Skip to main content
Category

News

2024 MWA Summer Newsletter is Now Available for Download

MICHIGAN WATERFRONT ALLIANCE

SUMMER NEWSLETTER 2024

MichiganWaterfrontAlliance.com

MWA Mission Statement:

“This corporation is formed to protect, preserve and promote the wise use of inland waters – lakes, streams, rivers, creeks and the waters and bottomlands of the State of Michigan.”

President’s Report

by Bob Frye

 

Dear Members and Friends of the Michigan Waterfront Alliance,

I hope you are enjoying another Michigan summer!

Did you know that the combined lake frontage of all of Michigan inland lakes is 25,829 miles? This number is found in EGLE’’s Water Quality and Pollution Control in Michigan 2022 Sections 303(d), 305(b), AND 314 Integrated Report 2024 which also has an abundant amount of information regarding Michigan’s top ranking among the lower 48 states’ inland lakes.

This Water Wonderland that we are so fortunate to enjoy needs stronger financial support from our state government, and that is why we were the principal sponsor of the 2024 Lakes Awareness Day held on May 14, 2024. Additional partners included the Michigan Boating Industries AssociationMichigan Environmental Council, Tip of the Mitt Watershed CouncilMichigan Chapter of the North American Lakes Management SocietyMichigan Aquatic Managers Association, and Midwest Aquatic Plant Management Society.

We invited all the Senators, Representatives, Governor, DNR and EGLE staff for lunch at the MWA lobbyist Karoub Associates Governor’s Room located just a stone’s throw from the steps of the Michigan Capitol Building. Discussions were focused on the significance and value of Michigan’s vast inland lake resources and the need to protect them. The turnout from Leadership from the MI Senate, House, EGLE and DNR was exceptional, including Deputy Director of EGLE Travis Boeskel, EGLE Aquatic Invasive Species Coordinator Sarah Lesage, EGLE Unit Director of Wetlands, Lakes, and Streams Amy Lounds, and State Representative Rachel Hood who sits on a number of committees, and is the Vice-Chair of the sub-committee for the Michigan Department of Agriculture and Rural Development/DNR (Rachel suggested that the 2025 Lake Awareness Day theme should be: “Michigan Needs Revenue for Water”). These are just a few examples of the attendees who came to learn how they could help create a mindset shift in our state government from reactionary to protective lake management.

Legislators who have committed to the cause from the 2024 and 2023 Lake Awareness Days and follow up include: Super Legislative Inland Lake Champions Rep. Ken Borton – 105th District, and Rep. John Roth – 104th District. Also, Inland Lake Legislative Champions include: Senator Mark Huizenga -30th District, Senator Sue Shink – 14th District, Senator Roger Victory – 31st District, Rep. Noah Arbit – 20th District, Rep. Jim Haadsma – 44th District, Rep. Natalie Price – 5th district, Rep, Tom Kunse – 100th District, Rep. Jim Runstad – 23rd District, Rep. Cam Cavitt – 106th District, and Rep. Rachel Hood – 81st. District.

Those interested in becoming Inland Lakes Legislative Lake Champions include: Rep. Nancy Deboer – 86th District, Rep. Cam Cavitt -106th District, Rep. Jammie Wilson – 32nd District, Rep. Will Snyder – 87th District, Rep. Joseph Fox -101st District, Rep. Denise Mentzer – 61st District, Rep. Mark Tisdel – 55th District, and Rep. Bradley Slagh – 85th District.

As a follow up to the Lake Awareness Day event, the Grand Hotel on Mackinac Island has joined the partnership and is offering space on the Grand property to present an Inland Lakes Awareness signage display. The display will consist of 5 signs. Please help fund the cost of these permanent outdoor signs! See the line on the donation envelope enclosed in this mailing. Hotel Vice President John Hulett and Marketing and PR Manager Elizabeth Graves are pictured on page 1 with one of our 5 signs.

The MWA continues to meet quarterly with representatives of EGLE and the DNR in the MWA/DNR AIS Task force. The latest news is that a new position, EGLE AIS Coordinator, has been created in EGLE and Cecilia Weibert will fill it. Cecillia was the Aquatic Invasive Species Project Manager · Great Lakes Commission and hopefully will join the AIS Taskforce. One of the largest hurdles the Task Force has is finding funding for AIS law enforcement. Currently the majority of the funding comes from Federal Grants.

Hopefully the growing list of MWA Inland Lakes Champion Senators and Representatives can be used to get “More Money For Water” that would help fund AIS law enforcement.

Be sure to read the following in this newsletter. The MWA Legislative Report by Matt Kurta, our MWA Lobbyist, Wake Boat report by Scott Brown, Marketable Title update by Bill Carey, How you can become a Lake Champion by Scott Brown, Governor Proclamation for Lakes, State-wide Septic Code by Scott Brown, Swimmer’s Itch report by Alex Walters, Save Your Lakes by Ed Highfield, and the MWA participation in the Inland Lakes Convention and how you can attend by Scott Brown.

Also, be sure to signup for the Michigan Waterfront Alliance e-newsletter sent on the 1st and 15th of every month. Just send Scott Brown, scottb1952@gmail.com, your email address!

Click here

to download and read the entire Summer 2024 MWA Newsletter.

Hundreds of Thousands of Dysfunctional Septic Systems Represent a Steadily Escalating Public Health Threat in Michigan

Attributed to the shameful (!) fact that our freshwater inundated Michigan continues to be the only state within the United States of America that has not yet enacted a state-wide law requiring regular septic system inspections and routine maintenance, nearly 300,000 failing septic systems continue to be a major source of e-coli and human feces-laden raw sewage that contaminates our ground water, and in many cases renders the waters of many our lakes, rivers, and streams unfit for total contact water sports such as swimming or snorkeling. The problem in Michigan is illustrated by the fact that the Michigan Department of Environment, Great Lakes, and Energy (EGLE) has thus far identified approximately 200 rivers, lakes, and beaches where E. coli concentration levels are well over the United States EPA limit.

