Working on a parcel of land that surrounds a private pond. This pond was deeded out of the parent parcel in 1925. The original deed called for the low water mark. Within the past year, beavers dammed up the outlet and raised the pond elevation 2'. Am I wrong in presuming the boundary is still to the low water mark before the beavers dammed it up? Would like to hear peoples thoughts.
> Working on a parcel of land that surrounds a private pond. This pond was deeded out of the parent parcel in 1925. The original deed called for the low water mark. Within the past year, beavers dammed up the outlet and raised the pond elevation 2'. Am I wrong in presuming the boundary is still to the low water mark before the beavers dammed it up? Would like to hear peoples thoughts.
To me it seems since they used the low water mark as a simple point of reference and it was not based upon any changing Littoral Rights. With that said, I think you need to define the boundary upon the low water mark as it existed at the time of conveyance. 1925.
Thank you. That is my thought exactly.
I think it would be a stretch to define this as accretion as it only happened over the last year but I have seen an instance where a pond / lake high water line raised due to beaver and the boundary followed. At the time of resurvey the dam had grown over and beavers were long since gone. The new boundary was defined by long term use over 20 plus years rather than purely as a riparian boundary issue. It was never challenged so it is really just an excepted opinion.
Typo. You left out the comma. I believe you intended to say "Beaver, dam!"
I thought that you would be jumping on the "excepted opinion" comment.
Trying to play nice today. Mourning the loss of "the Possum".
maybe , he is just playing dead. try to poke him.
as for the topic. I would find the intent of the original conveyance.
Usually, I have found that LWM as boundary has been used to allow homeowners the right to access the water body in order not to hinder enjoyment etc.
Low Water Mark
here is the definition used in the Vermont - NH State Boundary
Such low water mark is hereby defined as the line drawn at the point to which the river recedes at its lowest stage, without reference to, and unaffected by, extreme droughts, but subject to such changes as may hereafter be effected by erosion or accretion.
from link:
STATE OF MICHIGAN
Reply to: GRAND RAPIDS DISTRICT OFFICE STATE OFFICE BUILDING 6TH FLOOR
350 OTTAWA NW GRAND RAPIDS MI 49503-2341
JOHN ENGLER, Governor
DEPARTMENT OF ENVIRONMENTAL QUALITY
HOLLISTER BUILDING, PO BOX 30473, LANSING MI 48909-7973
INTERNET: http://www.deq.state.mi
RUSSELL J. HARDING, Director
December 17, 1997
CERTIFIED
Mr. Ryan DeVries 2088 Dagget Pierson, MI 49339
Dear Mr. DeVries:
SUBJECT: DEQ File No. 97-59-0023-1 T11N, R10W, Sec. 20, Montcalm County
It has come to the attention of the Department of Environmental Quality that there has been recent unauthorized activity on the above referenced parcel of property. You have been certified as the legal landowner and/or contractor who did the following unauthorized activity:
Construction and maintenance of two wood debris dams across the outlet stream of Spring Pond. A permit must be issued prior to the start of this type of activity. A review of the Department's files show that no permits have been issued.
Therefore, the Department has determined that this activity is in violation of Part 301, Inland Lakes and Streams, of the Natural Resource and Environmental Protection Act, Act 451 of the Public Acts of 1994, being sections 324.30101 to 324.30113 of the Michigan Compiled Laws annotated.
The Department has been informed that one or both of the dams partially failed during a recent rain event, causing debris dams and flooding at downstream locations. We find that dams of this nature are inherently hazardous and cannot be permitted. The Department therefore orders you to cease and desist all unauthorized activities at this location, and to restore the stream to a free-flow condition by removing all wood and brush forming the dams from the strewn channel. All restoration work shall be completed no later than January 31, 1998.
Please notify this office when the restoration has been completed so that a follow-up site inspection may be scheduled by our staff. Failure to comply with this request, or any further unauthorized activity on the site, may result in this case being referred for elevated enforcement action, a penalty of $10,000 a day.
We anticipate and would appreciate your full cooperation in this matter.
Please feel free to contact me at this office if you have any questions.
Sincerely,
David L. Price
District Representative Land and Water Management Division
Mr. Stephen Tvedten's Response
Dear Mr. Price:
Re: DEQ File No. 97-59-0023; T11N, R10W, Sec 20; Montcalm County
Your certified letter dated 12/17/97 has been handed to me to respond to. You sent out a great deal of carbon copies to a lot of people, but you neglected to include their addresses. You will, therefore, have to send them a copy of my response.
First of all, Mr. Ryan DeVries is not the legal landowner and/or contractor at 2088 Dagget, Pierson, Michigan.
