Guest post: Coldwater River fiasco highlights need for drain code reform
Editor's note: This piece was contributed by Dr. Bryan Burroughs, executive director of Michigan Trout Unlimited and a member of MEC's board of directors. It originally appeared in the Summer 2015 issue of Michigan Trout Magazine. It has been edited here for length.
In much of southern Michigan trout streams are a rare breed. There are a lot of reasons for this rarity, some natural, but many are the result of us turning this part of the state into a "working landscape." It's filled with urban areas and farmland that completely altered the natural hydrology of our southern Michigan streams, rendering them impaired or broken in terms of cold, clean water. So the rare handful of streams that have persisted cold enough and high quality enough to still support trout are coveted and revered around here, where most of the residents of the state live. These southern Michigan trout streams are analogous to a trillium flower growing up through a crack in a busy downtown sidewalk. The Coldwater River, located about 40 minutes west of Lansing, was one of these rare trilliums of a trout stream. That is until the local drain commission and its agents dug a 12-mile trench in the ground around that rare little blossom.
The Coldwater River, also referred to as the Little Thornapple River, originates at Jordan Lake in the town of Lake Odessa, flows southward almost to Hastings, turns northwest and then flows downstream till it joins the Thornapple River, which then joins the Grand River. Despite originating from a lake and flowing through farm lands, this river kept temperatures cold enough to support brown trout.
Trout Unlimited (TU) members from Lansing to Grand Rapids frequented the river as their local trout angling waters, and over the last decade or so had invested significant time, energy and money into enhancement efforts in this watershed, including the removal of the Freeport Dam last year. Well-known Michigan trout guru Jim Bedford, who has fished more of the state's trout rivers than just about anyone, identified the Coldwater River as having produced more trophy brown trout for him than any other river in the state. Normally I'd never divulge such privileged information, but unfortunately it won't offer that kind of quality fishing any time soon.
This trout stream is also a designated drain, under the Michigan Drain Code. One look at this river from aerial photos would confirm that is was long ago designated as a drain and dredged and straightened, removing all of its natural meanders. As it flows through three counties-Ionia, Barry and Kent-its maintenance as a drain is governed by the drain commissioners from each of those counties, plus a representative from the Michigan Department of Agricultural and Rural Development. This Intercounty Drain Board oversaw approval of the contract for the work that led to the devastation. However, since all of the work conducted was within Barry County, oversight for the work (or lack of it) was largely left to Barry County Drain Commissioner Russ Yarger. The contractor that did the actual damaging work was Geiger Excavating in Woodland, Michigan.
Drain commissions maintain right-of-way easements along both sides of the designated drain, to conduct maintenance work. The Michigan Drain Code, commonly known as the most far-reaching authority-granting statute on the books, gives drain commissioners nearly unchecked authority to initiate and execute drain maintenance work, avoid almost all of the permitting requirements mandatory for everyone else working in or along rivers, and authority to assess the costs of such work to all property owners in the drainage assessment district, without requiring their approval for the taxation.
Many commissioners attempt to adhere to best practices, and some are even recognized for their natural resource stewardship and partnerships with local conservation groups. However, the authorities currently provided to them continue to nurture "bad actors" and defy their best efforts at self-regulation. Over the past few years, we've seen significant stream damage from drain maintenance work about once per year. Just last year, about three miles of optimal pike habitat in the Battle Creek River was similarly torn up.
The impetus for this drain maintenance work was complaints from several residents on Jordan Lake about flooding issues. For now, try to forget the fact that lakefront property owners live at the interface of the water table, and that the last few years have seen increases in water tables as evidenced in the dramatic reversal of Great Lakes water levels. Try too to forget that a small dam exists at the outlet of the lake, which could have been lowered or removed to convey water and alleviate flooding on the lake. Try as well to look past the fact that zero reports of flooding on any agricultural acreage in the drainage district were reported to the Intercounty Drain Board. Surveying of the longitudinal profile of the river should have been ordered as the basis of determining and justifying whether drain maintenance was actually needed to alleviate upstream flooding issues. It wasn't. Rather, the board noted in its meeting minutes that it remained unconvinced that drain maintenance work would alleviate the Jordan Lake flooding issues, yet proceeded to authorize and contract for the work from the outlet of the lake downstream approximately 12 to 14 miles. To date, we have not acquired a copy of the actual contract, but in public meetings it has been communicated that the contract was essentially for the removal of dead or live ash trees along the river course, and possibly for the removal of large wood debris jams.