The steadily escalating environmental and public health threat is derived from that fact that approximately 20%, or 280,000 of the estimated 1.4 million septic systems that are widely throughout Michigan are now failing. The issue of failing septic systems has been exacerbated by the fact that many Michigan homes and their now antiquated and often dysfunctional septic systems were built prior to the construction of sewer systems that now serve even the smallest of towns and villages. The significance of the problem in Michigan is also illustrated by the fact that between calendar years 2013 and 2014 an estimated 5.7 billion gallons of untreated sewage from failing septic systems flowed unabated into our inland lakes, river, streams, and groundwater aquifers.

Septic systems, otherwise known as on-site waste water disposal systems, are installed to manage and treat the waste generated by toilets before it reaches ground or surface water. In a properly designed septic system, the septic tank serves to remove larger solids from wastewater. Wastewater that flows out of the septic tank is saturated with contaminants that must be removed before the water can safely be combined with surface and/or groundwater. Public health issues stem from the fact that septic tank effluent contains large concentrations of toxic micro-organisms that make people sick. Moreover, the organic matter present in wastewater effluent creates bad odors, and contains algae growth stimulating nutrients (nitrogen and phosphorus) that are known to have a harmful impact on the aquatic ecosystems of our inland lakes, rivers, and streams. Properly designed septic systems include a disposal field that consists of a mixture of sand, silt, and clay that are often referred to as loamy soils that act to successfully treat bacterial and inorganic compounds. Algae growth stimulating phosphorus that is produced within the household that passes through the septic tank is captured within a properly designed disposal field’s soil.

On-site waste water disposal systems continue to be installed in support of residential and commercial development that occurs in rural settings where sanitary sewer systems are not available. According to Michigan State University Extension, when an on-site waste water disposal system is correctly located, properly designed, carefully installed, regularly inspected and properly maintained, they serve as effective waste disposal systems that are economical and that do not pose a threat to public health or to the fragile ecosystems of surrounding streams, rivers, and lakes.

Michigan’s on-going failing septic system crisis is best exemplified by Kent County where a volunteer only septic system inspection program allows an estimated 11,250 failing residential septic systems distributed throughout the county to leak approximately one million gallons of raw sewage into vulnerable groundwater supplies each day. In inland lake inundated Oakland County, as another prime example, where public health threatening cases of e-coli contamination of rivers and lakes are reported on a more and more frequent basis, and where county officials have yet to establish a program that would mandate regular septic system inspections, approximately 25% to 30% of the 100,000 septic systems located in Michigan’s most affluent county are known to be leaking.

The gravity of the situation is effectively illustrated by the fact that the results of a 2015 field study conducted by Michigan State University researchers on sixty-four Michigan rivers revealed that  concentrations of e-coli that were higher than U. S. Environmental Protection Agency permitted water quality standards. The significance of the issue is amplified by the fact that the Michigan Department of Environment, Great Lake, and Energy (EGLE) reports that approximately one half of Michigan’s thousands of miles of rivers and streams suffer from concentrations of toxic e-coli that exceed minimum water quality standards.

Representing a major environmental and public health issue in Michigan that promises to escalate in significance as increasing numbers of septic systems fail and begin to leak with the passage of time, past efforts to enact legislation that would serve to establish a meaningful statewide standard for how septic tanks are designed, built, inspected, and maintained have sadly disintegrated in the face of arguments suggesting that in addition to treading on individual property rights, regulating septic tanks in a manner that would require regular inspections and maintenance would be too costly for homeowners, over burden county health departments, and as the Lansing-based Michigan Realtors continues to argue, make it much more difficult to sell homes. Sadly, one does not need to have earned a graduate degree in political science from Harvard or Yale to recognize that profit margins appear to be more important in Michigan than achieving and maintaining safe, clean, clear freshwater that is safe to drink and that is safe to swim in~! And, frankly we find this disgusting!!!

It is important to note, however, that Michigan Governor Gretchen Whitmer recognizes the significance of the on-going problem and has declared the week of September 16-20, 2024 as Septic Smart Week that encourages homeowners and communities to inspect and properly maintain their septic systems on a voluntary basis. In an applaudable effort to make low interest loans available to qualifying homeowners, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) has partnered with Michigan Saves, the nation’s first non-profit green bank to offer financing for the replacement of failing or near-failing septic systems statewide through the Septic Replacement Loan Program (SRLP). The program provides low-interest financing options for loans of up to $50,000 to qualified Michigan homeowners seeking to replace their dysfunctional septic systems.

The introduction of Michigan House of Representatives Bills 4479 and 4480 and Michigan Senate Bills 299 and 300 represent the latest effort to remedy the embarrassing fact that Michigan remains the only state in the nation that has not yet enacted a statewide septic code. The proposed common sense-based legislation would mandate routine inspections and essential maintenance for all septic systems. If passed into law, the bills would also establish a database for inspections, a certification system for inspectors, and a technical advisory committee to provide recommendations for septic system management. Sadly, pro-active efforts sponsored by well-funded Lansing-based lobbyists have thus far prevented the important legislation from moving forward in both the Michigan House and Senate.

For more information on how failing septic systems are capable of degrading our precious freshwater resources, visit the U. S. EPA’s web page entitled “How Your Septic System Can Impact Nearby Water Sources” . The always wise inland lakes preservation focused folks from northwest Lower Michigan’s Glen Lake Association have also created a septic smart webpage that contains valuable information regarding the proper maintenance of septic systems.

Common Sense Inland Lake and Inland Lake Residential Community Friendly Legislation that Desperately Needs Your Pro-Active Support to Pass

Contact Your State Representative or State Senator Today!

