Frequently Asked Questions.

• What is the Ohio Coastal Management Program and how does it affect me?
• How is the ODNR taking my property?
• Why does ODNR require the use of land leases?
• Is the Ohio Lakefront Group opposed to ODNR?
• What is the problem with land leases? The fees are usually small.
• What are "littoral" property rights?
• How can I determine where the Ordinary High Water Mark (OHWM) and the Low Water Mark are on my property?
• What boundaries do other states use?
• What are the legal precedents?

What is the Ohio Coastal Management Program and how does it affect me?

The State of Ohio passed "coastal management" legislation in 1989 that gave the Ohio Department of Natural Resources (ODNR) broad authority over your shoreline property. The combination of this law, plus the abuse of the law by the Office of Coastal Management, has caused extensive problems that affect every Ohio shoreline property owner, such as:

• Taking YOUR property and invalidation of your deed.
• Requiring you to lease YOUR property and the land under your breakwall, piers, and docks and fill areas adjacent to the shoreline from the ODNR.
• Requiring you to obtain permits from several agencies (Army Corps of Engineers and ODNR) to manage YOUR shoreline property and structures (piers, retaining walls, jetties, etc.)
• Potential restrictions and conditions on the sale of YOUR property.
• Potential loss of YOUR right to access and use YOUR shoreline property.
• Requiring you to indemnify the State of Ohio for YOUR property by purchasing a $1 million insurance policy on land they allege is "State owned."

The majority of these issues stem from the inappropriate use of the "submerged lands" lease program enforced by the Office of Coastal Management. The State claims it owns land to the "ordinary high water mark" adjacent to Lake Erie and other bodies of water, regardless of your deed defining your property line as the "low water mark" or "the water's edge" or "metes and bounds." This interpretation of the property line, the "ordinary high water mark," was established by the ODNR, and it WILL result in you owning less property than your deed indicates. You will not receive compensation from the State for the taking of your property. You will be required to pay property taxes on the property the State claims they own.

The "submerged lands" lease as issued by the ODNR is a fifty-year lease. You will pay a lease/rental fee for that land annually, even though your deed states that the land is yours. When the lease expires, the ODNR may require that you remove ALL structures and improvements from the property, including piers, docks, and breakwalls and fill, and return the property to a "condition satisfactory" to the ODNR, even if the improvements were on the land when you purchased it. While you may never have to deal with this issue during your ownership period, your heirs and potential buyers of your property will indeed need to consider these leases as a liability. No one knows what action the ODNR might take fifty years in the future.

While the implementation of these policies may seem inappropriate actions by the State, they are nonetheless risks all shoreline owners face. The Coastal Management Program pertains to ALL shorelines in Ohio.   While the principal focus today is on the Lake Erie shoreline, other bodies of water, such as rivers, streams and creeks, may be their next target.

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How is the ODNR taking my property?
Many lakefront property owners have a deed that shows land ownership to the Ohio Low Water Mark, commonly indicated as 569 ft of elevation. ODNR maintains that the State of Ohio owns property to the Ordinary High Water Mark (573.4 ft elevation). This small difference in elevation may be as much as 40-50 feet of beach area. Frequently, erosion control structures are built in this area between the Ordinary High Water Mark and the Low Water Mark. According to ODNR, any erosion control structure built in this area requires a submerged lands lease from the state of Ohio before a permit will be granted.

ODNR states that existing state law requires these land leases. This is incorrect on two points. First, the law allows ODNR to use Permits in place of land leases. Second, the Ohio Attorney General in Opinion 93-025 states quite clearly “the littoral owner is the beneficiary of the grant pursuant to 43 U.S.C.S. §1311 (1980) of the land above the natural shoreline up to the ordinary high water mark.” The littoral owner is the upland lakefront property owner. The natural shoreline is defined as: “that line where the water stands when unaffected by any disturbing cause.” In other words, the lakefront property owner owns the land up to where the land meets the water on a quite, undisturbed day. This is quite different from ODNR's use of the Ohio High Water Mark.

Property owners are restricted from constructing an erosion control structure without a permit from ODNR. ODNR will always require a land lease if the structure is built on the lakeward side of the 573.4 ft Ordinary High Water Mark. So, frequently, lakefront property owners must give up ownership of legally deeded property in order to prevent their property from being eroded away. In previous years, ODNR recognized the "natural shoreline" definition as the boundary between state and private land.  In fact, they even state it in their own Coastal Management Plan.

