petition for maintenance or improvements

under this chapter, shall be deposited in the drain fund of a

drainage district and shall be expended for inspection, repair, and

maintenance of the drain.

     (3) If at any time the drain fund of a drainage district

contains less than $2,500.00 $5,000.00 per mile of drain or

fraction of a mile of a drain, the drain commissioner or drainage

board may assess the drainage district for an amount not to exceed

$1,250.00 a $2,500.00 per mile or fraction of a mile in any 1 year.

The amount collected under an assessment shall be deposited in the

drain fund of a drainage district for necessary inspection, repair,

and maintenance of the drain.

     (4) If an inspection discloses the necessity of expending

money for the maintenance and repair of a drain in order to keep it

in working order, the drain commissioner for a county drain, or the

drainage board for an intercounty drain, may without petition

expend an amount not to exceed in any 1 year $2,500.00 $5,000.00

per mile or fraction of a mile for maintenance and repair of a

drain, exclusive of inspection and engineering fees and the cost of

publication and mailing. The determination of the maximum

expenditure allowed without a petition or resolution shall be based

on the total number of miles of the drain and not on the actual

number of miles or location of the maintenance or repair.

     (5) If the drain commissioner or the drainage board finds it

necessary to expend funds in excess of $2,500.00 the amount

established in subsection (4) per mile or fraction of a mile in any

1 year for the maintenance and repair of a drain, the additional

amounts shall not be expended until approved by resolution of the

governing body of each township, city, and village affected by more

than 20% of the cost.

     (6) If the drain fund of a drainage district does not contain

sufficient funds to pay for inspection, repair, and maintenance

authorized by this section, the drain commissioner or the drainage

board shall reassess the drainage district for the inspection,

repair, and maintenance according to benefits received. A

reassessment shall be made and spread upon the city or township tax

assessment roll within 2 years after the completion of the

inspection, repair, and maintenance. If the total expenditure is

more than $2,500.00 the amount established in subsection (4) per

mile or fraction of a mile, all real property owners subject to an

assessment within the drainage district shall be notified of the

assessment by publication in a newspaper of general circulation

within the drainage district and by first first-class mail to the

name and address that appears on the last city or township

assessment roll. An affidavit of mailing shall be made by the drain

commissioner. that shall be The affidavit is conclusive proof that

the notices required by this subsection were mailed. The failure to

receive the notices by mail shall not constitute a jurisdictional

defect invalidating a drain tax if notice by publication was given

as required by this subsection.

     (7) An assessment for the actual cost of inspection, repair,

and maintenance performed on a drain, or an assessment to be

deposited in the drain fund of a drainage district, shall be made

according to benefits received. The expenditure limit of $2,500.00

the amount established in subsection (4) per mile of drain or

fraction of a mile shall be used to calculate the maximum amount

that the drain commissioner or drainage board may assess in any 1

year without a petition or a request from a public corporation. The

property in a drainage district that benefits from the inspection,

repair, or maintenance of the drain is subject to assessment for

that inspection, repair, or maintenance. Determination of the

maximum assessment amount allowed without petition or request, or

of the property that is subject to assessment, shall be based on

the number of miles of drain and areas of the drainage district

receiving benefits and not on the actual number of miles or actual

location of the inspection, repair, or maintenance.

     (8) If an emergency condition exists that endangers the public

health, crops, or property within a drainage district, the drain

commissioner or the drainage board may expend funds for maintenance

and repair to alleviate the emergency condition.

     (9) Nothing in this section prohibits the drain commissioner

or the drainage board from spending funds in excess of $2,500.00

the amount established in subsection (4) per mile or fraction of a

mile in any 1 year for inspection, maintenance, and repair of a

drain when requested by a public corporation, if the public

corporation pays the entire cost of the inspection, maintenance,

and repair.

     (10) In computing the amounts that may be expended in

accordance with this section, the cost of work to be performed by a

House Bill No. 4688 (H-1) as amended July 25, 2007

federal agency or public corporation that is not chargeable to the

county or intercounty drainage district shall not be included, nor

shall it be necessary for the drain commissioner or the drainage

board to advertise for bids for that portion of the work to be done

by the federal agency or public corporation.

     (11) For purposes of this section, the costs of maintenance or

repair shall include the costs of maintaining the drain in working

order to continue a normal flow of water, including the servicing

or repair of necessary pumping equipment and utility charges for

pumping equipment; the cost of keeping the drain free from rubbish,

debris, siltation, or obstructions; the cost of repairing a portion

or all of a tile or drain to continue the normal flow of water; and

other costs associated with the costs enumerated in this

subsection.

     (12) If the cost of maintenance and repair of a drain includes

utility charges or costs to service pumping stations, sewage

treatment facilities, or retention basins, the limitation for

maintenance and repair shall does not apply except that the drain

commissioner or drainage board may levy sufficient special

assessments to pay the charges or costs but not more than the

amount sufficient to pay those charges or costs.

     (13) The Except as otherwise provided in this act [

], that portion of the

salaries, expenses, and fringe benefits of clerical, administrative

, and engineering employees under the supervision of the drain

commissioner or drainage board working incidental to the operation,

repair, or maintenance of a drain shall that are directly

attributable, but not incidental, to a drain or otherwise not

recovered by fees established by resolution or ordinance of the

board of commissioners may be chargeable to and paid as budgeted

from the county general fund and not chargeable to or by the drain

fund of a drainage district.

     (14) A violation of this section is a misdemeanor punishable

by imprisonment for not more than 1 year, or by a fine of not more

than $1,000.00, or both.