Tag Archives: Paint Creek Millrace

Oakland Township and Clinton River Watershed Council agree to a Settlement regarding Millrace lawsuit

Leave a reply

As many of you are aware, there has been a legal dispute between Oakland Township and the Clinton River Watershed Council regarding the lack of water flowing down the millrace that leads to the Paint Creek Cider Mill.  On October 6, 2015 an agreement was reached between the parties. A copy of the agreement is attached to this post.  Some of the key items in the agreement are spelled out in this article.

Millrace sign

CIder Mill Wheel copy

When the dam that was upstream of the Paint Creek cider mill (and the millrace) was removed in 2012, the flow of water down the millrace had stopped.  The dam removal was an initiative of the Michigan Department of Natural Resources.  The Clinton River Watershed Council was the fiduciary on the Great Lakes Restoration Initiative funded by EPA.

The millrace property is owned by the Township and 7 property owners.  The lack of water flow in the millrace  was a political issue in the 2012 elections, since the previous Board had agreed to the dam removal.  The property owners asked the new Township Board members to help them get the water flowing again in the millrace because their property values had been negatively impacted.  The Board has been working on this issue for 3 years. In 2014, a breach of contract lawsuit was filed against the Clinton River Watershed Council.  Additional background information can be seen in the attached ‘Mutual Release and Settlement Agreement’.

Mutual Release and Settlement Agreement

Here are some of the major elements of the agreement that was approved in a 5 to 2 vote by the Oakland Township Board (Supervisor Gonser & John Giannangeli were dissenting votes) and the Clinton River Watershed Council:

  • The Parties have agreed to settle their disputes and all related claims without further litigation.
  • Hubble, Roth & Clark, Inc. (an Engineering Consulting firm) has determined that certain of the structures that are part of the Project (the original dam removal project) might be modified to increase the flow of water from the Paint Creek through the millrace, and possibly meet Oakland Township’s expectations of flows following completion of the Project.
  • The Clinton River Watershed Council (through Hubble Roth & Clark) will undertake a further design/construction review.
  • The review (or Memorandum) will include articulating the flows Oakland Township desires and identifying modifications that may achieve those flows and may be acceptable to the MDEQ/MDNR.
  • The Design review is to be complete within 60 days.
  • If the Parties agree upon and approve the Modifications, Clinton River Watershed Council shall facilitate a meeting with MDEQ and any other necessary governmental agencies to review the modifications, if needed.  Oakland Township shall be solely reponsible for seeking agency approval of the Modifications.
  • Within the next 12 months, the Clinton River Watershed Council will seek to identify 2 grants for the clean-out and restoration to the millrace by Oakland Township, if available and eligible.
  • Clinton River Watershed Council shall be solely responsible for any and all costs and expenses, of any kind, nature or type whatsoever, associated with the consultant(s) review.
  • Oakland Township shall be responsible for all costs and/or fees associated with MDEQ and/or other governmental agency review of proposed Modifications; any plans necessary for implementation of the Modifications; any design or analysis over and above that provided in the Memorandum; permitting, and any other additional pre-construction, construction or post-construction costs incurred, or to be incurred, should Oakland Township move forward to undertake to perform any Modifications; and any additional or further cost or attorney fees which may be incurred by Oakland Township.

The agreement also includes the typical legal ‘boiler plate’ wording.

A review of the previous bills that have been submitted to the Township for the various aspects of the millrace issue was undertaken.  Financial documents were obtained from the Township  using the Freedom of Information process (FOIA). The total amount the Township has spent on this issue from May of 2013 to September of 2015 is $89,226.  (An additional $3,112.50 for legal services will be approved at the October 13, 2015 BOT meeting).  This amount includes legal, consultant and engineering expense.  Here is a chart that shows the amount spent in each category:

Cumulative costs for Millrace Issue

It is clear, based on the agreement,  that as we proceed with this effort, additional expenses will be incurred by the Township.

Here is a copy of the minutes of the September 27, 2011 BOT meeting where the Board approved the dam removal:

September 27, 2011 BOT motion on dam removal

Why is this important to the citizens of Oakland Township?   The millrace issue has been a divisive issue in our Township for several years.  The lack of water flowing down the millrace appears to be due to several things.  The fundamental reason is the loss of elevation of the water feeding the millrace due to the dam removal.  Another reason is that the sediment buildup in the millrace, after years of operation, prevent the water from flowing ‘uphill’.  The sediment issue was raised many times by the Clinton River Watershed Council prior to the dam removal, but nothing was ever done about it.

The settlement agreement appears to be a fair and equitable one.  Regarding the sediment in the millrace, the millrace is used by our community for storm water drainage from the basin on the northeast side of Orion Road in front of Baldwin Elementary School.  That water has contributed (in part) to the sediment buildup in the millrace.  As a result, the community does have some responsibility to clear the millrace.

