LAKE ISABELLA DEVELOPMENT INC V VILLAGE OF LAKE ISABELLA
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STATE OF MICHIGAN
COURT OF APPEALS
LAKE ISABELLA DEVELOPMENT, INC.
FOR PUBLICATION
November 13, 2003
9:05 a.m.
Plaintiff-Appellee,
v
No. 247156
Isabella Circuit Court
LC No.01-000596-CZ
VILLAGE OF LAKE ISABELLA,
Defendant-Appellee,
and
DEPARTMENT OF ENVIRONMENTAL
QUALITY,
Updated Copy
January 30, 2004
Defendant-Appellant.
Before: Donofrio, P.J., and Sawyer and O'Connell, JJ.
O'CONNELL, J. (dissenting).
I respectfully dissent. The majority concedes that the Department of Environmental
Quality (DEQ) satisfies Dykstra's1 first prong because Rule 33 falls within the general purpose
of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq.
The only issues that remain are whether the rule complies with the legislative intent behind the
act, and whether the rule represents arbitrary and capricious action by the DEQ.
According to MCL 324.4104, the DEQ "may promulgate and enforce rules as the [DEQ]
considers necessary governing and providing a method of conducting and operating all or a part
of sewerage systems . . . ." (Emphasis added.) Also, MCL 324.4108, states that the DEQ "shall
exercise due care to see that sewerage systems are properly planned, constructed and operated to
1
Dykstra v Dep't of Natural Resources, 198 Mich App 482, 484; 499 NW2d 367 (1993)
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prevent unlawful pollution of the . . . water resources of the state." (Emphasis added.) These
statutes do not restrict the DEQ to rubber-stamping sewage systems that temporarily comply
with the safe operation requirements. They anticipate that the DEQ will demand substantive
assurance of continuous operation for the length of the system's use and beyond. Rule 33
accomplishes this goal by disallowing the construction of the system without proof of the local
government's willingness to assume its operation if it is abandoned. Regulations that require
local governments to properly manage the sewage generated within their boundaries pervade the
NREPA. Given this solid legal foundation for the rule and the broad rulemaking authority
bestowed on the DEQ, I cannot find that it falls outside the authority that the Legislature
properly delegated to the DEQ.
Furthermore, the rule "complies with the [NREPA's] underlying legislative purpose."2
According to the majority, if a developer or its successor in title fails to maintain a sewage
system, the DEQ faces the prospect of necessarily stepping in and taking responsibility for the
abandoned cesspool. The majority posits that the Legislature intended this result, despite the
fact that local governments, through forty years of legislation designed to require them to
manage their sewage, possess the resources, information, and local accountability needed to take
responsibility for the abandoned systems. Looking at the NREPA and the burdens it generally
places on local governments, Rule 33 conforms perfectly to the greater legislative scheme.
Local governments should bear the responsibility for managing an abandoned facility within
their bounds and should also have the preemptory option of declining that responsibility.
Contrary to the majority's position, the rule does not grant "veto power" to a local government
any more than it would grant veto power to a bonding company. It does not delegate sewage
authority because the DEQ fully retains the right to reject the proposed sewage system. The rule
does not require local approval of the system, but rather it requires an agreement to run the
system if abandoned. If plaintiff can present a satisfactory bond to the DEQ, then nothing
prevents him from presenting an equally satisfactory bond to the village.
Finally, the rule has a valid purpose and an intelligent design. It assigns responsibility
for the competent perpetual operation of sewage systems so that we can pass on our heritage of
clean, pure water without concern about who should clean up after developers who no longer
find it economically feasible to safely operate their sewage systems. It recognizes that the desire
to encourage development drives local government; the desire to ensure the perpetually safe
operation of sewage systems drives the DEQ; and the desire to cut costs, increase profit, and
finish projects drives the developer.
Nothing will stunt development more than charging the DEQ with the never ending
responsibility of cleaning up every abandoned system that receives a permit without local
backup. Permits will only issue, if at all, to developers who can afford to bond out the perpetual
operation of their proposed sewage plans regardless of the local government's willingness to
2
Dykstra, supra, at 486.
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independently ensure the system's continuous operation. Nothing could threaten our watersheds
more than allowing haphazard developers to receive permits, build large sewage retention
lagoons, sell their lots, and leave the maintenance of the lagoons to ill-equipped and poorly
funded homeowners and neighborhood associations who would not know of grave
environmental disasters until far too late. Whatever fault may be found with Rule 33, it
corresponds with the act's purpose of ensuring the continuous and proper maintenance of sewage
facilities and is rationally related to that end.3 I would reverse.
/s/ Peter D. O'Connell
3
Dykstra, supra, at 491.
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