Facing the Reality of a Climate Change along the Great Lakes
Beach erosion photo by Roger Cargill
By Jim Olson
Water levels in Lake Huron and Lake Michigan won’t drop anytime soon. Private waterfront homeowners rush to save their homes from loss. Citizens seek to preserve their public right to a walkable beach along the shore below the natural high water mark, and the State of Michigan and municipalities struggle to save valuable infrastructure for water, sewage, roads, dams, parks, and recreation. (See FLOW’s continuing high-water coverage here).
One of the most controversial struggles pits landowners on the Great Lakes against the public who flock to the beaches for access for fishing, swimming, and strolling along the shore. Landowners rush to gain permits from the Department of Environment, Great Lakes, and Energy (EGLE) under emergency laws to install seawalls or riprap. This hard armoring inevitably impairs, if not blocks, beach-walking and erodes beach and property next door, kicking off a domino effect of one protective structure after another.
Ironically, both landowners and the public suffer losses to rights to use and enjoy these Great Lakes and their shores. No one wins with high water. The erosion of beach and bluffs by wave action is inevitable, and the shore becomes impassable either from obstruction or topographical and geographical features—skilled rock climbers aside, I’ve yet to see a private landowner build a dock or citizen walk the shore of a precipitous clay bank or cliff.
It is time for all of us to face reality—the new normal.
Public Trust Doctrine Establishes and Prioritizes Public Rights to Access Water
Conflicts in this country over the rights of private waterfront landowners and the public have been around since the American Revolution. When Benjamin Mundy took the oysters from the beds Robert Arnold had prepared in the mudflats of New Jersey, the dispute soon ended up in the state’s Supreme Court. In 1821, following common law and custom from England with roots in the Magna Carta, the court ruled that Mundy had a right to walk the bottomlands and gather the oysters, because the waters and bottomlands below the high water mark were held in trust for the public for access, fishing, navigation and sustenance. Not long after, our state courts and the United States Supreme Court recognized the public trust doctrine in all navigable waters.
In 1892, the U.S. Supreme Court held that on joining the Union, a state as sovereign takes title in trust for the public to all of the navigable waters and bottomlands to the ordinary or natural high water mark.[1] As a result, the Court ruled that this trust—known as the public trust doctrine—extended to the navigable waters of the Great Lakes, including Lake Michigan and Lake Huron, scientifically a single hydrologic lake system. Michigan follows this same public trust doctrine.[2]
Under the public trust doctrine, the rights of the public are exclusive and legally superior to private shore owners provided the public use remains below the high water mark and does not interfere with the private landowner’s riparian rights for mooring and docking boats, navigation, and reasonable use of the water in connection with the upland.[3] These public rights include access, navigation, fishing, boating, swimming, and beachwalking,[4] but these rights do not include picnicking and sunbathing; these occupancy type uses must take place at road ends or public beaches. The public trust is perpetual, meaning it extends to future generations, and that the government has a duty to protect the trust and these public rights from interference or impairment by private owners or others. The state title is exclusive to the natural or ordinary highwater mark, and the public trust and public rights cannot be repealed by a legislature because they are embedded in the common law.[5]
But if Mundy had taken anything from Arnold’s land above the normal or ordinary high water mark above the mudflats, he would have been liable for trespass. The shore and land above the natural or ordinary high water mark belongs exclusively to the owner, and the owner has the exclusive rights attached to the soil for docking, mooring, and enjoying access for her or his boats to the navigable waters. Below this high water mark, the public has every right to enjoy protected public trust uses without interference from the owner. It’s often said that the riparian and public rights are to be exercised side-by-side—more aptly put, where possible a principle of accommodation between the public and riparian owners over the use of the common zone between the water’s edge and the high water mark.
It should also be noted that the owner’s and public trust rights often are on the same side against threats from others or natural causes—low and high waters are a case in point. Both the public and private landowners lose shoreline and the enjoyment of public and private rights. But the alignment is not always harmonious. During low water, the beach is wide, in some instances hundreds of feet, so there is little conflict, except for the threat of large-scale diversions of water out of Lakes Michigan and Huron, now prohibited by the Great Lakes Compact.
