Michigan Supreme Court Requires Township to Address Sewage Discharges

“…. these communities …. took advantage of the diluting powers of the rivers, and resorted to the simple and inexpensive expedient of discharging into (the rivers and lakes) their (pollution) in its raw condition. The custom of doing so (is) … universal. The selfishness of vested interests, familiarity with evil conditions, which has begotten an indifference to both the doing and the suffering of wrong, an ill-directed spirit of economy averse to the assumption of financial burdens to remedy what was only regarded as an existing or potential evil to other communities, and the disinclination to change ingrained in humanity, have resulted in a situation along the (border) which is generally chaotic, everywhere perilous, and in some cases disgraceful.” International Joint Commission, Final Report on Pollution of Boundary Waters Reference (1918)

As illuminated by the quote from 1918, the issues related to raw sewage being discharged into the Great Lakes is a long-term problem.  On May 17, 2012, the Michigan Supreme Court determined that a Worth Township is responsible under Part 31 of the Michigan Natural Resources and Environmental Protection Act (Part 31) for the discharge of raw sewage from failing septic systems owned by residents and businesses located in the Township's boundaries.  In doing so, it reversed the decision of the Court of Appeals that I reported on nearly two years ago.  The Supreme Court reestablished local municipalities' obligations for illegal discharges into Michigan waters.

Recapping briefly, residences within Worth Township were discharging raw human sewage from failed septic systems through conveyances leading to Lake Huron.  The Michigan Department of Environmental Quality (MDEQ) reached a compliance agreement with Worth Township to construct a municipal sewage system, but the Township never constructed the sewage system and raw human waste continued to flow into Lake Huron.  MDEQ filed suit against Worth Township seeking a ruling requiring Worth Township's residents from continuing to discharge sewage into Michigan's waters and prevailed at the trial court level.  However, the Court of Appeals reversed the lower court's decision, finding that because Worth Township did not discharge the sewage directly (only its residents did), it was not the liable party under Part 31.

The Supreme Court framed the issue as being whether Part 31 allowed MDEQ to require a township to respond (and in this case the response is building a sanitary sewer system) to widespread failures of septic systems within its borders that result in the release of raw sewage into Michigan's waters.  The Township argued that Part 31 applies to it only if it was directly responsible for the discharges, but not when its citizens are.  The Supreme Court disagreed, going back to a previous statute that no longer exists to demonstrate that traditionally, local governments are responsible for discharges of pollutants from its boundaries, no matter who is discharging the pollutants.  As a result, the Supreme Court interpreted the language of Part 31 as requiring townships and other municipalities to control discharges to Michigan's waters.

Former Speaker of the House, Tip O'Neill, once said, "All politics is local."  With this decision, the Supreme Court is also saying all pollution control is local, as well.  Ultimately, responsibility for what comes out of a municipality's borders remains the ultimate responsibility of the smallest political entity.  It has the connections with its local business and residents and can be in the best place to determine how to respond to what its residents are doing.  In this case, the development of a sanitary sewer seems to be the best response, but in other cases it may not be the only result.

Given fiscal constraints most municipal bodies face today, responding to releases of contaminants can take many forms, including ordinances that require residents to pump and treat their systems and take those discharges off site or even condemning properties that are the worst violators.  Even in this case, financial issues remain as the Supreme Court remanded the decision back to the Court of Appeals to determine if the Headley Amendment forbids courts from requiring the Township to implement actions to address the release of raw human sewage into Lake Huron.  Ultimately, if municipal bodies decide to turn a blind eye to it residents' activities, it may suffer a fate similar to Worth Township.  As a practical matter, though, most municipalities work with MDEQ to resolve these issues.

The author, Saulius Mikalonis, is an environmental attorney with over 25 years of experience in the Bloomfield Hills offices of Plunkett Cooney.  He is also the author of The Green Blawg, in which he writes about environmental law issues for the non-lawyer.  In addition to practicing law, Mr. Mikalonis is an adjunct professor at the Thomas M. Cooley Law School, Auburn Hills Campus, at which he teaches a course entitled "Sustainable Development Law & Policy" and a former Board Member of the Detroit Regional Chapter of the United States Green Building Council (USGBC).
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