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Agenda Update!
We are pleased to welcome Jeff Marr from the University of Minnesota's St. Anthony Falls Laboratory to discuss the newest research on Boat-Generated Wake and Propeller Wash Impacts
We look forward to seeing you at our conference this year, Welcome Back Together after our time apart during the global pandemic! Please visit our conference page for more information about the agenda and to register. Help support this special (half price!) return event with a sponsorship from your business or nonprofit organization, check out our sponsorship opportunities here. Consider an additional donation to MLSA to help us provide discounted registration for all.
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In the wake of the boat wake study
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By Paul J Sniadecki, MLSA Board Director
This article is an update on MLSA’s continuing efforts to follow the science relative to the impact watercraft could have when operating in wake boat mode in Michigan’s inland lakes and streams. Previous coverage on this topic can be found in the MLSA NEWS page on our website.
This past month MLSA provided readers access to the newly released University of Minnesota study relative to the wake generated by recreational watercraft. Back in 2020, the MLSA Board voted to provide significant funding to help launch this important research. The new study found that when operating under typical wakesurfing conditions (in wake boat mode) wakesurf boats required distances greater than 500 feet to attenuate wake wave characteristics to levels equivalent to non-wakesurf boats operating under typical conditions. The findings are important and show alignment with other studies. The study also validates the many concerns riparians have. In fact, groups in New Hampshire have presented the study to that state's legislature for rule change.
MLSA continues to gather information about:
- How far from shore should wake boat mode activity occur?
- In what depth of water is it ok to operate in wake boat mode?
- How much acreage on the water is needed to create a wake boat mode operating area?
- What special aquatic invasive species (AIS) control methods might be required for wake boats being transported between water bodies?
Rest assured MLSA will continue to follow the science to determine, with certainty, what impacts watercraft operating in wake boat mode can possibly have. That effort can then lead to possible policy/rules recommendations to our state agencies and legislature. We are hoping 2022 is the year for data and analysis so next steps can be taken, based on science!
Be sure to join us for our 61st Annual Conference at Crystal Mountain in May to hear Jeff Marr and his colleagues discuss their current and future research on the affects of wakes on our inland lakes and streams.
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MLSA and Amicus Curiae
By Paul J Sniadecki, MLSA Board Director
Since 1961 MLSA has filed several amicus curiae briefs to represent the interests of Michigan riparians. By definition, an amicus curiae brief generally involves a filing by a professional person or organization, that is not a party to a particular litigation, but is permitted by the court to advise it in respect to some matter of law that directly affects the case in question.
In the past 14 months, MLSA has been involved in filing two such briefs in cases before the Michigan Supreme Court (MSC). One was recently decided, and the other matter is in process.
FRASER TOWNSHIP v. HARVEY HANEY and RUTH ANN HANEY
(Supreme Court Case No. 160991, Court of Appeals Case No.337842, Lower Court Case No.16-3272-CH)
MLSA filed a brief in this matter early in 2021. The MSC court decision was issued on February 8, 2022. MLSA filed the amicus because the Court of Appeals (COA) had rendered a decision that applied a six year statute of limitations for actions involving local zoning ordinance violations. The MLSA brief argued that no such limitations applied and also emphasized the importance of local zoning to riparian property owners.
The Supreme Court sided with Fraser Township and MLSA by overturning the decision of the COA. The matter is complicated and we cannot provide in-depth specifics in this newsletter. However, Attorney Cliff Bloom will provide his full analysis and commentary in a future issue of The Michigan Riparian magazine. Be on the look out for his article.
LAKESHORE GROUP et al vs. MICHIGAN DEQ/EGLE
(Supreme Court Case No. 159033, Court of Appeals Case No. 341310, Court of Claims Case No. 17-000140-MZ)
This matter is in process and involves the Michigan Environmental Protection Act (MEPA), MCL 324.1701 et seq. Lakeshore Group contends EGLE violated the MEPA when it issued a permit and the court should invalidate that permit. EGLE contends it cannot violate the MEPA by issuing a permit, and should not be subject to court review.
Because the MLSA Board believes in the importance of MEPA protections, and because the MSC has invited briefs, we voted on December 15, 2021 to file an amicus in partnership with Saugatuck Dunes Coastal Alliance. The brief is in progress and will be filed with the court during March 2022. Future newsletters will provide highlights from the brief.
It is only through membership dues and donations from our members that we have the resources to engage in such important work.
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Sediment discharge in Kalamazoo River sparks new legislation proposal
You can read the full mLive report about the issue and the response from lawmakers here, "Lawmakers shocked at severity of Kalamazoo River sediment crisis".
