By Michael Scott
Spend enough time around the waterways of Oakland County and it’s only a question of when you hear someone use a popular misnomer as they refer to a body of water as a “private” lake, when in fact no such thing really exists in Michigan.
According to current Michigan statute, no lakes are really “private.” Lakes that do not have public access are often informally called “private” since only property owners theoretically have access to them. Of Oakland County’s hundreds of lakes, over 65 have a state access site which allows someone not living on the waterway to launch a boat. But both the so-called private lakes and public lakes are subject to the state laws governing their use.
Public inland lakes are usually defined as lakes with either a public access site or public properties along the shore, according to Clifford Bloom, a partner with Bloom Slugget, P.C. law firm in Grand Rapids. Bloom is also the general counsel for the Michigan Lakes and Stream Association (MLSA). He said that in terms of land ownership, lots and parcels with frontage on a public lake also typically extend under the lake bottomlands to the center of the lake.
“It doesn’t matter whether an inland lake in Michigan is public or private, the courts have generally held that the waters of such lakes are owned collectively by the people in the state of Michigan,” Bloom said.
Although certain Michigan statutes and court cases have defined what constitutes a private lake for a very limited purpose in a particular context, there is no overarching legal definition, Bloom said. Informally, there’s more of an understanding in a given community based on the availability of public access.
Michigan courts have traditionally held that the waters of all inland lakes and streams are collectively owned by Michigan residents, Bloom said. Riparian property owners can use private lake or stream waters for various types of recreation from boating and swimming to fishing. Members of the public can use the waters of a publicly accessible lake or stream for recreation as long as they follow posted ordinances.
The state of Michigan defines riparian rights as “those rights which are associated with the ownership of the bank or shore of an inland lake or stream,” according to the MLSA. Local courts have the ability to revise other rulings and ordinances enacted by local governments, which can make local lake laws confusing and complex, Bloom says.
Water and riparian rights are similar to other property rights, according to Bloom. Those rights are subject to reasonable regulation by state and local governmental entities. For example, members of the public cannot legally walk along the shoreline of privately-owned inland lake property without approval of the riparian owner.
In fact, non-riparian owners need approval from riparian owners to access any part of a lake, said Melissa DiSimone, Executive Director of the MLSA. DiSimone provides consultation and acts as a problem solver for state residents with questions about lake rights.
“You’ll find that the law is very nuanced on a case-by-case basis,” DiSimone said. “A lot of what I do is help people with riparian rights issues.” This includes solving debates on such topics as dock usage and building and other property rights. “I try to put (people) on the path so they can find the right answer or right contacts for a dispute or issue,” she added.
There are many examples of a “nuanced” situation. According to DiSimone, a public road that dead ends into a lake may actually be considered a public access point, even if there are no loading docks. Every situation is different.
“There are some roads in the state that dead end into a lake, which may make it a public lake for our purposes,” she said.
Local municipalities have broad ordinance powers over lakes, Bloom said. “However, they can’t contradict state laws.” Examples include ordinances involved with rafts, shoreline activities and any dock activity.
Yet even the term “ordinance” comes with gray areas. There is no technical definition of a “lake ordinance,” Bloom said. Ordinances affecting the waterfront and lakes can be contained in either the local municipal zoning ordinance or a separate regulatory ordinance.
All zoning ordinance amendments must be enacted pursuant to the Michigan Zoning Enabling Act, he added. This requires an action from a local municipality or municipal planning commission, a public hearing, and an enactment by the local body of government following a planning commission recommendation.
However, state law gives the Department of Natural Resources (DNR) oversight for issues of “compatibility of use or public safety,” said DNR Law Enforcement Division Marine Specialist Cpl. Jill Miller, who works in the agency’s Recreational Safety, Education, and Enforcement Section. That not only includes watercraft and wake ordinances but issues regarding use of electric motors, towing and jet skiing, safety issues around docks and more. Within that definition, Miller admits there are gray areas.
“Every single body of water has its own issues,” Miller said.
Legally these “special watercraft rules” are enacted under a portion of the Michigan Marine Safety Act known as the special watercraft rule. This rule will not become effective unless the legislative body of the local municipality approves the same ordinance, Bloom said. A new special watercraft rule must include DNR involvement and consent.
There are many different types of special watercraft rules that can be approved by the DNR, including ‘no wake’ lakes, ‘no wake’ portions of a lake, setting of high-speed boating hours, and more. Once enacted, special watercraft rules have the force of state law and can be enforced by any police officer.
While the DNR is involved with governing activities on a body of water, it does not have legal jurisdiction over a lake’s environmental considerations, such as nesting areas for wildlife or lake erosion, Miller added. The DNR’s wildlife management team and the Michigan Department of Environment, Great Lakes and Energy (EGLE) can all support some of the environmental needs in the state inland waterways depending on what is required.
