• MDEQ Cannot Force Township to Install Public Sewer Systems
  • November 15, 2010
  • Law Firm: Mika Meyers Beckett Jones PLC - Grand Rapids Office
  • Everyone agreed Worth Township faced a serious problem. Located in Sanilac County, along the shores of Lake Huron, significant portions of the township were divided into small lots with cottages. As the cottages were upgraded to permanent, year-round residences, sewage needs increased.

    The owners relied on individual septic systems which, in this area with high groundwater tables, began to fail. Effluent was discharged directly into Lake Huron and its tributaries. No public sewer system had been installed.

    The Michigan Department of Environmental Quality (“MDEQ”), now the Michigan Department of Natural Resources and Environment, urged the township to install a public sewer system. The township agreed, but later declined to proceed because it determined the project was not financially feasible.

    The MDEQ sued the township, asserting that the Natural Resources and Environmental Protection Act (“NREPA”) empowers the MDEQ to require a township to install a sanitary sewer system where widespread failure of the private septic systems is resulting in contamination of lake waters.

    The MDEQ relied on MCL 324.3109(2), which states in part:

    “The discharge of any raw sewage of human origin, 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. . . .”

    The MDEQ argued that the foregoing language makes the municipality responsible for any discharge within the township boundaries and, accordingly, requires the township to fix the problem by installing a sewer system.

    The Court of Appeals, in the case of MDEQ v Township of Worth (August 17, 2010), declined to adopt this interpretation. Looking at the definition of the phrase “prima facie evidence,” the court concluded it referred to evidence which, “if unexplained or uncontradicted,” would be sufficient to establish a given fact. This definition, according to the court, “makes it abundantly clear that prima facie evidence is rebuttable.” [emphasis added]

    The Court of Appeals agreed with the township that the presumption that the township violated MCL 324.3109(2) was in fact rebutted because the township was not the source of the violating activity. The court noted that the township did not operate any sanitary sewer system, so it could not be the source of the discharge. Once this fact was introduced, the court reasoned, the presumption that the municipality had violated Section 324.3109(2) was effectively rebutted.

    The MDEQ also argued that any discharge of raw sewage within the municipality constitutes prima facie evidence of a violation by the municipality even if the municipality is not the source of the discharge. The Court of Appeals also declined to accept this interpretation, concluding that a municipality must actually cause the discharge to be liable, unless the municipality has otherwise accepted responsibility in writing for the sewer system.

    Accordingly, under the court’s holding in the Township of Worth case, MCL 324.3109(2) does not impose blanket responsibility upon a municipality for any sewage discharge that occurs within its jurisdiction without regard to cause and a corresponding duty to correct such a discharge. Rather, the statute creates only a rebuttable presumption that a discharge originating within a municipality results in a violation by that municipality. If sufficient facts are introduced to rebut the presumption of liability, there will be no basis to require a municipality to install a public sanitary sewer system or take any other action to correct a private septic system failure or other sewage discharge event.

    Interestingly, there was a dissenting opinion filed by one judge, who generally believed that the municipality needed to formulate a comprehensive plan to address the septic system failure issue. This judge believed that because the discharge of raw human sewage is injurious to the public health and welfare, it imposes a duty upon the municipality in which the discharge originated to correct the discharge. The MDEQ has sought Supreme Court review of the Court of Appeals decision.