To find the name and contact info for

your state representative:

click here

 

To find the name and contact info for

your state senator:

click here

 

House Bill 5532

Sponsored by Representative Julie Rogers (D-Kalamazoo), if passed into law, House Bill 5532 would establish a basic operational framework for where wake boats can operate without damaging sensitive inland lake ecosystems.

The language of the bill would require wake boat operators to stay at least 500 feet from shore and in waters of at least 20 feet in depth when engaged in enhanced wake sport mode.

 

MI Senate Bill 299 & 300 / MI House Bill 4479 & 4480

House Bills 4479 and 4480 and Senate Bills 299 and 300 were proposed in response to the sad fact that Michigan remains the only state in the nation that does not have a statewide septic code. The proposed legislation would mandate routine inspections and essential maintenance for all septic systems. If passed into law, the bills would also establish a database for inspections, a certification system for inspectors and a technical advisory committee to provide recommendations for septic system management.

MWA Legislative Issues Update – Winter

Last August, Governor Whitmer outlined her priorities for the fall, when the Legislature returned to session after a two-month summer recess, in anticipation of a limited period of time remaining in 2023 with full Democratic control of state government.  The Michigan Legislature responded with a flurry of legislative activity before adjourning for the year effective November 14, including enactment of a comprehensive energy and climate package aimed at reducing greenhouse gas emissions and increasing renewable energy development.

On Election Day in November, Democratic Representatives Lori Stone (D-Warren) and Kevin Coleman (D-Westland) won elections to become Mayor of their respective hometowns.  Both legislators have resigned from the House to begin serving in their new roles, temporarily stripping Democrats of their previous 56-54 majority in the Michigan House.

The partisan composition of the House now stands tied at 54-54 and will remain tied until these two vacancies are filled. Governor Whitmer has called special Primary and General Elections, to take place on January 30th, 2024 and April 16, 2024.  As both seats are overwhelmingly Democratic in terms of their partisan base composition, they are anticipated to be filled by new Democratic legislators who would return Democrats to the majority in the House shortly after April 16.

In the meantime, Rep. Joe Tate (D-Detroit) continues to serve, as Speaker of the House and Democrats  continue to maintain majority control of committees, legislation cannot move on the House floor without bipartisan support.  So, as we enter an unprecedented period in Michigan political history, it appears that legislative activity may temporarily slow down until both vacancies are filled as we enter another election season.

On the policy front, we will continue to work with the Whitmer Administration and key legislators to urge consideration of a comprehensive, holistic approach to inland lakes water quality management.

Matt Kurta, Karoub Associates

Legislation Intended to Help Mitigate the Harmful Impact of Wake Boats Introduced to the MI State House of Representatives

by Scott Brown

Introduced by Michigan State House 41st District Representative Julie Rogers (D) of (Kalamazoo), if passed into law, MI House Bill 5532 would restrict the operation of powerboats operating in wake sport mode in a manner what will help to minimize their risk of endangering swimmers and other passive water resource users, and also help to mitigate their potentially harmful impacts on shorelines, docks, and on fish and wildlife. If passed by both the MI State Senate and House, and signed by Governor Whitmer, the language of House Bill 5532 would restrict the operation of wake boats to distances of 500 feet or more from a shoreline or dock, and to water depths of 20 feet or more.

The introduction of MI House Bill 5532 on Wednesday, February 28 with bi-partisan support comes in response to the significant findings of Michigan Department of Natural Resources Fisheries DIvision Report 37 dated September 2022 and entitled Wake boats: concerns and recommendations related to natural resources management in Michigan waters.

Representing a comprehensive scientific literature review, MI DNR Fisheries Division Report 37 found that wake boats are capable of producing waves possessing 1.7 to 17 times the energy of other comparable-sized powerboats, and that their specially designed propellers are capable of generating enough turbulence to resuspend bottom sediments in water depth of up to 33 feet. The report also found that the exceptionally large waves generated by wake boats take between 225 to 950 feet in order to dissipate to heights and wave energies that are observed only 100–200 feet away from similarly sized conventional watercraft operating at cruising speed.

Readers should know that the leadership of Michigan Waterfront Alliance has been working in close coordination with our Lansing-based lobbying firm Karoub Associates in advocating for the introduction of legislation designed to mitigate the harmful impacts of wake boats for the past two years. Michigan Waterfront Alliance views the introduction of MI State House Bill 5532 as a significant step in finally enacting a state law that will act to safeguard swimmers, and other passive lake users as well as help to protect the vulnerable freshwater ecosystems of Michigan’s vast treasure of inland lakes.

To download a copy of MI DNR Fisheries Division Report 37, click here

To find out who serves as your MI State Representative, click here

To download a comprehensive scientific literature review-based assessment of the harmful impacts of wake boats, click here

Michigan Waterfront Alliance Wake Boat Resolution

WHERE AS, Michigan’s glacier formed landscape is graced with over 11,000 inland lakes; and, the majority of said lakes being defined by healthy freshwater ecosystems as indicated by the existence of clear, sunlight inundated waters, highly beneficial native aquatic plant communities, and diverse populations of invertebrates, fish, amphibians, reptiles, and waterfowl; and

WHERE AS, healthy inland lake ecosystems provide a wide array of valuable economic and ecological services that are recognized for the vital role they play in helping to foster and sustain the growth and development of Michigan’s increasingly freshwater resource dependent economy, and culture; and,

WHERE AS, one of the most important services that inland lakes provide to millions of Michigan citizens and visitors is the opportunity to engage in popular water‐borne recreational activities such as swimming, fishing, kayaking, canoeing, jet skiing, power boating, and water skiing; and

