Tag: Public Trust

MLive: Cannon Township group gathers to discuss anti-fracking ordinance

Published on June 4th, 2024 by - News

Read the article on MLive here.

May 22, 2013 at 12:45 PM, updated May 22, 2013 at 1:06 PM

ROCKFORD, MI – A group of 15 citizens and township leaders gathered at the Cannon Township Hall on Wednesday, May 22, to create regulations that may limit hydraulic fracturing, or “fracking,” if an oil or gas well is ever drilled in the township.

Jim Olson, a Traverse City lawyer and founder of FLOW (For Love of Water) of Michigan said the session is the first of three he will lead with the goal of developing a zoning ordinance that would limit hydraulic fracturing in the township, located east of Rockford in northeastern Kent County.

Jim Olson, founder of FLOW (For Love Of Water) of Michigan, leads a meeting with citizens at at meeting in Cannon Township on Wednesday, May 22

Jim Olson, founder of FLOW (For Love Of Water) of Michigan, leads a meeting with citizens at at meeting in Cannon Township on Wednesday, May 22. (c) Jim Harger | MLive

“We will develop a package that is ready to turn over to your planner and your attorney,” Olson told the group at the outset of the two-hour meeting.

Earlier this month, the township’s board adopted a six-month moratorium on any “fracking” related activities while the board studies possible restrictions on “ancillary” activities.

Currently, there are no applications to drill oil and gas wells in the township or Kent County, according to the DEQ. Some private and public lands have been leased by oil and gas exploration companies.

“Fracking” pumps high volumes of water, sand and chemicals into oil and gas wells in an attempt to improve their flow.

Though “fracking” has been used on Michigan oil and gas wells for 60 years, environmentalists are concerned because “fracking” on modern horizontally drilled oil wells use millions of gallons of groundwater.

Olson told the group federal and state environmental laws exempt “fracking” activities while local governments are restricted from regulating the practice.

“We don’t take a position on whether fracking is good or bad,” he said. Banning the practice is not legal but local governments can take action to protect their water and air quality.

Banning the practice, Olson said, “is a difficult path to go down.” In fact, the state law says local groups are barred from regulating oil and gas drilling, he said.

But townships can govern “ancillary activities” such as water wells, trucking access roads, “sweetening facilities” that process the oil or gas, chemical and mixing stations and transfer stations, Olson said.

Olson said a special use permit could be developed “to at least let your citizens know what’s coming.”

Cannon Township resident Mary Reusch said she attended the meeting because she and her husband are worried about the possibility of losing the trees in the Cannonsburg State Game Area, which lies next to their home.

“It would break my heart to see those trees come down,” said Reusch, who said her husband walks through the forested area almost daily.

Reusch said she also is worried about the impact “fracking” could have on Meandering Creek, which runs through the 10-acre parcel on which they have lived for the past 13 years.

Cannon Township resident Shirley Kallio said she attended the meeting because a parcel of farmland near her home has been leased for oil and gas exploration.

FLOW leaders also are meeting with citizens in Muskegon County’s Montague Township and Kalkaska this week to discuss similar actions.
Olson, who plans to meet with the group again on June 19, gave the group “homework,” asking them to develop a rational for protecting their resources.

In the greater Grand Rapids area, the only oil and gas well that has permission to “frack” is located in Ionia County’s Ionia Township.

The well, which was drilled last fall on a farm north of I-96 by Texas-based Rosetta Resources, has not yet been “fracked” or completed, according to Bill Mitchell, a geologist with the Department of Environmental Quality.

Why I Volunteer for FLOW

Published on June 4th, 2024 by - H2Olson, News

Hello Great Lakes lovers.

Here I am (at top center) helping out on the Great Lakes Society campaign along with Mattias Johnson (bottom right) Allison Voglesong (center) and Eliza Somsel (left)

Here I am (at top center) helping out on the Great Lakes Society campaign along with Mattias Johnson (bottom right) Allison Voglesong (center) and Eliza Somsel (left)

My name is Justin Sterk and I have recently begun volunteering at FLOW, in downtown Traverse City, Michigan.  As a native of Traverse City, the Great Lakes hold special importance to me and my family, and it is a great thrill for me to be able to begin contributing to the protection of our region’s greatest resource.

