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May 2022 Newsletter

In This Issue:

  • 61st Annual Conference - This Friday!
  • Public Trust Doctrine applies to groundwater?
  • Upcoming events next week - mark your calendar
  • Michigan Inland Lakes Convention - save the date
  • Permits...What's up with EGLE Permits? Part VII
  • Cloudy water? Invasive plants? Too much muck?
  • MDNR Fisheries updates and opportunites
  • In case you missed it...
We plan to host over 200 people this weekend at Crystal Mountain Resort!
If you haven't already registered and you're still thinking of attending,
we will have walk up registration available.
Hotel rooms at Crystal Mountain are already booked up for the weekend but you may be able to find other rentals in the area.

Check out our official Conference Program, Welcome Back Together!

Public Trust Doctrine Applies to Groundwater?

By Paul J Sniadecki, MLSA Board Director
 

Believe it or not, the answer is: Not yet!


The Public Trust Doctrine, derived from English common law, provides that some resources are so central to the public good that governments can never convey them outright. The doctrine was imported to the U.S. in the 1892 case of Illinois Central Railroad v. Illinois. In Michigan, the waters of inland lakes and streams are held in trust by the state, as provided for by the Michigan Constitution. 

However the Michigan Supreme Court and the Michigan Appeals Court have expressly held that the public trust doctrine does not apply to groundwater and other non-navigable waters in Michigan. The Michigan Supreme Court has stated that the “public-trust doctrine applies only to navigable waters and not to all waters of the state.”

There is a group of legislators who are seeking to change that partially based on the 81,000+ public comments protesting Nestle’s water withdrawal plans. State Representative Yousef Rabhi claims people want something done about it. He stated, “This legislation is to say, look, it's not OK for a company to come to Michigan, pump out our groundwater. Put a price tag on it and make a profit. That's not OK.”

So, on March 22, 2022, HB5953 (Lead Sponsor Rep. Yousef Rabhi) and HB5954 (Lead Sponsor Rep. Rachel Hood) were introduced to require Michigan to extend the Public Trust Doctrine to Michigan groundwater. In turn this would help protect Michigan lakes and streams from adverse withdrawals which can impact lake levels and stream flows. Each House Bill has over 28 co-sponsors. The bills were referred to the Committee on Natural Resources and Outdoor Recreation but no hearing dates have been scheduled.

Mark your calendar for these important events next week:


Tuesday, May 10
MiCorps CLMP Virtual Training - If you are new to the Cooperative Lakes Monitoring Program or just want to brush up on your parameters, register for this training. This is also the deadline to enroll in the program for the 2022 season, we hope to see you there!

Wednesday, May 11 at 12PM
Join the West Michigan and JLW CISMAs for a virtual seminar - Source to Sink: Aquatic Invasive Species Mangament Efforts Within the Grand River Watershed. Register here.

Wednesday, May 11 at 6PM
St. Joseph County Conservation District Annual Meeting - Lake Ecology and how we influence the health of our lakes. For more information and to reserve an in person seat call Carolyn Grace: 569-467-6336 ext 5

Thursday, May 12 at 9AM
NotMISpecies webinar - Clean it up, drain it out, dry it off: Boating hygiene for the 21st century. Register here and also check out recordings from previous webinars in this series.

Permits… What’s Up with EGLE Permits? - Part VII

By Paul J Sniadecki, MLSA Board Director

This article continues our focus on EGLE permits that riparians might find of interest. We will occasionally provide info about permits issued, or denied. We are also providing updates about contested permits challenged by various groups in the contested permit process through the Michigan Office of Administrative Hearings and Rules (MOAHR). 
 