The Invisible Line Between Private Shoreline and Public Bottomlands
In the last several months, Michigan legislators passed and Governor Whitmer signed amendments to the Shoreland Protection Act (“SPA”)[6] that provide emergency relief for homeowners so they can quickly obtain permits to install seawalls, sheets of steel, or riprap (large, rounded stones) to curtail the effects of unprecedented high water attributable to climate change.[7] However, this law regulates and allows these structures on the shore above the high water mark, not below it, and requires a consideration of impacts on the public trust and neighboring riparian landowners’ shore.
If a landowner wants to install structures below the high water mark, another law applies, the Great Lakes Submerged Lands Act (“GLSA”),[8] which codifies the protection of waters, bottomlands, and public rights under the public trust doctrine. Under the GLSLA, except for seasonal docks and overnight mooring, any permanent occupancy, structure, or alteration of these public trust waters and bottomlands is prohibited except where a riparian owner applies for and obtains authorization based on a showing that the proposed conduct falls within one of two narrow exceptions: (1) the proposed use promotes an improvement of the public trust, such as a public fishing dock or marina, or habitat work; or (2) there is no impairment or interference with the public trust or public trust uses such as, fishing, swimming, or beach-walking. The GLSLA also requires notice and in some instances the consent of adjacent riparian landowners and the local government where the land and waters in question are located.
The conflicts between the riparian owners under the SPA and the public under the public trust and GLSLA are readily apparent. Owners face significant financial and property loss, but the structures block public trust rights and exacerbate erosion and loss of beach on adjacent properties, triggering a domino effect of one owner after another being forced to build intrusive protective structures, casting the damage on to others, the shore, and public trust uses and natural resources.
The right to walk a beach does not end if riprap or a seawall is installed, but it creates a dilemma—walk over the riprap or through the water. If you walk above the normal high water mark, as long as there is immediate evidence of the presence of water or wave action on the riprap or beach in front of it, you are likely protected by the public trust doctrine, and not trespassing, although it is not necessarily safe. If it is impassable, there are two choices: turn back or walk above the seawall or riprap to avoid the danger. In the common law, a person’s trespass is sometimes justified if danger is imminent and the trespass is necessary to avoid it—sometimes called the “choice of evils” defense. But the choice may not avoid a conflict with the owner, should a landowner contest your right to do so. So, if you can ask permission, do so; if not, it’s a matter of good judgment.
It is not only members of the public who have a right to oppose interference with the use of the public trust beach area. An adjacent riparian landowner may also oppose a structure that will worsen the erosion to her or his property. Quite often, adjacent riparians will oppose a seawall or riprap not only to protect their property, but to also preserve their own rights as members of the public to enjoy walking along the beach.
The State of Michigan’s Dilemma during High Water
Given these competing or conflicting positions, the state often faces difficult choices between helping landowners and protecting the public and trust resources. Because the public trust rights are superior, the state must first assure that its choice will do no harm to the public trust; second, the state must determine whether the proposed seawall, riprap, or other structure meets the permitting requirements of the SPA and GLSLA, described above. Generally, this means the structure cannot interfere with or impair the public trust and neighboring riparian property. If there are alternatives to the proposed intervention or interference, the landower would have to implement the alternative so long as it is not cost prohibitive. If possible, the state should seek to accommodate the landowner’s need to protect a home so long as the impairment is kept to a minimum and public trust or public rights are not substantially impaired. In some instances, a well-designed riprap installation using round, smooth stones work best because the multiple curved surfaces dissipate the energy and lessen erosive effects.
Over the long-term, the reality is that high water erodes shoreline along Lake Michigan and Lake Huron year after year. Bluffs recede over time (although not so much in the dry, low water level years), significantly during years of high water, and dramatically during the unprecedented all-time high water levels in 2020 and the foreseeable future. We should also be aware that everyone in Michigan and along Lakes Huron and Michigan faces major damage and loss. So, the best approach is one of balancing and accommodation, if protective measures can be made that do not impair or significantly interfere with public trust resources and rights. This means communication, common sense, and compliance with the SPA, GLSLA, and the paramount rights of the public, including future generations. Communication can be critical for the landowner, because consent from adjacent riparian landowners and local governments may be required. This requires the government, landowners, and the public to understand that the integrity of our shores, beaches, lakebed, habitat, water quality, and fishing come first. In some cases, it may mean moving a home back from the bluff. In others it may mean accepting some riprap that provides necessary protection and minimizes loss of neighboring properties and interference with public passage.
