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Wednesday, June 29, 2022

Michigan Water Rights: Part 1, Overview

I’m going to attempt to cover a complicated issue: Water access rights in Michigan. Around the country, water access rights have been a contentious issue for decades. Lately, they have been thrust into the forefront of the hunting and fishing world. Conservation groups and lawmakers have been trying to ensure that anglers and people participating in water recreation continue to have access to public waters.

A quick look at South Dakota shows how contentious things can become. Where heavy flooding has left many former pieces of land underwater, property owners are scrambling to try and keep people off the water above their formerly dry land. In New Mexico, property owners along streambeds are now able to apply to have their section of a public river be declared private which means no fishing and no boating.

Michigan is overall a fairly friendly state as far as public water access rights go. However, there are some issues about the way these rights are defined that leave things open to debate and could endanger the rights of the public to access public waterways in the future if we’re not careful. Let’s talk about how things currently stand here.

Lakes

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Lakes can be either public or private. There is no guaranteed public access to every lake except for the Great Lakes. Even if a lake has public access points the shoreline is not necessarily public. The great lakes shorelines are an exception to this based on recent court rulings. If a lake has no public access then the public does not have the right to access it. The water is still technically owned by the state unless it is a manmade lake. Private lakes are still subject to the same fishing regulations as the rest of the state if fish were ever stocked in the lake by the state or were naturally occurring there. If it is a manmade lake that is privately stocked then fishing regulations would not apply much the same as hunting regulations don’t apply on a high fenced piece of land with farmed deer.

Rivers and Streams

Now this is where it gets much more complicated. Waterways are divided into two types: Navigable and non-navigable. The navigability of a waterway can be determined by historical usage, a through connection to other navigable waterways (not a dead-end stream), and an obscure “floating log test.” This is a test where if a log floats, the stream or river is considered navigable. All water of a navigable waterway is open to the public for boating, fishing, and swimming unless otherwise prohibited by law (no-fishing zones per DNR rules, etc.). However, on sections of water that pass through private lands the owners of the property have what are called riparian rights. This means that they own the streambeds and land alongside the water. There is some debate about whether the riparian zone they own starts when the water ends or above high watermark. This is just one example of how the issue can become contentious quickly.

Conclusion

Michigan contains 90% of the freshwater in the United States (counting the Great Lakes). We are a state of people who fish and spend time participating in water recreation. Our laws reflect this by allowing most rivers and streams to be accessible to the public. The bottom of streams and rivers is also open to the public for wading and walking while fishing. Hunters do not have the same rights, as Michigan grants water hunting and trapping rights to the owner of the property which borders the waterway. Most lakes in the state feature some type of public access, but those that do not are not publicly open.

In the distinction between navigable and non-navigable waterways the waters muddy a bit (excuse the poor pun). The obscure “log test”, which is the legal standard for determining navigability if historic use cannot be established, is but one example of how historically this issue has never truly been settled.

Next time, I will discuss more of the history behind our water access laws and how we got this place.

 

 

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