WHERE AS, a dramatic increase in the popularity of enhanced wake dependent water sports that are enabled by wake boats designed for the sole purpose of generating wakes that are defined by kinetic energy levels that greatly exceed those that are produced by wind, and/or conventional watercraft have gained the attention of state and local government officials, law enforcement agencies, and the news media; and, the results of several peer reviewed scientific studies that have explored the physics of the high energy wakes created by wake enhanced boats, and the nature and scope of their potential impact on aquatic ecosystem have demonstrated that the recent surge in the number of wake boats operating on the inland lakes of Michigan are likely responsible for rendering a destructive array of adverse ecological impacts; and, wake boat generated high energy wakes created in-close-proximity to shore, and/or within shallow areas of inland lake basins are not allowed the distance, time, and/or depth necessary for their extraordinarily high kinetic energy levels to dissipate before disturbing vulnerable benthic habitat, and/or having an adverse impact on both natural and developed shorelines; and, the jet engine‐like turbulence generated by the four blade, large diameter propellers of wake boats are capable of scouring lake beds in depths in excess of sixteen feet; and,

WHERE AS, wake boats operating in areas of inland lakes defined by depths of less than thirty-three feet are known to induce high volume sediment resuspension that contributes to increases in phytoplankton (algae) production, increased turbidity, decreased water clarity, inhibition of aquatic plant growth, loss of fish habitat, and overall degradation in water quality; and, in addition to causing damage to docked watercraft, piers, and other forms of shoreline infrastructure, high energy wakes generated by wake enhanced watercraft operating within 500 feet of shore are capable of endangering kayakers and swimmers, of rendering significant damage to natural shorelines that serve as a protective buffer, and provide life sustaining habitat for fish, aquatic animals, and waterfowl; and high energy wakes created by wake boats within 500 feet of shore are known to be capable of causing accelerated rates of shoreline erosion that leads to high volume sediment deposition and accumulation that results in degradation of fish spawning habitat, loss of fish foraging habitat, and a significant reduction in the capacity of inland lakes to support diverse recreational opportunities; and, wake boats that are towed from lake‐to‐lake by their owner/operators are equipped with high volume ballast water tanks that significantly increases the risk of introducing new exotic invasive aquatic plant and animal species to unaffected lakes; and,

WHERE AS, considering the steadily increasing number of wake boats operating upon the waters of inland lakes, current State of Michigan laws pertaining to the safe operation of watercraft as it applies to the generation of high energy wakes are now outdated; and,

WHERE AS, the scientific research-based conclusions of State of Michigan Department of Natural Resources Fisheries Report 37 entitled “A Literature Review of Wake Boat Effects on Aquatic Habitat” dated July 2023 serves to reaffirm the veracity of the science-based facts that form the basis of this document; and,

WHERE AS, Michigan Waterfront Alliance (MWA) is a 501 (C) (4) non‐profit organization dedicated to contributing to the enactment of state laws and natural resource management policies that help preserve, protect, and/or promote long‐term sustainable use of Michigan’s vast treasure of high-quality freshwater resources; and,

NOW THEREFORE BE IT HEREBY RESOLVED THAT the Michigan Waterfront Alliance supports the commendations of MDNR Fisheries Report 37 dated July 2023 and shall commit to working with the Governor and the legislature of the State of Michigan to promulgate revisions to inland marine operating laws in regards to wake boats in a manner to help ensure the safety of people engaging in passive recreational pursuits such as swimming, kayaking, and fishing, and to further protect the natural shorelines, shoreline property, and vulnerable inland lake ecosystems of this great state.

Exotic and Highly Invasive Round Goby Represent a Clear and Present Threat to the Reproductive Potential of Native Fish Populations

by Scott Brown

Introduced to the North American Laurentian Great Lakes region in the late 1980s or early 1990s via the ballast water of a trans-oceanic freighter that had entered our freshwater inundated region via the St. Lawrence Seaway, round goby (scientific name: Neogobius melanostomus) are a highly adaptive, rapidly reproducing bottom dwelling fish that is native to the Black and Caspian Sea region. Capable of thriving in a wide range of salinity levels as well as in freshwater ecosystems, the highly invasive round goby often grows to lengths of over seven inches, and are capable of achieving body weights of up to three ounces.

Since their inadvertent introduction to the Great Lakes region nearly forty years ago, exotic invasive round goby have successfully invaded each of the Great Lakes as well as many of their major tributary rivers and streams. Round goby were also recently discovered in at least one of upstate New York’s Finger Lakes in addition to eastern New York state’s Hudson River. Moreover, several of Michigan’s well known large inland lakes have also undergone successful invasions by the pesky aquatic invader from Eurasia.

Characterized by voracious appetites, round goby aggressively feed upon aquatic insects, snails, and it is most important to note, large volumes of the developing eggs of native fish. Species such as largemouth and smallmouth bass, bluegill (photo), redear sunfish, and pumpkinseed, keystone species in most of the moderately productive inland lakes of Michigan, that create gravel and stone layered spawning nests with their fins in mid-to-late spring are particularly vulnerable to having their eggs eaten by the hyper-aggressive exotic invader.

MI Senate Bill 662 Introduced in Order to Diminish the Responsibility of Michigan County Governments to Maintain ‘Normal’ Inland Lake Levels as Currently Required by Part 307 – Inland Lake Levels – of the MI Natural Resources and Environmental Protection Act 451 of 1994

Introduced in order to amend Part 307 – Inland Lake Levels – of the Michigan Natural Resource and Environmental Protection Act 451 of 1994 in a manner that opponents to the legislation suggest would effectively diminish the current level of responsibility of county governments to take action to either raise or lower lake levels, as appropriate, to ‘normal’ levels as defined by Part 307.

Part 307 currently states that “normal level means the level or levels of the water of an inland lake that provide the most benefit to the public; that best protect the public health, safety, and welfare; and that best preserve the natural resources of the state.”

