ELR Citation: ELR 21369
No(s). 94-74869 (E.D. Mich. Apr 21, 1995)

The court holds that the Michigan Department of Natural Resources (MDNR) and various county and city agencies did not violate the National Environmental Policy Act (NEPA) or the Michigan Environmental Protection Act (MEPA) in approving a retention basin that will impound the city's combined sewer overflows (CSOs) when they exceed the capacity of a regional sewage transportation system and bleed the CSOs back into the system for treatment when capacity is available. A substantial portion of the CSOs are currently dumped without treatment directly into the Rouge River when the water flow exceeds the regional sewage transportation system's capacity. A local citizen group sought to enjoin construction of the basin. The court first holds that the public interest in the case is substantial. The public health is at risk if solutions are delayed and halting construction may waste the $1.5 million already spent on the basin. In addition, the plan was approved with public participation, and time and money were spent researching, litigating, and documenting the objectives and problems discussed in the MDNR's environmental assessment (EA), finding of no significant impact, and CSO project plan. The court next holds that the MDNR's EA meets all the requirements listed in NEPA §102(c). The MDNR, with the assistance of the other defendants and the citizens of the city, considered possible alternatives to the basin plan and the potential problems associated with it. Their conclusion that the positive attributes of the basin greatly outweighed any possible negatives is acceptable under NEPA. Thus, their actions satisfy NEPA's requirements in form and substance. The court next holds that the group's MEPA claim is without merit. To establish a prima facie case, the plaintiffs must establish that the activity's environmental impact rises to the level of impairment. But construction of the basin will improve water quality in the Rouge River dramatically. It will reduce the number of CSO events and amount of combined sewage dumped into the river each year, and the small amount of CSO that is not captured will be treated before being dumped into the river. Further, the MDNR and other defendants considered the impact of the basin's discharges of sodium hypochlorite into the river, arranged for testing to assure that discharges comply with applicable standards, and designed the basin to accommodate dechlorination equipment. Damage to the park in which the basin will be built is limited to the construction period and will not be noticeable after landscaping. The court holds that there is no evidence that the basin will impair the environment, and that the group therefore cannot establish a prima facie case under MEPA. The court next holds that because building the basin will not violate NEPA or MEPA, the group's claim of irreparable harm is without merit. Finally, the court holds that the public interest in allowing construction of the basin easily outweighs the alleged harm the group will suffer if an injunction is not issued, and thus refuses to issue an injunction.

[A prior decision in this litigation is published at 25 ELR 20804.]

Counsel for Plaintiff
Jean Ligon
Ligon & Naber
822 E. Grand River, Brighton MI 48116
(810) 229-7237

Counsel for Defendants
John Scherbarth, Ass't Attorney General
Attorney General's Office
Law Bldg., 525 W. Ottawa St., Lansing MI 48909
(517) 373-1110