The DNR deals with questions around whether a lake is private or public as well, Miller said. She agrees with DiSimone that the definition of a private lake in particular may not always match the opinion of riparian owners. For example, lakes that the DNR has stocked with fish is considered public, even though there is no access for non-riparian owners, Miller said. Many lakes connected by streams to another body of water, or lakes with culverts and dams are also considered public.
Once a local governmental entity accepts a DNR recommendation, the DNR requires that an ordinance be posted in a local publication such as a newspaper, Miller said. Her office is then notified about the posting, including what publication it will be in and when it will be run. The DNR also maintains a copy of the posting for its records. From there, the ordinance is usually posted on both the local municipal website and the DNR’s website.
DiSimone said that public communications for ordinances can be handled in other ways. The use of buoys for example can highlight no wake zones and shallow channels for all boaters and lake users. She stressed that regardless of the situation, municipalities should keep the DNR informed of ordinance changes for public lakes. If an ordinance falls under the DNR’s definition of compatibility of use or public safety, it must be documented and approved by the DNR, or it can’t legally be enforced.
“It’s best to follow the process of keeping the DNR informed if you have any question,” DiSimone said. “It just makes sense to keep them informed and follow those guidelines for public lakes.”
However, there are cases where local authorities don’t agree with the DNR’s findings. At that time, they can submit an appeal to the director of the DNR. That appeal process may take several months or longer to be resolved, Miller added.
Many inland lakes in Michigan have an organized lake association comprised of riparian owners. These associations generally have little to no oversight rights of the lake, DiSimone said. Their role is largely to education fellow property owners on environmental trends and local usage recommendations. The intent of these associations is not to create or enforce ordinances or regulations.
There are rare instances where an association has been granted supervisory rights to make lake regulations, but in most cases the local municipality is tasked with those responsibilities.
“Most associations provide information and updates but have no rule making power,” DiSimone said.
There are also lake improvement boards which are volunteers separate from association boards. Michigan’s Lake Board Law has been in place to manage the state’s inland lakes for more than 40 years. It gives oversight rights to a local improvement board for such projects as dredging, stump removals, management of aquatic weed control programs, nuisance issues, water quality testing and more, said Ryan Woloszyk, a civil engineer with Oakland County Water Resources (OCWR). Lake improvement boards can also help to identify educational resources to help with lake projects but they do not create rules for lake use.
In Oakland County, these lake improvement boards are comprised of elected officials from local municipalities, a riparian owner, other community representatives and a professional with OCWR. For example, Bloomfield Township has eight established lake improvement boards alone. The Natural Resources and Environmental Protection Act – Public Act 451 of 1994, Part 309 – outlines the rights and responsibilities of lake improvement boards, which are designed to be independent in nature.
“The (lake improvement) boards don’t make specific decisions but can help complete projects and can provide resource for (riparian owners),” Woloszyk said. Board members generally have experience dealing with lake issues and addressing questions from fellow residents or constituents. Their actions, including the cost of lake projects, are funded by local residents and riparian owners with lake access.
Oversight of public and private lakes generally lies with local municipalities, provided they fall outside of the DNR’s definition of compatibility of use or public safety. This includes such issues as zoning, environmental considerations, event use and more.
However, those local government bodies do not have oversight of watercraft usage on lakes. Anything that is considered a compatibility of use or public safety issue must be reviewed by the DNR. New watercraft rules, such as changing wake/no-wake, powerboat usage and other watercraft related laws must be approved by the DNR as well.
Generally, there’s a process for altering or changing regulations with the DNR that residents should follow, DiSimone said. The first step is often for riparian owners to connect with their local municipal board. If a proposed ordinance falls under the DNR’s definition of compatibility of use or public safety, it will need to be a part of the process. Watercraft regulations, ordinances regarding wakes and other related security issues qualify, DiSimone said. The DNR also oversees fisheries and all related laws.
“That’s where you want to start with your local township or city,” she said. The outcome often will “depend on the appetite of local leaders to pass lake laws” and whether the DNR is required to become involved.
Michigan Public Act 303, often known as the Marine Safety Act of 1967, gives the county sheriff jurisdiction on all waterways within that county’s borders. The county also provides boating safety education and enforces safe boating laws insure the safe operation of watercraft through county marine divisions. The DNR does not patrol inland lakes for enforcement purposes.
“If the DNR is out on lakes they aren’t going to draw attention like the sheriff’s department will,” DiSimone said. The DNR will often wear muted green colors and will have more discreet branding on the side of their watercraft. “They are going to be there to observe and not enforce.”