As for me, I graduated from Traverse City Central High School in 2007, the University of Michigan in 2012 and am currently serving a year-long AmeriCorps term in Traverse City before starting law school at Wayne State University in August.  I am very interested in legal strategies that can be used to conserve and protect our planet’s natural resources.  My plan is to make a career out of the type of work FLOW does, which is another great benefit of being around the office, learning from FLOW’s incredible staff.

I’ve been here for about a month and a half and have been working on a couple different projects.  One has been the early stages of a program that complements the work of Council of Canadians, a partner of FLOW, and their Blue Communities Program.  A Council of Canadians Blue Community is one that adopts resolutions that

  1. Recognize water as a human right,
  2. Ban bottled water in public places and at municipal events, and
  3. Promote publicly financed, owned and operated water and wastewater services.

A blue community is one that makes a commitment to sustainable water use and resists the ever increasing trend of water privatization.  It is our hope that a Blue Communities type of program can be implemented as part of a package of pragmatic water conservation best practices to assist communities in conserving water in many different areas.

The other research I have just recently begun working on relates to the connection between food production and water health.  FLOW’s goal is to provide information about water’s inextricable linkage to food production, especially as it relates to phosphorous runoff—a major cause of harmful algal blooms—which affected Lake Erie on a massive scale in 2011.  Further, we hope to promote awareness of how climate change increases the impacts on this food and water linkage.

I will try to update everyone on the work I am doing throughout the summer and to provide insight into the kind of work a FLOW volunteer can do.  Have a great day and enjoy our beautiful Great Lakes region.

FLOW Featured on UpNorth TV’s Volunteer Northwest Michigan Program in July

Published on June 4th, 2024 by - Reports & Media Releases

Click here to view and download the full press release PDF

PRESS RELEASE

FOR IMMEDIATE RELEASE

June 27, 2013

Flow Featured on UpNorth TV’s Volunteer Northwest Michigan Program in July

Volunteer NW MITRAVERSE CITY, MI – FLOW, the Great Lakes Basin’s only public trust policy and education center, will be featured on UpNorth TV, channel 2, throughout the month of July, every Sunday and Wednesday evening from 8pm-9pm, and every Friday morning from 9am-10am. Hosted by United Way of Northwest Michigan, the Volunteer Northwest Michigan show highlights FLOW’s innovative programs to ensure the waters of the Great Lakes are protected now and for future generations. UpNorth TV’s feature on FLOW will also be available online.

Steven Wade, United Way’s Executive Director of Northwest Michigan, interviews FLOW’s Chair and President, Jim Olson, Executive Director, Liz Kirkwood, and Communications Designer, Allison Voglesong, about how locals can volunteer with FLOW and take part in protecting our beloved Great Lakes.

FLOW has several upcoming volunteer opportunities. On July 5th, FLOW will participate in DTE Energy’s Green Day during Cherry Festival. Volunteers will assist members of the FLOW staff educate the community about threats to the Great Lakes with a fun and interactive game. Additionally, volunteer positions are available for Blissfest on July 12, 13, and 14; Friday Night Live on August 9; and our Annual Celebration on August 17. Sign up here to volunteer.

Additionally, this TV segment discusses FLOW’s programs, including the public trust education program, water levels program, local government “fracking” ordinance program, and water-energy-food-climate change nexus program. Additionally, Jim Olson, environmental attorney, who has been practicing environmental and water law for more than 40 years, gives an in depth history of water law in Michigan and tells the story of how FLOW evolved from a coalition to a policy and education center.

