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Who is Authorized in Michigan to Enforce MI NREPA Part 413 Aquatic Invasive Species Laws ?

During the spring public safety meeting held in the Roscommon/Higgins Lake area there was a discussion regarding the question of who is authorized to enforce Michigan Aquatic Invasive Species (AIS) related state laws and/or ordinances. Thanks to Corporal Nicholas Torsky of the Michigan Department of Natural Resources for providing clarification on a frequently asked question that has often been the subject of considerable misinformation.

State statute Part 413 (Transgenic and Non-native Organisms)

of the Natural Resources and Environmental Protection Act of 1994

Part 413 of the Natural Resources and Environmental Protection Act of 1994 can be enforced by fully commissioned, Michigan Commission on Law Enforcement (MCOLES) certified peace officers with jurisdiction.

Law enforcement officers that are authorized to enforce MI NREPA Part 413:

  1. Michigan Department of Natural Resources (MDNR) Conservation Officers
  2.  Michigan State Police Officers
  3. Local sheriff deputies, township police, etc. working within their assigned jurisdiction

Not authorized to enforce MI NREPA Part 413:

  • Park rangers
  • Local ordinance officers
  • Township officials or employees/ contractors that are NOT commissioned as peace officers
  • Marine deputies hired by local sheriff departments to enforce a limited scope of boating regulations who are NOT commissioned as peace officers.

Michigan Supreme Court Rules in Favor of the Saugatuck Dunes Coastal Alliance

A Clear Cut Legal Victory for those Working to

Preserve and Protect Michigan’s Natural Resource

In a decided victory for the group known as the Saugatuck Dunes Coastal Alliance, the Michigan Supreme Court ruled on Friday, July 29th that the group does in fact possess the necessary legal standing to appeal a decision made by the Saugatuck Township Zoning Board. The  Saugatuck Dunes Coastal Alliance has worked pro-actively in recent years to oppose plans by developers to build twenty high-end homes across 130 acres located near Saugatuck Dunes State Park – plans that ultimately included removing some sand dunes in order to make way for a new residential neighborhood.

The landmark Michigan Supreme Court decision essentially “rewrites what it means to be an aggrieved party and to be granted standing to appeal zoning decisions.”

Michigan Waterfront Alliance will publish an article in the near future that will provide readers of this newsletter with a detailed analysis of the important legal ramifications of the recent decision made by the Michigan Supreme Court.

We Need Your Help! An Open Letter from MWA President Bob Frye

An Open Letter from Bob Frye, President of Michigan Waterfront Alliance

to

Michigan’s Lakefront Property Owners Associations

We Need Your Support!

Please Consider Making a Generous Donation to

Our Legal Defense Fund Today!

May 25, 2022

Dear Michigan Lake Associations,

The Michigan Waterfront Alliance (MWA) Board of Directors recently filed an amicus brief in a case pending with the Michigan Supreme Court where the core issue pertains to the important question of whether private citizens can use the Michigan Natural Resources Environmental Protection Act (MNREPA) to judicially review MI Department of Environment, Great Lakes, and Energy (EGLE) permitting actions.

This quote from MWA Attorneys Dane Carey and Bill Carey explains it very well: “The MWA has a unique and compelling amicus position to present. MWA is in a sincere position to advocate on the public trust position based upon its prior experiences with EGLE. MWA has worked for several years now to lobby EGLE from negligently introducing aquatic invasive species (AIS) into Michigan lakes. The results of the lobbying have not been too successful. MWA, in its amicus argument, can, in good faith, represent to the Supreme Court that the MWA has tried and failed administratively to convince EGLE that its actions are MNREPA (Michigan Natural Resources Environmental Protection Act) violations. We need to therefore be able to have a legal theory (public trust thru MNREPA) to sue EGLE to obtain relief.”

The disregard for the significant potential for the spread of exotic aquatic invasive plant and animal species by the DNR is illustrated in the permitting process of a new public access site planned for Eagle Lake located near Edwardsburg, Michigan where an administrative law judge agreed with the DNR that it is not responsible for preventing the introduction of AIS at its newly permitted public boating access ramp at Eagle Lake. The position of the DNR in the Eagle Lake matter is indicative of the failure of the agency to take responsibility for protecting the Public Trust as it pertains to Michigan’s Lakes and Streams.

If the outcome of the filing of this amicus is successful and the Michigan Supreme Court ultimately rules that citizens can use MNREPA as the basis for filing a court case it would truly be a game changer, and be a great boost to protecting the public trust in regard to Michigan’s Lakes and Streams!