The decision in each case will depend on the circumstances, awareness, and involvement of all neighbors and the public, keeping in mind the overarching public trust principles and the topographical and geographical conditions at each location. In times of high water, if the public keeps their feet in the water or wet the zone created from wave action, the exercise of public trust rights generally will be lawful. As noted at the outset, not every shoreline during high water is safe for any activity. I have yet to see anyone beach-walk the face of a rocky cliff no matter where the water level is. Ultimately, the exercise of public trust rights always turns on personal judgment that it is safe to walk the beach. The same is true for riparian owners.
Climate Change and High Water are the New Reality
High water levels like those in 2020 mean change, now and for the foreseeable future. And, high water levels are not just about beach walking or building seawalls and riprap. Water levels affect parks, breakwalls and marinas, water-dependent or shoreline businesses, near shore or lowland private and community septic and sewage systems, water sources, roads, bridges, dams like the recent failure in Midland County, drainage and storm-water systems, wetlands and floodplains, land use, zoning, and capital expenditures. Existing infrastructure is obsolete, both because of age or failure and the fact that it was designed in an era where rainfall or precipitation was considered stable. Most drainage, erosion measures, septic and sewage systems, and structures are designed for 25 to 100-year back-to-back storm events. As experience taught us with the dam failure in Midland a few weeks ago, the road and bridge damage in the western Upper Peninsula last year, and Manistee County a few years back, precipitation or storm events previously thought to occur every 500 or 1000 years have become far more frequent and intense.
Some massive losses will be unavoidable, but others can be minimized or even avoided. Federal, state, and local governments must enact laws and ordinances that provide for smart planning, land use, water protection, health, and safety—in short, government officials and all of us must accept the reality, and work together to shift to a new paradigm of what we can and cannot do because of the uncertainty of unpredictable extreme weather caused by climate change and natural forces.
We must seek resiliency, for ourselves, others, communities, and the natural world on which our life depends. We must make wise choices about capital expenditures to avoid wasted resources and continuing damage. For example, wetlands that prevent flooding, provide critical habitat for wildlife, and recharge clean water into groundwater or lakes and streams will disappear and become submerged. Floodplains will become wetlands. Lowlands will become floodplains. Or, closer to home on Lakes Huron and Michigan, the government, property owners, and the public can work together to find the best long-term resilient actions through shared cost and responsibility.
We Forget that the Water Cycle and the Life Cycle Are One
If we are willing to face the reality and build resilience into our lives, not unlike COVID-19 or the movement for racial equality that has erupted once more in the last few weeks, we will make it, maybe not with the same expectations, but with greater security of life, property, community, and economy—and with the peace that finally we will face the new reality. This shift had been needed for a long time. Let’s not only protect the public trust in our beaches; let’s protect and respect the entire water cycle as a public trust.
“We forget that the water cycle and the life cycle are one,” Jacques Cousteau famously said. And, at the same time, let’s restore the public trust in government at all levels and in ourselves! Let’s follow the good that can come out of this, no matter where we live or who we are.
Footnotes
[1] Illinois Central Railroad v Illinois, 146 U.S. 387 (1892).
[2] Obrecht v National Gypsum Co., 361 Mich 399 (1960).
[3] Glass v Goeckel, 473 Mich 667 (2005).
[4] Id.; Gunderson v State of Indiana, 67 N.E.3d 1050 (2018).
[5] Id.
[6] Part 323, NREPA, MCL 324.32301 et seq.; see https://www.michigan.gov/egle/0,9429,7-135-3313_3677_3700—,00.html
[7] Id.
[8] Part 325, NREPA, MCL 324.32501 et seq.