FLOW’s approach to policy and education for preserving and protecting the Great Lakes centers on the ancient principle of the public trust. The public trust is a key principle that enables citizens and governments to protect our waters as a commons, owned and shared by the public for the use and enjoyment of all. The public trust doctrine is the legal foundation for protecting and maintaining resources such as beaches, navigable waterways and harbors, wetlands and wildlife, tributary streams, and groundwater. Additionally, it protects public uses including navigation, commerce, fishing, boating, swimming, other recreational purposes, and drinking water.

Fishers, boaters, swimmers, beach-goers, and other water-lovers of all ages should tune in to UpNorth TV in July to learn more about how they can work with FLOW to ensure that the Great Lakes are protected for our favorite activities now and for future generations.

The segment will air on Charter Cable’s analog channel, 97, and digital channels, 2 and 992, throughout Northwestern Lower Michigan from Manistee to Cheboygan.

# # #
FLOW is the Great Lakes Basin’s only 501(c)(3) nonprofit public trust policy and education center. Our mission is to deeply educate communities and leaders about the public trust as a solution for sharing and preserving our common waters.

Court upholds permit denial for private boat basin and channel on Long Lake

Published on April 11th, 2024 by - Blog Posts, Reports & Media Releases

Citizen action and public engagement safeguards Michigan waters

Most everyone familiar with the beauty and majesty of Long Lake regard it as an exceptional example of the stunning natural features that are so abundant in Northwest Lower Michigan. The largest lake in Grand Traverse County and the headwaters of the Platte River, Long Lake harbors five exquisite islands that enhance every lakeshore view and vista.

Recently, the Department of Environment, Great Lakes, and Energy (EGLE) received an application for the construction of a boat storage basin that would significantly impair Long Lake’s ecology, shoreline, and wetlands. The proposed project would entail dredging 292 cubic yards of bottomland materials to create a private entrance channel 88 feet long and 33 feet wide.

The dredged channel would provide connecting access to the inland boat basin, requiring the excavation of more than 3,200 additional cubic yards of material landward of the ordinary high water mark. In addition, the proposed project would include a 40-foot-long by 5-foot-wide boardwalk, supported by helical piers, to be constructed across 200 feet of wetlands.

EGLE denied the permit based on those impacts, as well the determination that the dredging would disturb fish habitat and interfere with littoral currents. The permit applicant, the Carrie C. Barnes Trust, appealed, much to the consternation of neighboring lakefront property owners. EGLE’s administrative law judge (ALJ) affirmed the permit denial in every particular.

When the Barnes Trust appealed the ALJ’s decision to EGLE’s Environmental Permit Review Commission (EPRC), FLOW was asked to weigh in. After reviewing the extensive record, FLOW provided detailed comments on the facts and applicable law. The EPRC unanimously upheld the ALJ’s decision.

But the Carrie C. Barnes Trust wasn’t done. The trust filed yet another appeal to the 13th Circuit Court in Grand Traverse County.

The good news is that on Tuesday, April 9, Judge Charles M. Hamlyn affirmed EGLE’s permit denial.

As a result, a project that would have done significant, permanent harm to Long Lake has been averted. And the citizens who would have been most impacted successfully joined together in concerted action to maintain the health, character, and ecology of Long Lake. FLOW commends their efforts and is proud to have supported them.

FLOW’s Legislative Recommendations for Michigan’s 102nd Legislature

Published on March 7th, 2024 by - Blog Posts, Reports & Media Releases

PDF DOWNLOAD: FLOW Legislative Recommendations for 102nd Legislature

As a non-partisan, nonprofit law and policy center, a key component of our mission is to help Michigan’s elected leaders uphold their duties under Article IV, Section 52 of the state constitution, the Michigan Environmental Protection Act, and the public trust doctrine to protect the waters of the state from pollution, impairment, and destruction. Our policy recommendations are responsive to these legal duties, the best available science, and pragmatism.

