Worth Township photo courtesy of the Times Herald
By Janet Meissner Pritchard, FLOW interim legal director
Whose job is it to stop widespread pollution from failing septic systems?
Michigan remains the only state without statewide regulations governing the inspection of septic systems, leaving the job of protecting waters from septic systems to local governments. A 2012 decision of the Michigan Supreme Court makes clear that, in the face of widespread septic system failures in a region, Michigan courts can nevertheless step in to require a local government to comply with its duty to protect the waters of the state from sewage contamination when the local government has failed to do so.
In DEQ v. Worth Township, the Court held that a municipality can be held liable for, and is required to prevent, sewage discharge that originates within its borders, even when the discharge is from private septic systems. In this case, the Department of Environmental Quality (DEQ)—now called the Department of Energy, Great Lakes and Environment (EGLE)—filed suit against Worth Township under Part 31 of the Natural Resources and Environmental Protection Act (NREPA), which provides for water resources protection. The Township is located in Sanilac County, just north of Sarnia in the thumb of Michigan’s lower peninsula.
Worth Township did not have a municipal sewerage system. Instead, private septic systems handled sewage waste. Surveys of water quality conducted by DEQ in 2003, 2006, and 2008 revealed and made known to the Township that surface waters were contaminated with both fecal coliform and E. coli bacteria from raw sewage of human origin, and that conditions were progressively worsening.
The source of the contamination was due to the widespread failure of old, undersized septic systems on private properties located within the Township along the shore of Lake Huron. Oversaturated drain fields caused raw sewage to be directed into ditches and streams leading into the lake. As a result of this contamination, this section of Lake Huron was included in Michigan’s list of impaired waters.
Based on the initial testing done by DEQ, the state agency and the Township in 2004 entered into an agreement wherein the Township agreed to construct a municipal sewerage system by 2008. The Township did not construct such a system, citing lack of funds. DEQ filed suit, seeking injunctive relief under part 31 of NREPA, MCL 324.3101 et seq. to compel the Township to take measures to prevent the discharge of raw sewage into the waters of the state. The trial court found in favor of DEQ and ordered the Township to pay a $60,000 fine and attorney fees and to take corrective measures.
While the order did not specifically require the Township to install a municipal sewerage system to remedy the widespread failure of private septic systems, the parties agreed that the most practical and comprehensive method for restraining the discharge would be to construct a sewerage system. The Court of Appeals reversed the order, holding that a municipality cannot be required to prevent the discharge of sewage from private properties. DEQ, in turn, appealed to Michigan’s Supreme Court.
The state Supreme Court ruled that a municipality can be required to prevent the discharge of raw sewage that originates from within its borders, even when that sewage is discharged by private parties onto private property, and not by the municipality itself. The Court’s reasoning turned on its interpretation of MCL 324.3109, which sets forth the statutory framework regarding violations of NREPA involving unlawful discharges into state waters. MCL324.3109(2) provides specific language with regard to violations by governmental entities: “discharge of any raw sewage … directly or indirectly, into any of the waters of the state shall be considered prima facie evidence of a violation of this part by the municipality in which the discharge originated unless the discharge is permitted by an order or rule of [DEQ].”
The Court reasoned that the phrase “shall be considered prima facie evidence of a violation of this part by the municipality in which the discharge originated” is at the core of the dispute. The Court of Appeals had interpreted this phrase to mean that, when raw sewage originating within the municipality’s borders is discharged into state waters, this statutory language creates a rebuttable presumption that the municipality itself discharged the sewage and, if the municipality proves that it did not cause the discharge, it avoids responsibility.
But, applying several standard rules of statutory interpretation, the Supreme Court rejected the Appellate Court’s reasoning and instead determined that the Legislature intended to place responsibility for a discharge of raw sewage on the municipality in which the discharge originated and to give that municipality the burden of showing that the discharged raw sewage does not rise to the “is or may become injurious” standard in order to avoid being subject to penalties or orders for injunctive relief, as provided for in MCL 324.3115.
The Worth case not only clarifies that Michigan law places responsibility for sewage discharges into state waters on local municipalities, it also demonstrates that Michigan courts are able and willing to order injunctive relief to enforce the duty of a municipality to prevent such discharges.
Following the Supreme Court’s decision in Worth, in 2014 the Michigan legislature modified MCL 324.3109 to provide that a municipality is not liable for sewage discharge where the discharge is from three or fewer private septic systems. While this amendment limits a municipality’s strict liability where the problem emanates from just a few septic systems, it does nothing to overrule the reasoning of the Court in Worth or the application of the Court’s holding in cases where the failure of septic systems is widespread, as was the situation in Worth Township.
Worth is not the only Michigan township to experience widespread failure of septic systems. As highlighted at the Michigan Septic Summit convened by FLOW in November 2019, an estimated 130,000 septic systems are leaking E. coli and other pollutants into Michigan groundwater, lakes, and streams. The Worth case clarifies that municipalities have a legal duty to take corrective measures to prevent these discharges but, in fact, some local governments are weakening their oversight of septic systems rather than strengthening them.
Meanwhile, in Worth Township, following the Court’s order, the Township built a municipal sewerage system. By October 2019, the system was ready for residents throughout the Township to hook up to the new system.
As argued by many participants at FLOW’s septic summit, the state legislature should enact a statewide sanitary code to protect the paramount public interest in groundwater and surface waters, setting environmentally protective standards for inspection and maintenance of on-site sewage (septic) systems, as every other state has done. The Worth case demonstrates, however, that even in the absence of state law authorizing EGLE to enforce state standards for septic systems, the regulatory agency can turn to state courts to enforce municipalities’ responsibilities to protect against the discharge of human sewage to state waters under existing state law, just as DEQ did in Worth.
The same kind of claims can also be brought against municipalities by private citizens or organizations, through a private right of action under the Michigan Environmental Protection Act (MEPA). The Attorney General could also prosecute a claim of public nuisance against a responsible municipality, as referenced in MCL 324.3109(6).
In some cases, stronger oversight and maintenance of existing private septic systems will be sufficient to remedy the problem. But sometimes, particularly in regions becoming more densely populated, drain fields to which private septic systems direct sewage waste can become oversaturated and contaminate state waters. In such cases, as in Worth Township, building a municipal sewerage system may be the most practical and comprehensive method for restraining the discharge. Building a municipal sewerage system is a substantial and expensive undertaking. To help financially constrained municipalities undertake such remedies, Michigan must find ways to fill its funding shortfall to meet the state’s water infrastructure needs. An amount of between $800 million to $1 billion is needed each year to address the state’s water infrastructure needs.
Different solutions may be required for different circumstances. Solutions could include a strong septic system ordinance or code, more frequent and stricter inspections of private septic systems, or the installation of a new sewerage system. But the Michigan Supreme Court’s decision in Worth makes one thing clear: If municipalities do not step up to address failing septic systems, they might have to answer for it in court.