News

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

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

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.

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

WHEREAS, 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

WHEREAS, 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,

WHEREAS, 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

WHEREAS, 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,

WHEREAS, 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,

WHEREAS, 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,

WHEREAS, 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,

WHEREAS, 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

recommendations 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.

Representatives from the Recreational Boating Industry and MI Department

of Natural Resources Share Sharply Contrasting Perspectives

Regarding Criteria for ‘Safe and Responsible’ Operation of Wake Boats

by Scott Brown
MWA Director

As indicated by the fact that almost all of the eighty seats available in Room 134 of Michigan State University’s Brody Hall were occupied by registration fee paying attendees, and by the ultimately friendly and constructive tone that defined the exchange of ideas and differences of opinion that occurred throughout the “Current Perspectives on Wake Boats” themed session, by all important measures, MI Chapter, North American Lake Management Society’s (McNALMS) Friday, December 1, 2023 / 11:00 AM to 2:00 PM Lunch and Learn event was a great success!

Following a simple but a tasty sandwich, soup, salad, coleslaw, chips, and cookie (and don’t forget the great chocolate brownies!!!) lunch, McNALMS President Melissa DeSimone introduced and welcomed the first speaker of the day – Michigan Boating Industry Association Executive Director Ms. Nicki Poulan. The first of two speakers presenting the recreational boating industry perspective on wake boats, Ms. Poulan first reminded the audience that with 850,000 + registered watercraft, and 1,500 boating related sales and service focused businesses with annual sales valued at $11.7 billion, Michigan represents the United States third largest marine market. Ms. Poulan also emphasized the pro-active role of the Michigan Boating Industry Association (MBIA) in funding and promoting a statewide campaign dedicated to reminding wake boat operators to “wake responsibly”, and also highlighted the fact that in addition to contributing to efforts to help thwart the spread of exotic aquatic invasive species by supporting a Clean Marina Program, MBIA also helps educate Michigan’s boaters about the need to always “Clean, Drain, and Dry”.

The recreational boating industry perspective regarding safe and responsible operation of wake boats was also presented by Ethan Hellier, Water Sports Industry Association Midwest Government Affairs Manager. In addition to focusing upon the considerable economic contributions of Michigan’s flourishing boating industry, a significant portion of Ethan’s presentation relied upon the findings of a scientific study whose results suggest that the potentially harmful impacts to shorelines and shoreline infrastructure caused by the high energy wakes generated during wake boarding or wake surfing can be substantially negated by operating a minimum of (only) two hundred feet from shore. Each of the recreational boating industry representatives suggested that along with operating a minimum of two hundred feet from shore, wake boat operators can “wake responsibly” by avoiding repetitive passes, and by keeping music at “reasonable levels.” See the Water Sports Industry Association Wake Responsibly graphic that appears below.

Supported by a MI Department of Natural Resources fisheries staff authored Power Point presentation entitled “A Literature Review of Wake Boat Effects on Aquatic Habitat”, MI DNR fisheries biologist Dr. Joe Nohner provided an attentive Lunch and Learn audience with a substantially different perspective regarding what responsible wake boat operators must do in order to help ensure that the high energy wakes produced by their extraordinarily heavy watercraft do not harm shorelines, shoreline-based infrastructure, or cause re-suspension of bottom sediments. Sharing with the audience the peer reviewed results of a significant number of scientific studies that have been conducted in recent years to better understand the potential impact of wake boats on aquatic ecosystems, Dr. Nohner’s scientific                                                                   research-based presentation concluded with his discussion of “best operating practices” that “minimizes harm to the natural resources and property of Michigan citizens”.

MI Department of Natural Resources Recommended Wake Boat Best Operating Practices:

1. Boats operating in wake-surfing mode or wake-boarding mode, during which boat speed,
   wave shapers, and/or ballast are used to increase wave height, are recommended to operate at
   least 500 feet from docks or the shoreline, regardless of water depth.
2. Boats operating in wake-surfing or wake-boarding modes are recommended to operate in
   water at least 15 feet deep.
3. Ballast tanks should always be drained prior to transporting the watercraft over land

United States District Court Judge Paul Maloney ruled on Monday, November 27, 2023 that the earthen embankment spanning both the Tittabawassee and Tobacco Rivers located in Midland and Gladwin counties otherwise known as the Edenville Dam collapsed on Monday, May 19, 2020 in response to heavy rainfall as a direct result of poor maintenance and lack of need repairs. The decision rendered by Judge Maloney affirms that the Michigan Department of Natural Resources and the Michigan Department of Environment, Great Lakes and Energy are entitled to $119.8 million in damages from the owners of the dam in compensation for damage to fisheries and mussel habitat.

Widespread flooding caused by the catastrophic failure of the Edenville Dam is known to have caused more than $200 million in damage and forced the emergency evacuation of more than 10,000 people at the time.

It is also important to note that both Wixom Lake, the 2,600-acre reservoir lake created by the Edenville Dam, and 1,250-acre Sanford Lake, the reservoir lake formed by Sanford Dam that failed after being overwhelmed by the massive wall of water that flowed violently downstream when the Edenville Dam failed, ceased to exist as manmade lakes due to the loss of their impounded waters.

Full article here.

by Scott Brown

MWA e – Newsletter Editor

The freshwater that lies beneath the earth’s surface that is often referred to as groundwater has served as a vital life sustaining resource on earth for millions of years. In the modern era, rural communities, businesses, farms, and private residences located a long distance from lakes, rivers, streams, or urban water systems depend almost entirely upon groundwater wells for fresh potable water. In the past one hundred years, however, ground water consumption in many areas of the United States, and in particular areas that support intensive agricultural or mining operations, has surged as progressively more powerful and effective technological means are used to extract and consume greater volumes of groundwater. Simply put, in many areas of the United States groundwater is being extracted at rates that mother nature in all her glory is not capable of restoring. It is important to note that the United States Geological Survey reports that approximately 10% of the ground water aquifers in the United States fell to their lowest level on record last year.

In a recent interview with the New York Times, Don Cline, United States Geological Survey associate director for water resources indicated that “there’s almost no way to convey how important this issue is…” In Kansas, for example, ground water aquifer depletion has already resulted in a significant reduction in the amount of corn that an average acre is capable of producing. In Michigan’s Ann Arbor township, groundwater wells serving homes, businesses, and farms are failing at a steadily increasing rate due to the extraordinarily high volumes of groundwater that are being extracted by a local aggregate mining operation. Causing local groundwater aquifers to drop to record low levels, the fact that the mining operation is paying to lower, and/or to otherwise restore the groundwater wells of those negatively affected by their operation is of little or no consolation to residents, business leaders, and state and local government officials who view progressively depleted groundwater aquifers as a significant challenge.

Local governments, and/or planning commissions charged with reviewing and/or approving permit applications from those proposing to conduct aggregate mining or other high volume groundwater consumption operations in a particular area need to be acutely aware of the fact that such operations are capable of having a significant influence on local groundwater aquifer levels. Local officials charged with making decisions regarding large scale groundwater extractions would be well advised to conduct a hydrologic study of the area under consideration before approving high volume groundwater withdrawals. Local officials charged with making groundwater extraction related decisions in areas hosting inland lakes that rely on ground water as their primary water source should also be mindful that lower ground water aquifer levels may also equate to lower inland lake levels.