How to Fight Lake Levels Under Michigan Drain Code
An overview of NREPA, Act 188, and other legal tools at your disposalBy Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on March 10, 2023
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There are over 11,000 inland lakes throughout the State of Michigan. These lakes provide numerous public and private benefits. For instance, many townships rely on lakes as a source of public recreation space. And many private property owners benefit from enhanced land values associated with a well-maintained lake.
To help protect these critical inland waters, there are a number of federal and state legal tools that Michigan’s municipalities can use to establish and maintain proper lake levels.
The two most important laws in this area are the federal Natural Resources and Environmental Protection Act (NREPA) and Michigan’s Township Public Improvement Act (MCL 41.721), which is more commonly known as Act 188. Here is a brief overview of how these laws work.
How to Establish Legal Lake Levels
Under NERPA, each Michigan county Board of Commissioners (and the county drain commissioner, if they have one) has the authority to establish legal levels for their inland lakes.
The Board may act on its own motion or in response to a petition signed by at least two-thirds of the landowners whose property borders the lake in question. Before deciding any motion or petition, however, the Board of Commissioners may first spend up to $10,000 to commission a preliminary study to ascertain the feasibility of establishing and maintaining a lake level. This study must be prepared by a licensed professional engineer.
After completing this preliminary study, the Board can decide to proceed and direct its local prosecutor or other legal counsel to file a petition in Michigan circuit court. The court will then hold a formal evidentiary public hearing on the petition or motion.
At this point, the Board may invoke its authority under Act 188 to propose a “special assessment district” as part of the lake level process. Basically, this district includes any properties that abut the lake in question–subject to a final boundary determination by the circuit court–and each property owner must pay a special assessment (tax) to cover the costs of maintaining the legal lake level.
After hearing witness testimony and receiving other evidence, the circuit court is then charged with issuing a final order setting the lake level and confirming the boundaries of the special assessment district.
Note that these watershed districts may include privately owned property as well as lands owned by the municipality itself and even property under the control of the Michigan Department of Natural Resources.
Objecting to Lake Level Petitions
Under Act 188, a Michigan township cannot proceed with a special assessment district petition if it receives written objections from the owners of land constituting more than 20 percent of the proposed drainage district.
At that point, the Board must then receive a separate petition signed by owners of at least 50 percent of the affected land before proceeding.
If you have additional questions about the petition and objections process, it is best to consult with a qualified Michigan state, local, and municipal government attorney with experience in inland lake levels and the drain code.
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