Here is the link to the Michigan Supreme Court Oral arguments for the case:

https://www.youtube.com/watch?v=y5s7B4_088E

The legal fees for this amicus brief filing are substantial! Out of a total of twenty eight MWA current lake association members we have received Legal Fund Contributions to help cover the considerable expense of this litigation from only five associations. MWA believes that those most likely to reap the considerable benefits of a favorable MI Supreme Court decision in this important public trust – water resources management related case should help shoulder some of the expense of this amicus brief filing.

We need the help of every Lake association in the State of Michigan! Members or not!

Please consider making a contribution to Michigan Waterfront Alliance’s Legal Defense Fund!!

Sincerely,

Bob Frye, MWA, President

Protect Your Lake’s Fish and Water Clarity by Slowing Your Watercraft in Shallow Waters

by Scott Brown

Occurring in response to gradually warming waters that reach 55° F (12.7° C), and increasing periods of daylight that occur with the onset of spring, the male of most members of Family Centrarchidae species, including bluegill, red ear sunfish, white and black crappie, and largemouth bass create spawning nests by utilizing their caudal fin to form deep circular depressions in the substrate. Male and females of the particular species then engage in a courtship dancing ritual that (hopefully) leads to the female depositing her eggs into the nest that the male has created.

It is important to point out that while the role of the female is restricted to depositing eggs, in addition to fertilizing the female’s eggs, males assume multiple roles that require relatively long-term involvement in the reproductive process such as frequently fanning the nest to prevent sediment from smothering the eggs, and aggressively protecting the eggs and fry by keeping potential predators away from their nest.

Created in areas of the substrate in depths of five feet or less, the nests are formed in areas of the substrate hosting large quantities of stone and gravel situated in close proximity to the protective cover and prey provided by submerged macrophyte communities. The narrow spaces between the stone serve to provide a modicum of protection to the eggs and tiny fry from predation, and from wind and watercraft generated perturbations.

Conservation-minded boaters can help protect the reproductive efforts of their lake’s fish by completely avoiding areas of the lake hosting fish nests, or by proceeding at a very slow operating speed in areas of the lake characterized by water depth of up to five feet. Operating at a slow speed in shallow areas may also contribute to preserving the water clarity of the lake by preventing high volume resuspension of bottom substrates.

Michigan Legislative Report

Our readers should keep in mind that 2022 is a local, state, and federal election year. This year’s election is scheduled to be held on Tuesday, November 8th. Several controversial bills introduced in the past year, including legislation that would effectively strip local governments of the authority to issue gravel mine permits; and ban local governments from adapting, and/or enforcing zoning ordinances that would have the effect of prohibiting short term rentals are not likely to be acted upon in an election year where incumbent members of Michigan’s House and Senate are reluctant to vote yes on legislation that may cost them votes on election day. Although corporate supporters of the legislation continue to pro-actively support passage of House Bill 4722 and Senate Bill 1210, the state legislature is unlikely to consider either of the bills until a new session is called to order in January 2023 – well after the election.

If passed into state law, Senate Bill 991 would:

  • Prohibit the installation of an underground storage tank within 2,000 feet of an existing Type I community or Type II (a) non-community public water well
  • Within 800 feet of an existing Type II (b) or type III non-community public water well
  • Within 300 feet of any other type of well not described 3 in subdivision (a) or (b).

If passed into state law, Senate Bill 1210 would:

  • Strip local governments of the authority to issue gravel mine permits
  • Give permitting authority to the Michigan Department of Environment, Great Lakes, and Energy (EGLE)
  • In the vast majority of cases, EGLE would be required to issue the permits even if local governments and residents oppose new mines
  • set no limits on hours of operation for gravel mines, and they would be allowed to operate within a block of schools, churches, or existing neighborhoods

If passed into state law, House Bill 4722 would:

  • Ban local governments from adopting or enforcing zoning ordinances that “have the effect of prohibiting short-term rentals,” which are defined as a single-family home or unit available to rent for less than 30 consecutive days
  • Allow local governments to limit an owner or ownership group to as little as two short-term rental properties
  • Allow local governments to limit the total number of short-term rentals to 30 percent of all residential units
  • Allow local governments to regulate and inspect short-term rental units for noise, advertising, traffic or “any other condition that may create a nuisance.”

To track the current status of legislation pending action by the

Michigan Senate Environmental Quality Committee, click here

Kuhn Rogers Files Amicus Curiae Brief (on behalf of MWA) with the Michigan Supreme Court in Critical Environmental Law Case

The Michigan Supreme Court recently granted leave to allow the Michigan Waterfront Alliance (“MWA”) to file an amicus curiae brief in the momentous environmental law case titled, Lakeshore Group v Department of Environmental Quality. The brief was prepared by Kuhn Rogers attorney Dane Carey, who serves as co-counsel for the MWA with his father, William Carey, of Carey & Jaskowski, PLLC.

