Flush with cash, Michigan lawmakers try again to pass state septic code

• Michigan is the only U.S. state without a statewide septic code
• Hundreds of thousands of leaking septic systems foul Michigan's waters
• After repeated failures to craft statewide regulations, lawmakers hope this year will be different

Lawmakers on both sides of the aisle have repeatedly tried, and failed, to end Michigan’s reign as the only state lacking comprehensive regulations to prevent septic systems from polluting its waters. 

As pollution problems grow more pronounced in communities across the state, Sen. Sam Singh said he believes the umpteenth time could be the charm.

“Everyone knows that we have to do something,” said Singh, D-East Lansing. “It's shameful that we're the only state in the country that doesn't have a statewide system.”

Singh and Rep. Phil Skaggs, D-East Grand Rapids, are leading the latest effort to enact statewide regulations for Michigan’s 1.4 million septic systems — which is how homeowners who aren’t hooked to sewers dispose of wastewater.

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State environmental regulators estimate more than 20 percent of those systems may be failing.

Twin bills in the House (4479 and 4480) and Senate (299 and 300) would make a host of changes to Michigan law to rein in pollution from leaky septics. Most notably, the bills would mandate periodic state inspections, and require homeowners to repair faulty systems, which can be expensive.  

The bills have early support from key players including the real estate and public health lobbies, which have both taken issue with parts of past attempts to craft a statewide code. Singh said Michigan’s multi-billion-dollar budget surplus will make it easier to find funding to cover the cost of oversight and help low-income residents pay for septic repairs. 

But there’s still plenty of room for disagreement over just how Michigan should tackle its messy septic situation.

A stinky situation

In areas without sewers, septics manage household waste by whisking it through underground tanks, where solids settle to the bottom and liquids seep into the soil. 

But they’re not designed to last forever. Michigan environmental regulators estimate that hundreds of thousands of septic systems are failing, sending raw sewage into the state’s groundwater, lakes and rivers. 

That spreads E. coli and other bacteria and viruses that can make swimmers and other people sick. Research has shown that waterways near septic systems have the highest levels of human fecal bacteria.

And because feces is a fertilizer, leaky septics also overload rivers and lakes with nutrients, supercharging plant and algae growth. It’s an issue that has begun to cloud the water in Michigan’s crystal-clear, low-nutrient waterways such as Higgins Lake, where more and bigger homes are cropping up along the shorelines. 

Lawmakers across parties agree that Michigan has a problem. But despite that, efforts to address the issue have floundered in the legislature for decades.

“We’ve been talking about this for longer than most septic systems even last,” said Megan Tinsley, water policy director for the Michigan Environmental Council.

The most recent regulation attempt, spearheaded by then-Republican Reps. Jeff Yaroch and Diare Rendon last year, never passed out of committee, when the Legislature was under Republican control. 

Jeff Wiggins, spokesperson for Senate Minority Leader Aric Nesbitt, R-Lawton, said Republican leadership is supportive of the general concept of reining in septic pollution, but has concerns about the potential cost of “another very large government regulatory scheme.”

“I think there is bipartisan support here for it,” Wiggins said. “The devil is going to be in the details.”

Without a statewide code, local governments currently are left to decide whether and how best to deal with septic pollution problems.

Eleven counties and 10 townships require inspections of septics when a home sells. But elsewhere, regulators often lack basic information about where septic systems are located, much less whether they’re working correctly.

The problem, said Norm Hess, executive director of the Michigan Association for Local Public Health, and “is only going to get worse unless we really pay attention to it.”

But there’s plenty of disagreement over how to go about crafting statewide regulations, said Rich Bowman, policy director for The Nature Conservancy in Michigan.

“People underestimate how complicated this issue is and what a potentially heavy lift it is if you actually want to fix it,” Bowman said. “If you just want to pass the statewide code and have a political victory, there’s probably a path to do that.”

Draft bill language calls for a technical advisory committee to advise the Michigan Department of Environment, Great Lakes and Energy as it crafts statewide standards.

Under the legislation, EGLE would be required to publish rules within three years that cover septic system design and siting, maintenance and inspections, and what consequences homeowners could face if their systems fail.

Every septic system would be inspected every five years, and residents would generally have six months to fix problems detected during inspections. The bills envision local health departments becoming authorized to oversee those inspections.

The bills would also create a fund to help cover those and other costs associated with septic regulations. Adding money to the fund would be a separate conversation during budget negotiations.

Five-year inspections are favored by the real estate industry, which argues the point-of-sale inspection programs that exist in some Michigan counties unfairly target people looking to sell their homes, while overlooking pollution from homes that aren’t on the market.

Brad Ward, vice president of public policy and legal affairs for the Michigan Association of Realtors, said his group sees the draft bills as “a really good starting point.”

But Hess, of the public health association, said it would be impossible for Michigan’s already thinly-staffed public health departments to keep up the bill’s proposed inspection intervals.

His group supports the concept of statewide regulation, he said, but “local health departments and their environmental health divisions are not adequately staffed to look at every septic system on a five year rolling basis.”

Singh and Skaggs said they welcome debate over the legislation’s details. They expect to shop the bill around with stakeholders before asking for a hearing.

Details aside, Skaggs said, he believes enough support exists to pass legislation this time around. 

“I think people are sick of failure,” Skaggs said. “After you've failed so many times, I think people are ready to come to the table and do what the science says we should do.”

Money for fixes

Beyond the regulatory debates, fights over who would pay for inspections and repairs have derailed past attempts to address Michigan’s septic pollution. 

Without funding to help low-income residents make fixes or cover the costs of building out an inspection program, some decried regulations as unfunded mandates that would penalize the poor.

Replacing a failing septic is expensive, costing as much as $15,000. Most Americans don’t have that kind of money lying around.

Architects of this year’s bills say they’re hopeful for a different outcome this time, thanks to a new state fund for septic repairs and the state’s $3.8 billion general fund surplus that gives lawmakers room to approve new spending.

An infrastructure spending deal last year between legislators and Gov. Gretchen Whitmer put $35 million into a financing program to help homeowners fix failing septics. 

Environmentalists and public health advocates say more money would be needed to cover the cost of conducting 280,000 septic inspections yearly.

If health officials can’t afford enough staff to conduct inspections and enforce the rules, Hess said, any new septic code in Michigan would be purely symbolic.

“I don't think that it makes sense to have a law on the books just to say that we have one,” Hess said.

Singh said he is looking to the nonpartisan analysts at the Senate Fiscal Agency for details about how much it would cost to create a regulatory program. He said he agrees that any new program would need to be adequately funded.

With Michigan’s budget flush with excess cash, he said, “this is the time to really do that.”