Great Lakes Offshore Wind and the Public Trust: The Michigan Example

With energy demand on the rise alongside increasing evidence of global climate change, there is considerable support for the continuing development of renewable and clean energy sources. Although offshore wind has been implemented widely across Europe, the U.S. is lagging behind, with a grand total of zero offshore wind facilities. As could be predicted, the offshore wind energy industry is plagued by many challenges: regulatory uncertainty, huge start-up costs, opposition from local communities, and transmission difficulties. It is unclear how and if an additional issue, the public trust doctrine, will come into play. For those unfamiliar, the modern American public trust doctrine creates a duty in each state to manage the submerged bottomlands of navigable waters within its borders for the benefit and use of the public.[1] In examining the potential effect of the doctrine, I use the state of Michigan—which has the greatest wind energy potential of any Great Lake state[2]—as an example.

Like many states, Michigan protects not only traditional public trust rights, such as the right of the public to use navigable waters for “fishing, hunting, and navigation,”[3] but has also expanded public trust protection to include nontraditional rights.[4] Michigan’s Natural Resources and Environmental Protection Act (NREPA) Part 325, for example, recognizes recreational interests when it provides for the protection for the uses of “hunting, fishing, swimming, pleasure boating, or navigation.”[5] A Michigan Appellate Court found that environmental concerns were also relevant to the public trust doctrine when it stated that “the trust impressed on these lands is for the protection of our navigable waters, the preservation of valuable fish and game habitate [sic], and assurance of the public’s right to fish and boat in the subject area,”[6] and cites the Michigan Constitution for this assertion.[7] The Michigan Attorney General has also asserted that non-traditional uses are protected under the legislature’s codification of the public trust principles, including “the preservation and protection of water for domestic use, navigation, recreation, aesthetics, fishing, agriculture, commerce, and industry.”[8] Even if the protection of more far-reaching environmental interests is not yet fully solidified in Michigan case law, the trend toward broader interpretation of protected uses is definitely underway. As such, the examination of development of offshore wind energy facilities must take into account both traditional and nontraditional public interests.

What does it mean for a use to be protected? In short, it means that the state cannot permit significant interference with the use. As long as private development does not interfere with protected uses, Michigan can transfer property rights to submerged lands of the Great Lakes. It is important to understand the difference between, and separable nature of, proprietary interests (jus privitum) and sovereign interests (jus publicum) in public trust lands. The Michigan Supreme Court has repeatedly held that the state can transfer property rights to private parties, so long as the private use does not impair or interfere with the public interest.[9] Additionally, state legislation provides for the leasing of submerged lands under the Great Lakes, provided that “the public trust in the waters will not be impaired or substantially affected . . . .”[10] The critical question then becomes, can commercial offshore wind facilities actually be developed in a manner that doesn’t substantially interfere with protected uses? There is ample evidence that commercial offshore wind facilities could be developed in a manner consistent with Michigan’s public trust doctrine.

Careful siting of offshore wind is a crucial step to avoid interfering with protected uses, and could by itself greatly reduce any adverse impacts on protected uses. For example, placing a wind farm in the middle of a shipping lane or a critical fish habitat area would obviously interfere much more with protected uses than placing the same farm in a different location. Mapping by the Michigan Great Lakes Wind Council[11] suggests that even avoiding various areas of high existing use leaves sufficient areas of submerged lands for the development of offshore wind. The Council developed a list of criteria that would be important in siting offshore wind in the Great Lakes and mapped these criteria (with appropriate buffer zones) to determine which areas would be best for offshore wind development. Many of the criteria examined by the Council relate to uses or interests that are protected under the public trust doctrine. For example, the first set of criteria sets aside categorically excluded areas. Such areas include “aids to navigation” and “buoyed navigation channels.”[12] Avoiding these areas would clearly reduce an impact on navigation and shipping. A second set of criteria was designed to “identify geographic locations that are subject to one or more potentially competing values or features . . .  but are not deemed categorical exclusions.”[13] These criteria are also highly relevant to the issue of developing wind farms which can peacefully coexist with protected uses, and include biological features, such as “[globally or continentally significant concentrations of bird or bat species of conservation concern,” “[h]abitat for [t]hreatened and [e]ndangered species,” and “[r]ecreational fish spawning sites and refuges,”[14] as well as physical features criteria which are relevant to navigation, commerce, and recreational interests, including “[h]arbors/marinas,” and “shoreline[s].”[15] The remaining areas after various criteria were mapped, including appropriate buffers, were designated “most favorable” for offshore wind development. Even when excluding areas with a water depth of greater than 45 meters (where wind turbine construction is less practical), these designated “wind resource areas” cover a total of 475 square miles.[16] Although the significance of the Council’s exercise should not be overstated, the identification of areas which not only have sufficient wind resources and bathymetry for development, but also specifically avoid areas crucial for uses and interests protected under the public trust doctrine, is still significant and meaningful evidence that commercial offshore wind facilities could be developed in harmony with the state’s public trust obligations.

There is additional reason to believe that offshore wind could be developed in a manner consistent with protected uses and the public trust doctrine. With proper siting, offshore wind farms would not interfere with navigation or commerce any more than other structures that are built in navigable waters, such as bridges or docks. A Denmark wind farm located 8 km from a shipping lane was found to only cause “minimal hindrance” to passing ships, [17] while a September 2010 report noted that there were no known ship-turbine collisions to date. In addition, it cites a risk assessment for a proposed European offshore wind facility, which found that the chance of a ship colliding with another ship was ‘significantly higher’ than the chance that a ship would collide with a turbine.

