Lake Michigan-Huron Water Levels

Marion Kincaid wanted nothing more than to level the mound of sand sculpted by winter winds on her beloved strip of beach bordering Lake Huron in Caseville Township in Michigan’s Thumb. For years she had smoothed the shore with a garden rake until arthritis robbed her of this simple pleasure. Last year she hired a neighbor to groom the property with a small tractor. This made her a criminal by government standards.

On May 24, 2002, Mrs. Kincaid was sued by the U.S. Army Corps of Engineers for depositing “fill material” in “navigable waters” without a federal permit. She now faces penalties ranging from $2,500 per day under the Rivers and Harbors Act to $25,000 per day under the Clean Water Act, the two principal statutes governing wetlands protection.

Thousands of other Michigan homeowners are likewise vulnerable to prosecution for clearing from their beaches the mosquito-infested vegetation and rotted debris exposed by record-low water levels in the Great Lakes. This latest crackdown illustrates the sweeping power of regulators to usurp private property rights.

Lake levels fluctuate dramatically depending upon precipitation and air temperatures. Currently, lake levels are their lowest in three decades, with Lakes Michigan and Huron down by 3.4 feet and Lake Erie by 3.13 feet, according to the National Oceanic and Atmospheric Administration. The sediment exposed by receding waters is fertile ground for vegetation.

By Corps’ standards, these emergent wetlands “provide foraging, nesting, resting, and hiding habitat for multitudes of wildlife and fish species … The stems and stalks of the vegetation disperse wave energy, protecting the shoreline from erosion during storms.”

Consequently, the Corps notified lake-area residents by letter last year that preserving these emergent wetlands takes precedence over their riparian rights.

Homeowners along Lake Huron and Saginaw Bay are incredulous, noting that fish parts and litter festering in the weeds undercut both beach aesthetics and property values. Because they provide a haven for mosquitoes, there is also concern about the spread of the West Nile virus.

Cottage and resort owners are particularly distressed by the impact on summer tourism. Masses of sharp-edged Zebra mussel shells litter the sand, obstructing swimmers’ access to the lake.

In response, more than 1,500 bay-area households have organized as the group “Save Our Shoreline” (SOS) to preserve and maintain lakefront property rights. Joe McBride, an SOS board member, questions regulators’ priorities, given that the patches of vegetation are as transitory as lake levels. “A few clumps of weeds that exist on most beaches have an inconsequential environmental effect,” he says.

Regulators would do far better, he adds, to focus attention on the dumping of raw sewage and chemicals that are triggering abnormal plant and algae growth along the lakeshore.

The Corps’ regulatory authority is indeed considerable — the predictable result of ambiguous statutory language. The Clean Water Act, for example, makes no mention of wetlands or any synonym. It does, however, explicitly require a federal permit to discharge “dredged or fill material into navigable waters.” The intent of Congress, according to John Shanahan of the Heritage Foundation, was to keep waterways open for freight transport.

However, just what constitutes “fill” and “navigable waters” has been broadly interpreted to prohibit virtually any activity on property with even the slightest water content. The result is prosecution of Michigan families who conduct routine beach maintenance, including restoring wind-blown sand to its original location.

Wetlands are important to environmental quality in Michigan. But just as important are rational regulatory priorities. Given the many other threats to the Great Lakes, including exotic nuisance species and sewerage overflows, the federal crackdown on beach grooming in Michigan is wholly unwarranted. It is time for Michigan’s delegation to win from Congress a regulatory reprieve for property owners.

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(Diane Katz is director of science, environment, and technology policy for the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Her recent study, “The Clean Michigan Initiative: An Assessment,” is the first public accounting of Michigan’s largest environmental spending program. More information on environmental issues is available at www.mackinac.org, and on environmental legislation at MichiganVotes.org. Permission to reprint in whole or in part is hereby granted, provided the author and her affiliation are cited.)

Summary

Michigan owners of property along Great Lakes shorelines are being prosecuted under federal environmental statutes for clearing from their beaches the mosquito-infested vegetation and rotted debris exposed by record- low water levels. The crackdown violates property rights and should be addressed by Michigan’s delegation to Congress.

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