To fulfill its legal duties in 2024, the 102nd Legislature should prioritize the enactment of four bills

1. Statewide Septic Code

PROBLEM

Michigan is the only U.S. state without a uniform septic code governing the construction, maintenance, and inspection of septic systems. As a result, roughly 338,000 failing septic systems are polluting ground and surface waters with human fecal microbial waste. Extensive research by Michigan State University sampled 83% of the river systems in the Lower Peninsula and found human fecal contamination in 100% of river system samples. The study also found that the primary source of microbial contamination was substandard, failing, or nonexistent septic systems. In addition to harming our natural resources, this septic contamination poses a serious public health problem to the drinking water of nearly 4 million Michiganders who rely on private wells.

SOLUTION

FLOW is working with a diverse coalition that includes public health agencies, EGLE, septage haulers, SEMCOG, MEC, MML, MAC, and other important organizations to address technical issues that are critical for the successful implementation of a statewide septic code. Strategies to overcoming more than 30 years of legislative gridlock are: (1) establishing a reasonable inspection schedule; (2) ensuring county health departments have sufficient resources to administer inspections; and (3) providing financial assistance to septic system owners who may not be able to afford the cost of repairs or replacements. Michigan’s legislature has the opportunity to accomplish what prior legislatures have been unable or unwilling to do—set legal standards for the reasonable oversight of onsite wastewater treatment systems, as every other state has done. Enacting legislation will help identify failing systems, protect groundwater and drinking water wells, support property values, and reduce contaminated wastewater migrating to our lakes, rivers, and streams.

2. Polluter Accountability

PROBLEM

The Michigan Legislature has enacted a number of polluter entitlement laws that prevent state agencies from adequately protecting water resources. These legislative actions include:

  • Elimination of the “polluter pay” law (1995), which effectively shifts the cost of cleaning up contaminated sites (including state waters) from the entities that caused the pollution to the taxpayers that are harmed by it.
  • Reliance on “institutional controls” (2018), which has allowed polluters to leave more than 3,000 legacy sites and new releases of contamination in state waters subject to use restrictions, rather than clean them up.

As a result of these and other polluter entitlements, Michigan now has 24,000 known contaminated sites, including thousands of known and unknown sources of groundwater and surface water contamination. Almost half of these sites are “orphaned” sites with no known responsible party, resulting in the state being responsible for assessing and remediating these sites without adequate funding.

SOLUTION

Proposed bills would hold polluters accountable for the pollution they create and the ensuing harm that it causes. The Polluter Pay Accountability Act will serve to transform Michigan from the Rust Belt to the Blue Belt, with overwhelming public support and a robust coalition backing it.

3. Stormwater Utilities

PROBLEM

Michigan has already suffered immense financial losses due to flooding, and it’s predicted that damages will only rise with the expected increased frequency and severity of storm events. The consequences of flooding are harsh and include harmful algal blooms and chemical pollution, which in turn can pose serious public health risks and trigger beach closures. According to the Western Kentucky University Stormwater Utility Survey, Michigan has a mere twelve stormwater utilities (SWUs), while Wisconsin boasts over 200; and Minnesota, Ohio, and Indiana each have over 100. It’s crucial that we take action to increase the number of SWUs in Michigan to prevent further damage, ensure the safety of our communities, and build climate resilience.

SOLUTION

Adopting stormwater utilities has emerged as a widely accepted policy approach to tackle this issue. The Clean Water Act mandates municipalities to minimize water pollution from surface runoff. Michigan has so few SWUs in large part because of the 1998 Michigan Supreme Court case, Bolt v. City of Lansing, which held that Lansing’s stormwater service charge was structured as an illegal tax and not a “user fee.” FLOW is collaborating with key stakeholders to develop a Bolt-compliant stormwater management utility act that will protect our environment, economy, and water resources. By passing this type of legislation, we can effectively manage stormwater runoff, mitigate flooding risks and beach closures, build climate-resilient infrastructure, and ensure that we have clean water for our families and future generations.

