Is a Michigan municipality strictly liable for illegal discharges into public waters by private parties?

Many areas in the vicinity of Michigan lakes are heavily developed, with under-sized lots and former cottages now serving as year-round homes.  Also, because many of our lakes are in rural areas, there is no public sewer infrastructure.  Based on a new decision from the Michigan Supreme Court, more property owners may soon be faced with public sewer projects.

On May 17, 2012, the Michigan Supreme Court released its decision in Department of Environmental Quality v. Worth Township.  In Worth, the Michigan Department of Environmental Quality ("DEQ") filed suit against Worth Township (the "Township") under Part 31 of the Natural Resources and Environmental Protection Act ("NREPA"), which provides for water resources protection.  In Worth, surveys of water quality conducted by the DEQ in 2003, 2006 and 2008 revealed that surface waters were contaminated with both fecal coliform and E. coli bacteria.  The source of the contamination was old, undersized and failing septic systems on private properties near the shore of Lake Huron.  Oversaturated drain fields caused raw sewage to be directed into ditches and streams leading into Lake Huron.

There is no municipal sewage system in Worth Township.  Based on the initial testing done by the DEQ, in 2004 the DEQ and the Township entered into an agreement wherein the Township agreed to construct a municipal sewage system by 2008.  The Township did not construct such a system, citing lack of funds.  The DEQ filed suit, seeking  to force the Township to take measures to prevent the discharge of raw sewage.

The trial court found in favor of the DEQ, ordering the Township to take corrective measures and to pay fines and attorney fees.  The Michigan Court of Appeals reversed, holding that a municipality cannot be required to prevent the discharge of raw sewage from private properties.  The Michigan Supreme Court reversed the Court of Appeals, concluding that under Part 31 of NREPA, a municipality can be held liable for, and is required to prevent, a discharge that originates within its borders, even when the discharge is by a private party.

Justice Robert Young dissented, observing that the decision imposes strict liability on a municipality for every harmful discharge that occurs within its borders – an observation that is difficult to ignore.

Property owners on or adjacent to public waters in areas not served by a public sewer system should take note of Worth.