Free water well testing now available in Michigan

Michigan households relying on private wells may be drinking polluted groundwater without realizing it. A new state program aims to change that.

Common water quality concerns include coliform bacteria, nitrate, nitrite, fluoride, chloride, sulfate, sodium, hardness, and metals like aluminum, antimony, arsenic, boron, cadmium, chromium, copper, lead, iron, manganese, mercury, selenium, uranium, and zinc.

Now, thanks to a new $5 million allocation in funding from the state legislature, residents can get their water tested for FREE through the Michigan Department of Environment, Great Lakes, and Energy (EGLE) and their local health departments. (Your local health department can provide information about drinking water concerns in your area, and what testing is best for your water source.)

Request your free sample kit at http://www.michigan.gov/EGLEprivatewells

This is just the beginning of addressing Michigan’s groundwater emergency, but it’s a great first step in the right direction.

Michigan has the most private drinking water wells drilled annually of any state. About 45% of the state’s population depends on groundwater for its drinking water. FLOW has been a strong advocate of removing cost barriers to well testing, as part of our groundwater policy agenda:

“Thousands of Michigan citizens relying on private wells may be drinking polluted groundwater without realizing it. The state should remove cost barriers to testing of such wells initiated by their owners. The Michigan Legislature should appropriate funding to enable owners of residential drinking water wells to obtain testing of well water samples.” The Sixth Great Lake (p. 17), September 2018

“WATER TESTING: Michigan homeowners with private wells are not served by routine water testing and may unknowingly consume contaminated water. The state should create a fund to assist such homeowners, largely in rural areas, in regular water well testing.” Deep Threats to Our Sixth Great Lake (p. 21), May 2021

Download our groundwater fact sheet to learn more (PDF).




Stop doing that, or else we’ll tell you to stop again: BASF polluting the Detroit River

When you get a speeding ticket, you don’t get 43 years to pay it. And when you contaminate a river with toxic materials — a much bigger hazard than going 45 in a 40 – you shouldn’t get 43 years to stop doing it and pay a fine.

But there’s a double standard in Michigan when it comes to toxic discharge from the BASF facility in Wyandotte. Just upstream from a public drinking water intake for the city of Wyandotte, the company has been discharging 3,000 gallons per hour of polluted groundwater into the Detroit River for decades.

It’s been 43 years since the state first ordered BASF to stop polluting the river. 

The trouble is, the state has never enforced the command.

Meanwhile, a toxic stew that now includes everything from PFAS to mercury is coughed up by the old industrial site 24/7/365. Some of these chemicals are not even monitored, even though they are upstream from the drinking water intake.

Last week, at a public meeting to explain the status of the problem, well-meaning public servants from the U.S. EPA and Michigan Department of Environment, Great Lakes and Energy (EGLE) told citizens that it will be another three years before BASF begins construction of what is being called the permanent remedy. This is appalling.

Every day that BASF is allowed to contaminate the river is another violation of federal and state clean water laws. According to state statute, the company is theoretically liable for penalties of $25,000 per day

The mistakes of previous generations of state officials can’t be blamed on those in decision-making positions in 2023. But unless they – and their bosses at the top of EPA and EGLE today – take action, the degradation of the Detroit River will be the result of their failure to enforce the law. And the public will suffer.

Here’s what you can do:

  • Learn more about the history and current state of the BASF Wyandotte pollution violations via this website.
  • Send an email to the Michigan Attorney General (Dana Nessel (miag@michigan.gov) asking her to immediately enforce provisions of the state Court Order with BASF that her predecessor Frank Kelley fought for and won in U.S. District Court in 1985.
  • Alert the new EGLE Director Phil Roos (roosp@michigan.gov) of the urgent need for his agency to stop BASF from discharging 3,000 gallons per hour of toxic contaminated groundwater to the Great Lakes in Wyandotte, and ask the new director to take action to protect public health and the health of the Detroit River.

FLOW commends new EGLE appointments

FLOW Statement Commending Appointments of EGLE Director Phil Roos and EGLE Chief of Staff Kara Cook

Traverse City, MI – FLOW commends the appointment of business entrepreneur and strategist, Phil Roos, to serve as director of the Michigan Department of Environment, Great Lakes, and Energy.

“Phil Roos is an outstanding strategist and environmental thought leader who is just the person to lead Michigan’s top environmental agency to protect our air, water, and land resources. We are fortunate to have a leader like Phil who deeply understands the systemic challenges and solutions necessary to craft during the most important decade of our lifetime.

