The Barnes Family Windswept Pines Dredging Project on Long Lake
The protection of natural shorelines and their ecosystems is vital to the preservation of the watersheds and lake water quality in Michigan. Over the past two years, Long Lake Township has taken a major step forward in addressing a new threat to northern Michigan shorelines.
Dredging and excavating both below and above the Ordinary High-Water Mark (OHWM) on lakes in northern Michigan has become a contested topic since 2021. On March 2, 2021, the Carrie C. Barnes Trust applied for a permit from the Department of Environment, Great Lakes, and Energy (EGLE) to construct an inland boathouse, boat basin, and entrance channel on Long Lake in Long Lake Township. The entrance channel extended above and below the Ordinary High-Water Mark (OHWM). The project was named “The Windswept Pines Project”.
EGLE’s review focused on the dredging activities below the OHWM. Per their guidelines, EGLE will not issue a permit unless the department determines both of the following:
- That the adverse impacts to the public trust, riparian rights, and the environment will be minimal.
- That a feasible and prudent alternative is not available
The Barnes Family Application was denied by the Water Resources Division (WRD) of EGLE on November 12, 2021 for the following reasons:
- The proposed project will have significant adverse effects on the natural resources associated with the impacts of the dredge channel on the nearshore habitat on the lake.
- The potential adverse impacts on the nearshore habitat of Long Lake are significant, and a feasible and prudent alternative is available.
This denial was challenged by the Carrie C. Barnes Trust, by filing a Petition for a Contested Case Hearing; the six-day contested case hearing was held on July 25-27, 2022, and August 15-17, 2022.
The Final Decision and Order (FDO) resulting from this hearing was Issued by Stephen B. Goldstein, Administrative Law Judge on May 25, 2023. The FDO upheld the original EGLE decision on the proposed project based on the following findings:
- The project will adversely affect the fishing component of the public trust doctrine.
- It will adversely affect the uses of Long Lake for recreation, wildlife, and fish.
- It will adversely affect the environment.
- A seasonal dock is a feasible and prudent alternative because this option affords both access and wharfage to navigable waters while minimizing the potential adverse impacts to the environment.
The Barnes family has the right to file a Petition for Review of this FDO with the director of EGLE within 21 days of receiving the document. They must file by Thursday, June 15, 2023. Upon the timely and proper filing of a Petition for Review, the EGLE Director would convene a three-person panel of the Environmental Permit Review Commission (ERPC) within 45 days after submittal of the Petition for Review.
This three-person panel would be chosen by Governor Whitmer. The hearing would be held in Lansing; the general public could attend in person or via Zoom and make public comments. If the ERPC panel upholds the original EGLE permit denial and subsequent FDO decision, the EGLE process would be exhausted. However, the case could then be pursued in circuit court.
Meanwhile, while EGLE has been defending their denial of a permit for dredging below the OHWM, Long Lake Township staff, commission and board members worked diligently alongside concerned citizens to format ordinance language to prevent dredging and excavating above the OHWM on Long Lake. Ordinance 194 became official in December of 2022. The following section describes why the ordinance was created and what it will accomplish:
Section 4.19 PROHIBITION OF UPLAND DREDGING
- Intend and Findings. It is the goal of the Township to protect the natural systems that support the clean water and healthy habitats that the public depends on for recreational, scenic, economic, and intrinsic value. Based upon a thorough examination of the preferences of the public and the science relating to shoreline protections, the Township has made the following findings:
- History and past practice in the Township have been to effectively prohibit upland dredging by requiring a minimum of a 50-setback for buildings from the edge of water in order to protect scenic, economic, and environmental interests and the public’s health, safety, and welfare.
- Interruptions in the natural shoreline contribute to the loss of habitat and threaten interruption of the lifecycle of fish, bird, and reptile populations in inland lake ecosystems.
- The presence of structures, including boat houses within a boat basin, next to or over the edge of water of inland lakes may precipitate the introduction of contaminants into adjacent water bodies.
- Upland dredging projects to channel or create boat basins connecting to inland lakes have the possibility of impacting adjacent shoreline resources and properties by altering littoral drift (accretion and erosion of bottom substrates).
- The cumulative impacts of multiple instances of lost natural shorelines, concentration of contaminants, and interruption of habitat resulting from upland dredging and creation of boat basins have the potential to irreparably harm inland lakes.
- The cumulative impact of upland dredging within an inland lake has the potential to harm the property values of all riparian owners on such inland lake through impacts on fishing opportunities, loss of natural viewsheds, and the alteration of the character of the lake.
- Based upon the intent and findings relative to upland dredging, the following activities are regulated in the Township:
- Lands above the Ordinary High-Water Mark or above the edge of water for altered shorelines (as this term is defined herein) adjacent to any significant body of water within Long Lake Township shall not be dredged, excavated, or channeled to connect to the adjacent body of water.
- Activities including dredging, channeling, or excavations, to create boat basin attaching to any inland body of water within Long Lake Township are expressly prohibited.
- These prohibitions on dredging, excavations, and channeling shall not apply to public entities in the improvement or expansions of existing launches, marinas, or basins upon inland lakes within Long Lake Township.
- The prohibitions are not intended to apply to the jurisdictional authority of EGLE or successor agency to regulate and permit the dredging of the bottomlands of inland lakes within Long Lake Township.
The concerned citizens group of Long Lake Township proposes that the new Long Lake Township Ordinance 194 be used for creating a “best practices” guide for writing township lake ordinances to protect all lakes in Michigan from dredging and excavating below and above the OHWM. By using Long Lake Township’s example, along with a review of the best of what is currently being used nationwide, the goal is to create a “gold standard” for ordinance and governance in all townships in Michigan.