The permits/cases of interest in this article are:


APPLICATION FOR MARINA PERMIT – MiWATERS #HPC-JEM9-EXPBJ, HUTCHINS LAKE: This application involves the request to install a new marina that includes permanent and seasonal docks/piers with finger docks/piers, and wetland fill within Hutchins Lake, Clyde Township, Allegan County. The marina is intended for use by multiple families/land owners. It is not a commercial marina in the traditional sense. EGLE does not require permits for seasonal docks/piers placed by riparians on their bottomland, and used only by the close immediate family of the riparian. However, once non-family members use a common dock/pier, then a permit is required by the Michigan Natural Resource and Environmental Act (NREPA).
The first public notice for the approximately 150 foot long ordinary high water mark (OHWM) permanent and seasonal dock/pier, and wetland fill, was posted on March 18, 2022. Only written comments were invited no later than April 7, 2022. No public hearing was scheduled, but EGLE reserved the right to conduct such a hearing. A few people in the Hutchins Lake area, including the Hutchins Lake Improvement Association,  submitted comments and raised numerous concerns such as: navigation safety; destruction of wildlife/fish habitat; no reasonable alternative analysis; no carrying capacity study for the well developed and small lake; anti-funneling/key-holing impact; etc. The comments also raised concerns that the marina would impact the findings in the Michigan Department of Natural Resources and Environment Report – 2009-63 Status of the Fishery Resource. Subsequently, EGLE decided to schedule a public hearing that is set for May 9, 2022 starting at 6pm.  

CAFO – MOAHR Docket # 20-009773: This appeal involves the new CAFO (Concentrated Animal Feeding Operation) permit requirements issued by EGLE on April 1, 2020. For analysis and background, please refer to Parts 1- 3 of this series in the NEWS section of our website: https://mymlsa.org/news/
This matter is now in the post-hearing process. The parties are preparing post hearing briefs and reply briefs, with the deadline set for the first week of July 2022. The matter is complex and a proposal for decision (PFD) by the Administrative Law Judge will probably be issued sometime before the end of calendar year 2022. 

NEW BOATING ACCESS SITE (BAS) – MOAHR Docket # 16-015208: This case involves an application by the Michigan DNR to fill just under a half acre of Eagle Lake and construct a totally new BAS without any DNR-provided disinfection/decontamination station for the control of aquatic invasive species (AIS). The matter was contested in the MOAHR forum for contested permits. As this newsletter goes to press, the final decision by the EGLE Director has not yet been issued, and has been pending the final agency decision since October 21, 2021.

Cloudy water? 
Invasive plants? 
Too much muck? 

Kathy David, State of Michigan Nonpoint Source unit
 

What is Nonpoint Source, you ask?

Nonpoint Source (NPS) pollution is caused when rain, snowmelt, or wind carry pollutants and nutrients off the land and into lakes, streams or wetlands. In a lake community soap from car washing, fertilizers from our lawns, and oils and gasoline from our boats, mowers, and cars can enter the lake and cause cloudiness of the water, invasive plants to grow, and muck to accumulate on the lake bed. This makes the lake look dark and dirty. 

Want clean, clearer water to swim in and beaches free of muck and weeds? It starts with small steps you and your neighbors can take on your lake property. Start by getting the lake “picked up”. Keep your shoreline and public areas free of wind blown plastic bags, bottles, and trash. Maintain your watercraft away from the shoreline so gas and oils don’t end up in the water. Wash your cars and boats on the lawn away from the lake so soapy water soaks into the ground. 

The purpose of my workgroup, NPS, is to help the public improve their lakes and streams water quality. We have a variety of publications to help you find small steps you and your neighbors can take to make a start towards improved water quality.  Three terrific ones listed below describe the problem, steps you can take to start cleaning up the lake, and how you can design your landscape and lawn to help keep pollutants out of the lake.  Once you’ve taken some steps on your property to help improve water quality, you can begin to enjoy your lake like the folks in this final publication recommendation: Shoreline Living magazine.

Another way you can help your lake is by getting to know and work with your local watershed group. Many volunteer activities are available that you may get involved with or, simply look over their website for ways to improve your property. If you have additional questions, please contact the Nonpoint Source staff assigned to your county: Nonpoint Source Staff Map.
 