Kara Cook understands policy and she knows the Capitol policy process. She has strong environmental values. With prior experience both in the Governor’s office and nonprofit environmental policy work in Lansing, Kara Cook has a deep understanding of the environmental priorities of the Whitmer Administration and will be a key asset for EGLE Director Roos and staff.”

Appreciating and Protecting Michigan’s Inland Lakes

Photo courtesy of Michigan Department of Natural Resources.

The Great Lakes rightly command our attention and affection, but maybe it’s time to take stock of Michigan’s other lake resource—the thousands of lakes distributed across the state map like freckles.

Mocked by a friend of mine as “baby lakes,” Michigan’s inland lakes span a large range of sizes and occur in a variety of environments. It’s appropriate during the state’s Lakes Appreciation Month to take pride in them.

The Michigan Lakes and Streams Association describes the state’s inland lakes as sparkling jewels. “These priceless creations of the last ice age provide unlimited high quality recreational opportunities for hundreds of thousands of our citizens and visitors to our magnificent state as well as economic opportunity for tens of thousands of Michigan residents. The near shore areas of these freshwater gems provide unique lakefront living opportunities with enhanced property values that benefit hundreds of Michigan communities and public school districts.”

As the number of inland lakefront property owners climbs, water quality is increasingly at risk. Michigan’s chapter of the North American Lake Management Society observes, “The quality of Michigan’s inland lakes is ranked among the highest in the nation. However, invasive species, nutrients and other stressors continue to threaten these lakes and shorelines.”

“These priceless creations of the last ice age provide unlimited high quality recreational opportunities for hundreds of thousands of our citizens and visitors to our magnificent state as well as economic opportunity for tens of thousands of Michigan residents. The near shore areas of these freshwater gems provide unique lakefront living opportunities with enhanced property values that benefit hundreds of Michigan communities and public school districts.”

One significant threat to inland lake water quality is failing septic systems, whose discharges of poorly treated human waste contribute to algal blooms and contaminated water. FLOW supports closing this gap by state legislative enactment of a requirement that all septic systems be inspected on a regular basis and replaced if necessary.

A tool for improving inland lake water quality is installation of natural shoreline vegetation, which can filter contaminants before they reach open water. The Michigan Department of Environment, Great Lakes and Energy (EGLE) has advice for shoreline property owners on Michigan’s inland lakes.

“The quality of Michigan’s inland lakes is ranked among the highest in the nation. However, invasive species, nutrients and other stressors continue to threaten these lakes and shorelines.”

Now, to the statistics. 

How many inland lakes does Michigan contain? The number varies across different measuring methods. But if only bodies of water larger than 5 acres qualify, Michigan competes well with neighboring states. Minnesota, whose nickname is Land of 10,000 lakes, only edges out Michigan by a margin of 11,842 to 11,037. And Michigan’s inland lakes include “a good handful covering 1,000 acres or more.”

There is dispute over the most common lake name in Michigan. One source estimates that Mud Lake is the winner with over 300 currently or historically wearing that name. But another source says Long Lake is most common with only 21 wearing that name.

Only one state, Maryland, has not a single lake. Alaska is easily the inland lake leader in the U.S. with over 3,000 named lakes and over 3 million total.

Faster Testing Results, Few Problem Beaches

Lexy Porter samples water from Lake Michigan at Pere Marquette Beach in Muskegon for water quality testing. Photo by Valerie Wojciechowski, Grand Valley State University.

As air and water warm for summer, so do thoughts of beach time. Is it safe to get in the water?

“In Michigan, most of our beaches are doing well,” says Shannon Briggs, a toxicologist in the Water Resources Division of the Department of Environment, Great Lakes, and Energy (EGLE). “About 4% of all samples are elevated, meaning they exceed water quality standards [for full body contact]. Over the years, about 20 to 40 beaches report multiple exceedances. There are over 1,200 beaches in Michigan and about 400 are monitored.”

A relatively new tool is adding to the confidence of local health officers that they are capturing in a timely way indicators of water quality problems at public beaches. Using the QPCR method (quantitative polymerase chain reaction, which monitors the amplification of a targeted DNA molecule in real time), health departments can respond far more quickly in issuing advisories regarding potential threats at beaches in Michigan, often the same day samples are taken. The culture-based method for measuring the fecal bacteria E. coli, formerly the predominant method, takes a minimum of 18 hours to yield results, while QPCR takes only several hours.

