Michigan likely needs realtor buy-in to pass a septic code
Realtors and interest groups opposed to regulation are shaping septic system policies in Michigan's state and local politics.
Realtors don't like the idea of inspections tied to home sales. Anti-regulation lawmakers don't like the alternatives.
Michigan is the only state nationwide that doesn't regulate septic systems at the state level, and the debate whether to change that has continued for decades.
Local controversy, statewide issue
Kalkaska County commissioners recently tried to drop their decade-old point-of-sale inspection program for both water wells and septic systems.
Science shows that leaky septic systems allow human waste to seep into waterways and groundwater. That leads to bacterial and nutrient pollution that can cause harmful algal blooms and make people sick.
Critics of the inspection program said it isn't enforceable for real environmental and human health protections, plus it hampered real estate transactions in a backlog of pending reports. They argued township authorities are better informed on local geography and could more appropriately set region-specific restrictions.
Program advocates said the oversight was an educational tool and a good first step toward more comprehensive water quality protection measures. Point-of-sale inspections may not require every septic system to be inspected, but at least catches those that trade hands, they contended.
More than a year of debate and hours-long public meetings ultimately brought the argument back to where it started: Manistee County commissioners voted to force Kalkaska County to maintain the program operated by their shared 10-county district health department.
Nothing changed. Both northern Michigan counties still have point-of-sale policies.
Seth Phillips — a Kalkaska County resident who placed himself at the center of the septic inspection debate there — said the whole ordeal happened because local real estate officials wanted the change. Commissioners tried to flush the program despite a cascade of public input seeking the opposite, he said.
"They held all the meetings and they let us say our piece and we obviously wrote a lot of letters and all that, but none of it had any impact," Phillips said. "And at the end they were still saying the same tings they were saying at the beginning, which tells me none of what we've said, none of the data we've provided, none of the facts we've gathered mattered to anybody. And that's frustrating."
According to documents the Traverse City Record-Eagle and Interlochen Public Radio obtained through the state Freedom of Information Act, Kalkaska County officials got letters from 25 residents who encouraged them to keep the inspection program intact — plus similar letters from nine area environmental or conservation organizations and one government.
"I live on Manistee Lake, my primary residence, and feel the lake will be much cleaner if we continue to monitor and require all septic systems to be evaluated when a home is going up for sale," wrote homeowner Mike Geiger in an email to county officials. "I cannot believe we would not do this as a matter of health and safety for all residents of the lake as well as those county residents who use the lake either for boating, fishing or bathing at the public beach on the lake.
Among the area organizations that encouraged commissioners to keep the inspection program were The Watershed Center Grand Traverse Bay, Kalkaska Conservation District, Au Sable Institute of Environmental Studies and Michigan Resource Stewards.
By comparison, county officials received just two letters in support of dumping the program, both penned by local real estate agents — Robert Murray and Stephen Karas.
"The Kalkaska (point-of-sale) while seemingly a good idea has no teeth therefore making it an often time-delaying added expense that serves very little concrete purpose," Karas wrote.
Kalkaska County Commissioner Craig Crambell said he was offended at the accusation that realtors had a larger influence on commissioners' decision-making than others.
"That's an insult. That's an insult to our integrity. Realtors had no influence on what we do. What had the influence on it is you have something that's picking money out of people's pockets," Crambell said.
Murray, however, said he believes real estate interests did have an outsized influence on the commissioners' decision to pull the plug on the program.
"Oh, I think we have. I mean, I've had numerous discussions with some of the different county commissioners that have sat on those boards, and went to, and attended I think three or four meetings. So I think they've listened. And they've listened hard and they've thought about it really hard," Murray said.
He argued commissioners should listen to realtors on this issue because they are the ones dealing with people directly affected by this regulation.
Not the health department, not the commissioners ... and these people are bloody mad about the whole circumstance because of the time and the cost and even whether it's really needed," Murray said.
The realtor was there in November 2018 when commissioners voted to begin the withdrawal process from the inspection program, which required a public hearing by health department officials. Murray was one of two realtors who criticized the program that day.
“I would hope that you guys would make this thing go away. It would be a huge benefit to everybody in the county, and especially us realtors," he said in an audio recording from that public meeting.
But the health department official who oversees the program said the inspection program was never meant to be an enforcement tool.
"It was meant as an educational tool. So right now at this point we are only doing enforcement if there is an actual failure of that system, meaning sewage on top of the ground," said Tom Reichard, environmental health director for District Health Department No. 10.
"It out and out states this is not meant to force anyone to upgrade their septic system. It says it right in the preamble," he said.