State Regulations involving Michigan inland lakes

Besides the assistance and resources offered by the State through NPS, there are some regulations that apply to construction projects at lake shorelines. Even small projects like installing a permanent dock or controlling erosion at your shoreline can have impacts on the fish and wildlife that share the lake with you. Because the actions one person takes on a lakeshore can have effects on all people and animals that share that lake, the State of Michigan has enacted the Part 301 Inland Lakes and Streams act that lake front property owners should be aware of. Inland Lakes & Streams Protection

Part 301, Inland Lakes and Streams regulates all earth moving and construction activities at and waterward of the ordinary high water mark. This means a permit may be required for any project you wish to do at your shoreline. But because some projects are so prevalent, the State has created Minor Project categories for commonly performed projects, such as permanent docks and shoreline erosion control. The document at the link below will help you determine if your project will require a permit. Does my Project Require a Land and Water Interface Permit?

The following are typical projects regulated under Part 301. Please note: The following is only a partial list of the most common projects associated with inland lakes and streams. Other types of activities may also require permits. 

Shore Protection: Because shore protection structures can have negative effects on natural resources and other shoreline properties, shore protection structures should only be installed when they are needed to address erosion problems and the type of shore protection used should be carefully considered. Because of these negative effects of vertical walls, EGLE recommends the use of natural shoreline treatments.  New shoreline hardening should be avoided where alternate approaches such as plantings and small stone can be used to protect property from erosion. The purpose and benefits of plantings and stone are to provide a natural transition between the open water and upland, while providing habitat.

Permanent Docks or Permanent Boat Hoists: Permanent docks or boat hoists which are left in year around require a permit. Seasonal docks and hoists do not require a permit if they are for private, non-commercial use by a landowner, do not unreasonably interfere with the use of the water by others, do not interfere with water flow and will not be placed in wetlands. Seasonal docks and hoists are those that are removed at the end of each boating season.

Beach Sanding: Placement of sand, pea stone, or other clean fill below (waterward) of the water line requires a permit.  A reasonable amount of sand may be placed landward of the water line without a permit as long as the sand does not shift the location of the existing ordinary high water mark or the shoreline contour. The sand cannot be placed in a wetland.

Dredging or Excavation: Any dredging below (waterward) of the ordinary high water mark of a lake or stream requires a permit. Dredging of a pond within 500 feet of a lake or stream also requires a permit. A permit is needed for any excavation where the purpose is enlargement of or ultimate connection with an existing lake or stream.

Bubblers: One project we are frequently asked about is bubblers. Bubblers are generally used to keep ice from forming around permanent docks or boat lifts. If attached to a permitted permanent dock or lift, a bubbler does not require a permit.  However, some local municipalities have regulations that ban bubblers. Riparians should be aware that they are taking on considerable personal liability should death or injury result from their use of a bubbler to de-ice an area. Additionally, bubblers should not be used in such a way as to impede navigation by people who are entitled to use the lake – such as using a bubbler to block ice fisherman from accessing the lake. Navigation and fishing are public trust rights and enforcement may occur if these rights are infringed.

Placement of other devices, such as decorative fountains, bottom diffusers, lake aeration, and any device that moves sediment such as the aqua thrusters and blasters are regulated and placement and use of them DOES require a permit. Aqua thrusters and blasters and similar devices cause a dredge and uncontrolled fill of lake bottomlands which can have negative impacts on the public trust, riparian rights, and the environment. In Michigan, these devices are regulated because due to wind and currents, the operator is unable to control where the muck and debris will be redeposited. The muck that is blasted off of one property can drift and redeposit into neighboring properties without their authorization, which makes these devices difficult to permit. Permit applicants should explore alternatives when considering thruster and blaster devices that allow for them and their neighbors to exercise their riparian rights responsibly while having a minimal impact on neighbors and the lake environment.

