Our July 2012 issue reported that in the case of Department of Environmental Quality v. Worth Township (May 17, 2012), the Michigan Supreme Court held that pursuant to Part 31 of the Natural Resources and Environmental Protection Act (“NREPA”) a municipality can be held responsible for, and be required to prevent the discharge of raw sewage originating from private septic systems within its borders. The Michigan Supreme Court remanded the case to the Michigan Court of Appeals, however, for a determination as to whether a Department of Environmental Quality directive and court order compelling remediation efforts constitute an unfunded state mandate in violation of the so-called Headlee Amendment, which prohibits the State from imposing unfunded mandates on local units of government.
In an opinion issued on December 11, 2012, the Michigan Court of Appeals held that because local units of government have been historically responsible for the discharge of raw sewage that originates within its borders, NREPA does not impose a new burden on local units of government, and therefore, enforcing the remedial measures contained in NREPA does not violate the Headlee Amendment. Accordingly, the Court of Appeals upheld a circuit court’s power to “restrain the violation and require compliance,” impose a civil fine, and award attorneys fees. While not explicitly stated in the opinion, the implication of the Court of Appeals’ decision is that a circuit court has the authority to order a local unit of government to construct a public sewer system as a remedy to correct a violation of NREPA for discharges originating from private septic systems. We will continue to keep our readers updated should the Michigan Supreme Court grant leave to appeal.