Regulatory Power Threatens Rights of Beachfront Property Owners

Marion Kincaid wanted nothing more than to level the mound of sand sculpted by winter winds on her beloved strip of beach bordering Lake Huron. For years she had smoothed the shore with a garden rake until arthritis robbed her of this simple pleasure. Last year she hired a neighbor to groom the property with a small tractor, which made her a criminal by government standards.

On May 24, 2002, Mrs. Kincaid was sued by the U.S. Army Corps of Engineers for depositing "fill material" in "navigable waters" without a federal permit. She now faces penalties ranging from $2,500 per day under the Rivers and Harbors Act to $25,000 per day under the Clean Water Act, the two principal statutes governing wetlands protection.

Thousands of other Michigan homeowners are likewise vulnerable to prosecution for clearing from their beaches the mosquito-infested vegetation and rotted debris exposed by record low water levels within the Great Lakes. This latest crackdown illustrates the sweeping powers of regulators to usurp private property rights.

Lawmakers in the Michigan House are slated to vote Thursday on legislation to allow limited beach grooming without a state permit. But welcome though its passage would be, the measure would offer no relief to Mrs. Kincaid and others like her. Congressional action is still necessary to remedy the feds’ regulatory excess.

Lake levels fluctuate dramatically depending on precipitation and air temperatures. Currently, lake levels are the lowest in three decades, with Lakes Michigan and Huron down 3.4 feet and Lake Erie by 3.13 feet, according to the National Oceanic and Atmospheric Administration. The sediment exposed by receding waters is fertile ground for vegetation.

By Corps’ standards, these emergent wetlands "provide foraging, nesting, resting, and hiding habitat for multitudes of wildlife and fish species. ... The stems and stalks of the vegetation disperse wave energy, protecting the shoreline from erosion during storms."

Consequently, the Corps notified lake-area residents by letter last year that preserving these emergent wetlands takes precedence over their riparian rights. "We are having trouble identifying a beneficial reason for (beach grooming)," the letter stated.

Homeowners along the lake and Saginaw Bay are incredulous, noting that fish parts and litter festering in the weeds undercut both beach aesthetics and property values. As a haven for mosquitoes, there is also concern about the spread of the West Nile virus.

Cottage and resort owners are particularly distressed by the impact on summer tourism. Masses of sharp-edged Zebra mussel shells litter the sand, obstructing swimmers’ access to the lake.

In response, more than 1,500 Bay-area households have organized as the group "Save Our Shoreline" (SOS) to preserve and maintain lakefront property rights. But neither the state Department of Environmental Quality or the Corps appears willing to exempt from prosecution the routine maintenance these lakefront homeowners have conducted for decades.

SOS board member Joe McBride questions regulators’ priorities given that the patches of vegetation are as transitory as lake levels. "A few clumps of weeds that exist on most beaches have an inconsequential environmental effect," he says. Regulators would do far better, he adds, to focus attention on the dumping of raw sewage and chemicals that are triggering abnormal plant and algae growth along the lakeshore. "It is clear from the Corp’s actions that they are simply trying to expand their jurisdiction," Mcbride contends.

The Corps’ regulatory authority is indeed considerable – the predictable result of ambiguous statutory language. The Clean Water Act, for example, makes no mention of wetlands or any synonym. It does, however, explicitly require a federal permit to discharge "dredged or fill material into navigable waters." The intent of Congress, according to John Shanahan of the Heritage Foundation, was to keep waterways open for freight transport.

However, just what constitutes "fill" and "navigable waters" has steadily evolved under various interpretations of the Corps, the U.S. Environmental Protection Agency and the courts. Says Shanahan: "The clause has been broadly interpreted to prohibit virtually any activity in connection with land that has a certain minimum water content – whether or not it is navigable."

The result is prosecution of Michigan families who conduct routine beach maintenance, including restoring wind-blown sand to its original location.

The "dos and don’ts" prescribed by the Corps are befuddling to laymen and lawyers alike. For example, beachfront residents are allowed to cut vegetation as long as sand is not "physically disturbed." A rake may be used, but no "mechanized equipment" even if the result would be identical. A public notice must be issued for every permit application, and an environmental assessment is required, with input from the EPA, U.S. Fish and Wildlife Service, Soil Conservation Service and National Marine Fisheries Service.

Ironically, most wetland conversions have been undertaken by the Army Corps of Engineers to increase agricultural production. But largely through voluntary preservation efforts, the rate of wetlands loss nationwide has been reduced by 80 percent in the past decade.

Wetlands are important to environmental quality in Michigan. But just as important are rational regulatory priorities. Given the many other threats to the Great Lakes, including exotic nuisance species and sewerage overflows, the federal crackdown on beach grooming in Michigan is wholly unwarranted. Action by the state Legislature would be welcome, of course, but the real problem is on Capitol Hill. It is time for Michigan’s delegation to win from Congress a regulatory reprieve for property owners.

Diane Katz is director of science, environment, and technology policy for the Mackinac Center for Public Policy. Her recent study, "The Clean Michigan Initiative: An Assessment" is the first public accounting of Michigan’s largest environmental spending program. More information on environmental legislation is available at www.michiganvotes.org.