State appeals court rules Swartzentruber Amish need not install septic systems for gray water

A Minnesota appeals court ruled on Monday that members of the Swartzentruber Amish community in southeastern Minnesota do not have to install septic systems to dispose of “gray water,” the dirty water from dishwashing, laundry, bathing and other tasks that does not involve toilet waste. The ruling means the families cannot be threatened with the loss of their homes over the requirement.

The case has a long history. In 2013, Fillmore County adopted an ordinance requiring most homes to have a septic system for gray water. The Amish community sought an exemption “in the name of our Lord,” explaining that their religion forbids the use of such technology. They also proposed an alternative used in more than a dozen other states: pipes that would carry gray water to earthen basins filled with wood chips, which would filter solids and grease as the water drained.

The Minnesota Pollution Control Agency declined that proposal and filed an administrative enforcement action against 23 Amish families in Fillmore County. The agency threatened criminal penalties, civil fines and, according to the case, the removal of families from their homes if they did not comply. State officials presented expert testimony that the mulch basins would not work as well and that the mulch would quickly clog with solids and grease, requiring frequent relocation of new mulch pits.

State courts acknowledged that the septic requirement burdened the community’s religious beliefs. They nonetheless concluded that septic systems, not mulch basins, were the least restrictive means of meeting the government’s interest in protecting public health and the environment. The U.S. Supreme Court disagreed in 2021, finding that Minnesota courts had overstepped. It held that the government, not the Amish families, had to prove the mulch basins would not work. Justice Neil Gorsuch wrote that if “the government can achieve its interests in a manner that does not burden religion, it must do so.” The Supreme Court sent the case back to Minnesota for reconsideration.

On the public health question, wastewater treatment expert Sara Heger, a researcher at the University of Minnesota, testified that gray water is less dangerous than toilet waste, or “black water,” but still carries risks. She said gray water can contain human fecal material, harmful bacteria and viruses, and chemicals, commercial soaps and detergents with nitrogen and phosphorus that create environmental problems. “Whatever might make you sick, that’s also present in the gray water,” she said.

The lower courts also found that while mulch basins may work in other states, the terrain of Fillmore County, including fissures, fractures and sinkholes in its limestone bedrock, allows wastewater to reach groundwater and surface water more quickly than in other places. Experts testified that occasional gray water disposal, such as washing a car, poses very little risk. Brandon Montgomery of the Minnesota Pollution Control Agency testified that large families produce considerably more wastewater where they live.

Attorney Brian Lipford, who represents the families, argued that it made little sense for the state to target his clients over gray water when it allows their use of outhouses, where residents relieve themselves in a hole dug into the ground. State officials responded that outhouses are already governed by regulations requiring a set distance from wells and other water sources. They argued that adding water to wastewater has the potential to spread contaminants much farther.

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