But that doesn't mean the program hasn't provided good information.
Health department records show that out of 2,192 septic tanks inspected in Kalkaska County between 2009 and 2016, only 18, or 1 percent, were considered failing. But more than 30 percent posed at least a potential hazard and those details were revealed not only to homeowners but also potential buyers.
"This is a good program. This is a program that provides a lot of valuable information to new buyers," Reichard said. "We have a lot of folks that are coming from southern Michigan up here to northern Michigan. They have dealt with city water and sewer their whole life. They are now buying second homes where they have septic and well and they don't have a clue what this stuff is. So I feel we are providing some extremely valuable information for these people and in that respect, this is a very good program."
Reichard said the septic inspection debate in Kalkaska County is indicative of the larger, statewide debate.
"That's a major discussion point within the state right now, and there are two very separate schools, one that advocates point of sale and one that advocates a statewide sewage code," he said. "You will hear this over and over again: Michigan is the only state in the union that doesn't have a statewide sewage code and that is true."
Statewide debate, possible outcomes
It's not that Michigan lawmakers haven't tried to regulate its estimated 1.4 million septic systems.
State Rep. Adbullah Hammoud, D-Dearborn, co-sponsored legislation in the Michigan House in 2018. A lot of voices joined the fray, he said.
"There are a lot of powerful stakeholders ... such as the realtors, such as the farm bureau, such as environmental groups, and everybody has a different vision for what the septic tank regulatory system should look like," Hammoud said.
He worked with Jim Lower, R-Cedar Lake, who said he worked with real estate lobbyists on the bill's first draft.
"A lot of industry groups, like for example the Michigan Association of Realtors, was supportive of that version of the bill," Lower said.
They backed the bill because it didn't link inspections to home sales, he said.
Brian Westrin, public policy and legal affairs director for the realtors association, said that's exactly right.
"When you talk about using point of sale as this meaningful trigger to capture potentially offending systems, you’re presupposing that a sale is going to happen. And, our argument all along has been that you have to address this on a sort of holistic approach," he said.
Point-of-sale inspections only review a fraction of a community's septic systems.
"And that to us seems like a very band-aid approach," Westrin said.
Instead, the proposed legislation called for all septic systems to be inspected every 10 years. That pleased the realtors group, but for others it was too much government oversight.
"I would say the introduced version was very, I guess you'd say optimistic, in terms of it really would have solved a lot of problems, but it went a lot further than most people were willing to go," Lower said.
So they pulled back, he said, and by the time the bill passed out of committee it was significantly watered down.
It also banned county or local septic laws from being more strict than the proposed statewide code. That was too much for environmental groups and the bill died.
Grenetta Thomassey, watershed policy director for Petoskey-based nonprofit Tip of the Mitt Watershed Council, said maybe lawmakers can work out a compromise by starting with areas in close proximity to rivers, lakes and streams.
"To me, if we’re going to start somewhere and if there’s resistance to doing it throughout the entire state, it would make sense to try and do it in the properties that are close to water," Thomassey said.
The water policy experts said it's also key that elected officials not try to manage any such septic inspection program without health officials' involvement. It's a matter of health and human safety.
"There’s just no situation where I think a county or a township or a city or a village should be in charge of these regulations without close coordination with the health department," Thomassey said.
Another state, another day
In Minnesota, county or local governments administer their own septic programs. But they must have a septic program and it must be at least as restrictive as state rules.
As a result, records show an estimated 81 percent of Minnesota's existing septic systems are in compliance with state law, said Aaron Jensen, compliance and policy supervisor for the Minnesota Pollution Control Agency.
Records show that's an improvement from an estimated 65 percent compliance rate when the rules went into effect 10 years prior, he said.
Minnesota also has its Clean Water Legacy Fund, a state coffer filled with sales tax money to work on water quality, arts and other projects. It's there to help homeowners with the most daunting aspect of septic inspections — possible repair costs that can run into the thousands.
"If homeowners are low income, they can apply for grant money and get money to fix their system, and we've made the requirements very minimal," Jensen said.
In Michigan, it remains unclear when another run at septic legislation will happen.
Hammoud said this legislative term he's focused on some basic things, such as agreement on what defines an inspection or a failed septic tank.
"We're hoping that if we can't get the whole of septic tank regulation through this term, that maybe we can at least start with definitions and criteria, and maybe a database," he said.
Hammoud admits such a statewide database of septic systems would be largely incomplete, but said Michigan needs to start somewhere.
This reporting is the result of a partnership between IPR and the Traverse City Record-Eagle. You can read the story at their site here.