Municipalities May Be Held Liable for Sewage Discharges from Private Septic Systems

In the case of Department of Environmental Quality v. Worth Township (May 17, 2012), the Michigan Supreme Court reviewed whether a municipality can be held responsible for, and required to prevent, the discharge of raw sewage originating from private septic systems within its borders.

The case arose in Worth Township where Michigan Department of Environmental Quality (DEQ) testing revealed that the surface waters were contaminated with both fecal coliform and E. coli bacteria. Worth Township does not have a municipal sewer system, and it was determined that the cause of the contamination was “old, undersized, and failing private septic systems. In an effort to address the problem and prevent future contamination, Worth Township entered into an agreement with the DEQ to construct a municipal sewer system by 2008. Worth Township failed to construct the municipal sewer system, citing a lack of funds.

In response, the DEQ filed suit against Worth Township pursuant to Part 31 of the Natural Resources and Environmental Protection Act, requesting an injunction compelling Worth Township to prevent the discharge of raw sewage into the surface waters of the state. The trial court found for the DEQ, but the Michigan Court of Appeals reversed, holding Worth Township could not be compelled to prevent the discharge of raw sewage from private septic systems.
Reasoning that the Michigan Legislature intended for municipalities to be presumed responsible for any discharge of raw sewage originating within its borders, the Michigan Supreme Court reversed Michigan Court of Appeals. As Worth Township could not rebut this presumption by demonstrating that the sewage discharges were not injurious to the public health, safety, and welfare, the Michigan Supreme Court held that Worth Township could be held responsible for, and could be required to prevent, the discharge of raw sewage originating from private septic systems within its borders.

The issue of whether a DEQ directive and court order compelling remediation efforts constitutes an unfunded state mandate is still before the Michigan appellate courts. We will continue to keep our readers updated as this important case progresses.