INQUIRY TO BINDING

EMERGENCY LANGUAGE

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ELTA President for Consideration (August 16, 2025)

Legal Lake Level - Why it's often just a piece of paper

Across Michigan, hundreds of inland lakes have court-ordered legal lake levels established under Part 307 of the Natural Resources and Environmental Protection Act (1994 PA 451). These levels are not advisory—they are enforceable safeguards designed to protect homes, infrastructure, and ecosystems from flooding, erosion, and long-term hydrological instability. Yet in many communities, enforcement is inconsistent, undocumented, or absent. News articles often describe frustration due to indecisiveness when action by officials is needed most.

There are several systemic reasons why enforcement of legal lake levels fails, even when statutory authority is clear. One major challenge is the divergence in public understanding of what the original lake-level plan was designed to achieve. Some residents interpret it as a recreational guarantee, while others see it as a flood mitigation tool—leading to conflicting expectations and inconsistent pressure on officials. Compounding this is the frequent turnover in Drain Office leadership, as commissioners are elected and replaced over time. Institutional memory fades, and enforcement priorities shift, often without continuity or accountability.

Meanwhile, downstream communities are rarely spared, since elevated lake levels typically coincide with regional wet cycles. When everyone is experiencing high water at once, the urgency to act is shared—but the mechanisms are often unclear or underpowered. Calls from downstream of “you’ll flood me out” create hesitation and are used as the reason action upstream can’t be taken.  Infrastructure constraints, such as limited pump discharge capacity or outdated control structures, restrict the ability to eject excess water even when action is warranted. Officials sometimes cite climate change or broader environmental factors as explanations for high water events, deflecting attention from enforceable lake-level obligations. Most critically, there is often no documented trigger—no pre-established agreement on when enforcement must escalate to safeguard homes, infrastructure, and public safety. Enforcement becomes discretionary, delayed, or absent without defined thresholds and transparent protocols.

Regulatory complexity adds another layer of inertia, often stalling timely responses and obscuring responsibility. Coordination between county boards, courts, engineers, and local governments is rarely seamless—especially when lake-level enforcement intersects with floodplain management, infrastructure upgrades, or emergency response. At the heart of the issue is a widespread lack of clarity about who is responsible for what. Residents and even officials may not fully understand the distinct roles of township boards, county Drain Commissioners, state agencies like EGLE (Michigan Department of Environment, Great Lakes, and Energy), or the courts. This confusion leads to finger-pointing, delays, and missed opportunities for decisive action.

Even when statutory authority exists, implementation often requires additional permits—layered on top of already established ones. For example, modifying a pump schedule or adjusting discharge rates may trigger the need for new EGLE approvals, wetlands reviews, or intergovernmental coordination. These processes are not only burdensome but can take months or even years, especially when environmental assessments, public comment periods, or legal reviews are involved. The result is a system where technical urgency is trapped in procedural limbo, and enforcement becomes a slow-moving negotiation rather than a proactive safeguard.

Adding to the paralysis is a fear among some officials that they could be held legally responsible if things go wrong—if a discharge causes downstream flooding, if a pump fails, or if a permit is misinterpreted. But what’s rarely acknowledged is that the Drain Code and associated state statutes are written not only to protect land and water, but to shield officials themselves. These laws are dense, layered, and often self-reinforcing—creating a legal buffer that makes accountability elusive.

Meanwhile, the county and state have access to virtually unlimited legal resources, funded by taxpayers. Teams of attorneys can be deployed to defend decisions, delay action, or reinterpret obligations. Residents, by contrast, are left to navigate this labyrinth with limited means. The average “Joe” cannot afford to challenge a multi-agency legal apparatus armed with public funds and institutional muscle. Even well-organized coalitions are often outspent, outmaneuvered, or buried in procedural complexity. The result is a system where legal protection flows upward, shielding institutions, while risk and burden flow downward, landing squarely on residents and property owners.

What To Consider and Do While the Sun Is Out

Establish a joint oversight agreement between Drain Offices and Lake Associations (or resident coalitions) that clearly defines operational roles before, during, and after high water events. This agreement must include a binding action protocol—specifying when intervention is required to protect homes and infrastructure, regardless of downstream political pressure or competing interests. It should also outline all available emergency measures for water reduction, including backup discharge routes, auxiliary pumping options, and temporary containment strategies, in case the primary downstream outlet becomes compromised or unusable.

In parallel, a legally binding intergovernmental agreement must be created between local, county, and state entities, clearly delineating who is responsible for what during emergency conditions. This framework must include expedited permit approvals as a standing priority, ensuring that emergency actions are not stalled by bureaucratic delays. Crucially, the agreement must establish and publicize a maximum lake level threshold—a definitive trigger point at which the binding protocol is activated.

In short, practice emergencies while not emergencies and close gaps. Enforcement must be automatic, not optional, anchored by clear thresholds, shared responsibilities, and a multi-path response plan that prioritizes public safety, ecological integrity, and transparent governance.  Without this in place, "Legal Lake Level” is a piece of paper, with commissioners often running around promising action but doing nothing.