There are two related bills in the Michigan House and Senate that have been brought before committee to address the lag in response when something drastic like the Kalamazoo River's sediment situation occurs. House Bill 5661 was introduced by Representative Julie Rogers of District 60 and is currently in the Committee for Natural Resources and Outdoor Recreation. Senate Bill 813 was introduced by Senator Sean McCann of District 20 and is currently in the Senate Committee on Natural Resources. Both bills provide emergency authority so state agencies do not need to rely on the courts to resolve issues of this magnitude. We will keep you updated as these bills are revised and come up for vote. So far, MLSA has registered support for the House version of the bill with the Committee for Natural Resources and Outdoor Recreation.
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Fewer criminals on your lake?
By Paul J Sniadecki, MLSA Board Director
The Michigan Legislature has been busy removing criminals from your lake. How did they do it? With legislation, of course!
HB 4149 and HB 4151 were introduced back in February 2021. HB 4149 sought to amend the Natural Resources and Environmental Protection Act (NREPA) to specify that an individual who failed to attach his or her name and address to tip-ups, or fished with more than the authorized number of lines would be responsible for a state civil infraction instead of a misdemeanor. HB 4151 would amend Part 435 (Hunting and Fishing Licensing) of the NREPA to specify that an individual who failed to exhibit a hunting, fur harvester's, or fishing license in violation of a requirement to do so would be responsible for a state civil infraction instead of a misdemeanor. The civil fines can be up to $150 per citation. The bills worked their way through the Michigan House and Senate, and where signed into law by the Governor on February 23, 2022.
There are no doubt practical reasons for dropping the criminal misdemeanor consequences that can result in jail time. For one thing the standard of evidence in a civil infraction is only a “preponderance.” Also, revenue collected from civil fines is used to support local libraries. Additionally, $10 of each civil fine is deposited into the State Justice System Fund. This fund supports justice-related activities across state government in the Departments of Corrections, Health and Human Services, State Police, and Treasury.
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The ice is especially dangerous this month
By: Lon Nordeen, MLSA Secretary & Mark Teicher, MLSA Treasurer
With the coming of spring in a few weeks, there is still a deep layer of ice on many Michigan lakes, ponds, rivers, and wetlands. Please be very careful out there when you are working, fishing, play and walking your dog on the retreating ice!
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MDNR - Ice Safety Tips
- Your safety is your responsibility! There is not a reliable “inch-thickness” to determine if ice is safe.
- You can test ice thickness and quality using a spud, needle bar, or auger.
- Strongest ice: clear with a bluish tint.
- Weak ice: ice formed by melted and refrozen snow. Appears milky.
- Stay off ice with slush on top. Slush ice is only half as strong as clear ice and indicates the ice is not freezing from the bottom.
- A sudden cold front with low temperatures can create cracks within a half-day.
- A warm spell may take several days to weaken ice, and cause the ice to thaw during the day and refreeze at night.
- Ice weakens with age.
- If there’s ice on the lake but water around the shoreline, be extra cautious.
- Stronger the current on the lake, the more likely the ice will give to open water.
- Avoid areas of ice with protruding debris like logs or brush.
- Keep an eye out for dock bubblers or deicers as the ice near these mechanisms will be unsafe.
- Always check the ice and be aware of your surroundings
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Potential for liability
A lakefront home owner, or simply a possessor, such as a renter or person staying for free, can be liable under Michigan law for injuries or death as a result of using a bubbler. To be held responsible and liable by an injured person, or the parent of a drowned child (anyone under 18 years old), under simple Michigan negligence law, there must only be a showing of a duty (such as to keep the premises safe), a breach of duty (the ice, or lack thereof, was not safe, and a resulting injury or drowning.
One can also be liable for such injuries or death based on Michigan premises liability law. Here a lakefront home owner or the possessor of the land who uses a bubbler may be held responsible to any social guest (your friends and relatives) by a showing that the land owner or possessor knew or should have known of the condition caused by the bubbler and should have realized that it involved an unreasonable risk of harm, that the guest would not discover or realized the danger until it was too late and that the guest should have been warned. There is a special rule imposing a higher degree of care when any of the social guests are children.
Under Michigan law a trespasser may even hold a lakefront homeowner or possessor liable for a bubbler. To impose liability here for injuries or death of a trespasser, the trespasser or the surviving family must prove that the riparian or possessor knew or should have known that trespassers constantly intruded in the area of the dangerous condition and that the riparian owner or possessor was actively negligent or created the dangerous condition caused by the use of the bubbler.