A relatively new tool is adding to the confidence of local health officers that they are capturing in a timely way indicators of water quality problems at public beaches.

“It’s frustrating to use the culture-based method and come back the next day and say you shouldn’t have been swimming at this beach yesterday,” Briggs says. “We’re pleased how well the QPCR method is working for Michigan beaches.”

EGLE received approximately $280,000 in federal funds for monitoring of Great Lakes beaches and will pass on these and another $200,000 in state funds for monitoring of inland beaches this year. The money goes to local health departments, which, under the Michigan health code, are the lead agencies in monitoring public beaches. EGLE assists and supports local health agencies. 

Although there is no state mandate that local health departments monitor beaches, if they do so, they are required to submit the resulting data for use in EGLE’s Beach Guard system. The searchable database allows users to seek historical and current data at particular beaches.

The latest State of the Great Lakes report issued by the United States and Canada characterized the conditions at beaches basin-wide as “good and unchanging.” This 2019 report noted approximately 1,000 beaches along the Great Lakes shoreline are monitored for E. coli each year.

“It’s frustrating to use the culture-based method and come back the next day and say you shouldn’t have been swimming at this beach yesterday. We’re pleased how well the QPCR method is working for Michigan beaches.”

Sources of pollution for the Great Lakes can include overflow from wastewater treatment plants, runoff from the land after a heavy rainfall, improperly working septic systems, and even large flocks of water birds. An advantage of the QPCR method is that it can show markers of specific pollution sources, enabling health and environmental agencies to address those sources.

Join FLOW in Helping Michigan Create a Comprehensive Climate Plan

Zach Welcker is FLOW’s Legal Director.

By Zach Welcker

This is a difficult time to write a blog about climate change. 

Russia’s invasion of Ukraine on February 24 is a stark reminder that humans still cannot agree to stop killing each other. How then will we ever be able to agree upon a coordinated response to global warming? This question itself is a privilege that people who are busy fighting for their lives do not have time to ask. What should those of us who have this privilege do with it?

Michigan Governor Gretchen Whitmer has bravely answered this question. In 2019, she and a bipartisan group of governors formed the U.S. Climate Alliance following former President Trump’s withdrawal of the United States from the Paris Agreement. Through this alliance, the governor committed Michigan to reducing its greenhouse gas emissions levels in support of the goals of the Paris accord. The governor issued Executive Directive 2020-10–Building a Carbon-Neutral Michigan–to implement this commitment. It charges the Michigan Department of Environment, Great Lakes, and Energy (EGLE) with developing and implementing a “Healthy Climate Plan” to achieve Michigan’s greenhouse-gas reduction targets and otherwise prepare for and adapt to climate impacts that are now unavoidable.

EGLE’s draft MI Healthy Climate Plan is an imperfect response to this charge. Please join FLOW in helping EGLE improve the draft by emailing your public comments by the March 14 deadline to: EGLE-ClimateSolutions@Michigan.gov. We recommend requesting the following changes along with any other concerns or recommendations you may have.

  1. Transform the draft MI Healthy Climate Plan from a decarbonization plan into a comprehensive climate plan. While EGLE’s primary task under Executive Directive 2020-10 is to develop a plan to achieve carbon neutrality, the department’s charge is far broader than that. Paragraph 3 of the directive expressly states that EGLE’s implementation obligation includes “monitoring and evaluating programs and activities that support statewide climate mitigation and adaptation practices.” The draft does not address adaptation or climate resiliency.
  2. Provide baseline climate and environmental data. In order to meet its monitoring and evaluation obligations, EGLE needs to establish baseline environmental and climate conditions. This data also will help Michiganders better understand the benefits and limitations of carbon neutrality. For instance, if the distinction between avoidable and unavoidable climate impacts is not clearly defined, the public may lose faith as decarbonization proceeds and certain impacts continue to occur. 
  3. Make water a primary focus of the plan. Water is the primary medium through which people experience climate change. Given the importance of water to all Michiganders, we need to understand how our relationship with water is projected to change for the worse without urgent, meaningful action.
  4. Include a glossary of terms. A glossary will help Michiganders more readily navigate climate-change jargon.

We have to eat the apple and plant the seeds at a time like this. By submitting comments, you’ll be doing both.