Opponents of the legislation also suggest that ‘normal’ lake levels need to be maintained under existing law in order to prevent higher lake water levels from causing severe shoreline erosion and/or flooding, and to prevent lower lake levels from diminishing the capacity of a particular lake to support recreational boating and other water-borne activities. Those rising in opposition to passage of the legislation also suggest that giving county government more leeway in maintaining lake levels would inherently increase the threat of erosion, flooding, dam failures, or lake use limitations, and inherently cause a decrease in inland lake real estate values.

Those opposed to Senate Bill 662 also suggest that the controversial legislation was introduced in response to the fact that the MI Supreme Court recently upheld a unanimous decision by the MI Court of Appeals that found that the Roscommon County Board of Commissioners had in fact failed to properly maintain “normal” lake levels on Higgins Lake as required by law under the auspices of Part 307.

In addition to diminishing the overall responsibility of county governments to maintain ‘normal’ lake levels as defined by Part 307, legislation that effectively increases the likelihood that one or more of the many structurally compromised dams that currently exist in Michigan may collapse under the force of substantially high lake levels is not only ill advised but totally irresponsible. One only need to think back four years to the Edenville Dam collapse and the subsequent demise of Sanford Lake to know that legislation that allows county government to dodge their responsibility to monitor and maintain lake levels should be handily defeated!

Our readers should know that the Michigan Waterfront Alliance Board of Directors recently passed a motion that ardently opposes the passage of Senate Bill 662.

To download and read MI Senate Bill 662 as introduced, click here

RIPARIAN LAW: FREQUENTLY ASKED QUESTIONS

WILLIAM L. CAREY

ATTORNEY AT LAW

 

  1. Where are my riparian boundary lines?

This is the question most frequently asked regarding riparian law. A person who owns real property that abuts (i.e., borders) a natural body of water is known as a “riparian” owner.  As a general rule, riparian owners on inland lakes and streams in Michigan own the submerged lands or “bottomlands” adjacent to their property. This underwater ownership extends to the middle of the body of water. In other words, the individual who owns the shoreline, owns to the center of the stream or inland lake.

Among other rights, a riparian owner has the exclusive right to install a dock and permanently anchor boats and rafts on his or her riparian bottomlands. Similar to unauthorized entry onto a neighbor’s yard, encroaching onto a neighbor’s bottomlands is also considered a trespass.

These concepts of riparian law are a fairly well known among waterfront property owners. What is less well known, however, is how the boundaries of bottomland ownership are apportioned among riparian owners. How do property lines extend into the lake? Where they start, where do they stop, and what path do they take along the way? These are important questions that often form the center of disputes between lakefront owners.

Though surveys are readily available for property owners to identify their upland property boundaries, very few lakes have been the subject of a submerged land survey. Moreover, there have only been a few cases where a circuit court judge has actually ratified the riparian bottomlands survey, a requirement to officially establish riparian boundaries.

That begs the question: If underwater surveys are not available, how do you locate your underwater property lines? The answer is not the one most people think. Your submerged property line is not merely a direct extension of your upland property line into the water. The shoreline boundary is important, but the angle of your upland property line makes no difference once you get to the water’s edge.

Because your underwater property line is not merely a direct extension of your upland property line, locating your bottomlands boundary is not necessarily an intuitive task. And in some cases, it can be a difficult undertaking. Under Michigan law, there are two primary methods for apportioning bottomland ownership among riparian owners.

Method No. 1: The Pie Approach

 The first method is very simple. But unfortunately, it only applies to round lakes. Where a lake is a perfect or near-perfect circle, underwater property lines run from your upland boundary line to the center of the lake, which results in a pie-shaped wedge for each riparian owner. Note, that were a particular lake has one or more islands that have riparian owners, there will be two centers—one on each side of the island (between the island and each shore).

 In reality, however, most lakes are not perfectly round. For the vast majority of lakes, a second approach is used to apportion the bottomlands.

Method No. 2: The Thread Line Approach

For noncircular or oblong lakes, submerged property lines are determined using the “thread line” method. With this approach, one or more so-called “thread lines” are drawn through the geographic middle of the lake between two endpoints. The thread line is then used to draw property lines to the shoreline.

In an oblong lake, for example, the first step is to draw a line long ways through the middle of the lake. Each riparian owner’s respective underwater property line is then identified by drawing a line that starts at the shoreline boundary between adjoining riparian owners and meets the thread line at a right angle. A crude illustration is included below.

The red line is the thread line. The blue lines are the individual lines that apportion each riparian owner’s respective bottomland boundary. As you can see from the illustration above, there comes a point at the ends of the lake where lines can no longer be drawn from the shoreline boundary to the thread line at a right angle. At this point, the pie approach described above is utilized to divide the bottomlands, with the end of the thread line serving as the center point. The green line shows how this works.

Unfortunately, there is no clear-cut rule that governs where or how to draw the thread line. The Michigan Supreme Court has explained that no fixed rule has ever been established for division of the bottomlands in inland lakes, but the overriding goal at common law is to secure an equal share of bottomland ownership for each riparian owner, in proportion to his or her percentage share of lake frontage. Each case depends on its own peculiar circumstances and facts in order to equitably apportion riparian rights to riparian landowners. If that goal cannot be accomplished by the thread line method, some other method might be necessary.

Given this loose definition of equitable apportionment, reasonable people can come to different conclusions about where and how the thread line should be drawn to accomplish this goal. When legal disputes arise involving riparian property lines, it is often necessary to engage the services of a surveyor experienced in riparian bottomland surveys.

  1. Access to water from a public road

Michigan is a water wonderland. Not only is Michigan the Great Lakes State, it also has more than 11,000 inland lakes and countless miles of rivers and streams. It is difficult to identify another state where water-related recreation opportunities are so varied and esteemed by its citizenry. The lake frontage surrounding Michigan’s big inland lakes (Torch, Higgins, Houghton, Burt, Mullet, Crystal, and Walloon among them) began to be developed between 1900 and 1925. The virgin pine forests of northern Michigan had been logged, and developers from Detroit and Chicago, already familiar with Michigan’s spectacular lakes and streams, began to acquire large tracts of land from the logging companies and then subdivided them into smaller parcels. Often, the subdividing was done via the Plat Act.

