Editorial: A stealth attack on Michigan beach-walkers’ rights

Detroit Free Press Editorial – May 19, 2012

Michiganders who love the Great Lakes shoreline will want to keep an especially close eye on their lawmakers as they debate a bill that would stop the Department of Environmental Quality from overseeing what happens on the beaches.

This is the return of a battle that was fought several years ago, when lake levels dropped precipitously and newly emerging plants made a dramatic appearance. In some cases they are merely ugly; in others they block the view of, and even access to, the now farther-away waterfront.

As unpleasant as the plants may seem to the adjacent homeowners and businesses, they serve a long-term natural purpose. Their roots provide erosion control in the event water levels rise again, and they become part of the ebb and flow of coastal wetlands that provide spawning areas, shelter for newly hatched fish and welcome areas for birds, particularly those that migrate.

Both the DEQ and the U.S. Army Corps of Engineers monitor the Great Lakes shoreline, and both require a permit for various degrees of work. The DEQ permit is necessary for mowing the plants, and is routinely granted, along with permission to create a path through them; the Corps’ permit is required for just about any other work beyond mowing or hand-pulling the vegetation, such as bulldozing, dredging and filling.

This might suggest that the state could step aside and leave all the heavy lifting to the Corps. But Michigan has a strong history of ensuring on its own that wetlands remain viable. The fact that Great Lakes bottomlands belong to Michigan and its citizens gives the state another reason to protect the public trust.

But there’s a more worrisome part of the Senate bill that gives all shoreline owners a blanket right “to mow, groom, remove vegetation, or otherwise maintain land above the water’s edge.” That not only puts Michigan on record as allowing carte blanche on land that, except in high-water periods, is well within the public trust. It also sets the stage for arguments that the public has no right to access the land below what’s called the ordinary high-water mark because the owner has the right to maintain it. In other words, it would begin undoing the right of the public to walk the beaches — a right the Michigan Supreme Court upheld in 2005.

If lawmakers want to restrict beach-walking along the Great Lakes shoreline, they need to make that case openly. It is wrong to slip language into bills that beef up the adjacent property owners’ privileges gradually until another case goes to court and beach-walkers find out their legitimate access has disappeared.

Those lands are open and public for numerous reasons, not the least of which is that the ebb and flow of the lakes over decades is part of a natural process that no one can control. Allowing nature to take its course — water one year, plants the next — provides long-term benefits and protections that disappear if the shoreline is sheared and shaped simply to please human aesthetics. And within that space between the ordinary high-water mark and the water’s edge — at least for now — there’s plenty of room for Michiganders to enjoy their precious legacy.