However, the return of water flow in the millrace is contingent upon:

  • engineering work that results in a design that will provide enough water flow down the millrace to satisfy the Township and the residents desires,
  • the proposed project being acceptable to MDEQ,
  • available grant funding for the dredging & clean out of the millrace.

These are three significant hurdles.  It appears we now have a plan that MAY get us water in the millrace.  The real test will come if the Township Board must make a decision to use public funds to remediate the problem, created on private property (no water in the millrace), as a result of the decision made by the previous Board to remove the dam.

Here are some previous post on the Millrace issue:

Oakland Township files lawsuit against Clinton River Watershed Council

UPDATE: Oakland Township Board (CORRECTION – SUPERVISOR GONSER) potentially commits $431,875 of Township funds to improve private property outside ANY public meeting

Oakland Township Board potentially commits $431,875 of Township funds to improve private property outside ANY public meeting

Richard Michalski

Oakland Township files lawsuit against Clinton River Watershed Council

19 Replies

At the August 12, 2014 Oakland Township Board meeting, the Board unanimously approved authorizing the Township attorney to file a ’cause of action’ suit against the Clinton River Watershed Council (CRWC).  This suit was reported in the August 27th Oakland Press.  Here is a link to the brief article on the Oakland Press website.

Oakland Press article

The Board’s reason for the suit is that they allege the CRWC breached a contract they believe the Township had with the CRWC regarding the Paint Creek Dam removal project. The CRWC is a non-profit organization that worked with the Department of Natural Resources to eliminate the dam on the Paint Creek.  The State of Michigan has established dam removal as a priority to improve the habitat and quality of the water in our streams and lakes.  The millrace is not considered a natural stream since it was created years ago to divert water from the Paint Creek to the Cider Mill location.  After the dam was removed, the elevation of the water feeding the Paint Creek Cider millrace was lower, as was expected.   

There are several individual properties that the millrace runs through.  When the dam was removed, water no longer flowed through their property.  The property owners claim that their property values have been diminished as a result of the dam removal.  One of the main reason that the water no longer flows down the millrace (in addition to the dam removal) is that the millrace has years of sediment buildup.  

Bob Yager, the Oakland Township resident that had been publishing ‘The Oakland Township Sentinel’, had pulled together a historical summary of the Millrace Project going back to 2011 based on Township records.  It is a lengthy document. A shorter summary is included later.  Here is a copy of Bob Yager’s document:

dam-millrace-history-bot-2011-14

I reviewed that document, and put together a simplified summary of the chronology of the millrace issue.  It is three pages long, but captures the key issues raised through September 2012.  

Millrace Chronology Summary

In reviewing the documented history, it is clear that the issue of years of sediment buildup in the millrace was raised several times.  In fact, the Clinton River Watershed Council raised that concern at the September 13, 2011 meeting.  Clarifying whose responsibility it was to dredge the millrace was never addressed.  The Clinton RIver Watershed Council never agreed that they would dredge the millrace.  Without the dredging of the millrace, it should come as no surprise that the millrace went dry (water does not flow up hill!).  

The affected citizens have been major supporters of the current Board.  The millrace issue played a role in the current Board being elected.  Many of the Board members ran on this issue in their campaign.

The Board only took 2 minutes to discuss and authorize the legal action.  Here is a video of the Board’s proceedings: 

As more information and court documents become available that information will be posted on this website.

Why is this important to the citizens of Oakland Township?  Certainly the desirability of having the millrace transfer water to the Cider Mill could result in the Cider Mill wheel turning once again. This would restore some of the character of Goodison in our Township.  However, the major reason water is not flowing down the millrace is the buildup of many years of sediment in the millrace.  The fact remains that water will not flow down the millrace until the millrace is dredged.  The dredging requirement was raised long before the dam came down, yet no one appeared to determine whose responsibility is was to do that.  The previous Cider Mill owner appeared to solve the problem by placing ‘boards’  to raise the water level feeding the millrace.  This clearly has an impact on the creek’s water level for upstream residents.

Hopefully our Township attorney’s opinion is on ‘solid’ legal ground, and we are not proceeding just for the Board’s political reasons to appease a very vocal number of residents impacted by the dam removal.

If our attorney is not on ‘solid’ legal ground, his recommendation, and Board’s action will not only have destroyed any working relationship between the Township and the agencies involved, but will add to the coffers of his Legal firm, AT OUR EXPENSE!  It would probably have been cheaper for the Township to pay for the dredging of the millrace (we have already incurred many thousands of dollars in legal fees on this issue). The initial estimate for dredging the millrace was $250,000.

When we are all done, we may spend considerably more than $250,000 and not have accomplished ANYTHING.

Richard Michalski