The typical turn-of-the-century northern Michigan lakefront subdivision was laid out on a plat with a series of blocks. Each block was then divided into rows of lots and bordered by streets. Additionally, many of these plats also were designed with a lakeside boulevard running the length of the plat. The streets separating the blocks almost invariably terminated at the water’s edge. One common topic in riparian law involves the extent to which water access opportunities are provided to the public via platted streets and boulevards.

Public Roads and the Platting Process

The platting process previously referenced was subject to governmental approval, and as part of the process, a developer was required to provide a means of legal access to each lot within the subdivision. Access to subdivision lots was usually created by dedication of streets to the public. A dedication is, in essence, a grant by the developer to a public authority that creates a public way. When a dedication is accepted by the public authority, the street subject to the dedication comes under the jurisdiction of that public authority. In the case of lakefront subdivisions, the dedicated roads not only provide access to the platted lots but also potential public access to the adjoining bodies of water. Since the dedicated roads were usually laid out perpendicular to the shoreline, these roads are often referred to as “down roads.” The terminus point of a down road is usually called a “road end.” The dedicated down roads, after coming under public jurisdiction, are available for all members of the public to use. The public’s use typically includes a right to access the water’s surface from the road end. Beyond accessing the water’s surface, there has been much litigation over what other uses the public may engage in at the road ends.

Public Access via Public Road Ends

Since at least 1882, Michigan courts have determined that a platted public road that ends at a navigable body of water presumptively may be used by the public to gain access to the water’s surface. Once a member of the public lawfully gains access to the water’s surface, he or she is free to navigate the entire water surface under the doctrine of navigational servitude. Members of the public with lawful access to the water’s surface may use the water for boating, fishing, swimming, and temporary anchorage.

In Jacobs v Lyon Twp, the developer of the Lyon Manor subdivision dedicated the roads in the plat to the use of the public. The subdivision, which was dedicated in 1902, fronts on the south side of Higgins Lake. The platted roads in the subdivision have a width of 66 feet. Many of the dedicated streets in the plat ended at the water. In 1987, Lyon Township enacted a zoning ordinance allowing all members of the public to moor boats, maintain docks, picnic, sunbathe, and lounge at the road ends. The ordinance did not regulate the number of users of a road end or the number of boats allowed to be moored there. The Lyon Township zoning ordinance was challenged by owners of lots in Lyon Manor whose cottages or homes were adjacent to the road ends. They argued that the public’s use of the road ends as parks and marinas created a nuisance and devalued their property. More specifically, the plaintiffs argued that the road ends were never intended by the plattor to be used for anything more than road purposes. The Michigan Court of Appeals ultimately determined that the developer of the Lyon Manor subdivision did not intend the roads in the plat to be used for recreational activities beyond simply providing access to the water’s surface; accordingly, the Court ruled that the portions of the township ordinance that authorized picnicking, sunbathing, lounging, and boat mooring were invalid.

Lyon Manor subdivision is one of 13 lakefront subdivisions located on the shore of Higgins Lake. The other subdivisions were also platted between 1900 and 1925 and each had numerous road ends. After Jacobs, a series of 12 lawsuits were filed, each seeking a declaratory ruling that the roads in the subdivision could not be lawfully used as marinas or parks. After trial, the cases were appealed to the Court, which consolidated them into two groups. Two opinions were ultimately rendered, one of which was published: Higgins Lake Prop Owners Ass’n v Gerrish Twp.

In the published decision, the Court undertook an exhaustive analysis of the law related to platted public roads and the allowable uses of the road ends by the public. Following closely the Jacobs analysis, the Court recognized that a common public dock located at a road end was within the allowed uses, reasoning, as other courts have, that a dock is a navigational aid to the water’s surface. The Higgins Lake panel, like the Jacobs panel, ruled that the legal presumption is that a road terminating at the water’s edge provides public access to the water, but the burden rests on the party attempting to show that anything beyond mere access was intended; accordingly, the Court ruled that absent evidence of the dedicator’s intent to the contrary, recreational activities such as sunbathing, picnicking, and lounging are not lawful. The Court also precluded the non-temporary mooring of watercraft as being beyond the dedicator’s intent.

Interestingly, neither Jacobs nor Higgins Lake addressed the issue of who owns the riparian bottom lands as extended from the road terminus. Each court reasoned that a determination of actual ownership of the subaqueous land was unnecessary to reach a resolution of the public’s usage rights. While the Jacobs and Higgins Lake panels dealt with public roads, the analysis used in the decisions is equally applicable to private roads and easements. It is the scope of the dedication, as determined by the dedicator’s intent, which dictates allowable uses. A legal presumption is imposed preventing general recreational uses, unless a contrary intent can be established.

Public Access via Public Lateral Roads

The creation of a wide scenic boulevard running along the lakeshore is a common feature of plats on inland lakes in Michigan. The boulevards, often referred to as “lateral roads” by the courts, have widths as great as 100 feet. When the lateral roads run the entire shoreline of a subdivision, none of the lots in the subdivision actually touch the water’s edge. The lots that are separated from the water by the lateral roads are commonly called “front tier” lots.

With regard to public lateral roads, two important legal issues present themselves. First, what water-related recreational activities can the public engage in based on the existence of the boulevard? Second, who controls the riparian land adjacent to the lateral road? Each issue has now been resolved by the Michigan Supreme Court in the matter of 2000 Baum Family Trust v Babel.

