If you own property on one of Michigan’s Great Lakes, you’ve likely heard the term “ordinary high water mark.” In fact, many potential clients call and ask how to identify their ordinary high water mark (“OHWM”). This leads to the question of how to identify the OHWM for any given property. The answer is – it depends! Lest you think this a lawyerly hedge, there really are different OHWMs that are used for different purposes.
The most common questions surround the OHWM as it relates to Great Lakes beach walkers. In the famous (or infamous, if you prefer) case of Glass v Goeckel, the Michigan Supreme Court ruled that the public trust doctrine allows the public to walk the shoreline of the Great Lakes below the OHWM. This is true even when crossing private property. When identifying where the OHWM is, the Court was unhelpfully vague. Here is the most concise version of the Court’s definition in Glass:
The point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction or terrestrial vegetation, or other easily recognized characteristic. And where the bank or shore at any particular place is of such a character that is impossible or difficult to ascertain where the point of ordinary highwater mark is, recourse may be had to other places on the bank or shore of the same stream or lake to determine whether a given stage of water is above or below ordinary high-water mark. [Glass at p. 691.]
In other words, the Court attempted to institute a kind of “you know it when you see it” rule. Such a malleable definition can create enforcement issues for homeowners on the Great Lakes. Many riparian attorneys stick to the “wet sand” advice. If the sand is wet, beach walkers are likely within their rights. The question of the OHWM for beach walkers will likely continue to be a gray area unless and until the Michigan Supreme Court provides further direction.
The other OHWM to be aware of is the mark set by the Michigan Department of Environment, Great Lakes, and Energy (EGLE). This is a location set by statute. It is used to determine whether and what kind of permit is required for certain projects (sea walls, dredging, etc.). Each Great Lake has its own OHWM. The OHWM for each lake can be calculated with the information provided by EGLE here. Many local zoning laws in shoreline communities also refer to this OHWM.
As you can see, there are different OHWMs depending on what they are being used for. If you have questions regarding the OHWM, its uses, or its enforcement, please do not hesitate to contact us. Our attorneys have experience in waterfront property issues and would be happy to speak with you.