One of the largest concerns regarding offshore wind has been the effect on bats and birds.  This is presumably rooted in the understanding that both bird and bat fatalities have been reported at many land-based wind facilities.  Data from land-based farms, however, may be completely inapplicable to facilities located miles offshore. NREL’s report asserts that “[s]everal offshore facilities studies suggest minimal or no significant impacts on bird life from offshore wind farms.”[18] The report goes on to state that there is a “lack of evidence to date that would suggest that offshore wind farms pose a major risk to individual birds or populations.”[19] Although effects on bird populations can vary greatly based on the location of the facility,[20] there is evidence to suggest that careful siting can lead to minimal adverse effects. For example, “a recent study of 1.5 million migrating seabirds from Swedish wind farms in Kalmarsund concluded that the fatality risk was only one in 100,000 passing seabirds.”[21] Closer to home, Massachusetts Audubon independently evaluated the Cape Wind project, a proposed wind energy facility off the coast of Massachusetts. Massachusetts Audubon “concluded that the Cape Wind Energy Project (Cape Wind) will not pose an ecologically significant threat to the birds and associated marine habitat of Horseshoe Shoal and Nantucket Sound.”[22] Although the behavior of bats is much less well understood,[23] there is no reason to think that siting couldn’t greatly mitigate any adverse effects. The Great Lakes Wind Council map specifically avoided areas with at least seasonally high concentrations of birds or bats. This is an excellent first step, and could be supplemented by site-specific monitoring and assessment, even after the facility is built.

There are also concerns about how wind energy facilities might affect the surrounding aquatic ecosystem. The impact of the noise created by offshore turbines on aquatic animals, for example, is one issue which will require further study. The UK Department of Energy and Climate Change conducted a study which concluded that during operation, “sounds generated by offshore wind turbines are in the same range of frequencies as those generated by existing shipping, fishing vessels, wind, and waves, and therefore would contribute only a relatively low background noise.”[24] Other European studies, however, have provided conflicting data on the effects of offshore wind farms. Although studies would have to be conducted to determine whether turbines would significantly impact the aquatic communities of the Great Lakes, siting could once again play an important role.

Michigan, like all states, has a duty to protect public interests in navigable waters. This duty, however, does not categorically foreclose the possibility of offshore wind development, and evidence suggests that offshore wind could, in practice, be implemented in a manner consistent with the public trust doctrine.

—Rachel Granneman is an Executive Editor for MJEAL.  She can be reached at grannemr@umich.edu.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[1] Although this trust obligation ends three nautical miles from the shore for most coastal states, the Great Lakes bottomlands are divided up between the eight Great Lake states and the Canadian province of Ontario.

[2] Marc Schwartz, Donna Heimiller, Steve Haymes & Walt Musial, Nat’l Renewable Energy Laboratory, Assessment of Offshore Wind Energy Resources for the United States 3 (June 2010), available at http://www.nrel.gov/docs/fy10osti/45889.pdf.

[3] Glass v. Goeckel, 703 N.W.2d 58, 62 (Mich. 2005).

[4] It is important to note that although states may not protect the public trust to a lesser degree than that required by federal jurisprudence, it is well within a state’s sovereign right to increase the protection given to public trust lands (subject, of course, to federal navigational servitude). See Ill. Cent. R. Co. v. State of Ill., 146 U.S. 387 (1892).

[5] Mich. Comp. Laws Ann. § 324.32502 (West).

[6] People ex rel. MacMullan v. Babcock, 196 N.W.2d 489, 497 (Mich. App. 1972).

[7] Id. at 497 (quoting Mich. Const., Article 4, § 52).

[8] 2004 Mich. Op. Att’y Gen. No. 7162 (Sept. 23, 2004).

[9] See, e.g., Nedtweg v. Wallace, 208 N.W. 51, 53 (Mich. 1926); Obrecht v. Nat’l Gypsum Co., 105 N.W.2d 143, 149 (Mich. 1960). See also Superior Pub. Rights, Inc. v. State Dept. of Natural Res., 263 N.W.2d 290, 296 (Mich. 1977).

[10] Mich. Comp. Laws Ann. § 324.32503 (West) (emphasis added).

[11] See generally Michigan Great Lakes Wind Council, http://www.michiganglowcouncil.org/ (last visited Oct. 18, 2012).

[12] Mikinetics Consulting LLC & Public Sector Consultants Inc., Report of the Michigan Great Lakes Wind Council 26 (2009), available at http://www.michiganglowcouncil.org/GLOW%20Report%209-1-09_FINAL.pdf.

[13] Id. at 26.

[14] Id. at 27.

[15] Id. at 27-28.

[16] Michael Klepinger, Minikentics Consulting & Public Sector Consultants, Inc., Report of the Michigan Great Lakes Wind Council 9-14 (2010), available at http://www.michiganglowcouncil.org/GLOWreportOct2010_with%20appendices.pdf.

[17] Walter Musial & Bonnie Ram, National Renewable Energy Laboratory, Wind Power in the United States: Assessment of Opportunities and Barriers 126 (2010), available at http://www.nrel.gov/docs/fy10osti/40745.pdf.

[18] Id. at 187.

[19] Id. at 189.

[20] “Results are highly site specific and therefore can often appear contradictory.” Id. at 186.

[21] Id. at 187.

[22] Id. at 190.

[23] Id. at 190-91.

[24] Id. at 191.