The Baum Trust and other plaintiffs were owners of lots facing Lake Charlevoix, but separated from the water by a road that was dedicated to public use in a subdivision plat that was recorded pursuant to the Plat Act. Plaintiffs brought an action in the Charlevoix Circuit Court against William Babel and other back-lot owners, the Charlevoix County Road Commission, and Charlevoix Township. Plaintiffs moved for partial summary disposition against the road commission only, contending that plaintiffs held riparian rights. The trial court ruled that plaintiffs had no riparian rights, and the Court of Appeals affirmed, holding that the plain and unambiguous language of the Plat Act granted the public fee title to a dedicated roadway and that the road commission was in “no way” limited in the type of use it could make of the road. The Michigan Supreme Court granted plaintiffs’ application for leave to appeal.

Consistent with longstanding rules of property in this state, the Michigan Supreme Court held that the property interest conveyed by a statutory dedication under the Plat Act, in a public road that runs parallel to a body of water or watercourse, did not divest the front-tier property owners of their riparian rights. The Court stated that no Michigan decision has ever held that a dedication of a base fee in a parallel road conveys riparian rights to the receiving government entity, and every Michigan decision that has addressed this issue has concluded that riparian rights rest with the front-lot owners.

Regarding the types of activities that the public could engage in upon the lateral road and adjacent shoreline, the Michigan Supreme Court held that all dedications of land to public use must be considered with reference to the use for which they are intended. In Michigan, riparian rights have never been considered among such rights with respect to the dedication of lateral roads. This is in direct contrast to down roads: public ways that terminate at the edge of navigable waters have been deemed at common law to provide public access to the water. However, no decision in this state has ever held that a dedication of a road that runs parallel to the water conveys riparian rights. Accordingly, the Supreme Court held that the jurisdiction of the road commission did not include riparian rights to the road at issue, precluding the road commission from granting public access to the water, as such uses are incompatible with the underlying dedication. Lateral roads may not, therefore, be used for any recreational purpose and may not be used as water-access points. Further, the owners of land adjacent to and separated from the water by lateral roads hold riparian rights in the adjacent waterfront.

Summary

 Hundreds of platted public road ends throughout the state provide the public with legal and meaningful access to navigable inland waters. However, these access points cannot be used as parks or marinas absent a contrary intent expressed in the dedication. Lakeside boulevards and lateral roads provide the public with a scenic view, but general access to the adjacent waters is not allowed.

  1. Unreasonably Long Docks: How long is too long?

There are always people who push the limits of acceptable practices. Often times, to the detriment—and sometimes danger—of others. The same holds true for Michigan lakes and lakefront owners. Motor around any navigable lake in Michigan and you will undoubtedly see at least one instance of this phenomenon, whether it be an excessively long dock, a large raft anchored essentially in the middle of the lake, or the like. Many riparian owners we talk to wonder, is there a limit on the length of a dock or how far out into the lake a swim raft can be anchored?

The Michigan Natural Resources and Environmental Protection Act provides the following provision that seeks to address this question and gives the Michigan Department of Natural Resources and local law enforcement jurisdiction to enforce the relevant standard:

(1) If an anchored raft or other item or material, whether floating free or attached to the bottomland or a shoreline, presents a hazard to navigation, the department or a peace officer with jurisdiction over the body of water where the anchored raft or other item or material is located may relocate or remove it or may order its relocation or removal.

(2) The person who owns or who caused a navigational hazard that is relocated or removed under subsection (1) is liable to pay the actual and reasonable costs of relocation or removal. The department or the law enforcement agency with jurisdiction over the body of water where the navigational hazard was located may send written notice of the relocation or removal under subsection (1) and the associated costs to the person determined to own or to have caused the navigational hazard. If the owner or person who caused the navigational hazard fails to pay the costs within 30 days of the date the written notice is mailed, the costs may become a lien against the person’s property. [MCL 324.80163.]

In short, if the DNR or local law enforcement deems a water-related structure to be a “hazard to navigation,” then the lakefront owner can be ordered to either relocate or remove it. Alternatively, the enforcement officials can just go ahead and move the dock or raft themselves, and then call on the owner to pay the cost of relocation or removal.

But what does it actually mean to say that a dock, boat hoist, or swim raft cannot present “a hazard to navigation”? This is undoubtedly a subjective evaluation that at the very least requires a case-by-case determination. Are there any definitive standards?

Some local municipalities do have ordinance provisions that expressly regulate docks. These regulations limit the allowable length, width, and height of docks, and sometimes even implement certain “set-back requirements” that preclude installation of docks too close to property lines between neighbors. In a few limited instances, municipalities also have ordinances that regulate swim rafts and boat hoists. Although these municipal regulations are more definitive, they are much more selectively enforced and less reliable.

So, what if your local municipality does not have regulation to address such nuisances and the DNR chooses not to act regarding water structures that present a hazard to navigation? Is a lakefront owner simply free to install a dock as far out into the lake as he or she wishes, so long as it is located entirely on that person’s bottomlands? Assuming no state or local enforcement action occurs, an aggrieved lakefront owner could still combat an unreasonably long dock or dangerous swim raft by taking legal action via a special concept in riparian law (based on common law), called the doctrine of reasonable use.

Pursuant to the doctrine of reasonable use, a fellow riparian owner (typically a lakefront neighbor) can bring a legal action against another lakefront property owner if the offending party exercises his or her riparian rights in a manner that unreasonably interferes with the reasonable lake usage rights of the other riparian owners on the lake. There is no definitive limit to how far a dock can extend or a swim raft can be located from shore, but generally speaking, such items cannot unduly interfere with navigability or the rights of other riparians to reasonably use their respective riparian properties.