What is an amicus curiae? The term, which literally translates to “friend of the court,” refers to a non-party individual or organization that has a vested interest in the subject matter of the case and volunteers to offer insight on a specific point of law or policy to assist the court in reaching a decision. An amicus curiae brief asks the court to adopt a particular position or legal theory.

The core issue in the Lakeshore Group case is whether private individuals and organizations can bring an action under MCL 324.1701(1) of the Michigan Environmental Protection Act (“MEPA”) against state agencies who make permitting decisions that may have an adverse environmental impact. In its amicus curiae brief, MWA made two arguments for the Supreme Court’s consideration. First, MWA argued that administrative review and approval of a permit can form the basis of a cause under MCL 324.1701(1) in accordance with the Supreme Court’s controversial decision in Preserve the Dunes, Inc v Department of Environmental Quality, 471 Mich 508; 684 NW2d 847 (2004). In the alternative, MWA has urged the Supreme Court to overturn its position in that case if it decides that Preserve the Dunes does bar such actions under MEPA.

As the Michigan Supreme Court explained in Ray v Mason County Drain Commissioner, 393 Mich 294, 305-06; 224 NW2d 883 (1975):

Michigan’s EPA was the first legislation of its kind and has attracted worldwide attention. The act also has served as a model for other states in formulating environmental legislation. The enactment of the EPA signals a dramatic change from the practice where the important task of environmental law enforcement was left to administrative agencies without the opportunity for participation by individuals or groups of citizens. Not every public agency proved to be diligent and dedicated defenders of the environment. The EPA has provided a sizable share of the initiative for environmental law enforcement for that segment of society most directly affected—the public.

Although the Court’s decision in Preserve the Dunes has been interpreted by the lower courts in this case to bar the plaintiff, Lakeshore Group, from bringing an action against the DEQ, a close examination of the Court’s opinion and the statute involved in Preserve the Dunes suggests a different result. MWA goes further in its amicus curiae brief, however. Although not argued by the plaintiff or other amici curiae who filed earlier briefs, MWA took the bold position that Preserve the Dunes should be overturned and MEPA restored to its former glory as the legislation that changed the environmental law landscape throughout the world.

This case will have statewide impact and significance on the ability of individuals and organizations to protect “the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction” from administrative agency permitting decisions that allow environmentally harmful activity to occur.

Oral arguments in this case are scheduled for March 30, 2022 at 10:00 a.m. MWA and its attorneys look forward to the Michigan Supreme Court restoring MEPA jurisprudence and breathing new life into the groundbreaking environmental statute.

Make an Important Contribution to Preserving and Protecting Michigan’s Extraordinary Freshwater Resources by Becoming a Member of Michigan Waterfront Alliance Today

Your individual, association, or corporate membership in Michigan Waterfront Alliance

will help ensure the continuation of our on-going efforts to:

 

Protect our extraordinary freshwater resources by working on a day-to-day

collaborative basis with the Michigan Department of Natural Resources (DNR),

and the Department of Environment, Energy, and Great Lakes (EGLE)…

 

File amicus briefs with the Michigan Supreme Court in cases whose outcomes

carry the potential to adversely impact riparian rights, or public policies that

effectively serve to help preserve and protect Michigan’s water resources…

 

Increase State of Michigan funding of programs designed to prevent new exotic

aquatic invasive species introductions, and to improve our state’s collective ability

to manage the destructive array of exotic aquatic plants and animals that already

exist in many of our wetlands, lakes, rivers, and streams…

 

Protect and preserve Michigan’s extraordinary inland lakes by pro-actively

supporting the mission, goals, programs, and events of unique public/private

collaborative efforts such as the Michigan Inland Lakes Partnership, and

the Michigan Natural Shoreline Partnership

 

Prevent new introductions of exotic aquatic invasive species and improve

management of existing infestations by working on a collaborative basis

with Michigan’s regional Cooperative Invasive Species Management Areas

 

Improve the knowledge of our state legislators in regards to the overall importance

of the enormous on-going contributions that our freshwater resources make to

Michigan’s economy…

 

>>> Click here <<<

to become a member of

Michigan Waterfront Alliance

 

An Important Message for our Readers from Michigan Waterfront Alliance President Bob Frye

The Michigan Waterfront Alliance (MWA) Board of Directors recently voted to file an amicus brief in a case pending with the Michigan Supreme Court where the core issue pertains to the legal question of whether private citizens can use the Michigan Natural Resources and Environmental Protection Act (MNREPA) to judicially review EGLE (Department of Environment, Great Lakes, and Energy) permitting actions. The following quote from MWA Attorneys-at-Law Dane Carey and Bill Carey serves to explain the primary issue in this case very well:

“The MWA has a unique and compelling amicus position to present. MWA is in a sincere position to advocate on the public trust position based upon its prior experiences with EGLE. MWA has worked for several years now to lobby EGLE from negligently introducing AIS into Michigan lakes. The results of the lobbying have not been too successful. MWA, in its amicus argument, can, in good faith, represent to the Supreme Court that the MWA has tried and failed administratively to convince EGLE that its actions are MNREPA (Michigan Natural Resources Environmental Protection Act) violations. We need to therefore be able to have a legal theory (public trust thru MNREPA) to sue EGLE to obtain relief.”

