DNR Letterhead

May 19, 2003

1. Bill Number and Sponsor:

Senate Bill 481, Senator Kuipers

House Bill 4141, Representative Stakoe, et al

2. Purpose:

The purpose of these bills is to amend the Natural Resources and Environmental Protection Act, 1994 PA 451, by adding section 30111a to Part 301 of NREPA, Inland Lakes and Streams, being MCL 324.30111a) which defines how a person may use a “dedicated public access site”. The bills prohibit the following activities unless the dedication recorded with the register of deeds office provides otherwise. The bills prohibit:

· Boat hoists

· A dock unless authorized by the riparian owner where public access is located

· Picnicking, sunbathing or lounging

· No overnight mooring of vessels on bottomland of an inland lake or stream directly offshore

The bills require the riparian landowner to erect a sign at the access site describing the allowable uses and describing the prohibited activities at the site.

A person violating this section is guilty of a misdemeanor with a fine of not more than $500.00 for each day of the violation. A peace officer may issue an appearance ticket.

3. How Does This Legislation Impact Current Programs in the Department?

This legislation, as written, would conflict with the Department’s management authority over the State’s public parks and public access sites. The definition of “dedicated public access site” included in the bill would cover Michigan’s state parks and boating access sites.

4. Introduced at Agency Request?

No.

5. Agency Support?

The Department does not support these bills as written. The Department, however, believes the legislature should provide some clarity to the public for use of road ends that terminate at public water. This would reduce the widespread litigation on these issues. It is important that people know what kind of activity is not allowed at road ends. Proper legislation would assist in curtailing lawsuits which affect the Department’s budget as well as the Attorney General’s budget. Proper legislation could help preserve road ends that provide important ingress and egress to our water.

6. Arguments Against the Bill:

As written these bills are confusing and would not apply to many roads that have been established by people simply using them. The bills could also be applied to boulevards that currently do not encompass public docks. This could be problematic as it relates to potential “takings” claims. There are other means by which the public has rights to water that are outside a dedication that is recorded in the register of deeds office. An example might be a regulatory permit or license.

The definition of “dedicated public access” in section 5 of the bills limit the bills to inland lakes or streams. It may be preferable to include the Great Lakes or “waters of the state” generally.

The use of the term “picnicking, sunbathing, or lounging” in section 1(c) of the bills is too far reaching. Does this prohibit an individual with a lunch from walking down to a “dedicated public access site” and eating his sandwich while on his lunch hour? The term “picnicking, sunbathing, or lounging” needs further definition so it is not overly prohibitive and confusing to law enforcement. “Loitering” may be a better term.

The use of the term “overnight” in section 3 of the bills is confusing. A better term might be “between midnight and sunrise” giving clarity to the conduct that is prohibited.

7. Arguments For the Bill:

There is need for legislation in this area of the law. The public’s desire to gain access to public water will only increase. Therefore, SB 481 and HB 4141 present an opportunity for many diverse interests to work toward legislative solutions.

8. State Revenue/Budgetary Implications:

None.

9. Implications to Local Units of Government

There may be Headlee implications as subsection 2 requires local units of government to incur costs to place signage at road ends. This could be considered an unfunded State mandate under the Michigan Constitution.

10. Administrative Rules Implications:

The Department has promulgated a set of administrative rules as well as additional land use orders of the Director of the Department which apply to access sites, including those sites that would be included in the definition of “dedicated public access site” in these bills.

11. Other Pertinent Information:

There is confusion as to who can enforce current laws that apply to road ends or “dedicated public access sites”. Concern is often expressed that local police or sheriff’s officers cannot enforce existing administrative rules or Director’s orders. Violations of administrative rules or orders are a State civil infraction (the penalty is defined by MCL 324.504). Any law enforcement officer can enforce a State civil infraction. (See MCL 600.8801). Therefore, both State and local government can enforce the current rules. The Department believes that many of the problems neighbors and riparians are experiencing at road ends and other water access sites are the result of current laws not being enforced.

12. User Groups/Customers that Support this Legislation (if known):

The Department does not know of any user groups that would support the bills as written. We have received calls from “backlot owners” (those individuals who have purchased homes not directly on the water and use road ends to gain ingress and egress to the water) that have expressed strong concerns with the bills as written. They believe that they purchased their property with the representation that road ends or other “dedicated public access sites” were available for uses that these bills prohibit such as constructing a boat hoist or dock.

K. L. COOL

DIRECTOR

MICHIGAN DEPARTMENT OF NATURAL RESOURCES