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Peninsula Township recently held a “Road Ends” study session to discuss and clarify what activities are allowed or not allowed on public beach areas at road ends like Swaney Road, Old Mission Road and Wilson Road.
Participants included Peninsula Township Fire Chief Fred Gilstorff, Township Deputies Virnell France and Tony Martinez, Township Planner Jenn Cram, and representatives from the Grand Traverse County Road Commission.
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Also in attendance were several OMP residents who own land adjacent to these public road ends and beaches. They shared some of the activities that had been taking place, such as campfires, beachgoers who spent the day there, and folks who walked along the shore in front of their private land.
Some of the questions that arose at the meeting include: Who owns the land under the water? Can I install a dock in front of my house? Can I anchor my boat in front of someone’s house? What can I do if my neighbor’s dock encroaches onto my property? Let’s dive into it…
What Are Riparian Rights?
According to this info from Dingeman & Dancer in Traverse City, riparian rights are the rights given to waterfront property owners. For inland lakes and rivers, these rights are divided into two categories: surface rights, which outlines who can use the surface of the water for activities like boating and swimming, and submerged rights, such as where docks and boat hoists can be installed.
Are Riparian Rights Different for Inland Lakes/Rivers and the Great Lakes?
Yes. In contrast to inland lakes and rivers (where Riparian rights are determined by a “pie shape” or “thread line” method), the Great Lakes are considered public resources, and access to the surface waters of the Great Lakes is open to public usage. In short, the water in the Great Lakes, as noted by the Michigan Association of Planning, is owned by the general public.
This means that the public is allowed to boat, kayak and fish through the waters of the Great Lakes, and people are allowed to walk along the beach below the Ordinary High Water Mark (OHWM), even if someone owns a house there. This applies to the shoreline around the Old Mission Peninsula, which is, essentially, part of Lake Michigan.
The Michigan Supreme Court’s decision on Glass v. Goeckel in 2005 established the Great Lakes waterfront as a public-trust area (the Public Trust Doctrine) where the public may walk, regardless of private property. (Read more about the Glass v. Goeckel case here.) However, the public-trust area only goes up to the OHWM, which was defined by the U.S. Army Corps of Engineers in 1985 for Lake Michigan as 580.5 feet above the lake floor.
Ok, that’s all well and good, but since most people have no idea where that 580.5 feet lies, and because our water levels around the Old Mission Peninsula can vary greatly from one year to the next, where exactly is the OHWM?
Where Is the Ordinary High Water Mark?
This gets especially tricky when the courts get involved. As mentioned in this story from the Mackinac Center for Public Policy, “if there is no water near a supposed ‘high-water mark,’ how can a judge sort out the features of the local landscape to tell whether water might again exert its influence up to that point? Is it enough that water was there six months ago? Five years ago? Two decades?”
The Center’s story notes that “a readily identifiable boundary already exists: the ‘wet-sand’ boundary championed by dissenting Justices Stephen Markman and Robert Young. This dividing line is truer to the original purpose of the public-trust doctrine, and it is relatively easy to apply.”
So, if you are walking along the shoreline around the Old Mission Peninsula, make sure you are in the wet sand area just to be on the safe side — even though you might see a “water mark” farther up the bank where erosion has taken place due to high water in recent years.
And make sure you keep walking. You’re not allowed to set up a chair or blanket and hang out in that wet sand area.
Can You Sit On a Blanket at the End of Swaney Road or Old Mission Road and Spend All Day There?
As discussed at the Peninsula Township meeting, the answer appears to be “yes.” These are public accesses to the bays and can indeed be used as such. But since these spots are located next to private property (excluding the OHWM), the consensus is to be conscious of the health, welfare and safety of the adjacent landowners. In other words, don’t play loud music that can be heard on the other side of the Peninsula.
And as this story at the West Michigan Environmental Action Counsel notes, you cannot set up a blanket in front of someone’s house on private property, even though you can indeed walk across their beach below the OHWM.
“Regardless of where the OHWM lands, courts in Michigan agree that the public trust doctrine in this case only allows the public to access the private beaches to travel across them, not to sit and stay on the beach which would infringe on private property owners’ rights.” Again, as mentioned above, keep walking.
Can You Anchor Your Boat in Front of Someone’s Private Property?
Again, the answer is yes. You can park your boat or kayak just off the shoreline and be within your legal rights. But again, as mentioned at the Peninsula Township meeting, be respectful of the folks who own the private property above the OHWM, and don’t be disruptive of their health, welfare and safety.
Can You Install a Dock in Front of Your Private Property?
Yes, but the dock must be fully anchored on your property and only yours, and it must not block beachgoers from walking below the OHWM (or “wet sand” area). Also, permits may be required for construction activities such as placement of structures such as docks, boat lifts, or seawalls on all of Michigan’s Great Lakes Bottomlands below the OHWM. Contact the staff at EGLE to check the requirements and permit process for your project. Also, your project may also require a permit from the United States Army Corps of Engineers.