4. Michigan Public Water Trust Act

PROBLEM

Private corporations presently extract and sell public water for hundreds of millions of dollars in profit each year while paying virtually nothing to the state. Michigan has, in effect, allowed a publicly owned natural resource to be commodified. Consistent with Michigan’s long established jurisprudence, the law should recognize that Michigan waters are a public trust resource. Moreover, with a large and increasing number of Michiganders in both urban and rural communities unable to afford to pay their water bills and facing the prospect of water shutoffs, our laws should provide assistance to these communities.

SOLUTION

In the wake of the Flint lead crisis, the Detroit water shutoffs, and the Nestle 2016 water grab, FLOW authored model legislation to protect water quality, advance water equity, ensure that the waters of the State remain a public resource, and annually provide communities and water utilities with over $250 million in annual funding to address water affordability and infrastructure needs. Modeled after the Michigan Natural Resources Trust Fund, the Michigan Public Water Trust Act holds the waters of Michigan as a public trust, designates our citizens as the beneficiaries, and requires the government to act as the fiduciary and to ensure that public trust is protected from harm, impairment, and appropriation.

Large-Volume Groundwater Withdrawals and the Public Trust

Published on January 4th, 2024 by - Blog Posts

A fish kill in Oregon may seem to have little to do with Michigan waters – but if you look closely there is a close connection in law.

As the result of large-volume groundwater withdrawals like that in Oregon’s Deschutes River, western states have documented the serious impairment of streams, their ecosystems, fish, and the public right to fish. Michigan should also undertake this same type of documentation in order to prevent the loss of our own water resources and important public rights in our lakes and streams.

This kind of robust data collection and information can show the connection between groundwater withdrawals and their causal impact on our public trust resources and protected public uses like fishing, canoeing, and swimming. 

Faced with such factual and scientific clarity, most state courts (Wisconsin, Arizona, California, Hawaii) are readily expanding public trust law to limit groundwater withdrawals that diminish flows and levels and water quality on lakes and streams, and cause harm to fish and fishing or other protected uses.

In Michigan, the Supreme Court in Schenk v City of Ann Arbor recognized over 100 years ago that it was unlawful under the common law of groundwater for a landowner—in that case a city—to withdraw and divert water off-tract if this measurably diminished the flow or level of a creek, stream, pond, or lake, or interfered with others’ riparian uses. 

Michigan’s Constitution, article 4, section 52, declares that our state’s water and natural resources are of paramount public concern and interest. Michigan’s groundwater law and the Great Lakes Compact recognize that groundwater, lakes, and streams are a singular hydrological system. There is no ethical, scientific, or legal reason why the impairment of public trust resources or interference with public rights and uses of our lakes should not be ruled unlawful by our courts in Michigan under the common law public trust doctrine.

EGLE’s denial of permit for Long Lake private private marina upheld

Published on November 21st, 2023 by - Blog Posts

The Environmental Permit Review Commission (EPRC) recently made an important decision affecting inland lakes and the public trust doctrine in Michigan.

In a case involving the proposed construction of a boathouse, boat basin, and dredged entrance channel on the 3-acre lakefront property on Long Lake in Traverse City, the EPRC upheld the Administrative Law Judge (ALJ)’s decision upholding EGLE’s decision to deny the permit application based on credible evidence that the proposed dredging would cause adverse impacts to fisheries and recreational fishing aspects of the public trust, as well as fish and wildlife.

FLOW submitted public comments along with the leading citizen group, Lovers of Long Lake, in support of EGLE’s decision to deny the permit grounded in public trust violations and the applicant’s failure to present feasible and prudent alternatives. (Download our comments (PDF).)

Water: Essential for Life, Victim of Politics

Published on November 15th, 2023 by - Blog Posts

By Jim Olson, FLOW founder and senior legal advisor

Recent reports show that four decades ago, Congress was advised that citizens in our cities and towns would face lead poisoning from lead pipes in municipal drinking water systems. Nothing was done. The failure of Congress to address this crisis then and now is a window into the collapse of our society’s shared view that government exists for the common good of all.

