WHEN BLESSING THE WATER IS NOT ENOUGH

Most churches are in urban or suburban areas and use municipal water systems much like everyone else.  Thus, the few churches left in rural or undeveloped areas that use well water are so few that the lesson of the case reported below would at first blush seem to be of no interest to most.  However, the case reported below points out there are other risks that should be considered.

In State of Ohio v Church of Troy, 2020 Ohio 4695 (Ohio App. 2020), the trial court held that the pastor was the “operator” of the church water system in an enforcement action by the Attorney General of Ohio.  The church used well water at its building, typically Wednesday evening and Sunday services, which may have included bathrooms, kitchen and drinking fountains.  The church membership was about 100 and the church used the building more than sixty days a year.  The church was an unincorporated association.  The church was required to submit total coliform samples every quarter and a nitrate sample annually to a laboratory for analysis and report the results to the state regulatory authority (“Ohio EPA”).  The church submitted test results for years.  The Ohio EPA regulated the church water system since 1986.  Unfortunately, church water samples tested positive for total coliform and E. coli.  The church claimed it posted notices and provided bottled water but did not give notice of its actions to Ohio EPA so they sent an inspector out to check.  The pastor told the inspector that a legal consultant in another state, not one licensed in Ohio, was going to report back as to whether Ohio EPA had jurisdiction over the church and refused permission to inspect the church water system.  Ohio EPA obtained a search warrant and inspected the church water supply.  Their testing found positive coliform and a high level of nitrate.  Based on the pastor’s past interaction with the Ohio EPA and the refusal of the pastor to authorize the inspection, the trial court concluded the pastor had apparent authority to operate the church water system.  As the operator of a non-compliant water system, the pastor was fined $54,000 and judgment entered.  The pastor represented himself.  Four years separated the hearings in the trial court from the final judgment which the appellate court affirmed in the sixth year after the hearings in the trial court. There are several harsh lessons:  (1)  The pastor did not have a lawyer.  (2)  Even an unincorporated association can have minutes, agendas and minutes of votes that might prove the extent of the pastor’s actual authority in general and over the water system specifically.  (3)  The dispute with the regulatory authority went on for most of a decade because the church, or its pastor, did not take it sufficiently seriously and end it, one way or another.  Four years passed between the evidentiary hearings and the final judgment.  In that time, if not before, the church could have developed a record of compliance.  The church could have cut off the well water supply to the interior of the building and used the water only for lawn maintenance controlled by locked faucets, or not at all.  (4)  The church did not consult a lawyer in their state able to deal with the regulators on their behalf, but rather consulted a legal ministry, which the church likely did not pay for its assistance, which could do no more than make some suggestions based on anecdotal consultations.

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