Steven D. Mann | Paul D. Hudson | Laura M. Bassett | Miller, Canfield, Paddock and Stone PLC | 150 W Jefferson Rd Sutie 2500 | Detroit, MI 48226

Michigan Townships Association (MTA)

This brief was filed for leave to appeal the MI COA’s holding that municipal ownership and operation of separate storm sewer systems, which are defined too broadly by the state and include roads and their adjacent catch basins, is an “optional” activity and thus not subject to Headlee. Counsel argues that, by including roads in the definition of drainage systems and subjecting them to MDEQ permitting requirements, the State has subjected municipalities to unfunded mandates, thus violating the POUM provision of the Michigan Constitution. Municipal control of public roadways does not fall under an exception to POUM, but is required by State statutes, and therefore maintenance is not “optional.” If the COA’s decision stands, municipalities will be forced to expend money to comply with the new regulations, without being able to levy a tax to acquire funds.

On order of the Court, the application for leave to appeal the April 25, 2013 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
On order of the Court, the motion for reconsideration of this Court’s September 17, 2014 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously.

This case arises out of a mandate by the State-specifically the Michigan Department of Environmental Quality (MDEQ)–which requires the several plaintiff municipalities to “own and operate” what the State Defendants have termed “MS4s,” or “municipal separate storm sewer systems,” by which the State Defendants mean local public roads and related infrastructure. The scope of what an “MS4” is, and
consists of, is wholly within the control of the State Defendants, because it is a creature or construct, of the State, and not the Municipal Plaintiffs. The MDEQ initially created the concept of an “MS4” in 2003, as part of its new regulation of stormwater discharge from certain public roads and drainage systems and
municipal parking lot infrastructure, part of the Phase II NPDES Stormwater Discharge Permit program. The Defendants assert that the Headlee Amendment, and specifically, §29, do not apply to prohibit the imposition of these regulations without full funding by the State, because, they claim, the Municipal Plaintiffs “voluntarily” own and operate the roads to
drainage ditches the State now regulates; i.e., they are not “required” pursuant to state law to own them. The Municipal Plaintiffs disagree.