FLOW Deeply Disappointed in the State of Michigan’s Environmental Permit Approval for Proposed ‘Line 5’ Oil Tunnel in the Straits of Mackinac

Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), reacts to news today that the State of Michigan has granted environmental permit approval for Enbridge’s proposed Line 5 oil tunnel in the Straits of Mackinac:

“We are deeply disappointed by the Michigan Department of Environment, Great Lakes, and Energy’s (EGLE’s) decision today to approve permits for Enbridge’s proposed oil tunnel in the Straits of Mackinac.

“EGLE’s permits ignore direct adverse evidence of the tunnel’s risk to surface waters, wetlands, public trust bottomlands, cultural resources, endangered species, treaty fishing rights, climate change impacts, local economic impacts, tourism, and public and private property. In addition, EGLE’s permits ignore feasible and prudent alternatives to the proposed tunnel. 

“EGLE’s action is directly at odds with the legal process underpinning the Governor Whitmer’s revocation and termination on November 13 of the easement allowing Line 5 to operate in the public waters and bottomlands of the Great Lakes. The governor’s November decision was based on determinations required under the Public Trust Doctrine. Those same findings, required by law, were never made for the proposed tunnel.”


Many years and legal and regulatory hurdles remain in the state and federal permitting process for Enbridge’s proposed oil tunnel, which might never be built, but continues to distract from the clear and present danger posed by the decaying Line 5 pipelines in the open waters of the Straits of Mackinac. 

Final approval of Enbridge’s proposed oil tunnel remains in doubt as permitting reviews continue by the  U.S. Army Corps of Engineers, which is assessing environmental impacts and alternatives, and the Michigan Public Service Commission, which is considering the project’s public need, climate impacts, and location. 

The proposed tunnel, at roughly 20-feet in diameter and 4 miles long, would house a new Line 5 pipeline. Enbrige’s goal is for Line 5 to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan meets Lake Huron.

Enbridge has a terrible track record of oil spills across Michigan from Line 5 and from Line 6b, which in 2010 dumped more than a million gallons of oil into the Kalamazoo River. 

For more information:

FLOW Urges Mackinac Straits Corridor Authority to Halt Action on Unauthorized ‘Line 5’ Oil Tunnel

FOR IMMEDIATE RELEASE:                                                                                                   March 5, 2020

Jim Olson, Founder and President                                                             Email: Jim@FLOWforWater.org
FLOW (For Love of Water), Traverse City, MI                                                     Web: ForLoveofWater.org
Cell: (231) 499-8831                                                                                             FLOW Office: (231) 944-1568

FLOW Urges Mackinac Straits Corridor Authority to Halt Action on Unauthorized ‘Line 5’ Oil Tunnel

Proposed project Fails to Comply with Great Lakes Submerged Lands Act and Public Trust Law

FLOW, an independent Great Lakes law and policy center based in Traverse City, Michigan, filed formal comments today with the Mackinac Straits Corridor Authority, calling on the body to halt any further implementation of Enbridge Energy’s proposed Line 5 oil pipeline tunnel until the authorizations and approvals required by public trust common law and statute have been applied for and obtained.

The Corridor Authority, which is housed in the Michigan Department of Transportation, will meet Friday, March 6, at 10 a.m. in St. Ignace to discuss past and ongoing planning for the location and construction of the oil tunnel and new pipeline in the state public trust soils beneath the waters of the Great Lakes—the Straits of Mackinac.

The Mackinac Straits Corridor Authority and Enbridge have not applied for, nor received, the required legal authorization from the Michigan Department of Environment, Great Lakes, and Energy to proceed with the oil pipeline tunnel. Canadian-based Enbridge hatched the tunnel scheme with the former Snyder administration to replace the 67-year-old decaying Line 5 pipelines in the open waters of the Straits of Mackinac, where Lake Michigan meets Lake Huron.

“The oil tunnel negotiators and parties’ attempt to bypass the Great Lakes Submerged Lands Act (GLSLA) and the public trust law constitute one of the most egregious attacks on citizens’ rights and sovereign public trust interests in the Great Lakes in the history of the State of Michigan,” said FLOW Founder and President Jim Olson.

“The Mackinac Straits Corridor Authority must understand that it is subject to the public trust doctrine and law that applies to the Great Lakes and the soils under them,” said Olson, a water law and environmental attorney. “When Michigan joined the United States in 1837, it took title as sovereign for its citizens under the ‘equal footing’ doctrine to all of the navigable waters in its territory, including the Great Lakes, and ‘all of the soils under them’ below the natural ordinary high-water mark. These waters and the soils beneath them are held in, and protected by, a public trust.”