Work commenced in November of 2014. According to public comments provided at two public meetings this spring, numerous landowners expressed concern to the contractor and the Barry County Drain Commissioner as the work progressed. (Worth note: Many of the property owners confronting the contractor in person were told by the contractor that TU was behind the work being done, and may even come through after it to set up recreational access trails across their private property!) For unknown reasons, it now appears that the contractor was doing work outside of the scope of contract. By spring of 2015, the work had progressed far enough downstream that TU members were able to witness the scope of the damage via public road crossings. Complaints were filed by many people, and about a month later, at a meeting of the Intercounty Drain Board, the work was officially stopped.
Official assessments of damage are now underway. Generally speaking, it appears wood was removed from in the stream, as well as from two other small tributary streams entering the Coldwater River. Live trees of many species were cut from along the river banks. (One property owner reported her stand of veneer-quality black walnut trees were cut.) Streambanks were excavated, and some evidence suggests that the streambed was excavated in places as well. In a violation notice issued April 17, the DEQ noted that it either believes or suspects that violations of parts 4, 31, 91, 301 and 303 of the Natural Resources Protection Act have occurred.
Trout in the Coldwater River system will experience the damage caused here in several ways. First, wood cover in the stream was removed, and is essential to whether a trout will inhabitat it. Secondly, the streambanks have been badly perturbed, which can be expected to lead to sedimentation of the river. Several property owners have already noted observing sedimentation of riffles and pools along their sections of river. But perhaps the damage with the greatest long-term consequence for this fishery is the loss of significant amounts of the canopy cover over such a long stretch of the river. With this loss of canopy cover will come increased warming of the waters. Only time will tell if that warming will render the river outside the temperature range to sustain trout in the future. Mature canopy trees are not easily or quickly replaced.
What's being done
The Intercounty Drain Board appears to acknowledge the damage done, and to be initiating steps to address it. They contracted with Streamside Ecological Services to begin developing short- and long-term remediation plans. A response to the DEQ's violation notice will be prepared, and the restoration plans shared with them. The board has communicated its intent to seek input on the plans from TU and the local watershed council after discussing it with the DEQ. We expect the remediation to address urgent sediment erosion measures first, followed by longer-term restoration measures.
A group of state agencies and conservation groups has formed to set up enhanced long-term monitoring plans to track the impact of remediation efforts, and hopefully the recovery of the Coldwater River. TU expects to use its River Stewards program to deploy water temperature loggers through the impacted reach this summer and conduct in-stream fish habitat assessments to help guide long-term restoration work.
Legal actions to be pursued are unclear at this time, but are being evaluated diligently. The DEQ has issued a notice of violation and will be pursuing action on the statutes it believes have been violated. The Intercounty Drain Board has retained legal representation. The Coldwater River Watershed Council has retained legal representation and is evaluating its course of action. And of course, TU has legal counsel for this matter and is evaluating actions it may need to take.
Lastly, legislative action needs to occur. The Coldwater River was not the first stream victim of the Michigan Drain Code and, without reform, will not be the last. The counties, drain commissioners and the companies that service them collectively form a very effective lobbying presence in Lansing. We are hopeful they will recognize that their best collective efforts to self-regulate against such incidents are not resilient to their own worst actors, and these incidents paint their entire community in a horrible light. Our streams are public resources capable of providing multiple services to all of us simultaneously if we are judicious in our management of them. TU will be looking to partner with the drain commissioners to accomplish some sensible and needed reform to the Drain Code to ensure this kind of natural resource damage does not occur in Michigan again.