Shoring Up the Public Trust, Not Seawalls, During High Waters on the Great Lakes
By Jim Olson | June 19, 2021
“And it never failed that during the dry years, the people forgot about the rich years, and when the wet years returned, they lost all memory of the dry years. It was always that way.”
—John Steinbeck, “East of Eden”
Flying west in early June, after passing over the still-white peaks and deep gorges of the Rockies, the landscape turned reddish-brown, like recent photos of Mars, with residue of past riverbeds winding and dissipating into nothing. Lake Mead, the lifeblood for the Southwest, is now on the critical care list as the West enters the driest period in 1,200 years. What a contrast with the lush landscape and overflowing waters I’d just left in Michigan.
When I reached Southern California and sat down to write this piece on how we might frame a better way to manage the conflicting interests over today’s high water levels in the Great Lakes, I recalled Steinbeck’s stark observation about the lapse in the nature of Homo sapiens’ memory.
Just eight years ago, in 2013, the Great Lakes hit historically low levels, beaches grew wide, and a chorus of residents, businesses, and communities turned to the state and federal governments for permission to disturb the public bottomlands to recreate beach conditions and extend docks and other infrastructure.
By 2019, the Great Lakes had rebounded to unprecedented high levels, seeming to wash away memories of the recent dry years and stir up a frenzy for state permits to armor the public shoreline with steel pilings and rock seawalls to protect public and private property.
Today, surface waters in Lake Michigan-Huron have receded somewhat but remain much higher than their long-term average. Concerns remain regarding not only high water levels due to climate change but also the impacts of voracious shoreline-armoring on neighbors, the environment, and wildlife, as well as the public trust rights of people to safely access the public shoreline and water.
As I contemplated the more than six-foot swing in Great Lakes levels over just six years, I realized during my stay in California that our swing is not much more than the daily tidal range along the West Coast. Of course, no one builds homes in the Pacific tidal zone. Imagine if the same dramatic change took place each day along Lake Michigan. Natural forces and fresh memories would define the no-build zones for us, too.
In this sense, perhaps the rapid rise in Great Lakes water levels is a memory aid, helping us recall the high and low years and the folly of fighting them both. The roughly 30-year cycle between highs and lows appears to be gone. Instead, we’ve entered uncharted waters: more frequent and intense storms, more extremes, and an unprecedented severity of impacts to shorelines, riparian property, public beaches, infrastructure, and coastal wetland riverine ecosystems.
We must rethink our expectations and prepare for the even more devastating impacts from climate change to come.
First, we need to step back and understand our existing legal and policy framework to dispel unfounded assumptions about the rights of private riparian property owners to armor or obstruct the public shores of the Great Lakes. Based on ancient law adopted by the decisions of the U.S. and state supreme courts, the waters and bottomlands up to the natural high-water mark are owned and held in public trust by the government as sovereign for its citizens. The public trust imposes a high and solemn duty on the government to protect these waters, as well as the bottomlands and shorelines, for all citizens to access, and exercise their rights to boat, fish, drink, recreate, and seek sustenance. This trust benefits all members of the public, so it is paramount to private property rights.
Second, governments must take charge to protect the public trust by regulating any activities that impair it. For example, earlier this year, after consulting with scientific and legal experts, Chikaming Township, a scenic southwest Michigan community on Lake Michigan, passed an anti-armoring ordinance that prohibits the placement of long-term structures or materials on the shore but permits properly placed sandbags or tubes that disappear through natural forces when water levels drop. Likewise, the state denied armoring permits there under Michigan’s Great Lakes shoreland protection laws because the landowners failed to establish they had no alternatives to a structure several hundred feet in length.
We need more state and local leadership to protect the public trust, and stronger public policy and laws to support their actions on behalf of the people.
Climate change and other forces are colliding such that memories of the wet years and dry years — the highs and lows of the Great Lakes — now coexist. With our collective amnesia cured by crisis, we must shore up the public trust, not seawalls, along the Great Lakes shoreline.
Jim Olson, a nationally prominent environmental and public trust lawyer, is senior legal advisor at FLOW, the nonprofit law and policy center he founded in Traverse City a decade ago to keep the waters of the Great Lakes Basin public and protected. www.forloveofwater.org.
FLOW will host a free webinar — Managing High Water and High Tension along the Great Lakes Shoreline — at 1pm June 29. Want to hear frontline, scientific, regulatory, and legal insights into efforts at the state and local level to manage high water impacts and public trust rights? Click here to register.