The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5214 August 19, 1977 GREAT LAKES SUBMERGED LANDS ACT: Permit to fill, dredge, or place soil on land below the ordinary highwater mark. DEPARTMENT OF NATURAL RESOURCES: Permit to fill, dredge or place soil below the ordinary highwater mark of Great Lake shoreline. The Great Lakes Submerged Lands Act requires that a person holding title to or right of possession to land which has been deeded by or leased from the State pursuant to the Act to obtain a permit before filling, dredging or placing soil below the ordinary highwater mark. Dr. Howard A. Tanner Director Department of Natural Resources Stevens T. Mason Building Lansing, Michigan 48926 You have requested my opinion on the following question: May a person holding title to or right of possession to land which has been deeded by or leased from the State pursuant to 1913 PA 326; MCLA 322.401 et seq; MSA 13.701 et seq (sometimes referred to as the St. Clair Flats Act), fill, dredge or place soil or other material on land below the ordinary highwater mark of Lake St. Clair without obtaining a permit from the Department of Natural Resources? Before the turn of the century, the recession of waters of Lake St. Clair and the accretion of alluvial soils had rendered several thousand acres of the bed of Lake St. Clair adjoining riparian land suitable for use of cottages and summer homes. Nedtweg v Wallace, 237 Mich 14; 207 NW 51 (1927). Title to these lands is vested in the State of Michigan impressed with a trust for the benefit of the people. State v Venice of America Land Co, 160 Mich 680; 125 NW 770 (1910); People v Silberwood, 110 Mich 103; 67 NW 1087 (1890). By enactment of 1899 PA 175, Sec. 4, the legislature directed the Commissioner of the State Land Office to cause a survey to be made of uninhabitated swamp and overflow lands within the St. Clair River Delta and, as a result of this survey, the lands were subdivided into parcels fronting upon Lake St. Clair. Subsequently, pursuant to 1913 PA 326, supra, the State Board of Control (1) was granted authority to lease such land for 99 years to any person, firm or corporation applying for a lease who had been in occupancy since January 1, 1913 and had made valuable improvements thereon. The Act was amended by 1949 PA 215 to authorize the Department of Natural Resources to convey title to the leased premises to such lessee. It is to be noted that in granting these leases and conveying title to the same parcel, the State acted in its proprietary capacity without surrendering or subordinating the public's trust interest nor did it surrender its police power to regulate the use of the land. Nedtweg v Wallace, supra, at 239 Mich 14, 17; 208 NW 51, 53. To confirm this fact, each deed or lease executed by the State contained a provision recognizing the public trust interest and reciting that the rights of the lessee or grantee shall remain subject to the public's paramount right of navigation, hunting and fishing. By enactment of the Great Lakes Submerged Lands Act, 1955 PA 247; MCLA 322.701 et seq; MSA 13.700(1) et seq, the legislature provided that a person may not excavate, fill in nor in any manner alter or modify unpatented land lying below or lakeward of the natural ordinary high water mark of Lake St. Clair. However, the Great Lakes Submerged Lands Act was amended by 1965 PA 293 to include within its purview the filling and dredging of lands lying beneath the ordinary high water mark of a Great Lake regardless of whether the submerged land was patented or unpatented. 1965 PA 293 also added a second sub-section to Section 3 which provides: '(2) After the effective date of this amendatory act of 1965, a riparian owner shall obtain a permit from the department, for which no charge shall be made, before dredging or placing spoil [sic] or other materials on bottomland.' In Klais v Danowski, 373 Mich 262; 129 NW2d 414 (1964), the Supreme Court held that the Great Lakes Submerged Lands Act, supra, applied only to unpatented submerged bottomlands in the Great Lakes belonging to the State or held in trust by it. It was undoubtedly this decision that led the legislature to enact 1965 PA 293, supra, which amended the Great Lakes Submerged Lands Act to include both patented and unpatented land. In People v Reghi, 3 Mich App 389; 142 NW2d 476 (1966), the people, as plaintiff, sought to enjoin the defendants from making any further land fill in Lake St. Clair lakeward of their property. The complaint was filed on March 3, 1955 and a temporary injunction restraining the defendants was issued by the trial court. After Klais was decided, the trial court ordered the temporary injunction dissolved and dismissed the complaint. The Court of Appeals upheld the trial court order dissolving the injunction and in so deciding, the court referred to 1965 PA 293 and stated that 'In view of this amendment, it is our opinion the questions raised by this appeal are moot and the trial court's order denying plaintiff relief and dissolving the injunction is affirmed . . .'. 3 Mich App at 391; 142 NW2d at 477. Therefore, in view of the fact that the 1965 amendment to the Great Lakes Submerged Lands Act requires an owner to obtain a permit, the fact that a person holds title to the property does not prevent the State from exercising its public trust and police power responsibilities. It is therefore my opinion that an applicant holding title to or rights of possession to lands acquired from the State must obtain a permit before filling, dredging or otherwise altering or modifying lands lying below the ordinary highwater mark of Lake St. Clair. Frank J. Kelley Attorney General (1)