Groundwater, and the Waters of our Fragile Lakes, Rivers, and Streams are Subject to Contamination by Failing Residential Septic Systems

Groundwater, and the Waters of our Fragile Lakes, Rivers, and Streams

are Subject to Contamination by Failing Residential Septic Systems

by Scott Brown

MWA E- Newsletter Editor

 

Attributed to the fact that Michigan continues to be the only state within the United States of America that has not yet enacted a state-wide law requiring regular septic system inspections, and to the fact that only eleven out of eighty three, or 13% of counties in Michigan have enacted local regulations that require regular septic system inspections, hundreds of thousands of failing septic systems continue to be a major source of e-coli and human fecal bacteria laden raw sewage that contaminates ground water, and renders the waters of many our lakes, rivers, and streams unfit for total contact water sports such as swimming or snorkeling. The steadily escalating environmental and public health associated problem is derived from that fact that approximately 20%, or 280,000, of the 1.4 million septic tanks that were constructed in the 1950’s and 1960’s throughout Michigan are now failing. The problem has also been exacerbated by the fact that many Michigan homes, and their now severely antiquated septic systems were built prior to the construction of sewer systems that now serve even the smallest of towns and villages.

Septic systems, otherwise known as on-site wastewater disposal systems, are designed and installed in order to manage and treat the waste generated by toilets before it reaches ground water. In a properly designed septic system, the septic tank serves to remove larger solids from wastewater. Wastewater that flows out of the septic tank is saturated with contaminants that must be removed before the water can safely be combined with surface and/or groundwater. Public health issues stem from the fact that septic tank effluent contains large concentrations of toxic micro-organisms that are capable of making people sick. Moreover, the organic matter present in wastewater effluent creates bad odors, and contains algae growth stimulating nutrients (nitrogen and phosphorus) that can have a negative impact on aquatic ecosystems. Properly designed septic systems include a disposal field comprised of a mixture of sand, silt, and clay that are often referred to as loamy soils that act to successfully treat bacterial and inorganic compounds. Phosphorus that is produced within the household that passes through the septic tank is also captured within a properly designed disposal field’s soil.

On-site wastewater disposal systems continue to be installed in support of residential and commercial development that occurs in rural settings where sanitary sewer systems are not available. According to Michigan State University Extension, when an on-site wastewater disposal system is correctly located, properly designed, carefully installed, and properly maintained, they are capable of serving as effective waste disposal systems that are economical and that do not pose a threat to public health or to the fragile ecosystems of surrounding streams, rivers, and lakes.

Michigan’s on-going failing septic system crisis is best exemplified by Kent County where a volunteer only septic system inspection program allows an estimated 11, 250 failing residential septic systems distributed throughout the county to leak approximately one million gallons of raw sewage into vulnerable groundwater supplies each day. In inland lake inundated Oakland County, as another prime example, where public health threatening cases of e-coli contamination of rivers and lakes are reported on a more and more frequent basis, and where county officials have also yet to establish a program that would mandate regular septic system inspections, approximately twenty-five to thirty percent of the 100,000 septic systems located in Michigan’s most affluent county are known to be leaking. The gravity of the situation is also effectively illustrated by the fact that the results of a 2015 study conducted by Michigan State University researchers on sixty-four Michigan rivers revealed that concentrations of e-coli that were higher than U. S. Environmental Protection Agency permitted water quality standards. The significance of the issue is also amplified by the fact that the Michigan Department of Environment, Great Lake, and Energy (EGLE) reports that approximately one half of Michigan’s thousands of miles of rivers and streams suffer from concentrations of toxic e-coli that exceed minimum water quality standards.

Representing a major environmental and public health issue that promises to escalate in significance as increasing numbers of septic systems fail and begin to leak with the passage of time, past efforts to enact legislation that would have established a meaningful statewide standard for how septic tanks are designed, built, inspected, and maintained have sadly disintegrated in the face of arguments suggesting that in addition to treading on individual property rights, regulating septic tanks in a manner that would require regular inspections and maintenance would be too costly for homeowners, over burden local health departments, and make it more difficult to sell homes.

Currently under consideration by Michigan’s state legislature, the latest attempt to establish a statewide septic code comes in the form of House Bill 4479 and House Bill 4480, and Senate Bill 299 and Senate Bill 300. The proposed legislation seeks to mandate periodic septic system inspections, and would require homeowners to repair septic systems that are identified as faulty. The proposed legislation also mandates the creation of a statewide septic system inspection tracking database, and also would establish a septic system inspector certification program.

For more information on how failing septic systems are capable of degrading our precious freshwater resources, visit the U. S. EPA’s web page entitled “How Your Septic System Can Impact Nearby Water Sources” . The always wise, inland lakes preservation focused folks from northwest Lower Michigan’s Glen Lake Association have also created a septic smart webpage that contains valuable information regarding the proper maintenance of septic systems.

Resolution of the Michigan Waterfront Alliance that the MDNR remove the suspension of relocation to control Swimmers Itch

Whereas, The state of Michigan has a responsibility to its residents to control health issues, and

Whereas, Swimmers Itch (SI) is a problem in many lakes in northern Michigan, and

Whereas, Common Mergansers are known to be the primary source of Swimmers Itch in northern Michigan lakes, and

Whereas, Relocating common merganser duck broods has been an extremely successful method to control SI, and

 Whereas, current scientific relocation practices call for relocating wild birds from one wild bird location to another wild bird location thereby not significantly affecting the populations at the relocation , and

Whereas, Common Mergansers are not known to be affected by Avian Flu, and

Whereas, Common Mergansers are not known to be drawn to commercial flocks because they eat minnows, not grain, and

Whereas, the suspension of relocation is now known to cause a return of great consequence to lakes that have spent hundreds of thousands of dollars to use relocation to keep their lake’s cases of SI to a minimum, and

Whereas, known to have significant SI cases have been known to face severe economic losses, and

Whereas, If severe cases of SI are allowed to return to lakes that have significantly reduced the health problem to citizens,

Be it resolved that the Michigan Waterfront Alliance strongly urges that the MDNR remove the suspension of relocation permits and allow lake organizations to once again protect the residents of and visitors to their lakes from this acute health hazard.

The Board of the Michigan Waterfront Alliance