The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6898

May 1, 1996

MUNICIPALITIES:

Municipal regulation of well construction

A township, city or village has the power to adopt an ordinance regulating well construction, provided that the requirements of the ordinance are not less restrictive than the administrative rule requirements set forth in 1994 AACS, R 325.1601 et seq.

A county health department regulation regarding water wells takes precedence over and supersedes conflicting or inconsistent provisions of a township well ordinance.

James K. Haveman, Jr.

Director

Department of Community Health

3423 N. Martin L. King, Jr. Blvd.

Lansing, MI 48909

You have asked two questions regarding local water well ordinances in Michigan.

Your first question may be stated as follows:

May a township, city or village adopt an ordinance regulating well construction?

Municipalities are granted authority by the Legislature to adopt ordinances for health, safety, and general welfare. For townships, the authority is set forth in MCL 41. 181; MSA 5.45(1), which authorizes ordinances "regulating the public health, safety, and general welfare of persons and property." For cities, the authority is set forth in the city's charter which includes provisions for the "public peace and health and for the safety of persons and property" and for "adopting ... city ordinances" as required by section 3(j) and (k) of the Home Rule City Act, MCL 117.3(j) and (k); MSA 5.2073(j) and (k). In general law villages, the village council may "adopt ... ordinances ... for the safety ... and the general welfare of its inhabitants." MCL 67.1(z); MSA 5.1285(z). For villages with their own charters, known as home rule villages, the authority of the village governing body to adopt ordinances is set forth in the charter which is to have provisions for "public peace and health, and for the safety of persons and property." MCL 78.23(f) and (i); MSA 5.1533(f) and (i).

The foregoing statutes authorize municipalities to adopt ordinances regulating well construction to the extent such ordinances are reasonably related to health and safety, are not contrary to state law and conform to state and federal constitutional requirements. See, generally, Natural Aggregates Corp v Brighton Twp, 213 Mich App 287, 294-298; ___ NW2d ___ (1995), and 7 McQuillin, Municipal Corporations (3d ed), s 24.267, p 173.

1994 AACS, R 325.1612(g) expressly recognizes the power of municipalities, including cities, villages, and townships, to adopt regulations concerning the installation of water wells provided those regulations are not less restrictive than the state administrative rules:

(g) Any local code of a municipality which regulates the installation of a well, pump, or pumping equipment and which is not less restrictive than these rules. If a local board of health, in the discharge of its duties to protect the public health, deems it necessary to establish requirements that are more stringent than these rules, it shall do so and file a record of the requirements with the director. Well drilling contractors who drill wells in the counties that are affected by the more stringent requirements shall be notified, in writing, by the department or local health department not less than 5 days before the effective date of the modified requirements.

It is my opinion, therefore, in answer to your first question, that a township, city, or village has the power to adopt an ordinance regulating well construction, provided that the requirements of the ordinance are not less restrictive than the administrative rule requirements set forth in 1994 AACS, R 325.1601 et seq.

Your second question may be stated as follows:

If a township may adopt a water well ordinance, and the county health department also has water well regulations, which provision takes precedence?

Section 2441(1) of the Public Health Code, MCL 333.2441(1); MSA 14.15(2441)(1), authorizes a county health department to adopt regulations "necessary or appropriate to implement or carry out the duties or functions vested by law in the local health department.... Regulations of a local [county] health department supersede inconsistent or conflicting local ordinances." In the case of a less restrictive township ordinance, that ordinance would conflict with the more restrictive county health department regulation. In the case of the county health department regulation that you furnished with your opinion request, the county health department has expressly stated that a municipality may adopt more restrictive ordinances.

In the absence of language in a county health department regulation authorizing more restrictive municipal ordinances, conflicting or inconsistent municipal ordinances are superseded by the county health department regulations.

It is my opinion, therefore, in answer to your second question, that a county health department regulation regarding water wells takes precedence over and supersedes conflicting or inconsistent provisions of a township well ordinance.

Frank J. Kelley

Attorney General