AG Opinion Impacts Potential Dredging

13 May 2013

In February, we mentioned that, in an effort to combat the low water levels in Michigan’s smaller harbors, the Michigan House of Representatives had introduced a bill that would amend the Natural Resources and Environmental Protection Act to include “the dredging of Great Lakes Harbors for use by recreational watercraft” as part of “developing public recreation facilities,” thereby allowing money from the State Natural Resources Trust Fund (the “Trust Fund”) to be diverted to harbor maintenance. 

Unfortunately, it looks like that legislation is dead in the water as Michigan Attorney General, Bill Schuette, recently released an opinion (Opinion No. 7270) that the Trust Fund cannot be used for the maintenance of existing public recreation facilities, such as maintenance dredging of existing harbors.  His conclusion is based on the fact that the Trust Fund was established through an amendment to the Michigan Constitution approved by citizens, and therefore the Legislature cannot substantively change the meaning or scope of the constitutional language adopted by the people.  Because the relevant constitutional language uses the term “development” and there is an absence of any reference to “maintenance”, it was determined that the plain language of the Const 1963, art 9, §35, does not authorize the use of Trust Fund money for the maintenance of existing recreational facilities, including maintenance dredging of Great Lakes harbors for use by recreational watercraft.

The opinion also addressed whether funds from the Waterways Account of the Michigan Conservation and Recreation Legacy Fund could be used for the operating and maintenance of public recreation facilities, including the dredging of existing harbors. The conclusion?  The funds can be used for such a cause but such expenditures must be directed to public, rather than private, recreation facilities and the primary purpose of the dredging must be to enhance access for recreational watercraft.  

The impact of these decisions may be lessened if the weather continues to cooperate.  While the levels of lakes Michigan and Huron are still 22 inches below their long-term average and 6 inches lower than last year, recent precipitation caused both lakes to rise 9 inches during April – a well above average rise for this time of year.

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