A recognized research scientist advised Congress in the 1980s that citizens in our cities and towns would be exposed to lead in drinking water. But as with tobacco, asbestos, agent orange, PFAs, and climate change – the list goes on – government leaders sat and sat and sat again on the lead poisoning threat. Imagine, Congress didn’t act for forty years to address something as fundamental to life and health as drinking water, and it did not act until the lead-poisoning of residents in Washington D.C., the City of Flint, and elsewhere boiled into national outrage.

Behind the lead poisoning and similar health issues is the failure of Congress to restore federal grant funding to communities across America. Beginning in the late 1980s, Congress halted federal grants, monies that had made municipal drinking water safe and affordable since the early 1970s. By the mid-1990s, federal aid turned into massive loans that shifted the financial burden to cities and towns and their resident ratepayers to pay for their drinking water.

The result: grossly unaffordable water bills and a plague of deteriorating drinking water systems, all dumped on the backs of the poor and middle class. This outcome is not surprising given that in 1977 federal funding provided 63% of funding for water infrastructure systems in the United States. But by 2014, this had fallen to 9% – with most of the funding coming in the form of loans to be repaid by local ratepayers.

Politicians too often wait to do anything until there is an emergency or crisis. Then they drag their feet until hauled into court or public pressure becomes too strong to ignore. By the time an emergency exists, the damage is devastating and irreparable, and the costs to fix the problem are magnitudes higher than the cost if the problem had been met head on in the first place. Rather than “win-win,” our leaders chose “lose-lose.”

In the 1980s, deregulation, neoliberalism, so-called free markets and tax cuts, heavily tilted toward the wealthy, became more important to presidential administrations and leaders on both sides of the political aisle than the safety of citizens. Now, this bury-the-problem disease is endemic.

Water is public, not owned by anyone. Water is held and managed by states as sovereign for their people. Why? The reality is that water is essential to life and health and serves everyone. Water must not become the victim or servant of political self-interests and ideology.

A conversation with DNR Director M. Scott Bowen

Published on October 5th, 2023 by - Blog Posts

Governor Gretchen Whitmer appointed M. Scott Bowen as Director of the Michigan Department of Natural Resources (DNR) in September 2023. 

Bowen served as the Commissioner of the Michigan Lottery from January 2008 to February 2017. He also served as the Director of Office of the State Employer and was elected to two terms on the Grand Rapids City Commission.

FLOW asked the DNR director for his views on his new job and priorities.

What do you see as the primary challenges the Department faces?

The challenges I see are built around our most urgent needs in resource management. This includes making sure we are managing for, and being part of the solution to, climate change. We also need to make sure we’re continuing to address the problem of invasive species, and we need to make sure we are paying close attention to fish and wildlife health. Water is critical to our state, and the DNR can help by making sure we protect and enhance water quality through wetland acquisitions, easements and restoration.  We can also restore river connectivity by removing dams where appropriate. We need to continue to expand the DNR workforce and customer base to be reflective of all Michigan’s residents. 

We have a wealth of public lands in Michigan, and we need to make sure we’re taking proper care of those. The same is true of all the infrastructure the DNR manages, from our state parks to our fish hatcheries and trails. Making sure we manage all that infrastructure well is essential. I want to make sure the department has the right level of sustainable funding to accomplish all those goals, so we need to continue to be creative in the way we approach that challenge. I’m sure I’ll identify other priorities as my time in the department continues. 

What has surprised and/or pleased you most about DNR in your early days as Director?

I’ve certainly been pleased by the quality and commitment of the staff. I’ve always admired and respected the work of the DNR, but I didn’t realize until I arrived how many smart, capable people there are working for the department. I’m new to this work, so having those people surround me has been a great support as I get up to speed on the operations of the department and begin to form ideas about what I’d like to accomplish. 

Traditionally, some outside constituencies have often seen a conflict between resource protection and economic development. Which do you think should get more emphasis?

I think it’s both together. The DNR is installing solar arrays at our state parks, fish hatcheries and on other public land. We’re continuing to install electric vehicle charging stations at state parks and other locations to support cleaner energy. Those new technologies are going to create jobs, which is one of the Governor’s stated goals in her Mi Healthy Climate Plan. We want to support and advance that effort in our work. 