The public trust doctrine means that the state holds these waters and soils beneath them in trust for the public for the protection of preferred or dedicated public trust uses of navigation, fishing, boating, swimming, bathing, drinking water, and other recreation. There can be no disposition, transfer, conveyance, occupancy or use of any kind of these public trust waters and the soils beneath them, unless there is a statute or law that expressly authorizes that action.

The State and Enbridge must first obtain authorization under the GLSLA for the public-private partnership to establish a long-term agreement for the 99-year lease and occupancy agreement for a tunnel or pipeline in or through the soils and bottomlands of the Straits of Mackinac.

FLOW, as well as a coalition of state-wide public interest organization making up the Oil & Water Don’t Mix campaign, contends that boring an oil tunnel in and through the soils for an oil tunnel is not only subject to these public trust laws, but that crude oil pipelines in the or under the Great Lakes are not a solution given the risks and threats to the Great Lakes, its people, businesses, and communities. FLOW, OWDM, and other communities and organizations have also called for the shutdown of the 67-year old existing line 5 because of the immediate threat to the Straits and the risks posed by the pipeline’s more than 400 stream and river crossings in the Upper and Lower Peninsulas. Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the proposed oil pipeline tunnel is a bad idea that poses an explosion risk. There is adequate capacity in the thousands of miles of the Enbridge crude oil pipeline system to meet its needs for Michigan and Canada without the perilous existing Line 5 or crude oil tunnel for another 67 years.

For more information, see FLOW’s:

FLOW Challenges Nestlé Monitoring Plan; Says it Masks True Impacts of Pumping

FLOW has submitted formal comments to the State of Michigan finding deep and fundamental deficiencies in a state-approved groundwater monitoring plan fashioned by water-bottling giant Nestlé.

FLOW’s comments to the Michigan Department of Environment, Great Lakes, and Energy (EGLE) are regarding Nestlé Permit 1701, PW 101, and the bottled-water giant’s proposed joint agreement April 2019 monitoring plan in White Pine Springs, Osceola Township.

The comments, addressed to EGLE director Liesl Clark, EGLE supervisor James Gamble, and EGLE section manager Michael Alexander, state that the plan’s failure to adequately address hydrological effects results in the perverse outcome that the Monitoring Plan will essentially mask, rather than reveal, the actual effects and adverse impacts of the pumping allowed by the permit at issue. As a result, the current plan does not comply with General Condition 5 of Permit 1701

“Michigan waters are held by the State as sovereign,” FLOW Founder and President Jim Olson said, “meaning for all of its citizens, so by its very nature a monitoring plan must be fully transparent, independent, reliable, and accurate to collect data and understand existing hydrologic, geologic, and ecological conditions … Mere predictions based on Nestlé’s model without a vigorous monitoring plan subject to public participation and independent verification will not achieve the purpose of the law or Condition 5 of the permit.

FLOW submitted these comments, along with additional comments prepared by Robert Otwell, Ph.D., as part of its continuing scientific and legal review and comments on the above Nestlé Application, Permit 1701, and Conditions to Permit 1701.

In his comments, Otwell observed, “The plan indicates the first monitoring report will describe baseline conditions. The baseline conditions should be those collected in the early 2000s, before significant pumping had taken place. Recognition needs to be made that because of the on-going pumping of PW-101, monitoring data collected based on the proposed plan will have lower stream flows and lower groundwater levels than natural conditions.”

Nestlé won approval from former Gov. Rick Snyder’s Department of Environmental Quality (DEQ) in 2018 to more than double its pumping from 150 gallons per minute (gpm) to 400 gpm, or 576,000 gallons per day (gpd), in Osceola County just north of Evart, Michigan. Production Well PWB101, White Pine Springs Site, as it is known, is located between two cold water Muskegon River tributary creeks, Twin and Chippewa Creeks. When Nestlé applied for this pumping increase using the state’s computer water withdrawal assessment tool, it failed. Nestlé then requested and obtained a site-specific review by DEQ staff that showed only minimal declines in water levels in the summer of 2016. That led the Michigan Citizens for Water Conservation (MCWC) and the Grand Traverse Band of Ottawa & Chippewa Indians to contest the permit.

Michigan Courts Can Enforce a Township’s Responsibility to Remedy Widespread Septic System Failures

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.