Court of Appeals provides win for townships related to sewer systems

A ruling made by the Michigan Court of Appeals on Aug. 18 handed a significant win to townships across the state related to failing private septic systems. The 2-1 decision in MI Department of Environmental Quality v. Worth Township (___Mich. App.___) determined that the township is not responsible for replacing failing private septic tank systems with a public sewer system.

The case began when the MDEQ sued Worth Township (Sanilac Co.), which had no sewer system, to force it to build a public sewer system to alleviate a number of failing private septic systems along a five-mile stretch of Lake Huron. Years ago, many cottages were built on small lots along Lake Huron.  Over the years, many of the cottages were converted into year-around homes but still relied on septic systems for sewage disposal on small lots in an area with a high water table. In recent years, many of those systems have failed causing raw sewage to empty into roadside ditches, storm sewers, streams and outfalls that empty into Lake Huron.

Over the years, the township and MDEQ had been working together to alleviate the problem with the township agreeing to build a sewer system by June 1, 2008. However, due to the cost of the project and the lack of sufficient funds, the township was not able to honor the compliance agreement with the MDEQ. This resulted in a lawsuit against the township by the MDEQ which claimed that the township was in violation of MCL 324.3110 et seq. as it was allowing human waste to discharge into the waters of the state within its jurisdictional boundaries. Unfortunately, efforts to require the homeowners to replace their own septic systems would not solve the problem due to the severity of the public health aspect.

The township had argued that neither the MDEQ, nor the courts, had the authority to hold it responsible for the discharge of human sewage from private residences into state waters. The trial court had rejected the arguments of the township and determined that the township was liable for the discharges under state statute. Worth Township then appealed the trial court decision to the Michigan Court of Appeals with support from an amicus curiae brief provided through the MTA Legal Defense Fund.

The Michigan Court of Appeals held that the township should not be required to construct a public sewer system if it was not responsible for the violation: "Where an unauthorized discharge occurs, the presumption arises that the municipality within whose boundaries the event occurs is responsible for the violation unless the municipality can establish that the discharge did not occur as the result of actions by the municipality. Where, as here, the municipality could not be the source of the discharge because it does not operate a sanitary sewer system, it has overcome that presumption and is not subject to the statutory remedies for a discharge."

The Court also found that the MDEQ had no authority to require a township to install a sanitary sewer system, and held that if judges were to find a municipality liable for the discharge, the state could be held equally liable because the Legislature defined "municipality" as including state government along with local governments.

MTA considers this a big victory for townships and other local units of government. It remains to be seen if the decision will be appealed to the Michigan Supreme Court.