Can riparian landowners fix their Lake Michigan beach?

By Linda Alice Dewey
Sun contributor

“It begs the question,” remarked Leelanau County drain commissioner Steve Christiansen, “that this is so different from past years, how do we access the beach?”

Christiansen recently responded to a call from a Sleeping Bear Bay resident with a problem common to many riparians (beachfront owners) on Lake Michigan. With the rising water levels, the waves were whacking away at grass covered bluffs, carving a cliff where the vegetation roots—generally beachgrass—were holding on for dear life. To the left and right of a path to the beach stood cliffs two to three feet high that made it difficult to pull a boat or beach items.

It looked like the feds might have to be called in, if the owner wanted to do anything to those cliffs, in addition to Christiansen’s department at the County. Depending on the cliff’s elevation, he would have to pull a permit with the Department of Environmental Quality (DEQ) and the Army Corps of Engineers (ACE) would have to get involved.

With Lake Michigan as high as it is right now, 579.6 feet, that means less than one foot of elevation from the water’s edge would require a DEQ permit if a beach owner wanted to “move around” the sand or remove vegetation. (Read related story in our July 2 edition, “Walking the Lake Michigan beach — a public right, or trespassing?”)

But wait. There’s more.

In 1994, the Department of Natural Resources (DNR) built a ramp on Grand Traverse Bay next to property owned by a family named Peterman, with two jetties on either side of the ramp to protect it. But the jetties blocked sand that would normally wash ashore on the Peterman’s beach, and one year later, the Petermans had lost their beach, including erosion above the Ordinary High Water Mark (OHWM).

They filed suit against the DNR, not only for the loss of their beach, claiming that the government had taken their land, which would be unconstitutional. Again, there was no court consensus. A first decision was overturned on appeal; then that second decision was overturned when the Supreme Court awarded the Petermans not only for the loss of their sand but also found that the government had “taken” the Peterman’s land below the high water mark, and that they must be compensated.

On the other hand, that same year, an environmental act was passed that added severe restrictions to what landowners could do to care for their property. The Great Lakes began to recede, exposing dry land to vegetation. Some landowners began pulling the invasive species, and the government filed suit against them. A group of concerned coastal landowners formed Save Our Shoreline (SOS) to defend what they felt was their right to maintain their beaches.

“We were responding to letters from state and federal authorities [that were] stating that we could no longer maintain our beaches,” SOS explains on its website. “The state asserted that the vegetation appearing on those beaches was normal and that the state owned all shoreland below the elevation of 580.5 feet above sea level. The federal letters asserted that the [Army] Corps of Engineers had jurisdiction of all shoreland below 581.5 feet above sea level.”

SOS took its case to Washington, where it briefed the House Transportation Committee, which directed the corps to cooperate with property owners. It also made presentations to the Michigan legislature. In response to SOS, the legislature passed a 2003 law allowing landowners to maintain their beaches if they pulled a permit from the DEQ. In 2012, the legislature passed a second bill that gave ownership of the land back to the riparian, including the ability to maintain the beach down to the water’s edge. However, that same bill affirmed the public’s right to walk the shoreline up to the “natural” high water mark, which should be easily visible under normal conditions.

“[T]here are two lines of thinking on legal principles for riparian fee ownership on the Great Lakes,” observed Traverse City attorney Jim Olson, president of For Love of Water (FLOW) says.

“1. Owner owns to waters’ edge wherever it is, but the title is subject to public rights and state’s control under [the] Public Trust Doctrine, which protects navigation, fishing, jswimming, fowling rights of public up to OHWM. Or …

“2. Riparian owners owns outright to OHWM, and then a riparian title to the waters’ edge, but state owns as sovereign the bottomlands to the OWHM, in which case the ownership is shared, and riparian’s title is assured to water’s edge no matter who owns the actual soil, because it has title to riparian rights of use of these waters, different from public, such as docks, mooring, withdrawal of water for domestic, farming, etc.”

New laws and decisions could change things again, but for our purposes, how do things stand now? What can a riparian do to make the beach more usable?

First, says Christensen, get your beach surveyed and flagged so you know where the most restrictive line, 581.5 feet, lies. “Everything toward the house from those flags can be moved,” he says, through a permit pulled through Christensen’s office, with one caveat. There must not be “critical dune” or “high risk erosion” areas. Christensen assured us that neither exist on the beach west of Glen Arbor, much of which is private property. Even better, Christiansen suggested that neighbors go together and have it all done together, at one time.

“I would take some photos right away the day they do it,” because once the excavator comes, you might lose some of those flags. Take pics from visible landmarks, he suggest, like from a tree or a hot tub or a patio, so that you have a point of reference that will be there in the future.

Though Christiansen’s permit process is not long and complicated, anything a landowner wants to do to the beach lakeward of the flags will involve the ACE and the DEQ. This permit will take some time to get. “The devil’s in the details,” Christensen warned. “The application has to be filled out exactly right, so I would recommend having a consultant to fill it out. You might have a group of homeowners hire a consultant to work this through.” He indicated that Traverse City has a number of consultants and engineers.

The aforementioned landowner on Sleeping Bear Bay isn’t sure how he will proceed. Surveyors are booked up for at least two weeks in advance, and summer is passing by. Plus, he says, any work he has done to his beach could be changed by one big storm.