Additional theories of liability under Michigan law where a riparian homeowner or possessor may be held liable for injuries or death arising out of the use of a bubbler include a public nuisance, a nuisance per se, a nuisance in fact and a negligent nuisance. A public nuisance is an unreasonable interference with a right common to the general public. Unreasonable interference includes significant interference with public health, safety, peace, comfort or convenience, prescribed by law and of a continuing nature that produces a permanent or long-lasting effect. A nuisance per se is an act, occupation or structure that is a nuisance at all times and under any circumstances. A nuisance in fact is a nuisance by reason of circumstances and surroundings. An act may be found to be a nuisance in fact when its natural tendency is to create danger and inflict injury on person and property. A negligent nuisance in fact is one that is created by the possessor’s negligent acts, that is, a violation of some duty owed to the plaintiff that results in a nuisance. A nuisance in fact is intentional if the creator intends to bring about the conditions that are in fact found to be a nuisance.
Lastly, Michigan law allows for liability of a bubbler under attractive nuisance law. To sustain an attractive nuisance case the injured person or family of the deceased must show that the riparian or possessor knew or had reason to know that children were likely to trespass; that the children (being minors) did not realize the risk involved; that the bubbler’s utility to the riparian and the burden of eliminating the condition were slight compared with the risk to children; and, that the riparian failed to exercise reasonable care to eliminate the danger caused by a bubbler.
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Information about fatalities due to ice incidents from 2017, this was previously shared by MLSA in a newsletter from that season
Total North American fatalities in icy water in 2017 was 52. 43 were due to drowning, most of the drowning victims would have survived if they had flotation, ice claws, a throw rope, a buddy and a test pole of some sort. The remaining nine resulted from a crash. Based on data from Wisconsin, many crash victims are riding fast, at night and with a high blood alcohol concentration.
Activities that resulted in these fatalities included snowmobiling, fishing, playing, working, walking with and without a dog, driving, and skating. Most incidents happened while snowmobiling. Most incidents happened to men and also to persons in their 50s. Five of the 52 fatalities in this country occurred in Michigan.
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Permits... What's up with EGLE permits? Part V
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:
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.
Additional hearing dates and testimony did occur on February 7-9, 2022. Dave Maturen, President of MLSA was asked to testify. President Maturen presented compelling testimony about riparian concerns relative to certain potential CAFO impacts to our watersheds.
This matter is now in the post-hearing process, with the parties preparing briefs in support of their respective positions. The Administrative Law Judge (ALJ) did state this matter is complex and his decision would not be issued quickly.
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 lake has four different AIS species present, and can be viewed as a "predator" lake if exiting watercraft are not properly disinfected/decontaminated. With four AIS already flourishing, the lake can also be viewed as an “incubator” lake if any of the Michigan Watch List AIS Species enter the lake via contaminated watercraft. The matter went to a 3 ½ day hearing in January 2021. ALJ D. Pulter issued a Proposal For Decision (PFD) affirming EGLE’s issuance of the permit with no AIS protections. The appellants filed exceptions as allowed under the Michigan Natural Resources and Environmental Protection Act (NREPA). 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.
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Salt in Church Lake
Research from the Annis Water Resources Institute
Read about the issue Church Lake in Grand Rapids is facing as it acts as a
"canary in the coal mine" for all Michigan lakes.
This article is from Bridge Magazine, written by Reporter Kelly House:
"A Grand Rapids lake and the consequences of Michigan’s road salt addiction".
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Michigan Shoreland Stewards Program Webinar
Does your inland lake property qualify?
Wed, Apr 13, 2022 2:00 PM - 3:00 PM EDT
Register here.
Do you know what the greatest threat to the overall health of Michigan inland lakes is? Did you guess nutrients? According to the National Lake Assessment (NLA), your guess would be wrong. The correct answer is the loss of nearshore habitat – both on the land and in the lake. Luckily for Michigan’s inland lakes, lakefront property owners can help change this trend through the practice and implementation of lake-friendly landscaping and erosion control methods. The MI Shoreland Stewards Program (www.mishorelandstewards.org) is a way for property owners to determine if they are using best practices to protect their lake. Julia Kirkwood, with EGLE’s Nonpoint Source Program and chair of the MI Natural Shoreline Partnership (www.mishorelinepartnership.org/), will discuss how you can use the program to assess your inland lake property, determine if it qualifies, and how you can receive some general recommendations on improvements to your nearshore habitat.
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Are you dreaming of springtime at the lake?
Check out these Smart Gardening Resources from Michigan State Extension designed especially for your shorelands, there are sheets about amphibian habitat, waterfront plants, stormwater solutions, and more.
You can find the full list of sheets available for download here.
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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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