I am the legal owner and a couple of beavers are in the (State unauthorized) process of constructing and maintaining two wood "debris" dams across the outlet stream of my Spring Pond.
While I did not pay for, nor authorize, their dam project, I think they would be highly offended you call their skillful use of natural building materials "debris." I would like to challenge you to attempt to emulate their dam project any dam time and/or any dam place you choose. I believe I can safely state there is no dam way you could ever match their dam skills, their dam resourcefulness, their dam ingenuity, their dam persistence, their dam determination and/or their dam work ethic.
As to your dam request the beavers first must fill out a dam permit prior to the start of this type of dam activity, my first dam question to you is: are you trying to discriminate against my Spring Pond Beavers or do you require all dam beavers throughout this State to conform to said dam request?
If you are not discriminating against these particular beavers, please send me completed copies of all those other applicable beaver dam permits. Perhaps we will see if there really is a dam violation of Part 301, Inland Lakes and Streams, of the Natural Resource and Environmental Protection Act, Act 451 of the Public Acts of 1994, being sections 324.30101 to 324.30113 of the Michigan Compiled Laws annotated.
My first concern is - aren't the dam beavers entitled to dam legal representation?
The Spring Pond Beavers are financially destitute and are unable to pay for said dam representation - so the State will have to provide them with a dam lawyer.
The Department's dam concern that either one or both of the dams failed during a recent rain event causing dam flooding is proof we should leave the dam Spring Pond Beavers alone rather than harassing them and calling them dam names. If you want the dam stream "restored" to a dam free-flow condition - contact the dam beavers - but if you are going to arrest them (they obviously did not pay any dam attention to your dam letter-being unable to read English) - be sure you read them their dam Miranda rights first.
As for me, I am not going to cause more dam flooding or dam debris jams by interfering with these dam builders. If you want to hurt these dam beavers - be aware I am sending a copy of your dam letter and this response to PETA. If your dam Department seriously finds all dams of this nature inherently hazardous and truly will not permit their existence in this dam State - I seriously hope you are not selectively enforcing this dam policy, or once again both I and the Spring Pond Beavers will scream prejudice!
In my humble opinion, the Spring Pond Beavers have a right to build their dam unauthorized dams as long as the sky is blue, the grass is green, and water flows downstream. They have more dam right than I to live and enjoy Spring Pond. So, as far as I and the beavers are concerned, this dam case can be referred for more dam elevated enforcement action now.
Why wait until 1/31/98? The Spring Pond Beavers may be under the dam ice then, and there will be no dam way for you or your dam staff to contact/harass them then.
In conclusion, I would like to bring to your attention a real environmental quality (health) problem: bears are actually defecating in our woods. I definitely believe you should be persecuting the defecating bears and leave the dam beavers alone. If you are going to investigate the beaver dam, watch your step! (The bears are not careful where they dump!) Being unable to comply with your dam request, and being unable to contact you on your dam answering machine, I am sending this response to your dam office.
Sincerely,
Stephen L. Tvedten
Actually, a call to the LWM is an expressed intent to create a riparian boundary. Without express language that the intent is to fix the boundary at the location of the LWM on the date the boundary was created, it cannot be considered to be fixed. As such, the boundary will move with the natural movement of the bank.
EXCEPT where the natural flow of the waterway bounded upon is impeded by an artificial influence.
As to whether the LWM is determined according to the ordinary low water level of the free-flowing stream or as it exists with the beaver dam in place, I think that it would be the LWM of the free-flow condition. I'm not aware of any cases that address the effects of a beaver dam on the LWM (or OHWM, where applicable), but there is plenty regarding the effects of artificial influences upon water boundaries.
Granted, beavers are a part of nature, and building dams is a natural act for them, but their dam construction is still an artificial influence on the normal action of water against land. Therefore, their dam would be considered an artificial influence. If removed, the actual low water level would revert back to its free-flow level and to (or very near) its pre-dam, free-flow location.
While the artificial influence (the dam) is in place, the boundary remains fixed at the last natural location* of the LWM. Once the dam is removed or is washed out and the water levels revert back to those of a free-flow condition, and presuming the resulting channel is in substantially in the same location as before the beavers built their dam, the boundary will become ambulatory again.
*The reason that a water boundary remains fixed at the last natural location when its location is affected by an artificial influence is that there is no reliable means of predicting how, or to what extent the natural forces of the streams flow would have moved the LWM had it remained unimpeded. Up until the introduction of the artificial influence, the water boundary was ambulatory, moving with the bank according to the natural forces of the water acting on it.
The boundary does not move with the effects of the artificial influence for fairly obvious reasons. If it did move according to the artificial conditions, dishonest landowners could build dams, cut new channels, etc. as a means of increasing their lands at the expense of the landowner on the opposite bank.