The disregard for the now well-known significant potential for the spread of exotic aquatic invasive species by the Michigan Department of Natural Resources (DNR) is illustrated in the permitting process of a new public boating access site on Eagle Lake (located in southwest Michigan near Edwardsburg) where an administrative law judge agreed with the DNR that is not responsible for preventing new introductions of aquatic invasive species at its newly permitted public access ramp now planned for Eagle Lake. The position of the DNR in the Eagle Lake matter shows the failure of senior DNR leadership officials to take responsibility for protecting the Public Trust as it pertains to Michigan’s lakes and streams.

If the outcome of the filing of this amicus brief is successful, and the Michigan Supreme Court rules that citizens can use MNREPA as the basis for filing a court case it would truly be a game changer, and a great boost to our on-going erstwhile efforts focused on protecting the public trust, and our water resources.

The legal fees for filing an amicus brief in this important case are estimated to be approximately $15,000. The MWA Board of Directors recently voted to start a goal-specific fundraising effort. Our goal is to raise the $15,000 cost of filing this important amicus brief in addition to regular membership dues.

Given the importance of the issue at hand, Michigan Waterfront Alliance asks that you consider giving generously!

 

>>> Click here to donate <<<

Your generous donation will help support

our effort to defend our water resources in the

Michigan Supreme Court

Collaborative, Bi-national Fish Habitat Study Reaffirms the Importance of Wetlands, and Natural Shorelines in Promoting Abundant Bass and Bluegill populations

The recently released summary of the findings of a bi-national fish study conducted on Lake St. Clair serves to emphasize the critical role that wetlands and other natural shoreline features play in promoting and sustaining healthy freshwater fish populations. Focusing on relatively small fish such as minnows, bluegill, and sunfish as well as the young of species such as largemouth and smallmouth bass that ultimately mature into much larger fish, the Collaborative Lake St. Clair Fishery Assessment was conducted by fisheries biologists from the Michigan Department of Natural Resources, Ontario Ministry of Northern Development, Mines, Natural Resources and Forestry, and the U. S. Fish and Wildlife Service. The primary goal of the study was to help fisheries biologists understand how many of the small fish exist within the lake, and to also identify exactly what type of shoreline habitat serves to promote their abundance. The most important finding of the study is indicated by the fact that the keystone fish were found to be ten times more abundant in areas of the lake featuring nearshore and shoreline habitat consisting of wetlands, and other natural features in comparison to more urbanized areas on the Michigan side of the lake where shorelines now consist primarily of steel seawalls, piles of rock and concrete, and other forms of artificial shoreline armoring.

Even though Lake St. Clair possesses a surface area of only 430 square miles it is considered to be an important bi-national resource due to the fact that it is connected to Lake Huron by the St. Clair River, and to Lake Erie by the Detroit River, and is therefore considered one of the busiest waterways in the world due to the fact that 5,000 ships transit the lake each year on their way to and from commercial ports located within the expansive Great Lakes, and to locations far beyond the region via the St. Lawrence Seaway.

It is also important to note that Lake St. Clair’s remaining coastal wetlands, located primarily on the Ontario side of the lake, also provide critical habitat to a diverse array of fish, reptiles, migratory birds, and amphibians. The large inland lake also provides an array of highly valuable ecological, recreational, and commercial benefits, including drinking water, to millions of people who live on or near the lake in southeast Michigan and southern Ontario.

Conducted on both the Michigan and Ontario sides of Lake St. Clair, fisheries biologists deployed fyke nets at 110 locations around the lake in areas defined by both hardened and natural shorelines, and recorded both the quantity and type of fish that swam into the nets. Reporting the findings of their study within the context of a written summary recently submitted to The Detroit News, the fisheries biologists wrote that “the overall fish catch rate was 10 times higher on the Canadian side of the lake, likely related to better nearshore habitat.” In sharp contrast to hardened shorelines comprised of seawalls or piles of concrete, natural shorelines and nearshore habitat comprised of emergent, floating, and submerged aquatic plants such as cattails, bulrush, water lilies, and pondweeds provide small fish such as bluegill and young bass with an ideal habitat within which to forage for abundant aquatic insects, protection from predation, and an ideal habitat for spawning and supporting young fish.

To learn more about the multi-faceted benefits of preserving, and/or restoring natural shorelines, visit the Michigan Natural Shoreline Partnership at https://www.mishorelinepartnership.org/ .