The deceptively complicated “elevation ordinary high water mark” and the problem with using it on a Laurentian Great Lakes shore

In 2013 the Laurentian Great Lakes are at historically low levels; but they will undoubtedly rise again as they always have in an ongoing pattern of seasonal, annual and decadal fluctuations. Those fluctuations, coupled with other physical dynamics unique to the Great Lakes system, will continue to shift shorelines lake-ward and land-ward dramatically over time, perhaps more so because of increased storminess from climate change. These shifting shores implicate legal doctrines that attempt to balance public interests and private property rights at the shore, and they complicate the Great Lakes states' efforts to effectively and fairly manage their Great Lakes shorelands. One challenge comes from using an elevation-based standard to mark ordinary high water, a method that is difficult conceptually to administer and that yields multiple marks over time. We describe briefly Great Lakes shoreline dynamics and the application of state Public Trust Doctrines to those shorelines, and we discuss in detail recent litigation in Michigan regarding use of an elevation-based standard to mark ordinary high water, illustrating the inherent problems with that standard. We conclude that the elevation-based standard should be abandoned, or if not abandoned applied in a manner to adequately safeguard public trust shorelands.