What role do you believe DNR plays in defending public trust resources?

Protecting and managing the resources that are held in trust for the people of Michigan is the central role of our agency. We are just temporary stewards of the forests, lakes, streams, fish, wildlife, public lands, history and culture that belong to the people of the state. One of the reason I agreed to do this job is to make sure those resources are left in better shape than we found them for our kids and grandkids.

Defending Public Trust Rights to Enjoy Indiana’s Lake Michigan Shoreline

Published on August 24th, 2023 by - Blog Posts

Guest authors: Kim Ferraro and Kacey Cook, attorneys at the Conservation Law Center

In the 2018 Gunderson case, the Indiana Supreme Court held that Indiana’s Lake Michigan beaches are, and always have been, held in trust by the State as public trust resources, with State ownership extending from the natural ordinary high water mark (where the dune grass starts) all the way to the submerged lakebed.

Save the Dunes, Indiana’s oldest environmental organization, represented by the Conservation Law Center, intervened in the Gunderson case to ensure those public trust rights are protected. Since then, we have been fighting together to protect those same public lands so that future generations will be able to enjoy them too.

The latest battle has moved to the regulatory arena, where we are stepping in to make sure that the Hoosier State actually enforces its own public trust laws and regulations.

Presenting unique challenges, Indiana’s Lake Michigan’s shoreline hosts highly industrialized ports and factories alongside sections of pristine dune ecosystems sheltered within the state and national park. The cause of erosion along this stretch of beach. Who is responsible for addressing it has long been a source of conflict and controversy. The Port of Indiana’s interruption of natural sand accumulation has exacerbated erosion along the beaches to its west, a trend made worse by increasingly severe and frequent storms and fluctuations in the Lake’s water levels.

The Town of Ogden Dunes, which sits along this impacted stretch of beach, wants to finish building a massive armor-stone revetment, which, if allowed, would span the Town’s one-mile stretch of beach and effectively frustrate public access and use along the shoreline. Unfortunately, the Indiana DNR issued a permit allowing completion of the stone wall in June of this year.

Phase I of the Ogden Dunes Revetment (July 27, 2023, E. Jason Wambsgans/Chicago Tribune).

Before approving seawalls and revetments like this, DNR is required by state law and regulation to assess the impacts on navigation, the environment, neighboring properties, and coastal dynamics. The DNR is also required to ensure that these hard structures will not violate the public trust, and if they do, that compensatory measures are taken to mitigate those violations. None of that happened with DNR’s approval of the Town’s stone blockade.  

Accordingly, Save the Dunes appealed DNR’s approval for failing to evaluate the serious threats the structure imposes on the public trust and surrounding ecosystems. In fact, the agency could not have evaluated these impacts because it failed to determine the location of the boundary between public trust and private land, otherwise known as the natural ordinary high water mark. 

The National Park Service also opposes the Town’s plans because of the devastating impact on the surrounding Indiana Dunes National Lakeshore. Based on extensive study of the problem, the NPS confirmed that annual beach nourishment is a more sustainable alternative that would protect the lakeshore and its fragile ecosystem. 

Save the Dunes’ appeal of DNR’s decision is vitally important. 

If Indiana’s public trust laws are not translated into sound regulation and effective enforcement, our collective rights to enjoy Lake Michigan, its beaches, and its natural beauty will be reduced to a centuries-old promise made hollow. 

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For more information on the adverse impacts of seawalls, revetments, and other shoreline hardening structures in the Great Lakes and available alternatives, click here (PDF).

For more information on the Conservation Law Center, Save the Dunes, and the Ogden Dunes case, visit: https://conservationlawcenter.org/blog/press-release-save-the-dunes-challenges-state-for-violating-the-public-trust. 

For more information on the Gunderson case and the Indiana Public Trust Doctrine, visit:  https://conservationlawcenter.org/publictrust.