If you have questions about your rights and permit requirments as a lakefront property owner, please contact the Water Resources Division staff for your county: Land/Water Interface Permitting Staff Map.
In addition to our conference session that will feature Michigan's fishery, there are also some interesting updates from the MDNR Fisheries Division:
  • Fish Stocking: MDNR stocks more than 20 million fish – that's more than 350 tons of fish annually. Species stocked include steelhead; Atlantic salmon, chinook salmon and coho salmon; splake, brown trout, brook trout, lake trout and rainbow trout; as well as lake sturgeon, muskellunge and walleye. Beginning in mid-March and ending in early June, DNR fish stocking trucks travel well over 100,000 miles to stock more than 1,000 locations. Visit the DNR’s fish stocking website at MichiganDNR.com/FishStocking for information on local fish stocking locations.
  • Inland Fisheries Surveys: MDNR fisheries management units completed over 260 fisheries surveys across Michigan in 2021. Specifically, DNR fisheries staff surveyed 152 inland lakes and 115 streams. Want to learn about the DNR’s lake and stream surveys, especially in your part of the state? Contact the fisheries management unit in your area.
  • Sturgeon for Tomorrow: Volunteers are needed in Cheboygan County now through early June to stand guard as mature lake sturgeon head upstream to their spawning sites along the Black River. The Black Lake Chapter of Sturgeon for Tomorrow is working in partnership with the MDNR and tribes to protect the fish from being illegally harvested during the six-week spawning season. Register to volunteer and learn more: Sturgeon for Tomorrow, Black Lake Chapter.
  • The Fisheries Habitat Grant Program:
    Twelve fish habitat conservation projects in streams and lakes across the state will share close to $1.8 million in Fisheries Habitat Grants administered by MDNR. The projects, supported by an additional $1.6 million in matching partner contributions, will rehabilitate and protect valuable fish habitat that provides the foundation for Michigan’s world-class fisheries. Four of the funded projects are identified by the DNR as priority habitat conservation projects.
    The Fisheries Habitat Grant program provides funding for a variety of activities including fish habitat conservation, dam removal and repair, resource assessment studies and access to recreation opportunities like fishing. Funding from fishing license sales, state of Michigan general funds and a settlement with Consumers Energy is distributed through three grant areas: aquatic habitat conservation, dam management, and aquatic habitat and recreation in the Au Sable, Manistee and Muskegon river watersheds.
    Joe Nohner, a resource analyst with the DNR Fisheries Division, said the funded projects will protect and rehabilitate fish habitat across the state, while in many cases also improving public safety through the removal of dams. “These projects are critical to improving and maintaining populations of fishes and other aquatic species,” Nohner said. “They will improve fish migration in over 210 miles of Michigan streams and make these areas safer for people through the removal or replacement of five dams and 11 culverts. Additionally, projects will reconnect northern pike spawning marshes to Stone Ledge Lake, add woody habitat structures to the East Branch of the Au Sable River and the shorelines of Au Train Lake, and improve stream habitat by planting trees to cool water temperatures, reduce erosion and, eventually, provide woody habitat for trout.”

In case you missed it....


Michigan Shoreland Stewards Program:
Does your inland lake property qualify?

Webinar held on April 13, 2022, recording here.
 

Friday, April 29th was the 150th Arbor Day!

MDNR is a cooperative partner in achieving a global goal of restoring and growing a trillion trees through the Trillion Trees campaign.
To further this goal, the DNR has pledged to plant 50 million trees by 2030.
Want to help? 
Plant a tree and add it to an interactive map and learn more about tree planting: MI Trees webpage.
Michigan Lakes and Streams Association, Inc. is a 501(c)3 nonprofit, state-wide organization dedicated to the preservation, protection, and wise management of Michigan’s vast treasure of inland lakes and streams. 

Ready to help us protect Michigan's waterways?

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