Who Owns the Water?

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The water in the Great Lakes is owned by the general public according to the Public Trust Doctrine. The Public Trust Doctrine is an international legal theory – it applies in both Canada and the United States, so it applies to the entirety of the Great Lakes.

This Public Trust Doctrine allows for the public use of water and submerged land regardless of neighboring private property ownership, because the water and submerged land are held in the public trust.  The neighboring property owners do not own the water or the land under the water.  However, they do have unrestricted access to the water, a concept known as “Littoral Rights.”  This allows for private property owners on the Great Lakes to construct structures that anchor to the submerged land (like docks) with a State permit.

The boundary line between the public trust land and water and the “upland” that can be privately owned is the Ordinary High Water Mark (OHWM). The Ordinary High Water Mark has two different definitions – one under State law that applies for regulatory purposes (and can be used for zoning) and one under a State Supreme Court ruling that applies for liability purposes.

The “Elevation” standard for the Ordinary High Water Mark is defined by the Natural Resources and Environmental Protection Act and is used for regulatory purposes. It is defined as an elevation above sea level, and is constant for each Great Lake, regardless of the physical realities of the shoreline. The elevations for each Great Lake can be found here: http://www.michigan.gov/deq/0,4561,7-135-3313_3677_3702-352662--,00.html

The “Natural” standard for the Ordinary High Water Mark was defined by the State Supreme Court Case Glass v. Goeckel (2005). For the purposes of liability, trespassing, and other civil legal functions, the Ordinary High Water Mark is defined by “evidence of the presence of water.” The simplest way to determine where water has been recently is vegetation. Recently submerged areas will have no vegetation, so the vegetation line frequently approximates the Ordinary High Water Mark.

Zoning regulations can and should use the elevation-based standard, because it is easy to survey and measure, but communities should ensure that they know where the elevation-based Ordinary High Water Mark is on their shoreline, so they can tailor their zoning to their specific situation.

Lexington, MI

Lexington, MI