ELR Citation: ELR 21050
No(s). 77-71100 (E.D. Mich. Dec 23, 1991)

The court holds that, under Michigan law, two counties individually are not proper permittees under the Federal Water Pollution Control Act's national pollutant discharge elimination system (NPDES), and that joint permits should be issued to the counties and the municipalities to which the permit apply. The court also suggests that the parties study the ideas of establishing a regional consortium or authority and developing a regional permit and financing structure. Under Michigan law, the counties provide sewage disposal services pursuant to privately negotiated service contracts, and the Michigan Department of Natural Resources (MDNR) issues NPDES permits to the counties exclusively. The court first finds that the counties lack the authority to accept NPDES permits on behalf of their constituent communities and to comply with the conditions imposed in the NPDES permits. The court also finds that the sewage being discharged originates in the constituent communities. The court holds that counties possess only powers expressly delegated to them, and that the counties have not been given the power to provide or enforce the use of sewage disposal services such as those required by the NPDES permits issued to the individual users in the constituent communities. The counties would only be able to construct new facilities with community consent, expressed through voluntary contracts. The court next holds that the constitutional, statutory, and contractual provisions that authorize counties to accept and comply with NPDES permits provide that the construction of new facilities and the creation of indebtedness for construction can only be accomplished by voluntary agreement. The counties are powerless to accept responsibility for discharges unless the state or the local communities give the counties such authority. The court next holds that for each permit at issue, the counties and the communities contributing discharges are jointly the proper permittees. Finally, the court holds that the parties should continue to study the concept of establishing a regional consortium or authority that would receive NPDES permits from the MDNR.

Counsel for Plaintiff-Counter Defendant
Fred R. Disheroon, Special Litigation Counsel
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Pamela G. Shea
Beier & Howlett
200 East Long Lake Rd., Ste. 110, Bloomfield Hills MI 48304
(313) 645-9400