It can be difficult for some municipalities to find a common ground on ordinance changes for local, private lakes, DiSimone said.
“I’m not sure the ordinance system in Michigan is strong enough to allow local municipalities to (institute) strong regulations in a number of areas,” DiSimone said.
Lake association members and riparian owners considering a new ordinance or usage change for its public lake should first contact its local municipality to get the process started, Miller said. At that point, the municipality would hold a public hearing on the topic and may look to pass a resolution.
If the ordinance involves compatibility of use or a public safety issue, the municipality will then send details of its proposed ordinance to the DNR. Miller or members or her team then conduct an onsite assessment of the issue, considering everything from riparian complaints, accidents and incidents and other historical data and onsite observations. The DNR compiles a report from that research and site visit and will share the findings of the report with local officials and residents at a second public hearing, attended by one or more members of the DNR team.
The DNR will track and consider all feedback at this public hearing and then will render a final decision at a later date. The DNR can accept the municipality’s proposed new ordinance fully, partially, or reject it altogether.
“Just because a (local township or city) asks for a certain regulation, it doesn’t mean we will approve it as is,” Miller said. “The decision is based on what the investigation finds.”
That’s what happened to Bloomfield Township last year. Bloomfield Township Clerk Martin Brook and his colleagues attempted to get DNR approval for an ordinance they thought had been in place since 1970, which would have prohibited motorized watercraft on 10 lakes in the township.
The DNR never approved the ordinance over the last five decades, and thus it never became law. The DNR recently ruled that while each lake would be designated as a slow no-wake waterway, it did not prohibit watercraft with internal combustion engines and limited-sized electric boats on the lakes.
The township board appealed the DNR’s decision. Township officials, like Brook and treasurer Michael Schostak, held private and public meetings with local lake boards and members of public and sent letters to all homeowners with lakefront property in the community about these proposed changes. According to township officials, hundreds of residents attended these public meetings. Bloomfield Township officials also set up a public hearing that featured DNR officials where residents could ask questions and provide feedback.
For now, the township continues to pursue a change in the state law that would remove DNR oversight of local ordinances relating to compatibility or public safety.
“We were surprised (about the DNR’s decision) but it’s not the last word,” Brook said. “We hope some action could happen in 2025.”
While local municipalities generally have ordinance control over local lakes and waterways, statute changes are possible, sometimes through legal actions. More than 70 townships and several counties brought a lawsuit against Michigan Public Service Commission on November 8, challenging the commission’s rights for managing large-scale renewable energy projects.
The Michigan legislature passed the renewable energy siting law, Public Act 233, in 2023, which gave the commission authority to approve large-scale renewable energy projects like solar and wind. It allows renewable energy developers to go around local governments.
While that is not the case with oversight of inland waterways outside of one exception, statutes change, Bloom said. “What we saw last year (with energy projects) is that if state lawmakers want to take over local control, they can.”
Brook and other members of the township board are among those local leaders who support having more local control over issues the DNR defines as compatibility of use or public safety, such as watercraft and wake regulations. According to Brook, it should be easier for an ordinance to be added, removed or changed at a local level when a plurality of riparian owners of a certain lake support it.
The township has developed a board resolution that would provide for significant control covering watercraft on private lakes and that the DNR should be subject local control, rather than determining if local control is permissible. That resolution has also been sent to Michigan State Sen. Jeremy Moss and State Rep. Donni Steele with the hope it will prompt new legislation. Brook says there is support in Bloomfield Township for a law change that gives the township government authority over all private lake ordinances, even those involving safety issues.
“It’s really an issue you should have interest in whether you’re a Democrat or a Republican,” Brook said. “Politics doesn’t matter here. We just feel if a majority of local residents and (waterfront property owners) agree with a (law change), we should have the ability to implement it.”
Brook stressed that the township’s efforts to have more say in all local private lake ordinances would not ignore environmental considerations. In fact, under the township’s recent proposed changes, local municipalities would still petition the DNR with their proposed ordinance changes. The DNR could still advise on best practices and help conduct research on an issue but wouldn’t have oversight rights.
“In that case the DNR would be compelled to approve it if 75 percent of local residents supported it as well,” Brook said. “It’s a different story if there is public access. But I think most people would prefer more local control over our local lakes.”
Despite the DNR’s position with Bloomfield Township lakes, it doesn’t actively look to restrict lake access to anyone, Miller said.
“Our purpose is to keep everyone safe and let everyone be able to use our waterways in an appropriate way,” she said, adding that the agency doesn’t actively seek to create lake restrictions, but it will enforce ordinance decisions coming from its department along with local law enforcement agencies.