I know there is at least one instance of a large subdivision dock on the Old Mission Peninsula that’s causing distress to its neighboring waterfront owners. I need to do more research and perhaps take it into a new story so this one doesn’t end up being five miles long. But you can read the court documents here.
However, according to this story, common law in Michigan offers riparian property owners the right to install a dock or boat hoist on their bottomlands adjacent to their waterfront property. But when it comes to the length of that dock, common law does not cite a specific length limit.
And, according to the Natural Resources and Environmental Protection Act, no dock or floating raft can impede the navigation of an open waterway.
Some municipalities have regulations regarding docks, and some of this is indeed covered in Peninsula Township’s Zoning Ordinance.
Can You Build a Fence to the Water on Your Shoreline?
No. Since the area below the OHWM is held in the Public Trust Doctrine, this gives the general public the right to use everything below that high point (or as mentioned above, the “wet sand” area). Someone who owns property along the Great Lakes cannot do anything to obstruct that right – such as building a fence or a gate below the OHWM. This can create privacy and security concerns for some lakefront property owners.
What other issues have I missed? Leave comments in the comment section at the bottom of this story.
Also, Peninsula Township has a “Shoreline Regulation Study Group,” which involves a lot more info regarding what can and cannot be done on your shoreline, what permits you need, filling and dredging, maintaining vegetation, etc. I’ll cover that in a future story. (These meetings are posted in the Planning section on the Township Website.)
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Jane. What about individual properties that have enhanced their waterfront with rock break walls that impede traversing the high water mark (i.e. you have to wade to walk the beach).
Somebody else might jump in with info, but it’s my understanding they can’t build anything that would impede somebody walking below that high water mark/wet sand area.
Another question arises when docks have been put in place that stretch across the high water mark/wet sand area, so that it’s impossible to continue along the shore without climbing over the dock or walking farther up onto the beach. What happens then? Is it okay to walk around the obstruction and then go back to the wet sand area?
I’m not a lawyer, but from the research I did for the story, if they impeded that walking area by building something in the public-trust area, it would seem like you could go around it and then back into the public-trust area. Maybe someone more in the know will jump in.
Do you know if you can legally tie up to a private dock that is essentially in public owned water?
It’s a good question – I have no idea. I’m guessing the dock owners wouldn’t be happy, but like you said, it’s in the public-trust water.
What about buoys in the middle of the Old Mission Bay where Haserot Beach is. Some people have buoys almost in the blue water. These buoys are a hazard to other boaters because you don’t see them until you get close to them. Can people really stick a buoy anywhere they want?
What about property owners next to road ends, who install their docks on their own property along that bordering property line, then put their hoists and/or boats on the public side of their dock?
Hi Jane. Pretty good stuff. Here’s something else you may find of Interest. I lived down state on Killarney beach and there was a lawsuit by beach owners in the Bay County area causing the formation of SOS or Save our Shoreline. One of the problems was folks clearing or cutting down weeds on beach areas and clearing growth in front of their waterfront homes. The Arny Corp of engineers got involved since according to them they control all the waterfront on the Great lakes and Bays and the court result was owners are allowed to maintain their beach’s but not destroy root systems.
I never researched it but was also told by the Army Corps rep in Bay city these townships think but do not have any rights to control the Great Lake areas. I was told no one on the waterfront even has a right to have a dock and Boat lift in the water but the Army Corps have allowed it because they are seasonal getting removed and you must seek permits for anything permit. A few months back I received a letter that the Township here was going to come up with rules regarding the waterfront, so I let them know this type of information, but I haven’t heard anything since.
All my best
Denny
Thanks for this, Jane. This was most informative! I had know idea!
No idea – not know!
We’ve had someone riding a fat tire bike on our beach frequently over the past few months. We are getting a permanent ‘track’ on the beach sand. Any idea if this is allowed, or is it just walking that is allowed?
This woman is LYING to people. The “wet sand” bullshit is not recognized in the law. OHWM can be recognized by anyone who looks at a map and were the ebb and flow of Lake Michigan is. Just look down from 300 feet in the air and you can EASILY see where the OHWM is. Look at Google Maps. If your home is on top of a 50 or 100 feet sand CLIFF on Lake Michigan, the ebb and flow of Lake Michigan made that cliff and the erosion underneath, which may be 100 feet wide from the “wet sand” bullshit to the real OHWM. There is a 6 foot high ebb and flow of Lake Michigan over the years. Dont play it safe like a woman, play it real.
Well, I don’t know that I’m outright *lying, Jim, but I tried to find sources for the info noted in the story. There’s a lot of contradictory info out there.
So are you saying that we can walk on the beach below the ordinary high water mark – no matter when that ordinary high water mark occurred? Because in some cases, it would be in peoples’ yards or even their house if they’re close enough to the shoreline. You sound savvy enough to know that our Michigan waters can get super high at times.