Even if you plan to build your erosion control structure above the Ordinary High Water Mark, the State may do a historical land survey to see if any of your property was ever covered by the waters of Lake Erie. Based on old aerial photographs, your property can be taken away. Many lakefront property owners disagree with these surveys.

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Why does ODNR require the use of lands leases?
ODNR receives about $500,000 in annual revenue from these land leases. The federal government also grants funds resulting in an additional $1 million per year in state revenue. The same people who force lakefront property owners to get land leases receive their salary from this fund. Does this seem to be a conflict of interest?

ODNR could use permits as allowed by law, but it would not be as easy to predict permit fees as it is to predict a steady flow of revenue from land leases. If one is staffing a large state government department, steady funding sources are extremely helpful to build a bigger bureaucracy.

The latest published Ohio Coastal Management Plan (OCMP) enhancement draft states: "The OCMP anticipates that submerged lands lease fund revenues, which might be a logical source for additional funding ..., would increase with increased and more consistent compliance with the program. However, several years will be required for ongoing permitting and leasing efforts (with attendant cost of enforcement) to bare fruit." In other words, lakefront property owners are a significant source for additional funds!

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Is the Ohio Lakefront Group opposed to ODNR?
Absolutely not.  The ODNR does many great things for the public and this State. However, the current implementation of the OCMP is not one of them. We are opposed to the office of Ohio Coastal Managements' implementation (and interpretation) of Ohio State Law.  We are also dismayed at the lack of consideration given to the public's input to the program, which has been overwhelmingly negative. We also object to the manner in which the ODNR writes its own laws, often without the legislature understanding the full ramifications [for example HB 601, where sweeping new authority was added to the Ohio Coastal Management Office without legislative review].

Certainly, responsible development of the shoreline should be regulated.  One of the prescribed goals of the Ohio Coastal Management Program was to streamline the regulatory process for permitting.  The ODNR's OCMP has had the exact opposite result, creating an extremely burdensome permitting/lease program.  We believe effective regulation can be obtained for "reasonable use" residential shoreline structures with approved Army Corp of Engineers permits.

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What is the problem with lands leases? The fees are usually small.
Aside from the taking of your property, land leases are terribly one sided. First, land leases are for a fifty-year time period. At the end of that period, the property owner may be required to remove the structure (the lease may be renewed at the discretion of the Director of ODNR). Second, the property owner must purchase liability insurance to protect the State of Ohio. Al homeowner's policy would normally cover the property, but ODNR asserts state ownership. This creates a new legal liability and the property owner gets stuck with the bill.

The lease for residential owners is a misapplication of the law as originally intended.  We consider it to be an unconstitutional taking of our littoral property rights.  In fact, some states have declared submerged lands leasing unconstitutional.

Many impartial attorneys have examined the land leases and counseled against signing the document. Unfortunately, the land owner has no ability to negotiate a more balanced document.

The use of land leases started predominantly in the mid 1990's with the adoption of Ohio's Coastal Management Program.  Prior to the program, leases were unheard of for residential lakefront owners protecting their property, or exercising their littoral rights.  Ohio's submerged lands lease law dates back to the 1920's.  It's applicability was never intended to be applied to lakefront owners.  The original intent was to allow municipalities to develop harbors, ports and other uses that might not be water dependent and for users that might not be upland owners.  In fact, the original law had explicit provisions preventing the government from leasing any of your piers or lakefront structures, including those extending beyond your property line, without compensating the owner for a taking of littoral rights.

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What are "littoral" property rights?
Littoral property rights are special property rights granted to lakefront property owners.  They include:

        the right to consumptive use of the water
        the right to build structures to access the water
        the right to build structures to wharf out to navigable waters
        the right to natural accretion of additional lands
        the right to restore lands lost by avulsion (sudden storm loss of land)
        the right to lands created by reliction (land created from a drop in water levels)

They also include the right to lose land from natural erosion.  However, this does not include unnatural erosion that was caused by human influenced changes to lake levels, or interruption in the distribution of sand along the shoreline (e.g. large municipal piers).

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How can I determine where the Ordinary High and Low Water Marks are on my property?
Current lake levels can be obtained from NOAA's web site. Using the most recent measurements for a calm day, you can estimate the Low Water Mark location by subtracting 569 ft (Ohio Low Water Mark) from the current reading. For example, as of this writing, the Lake Level is 571 ft at Marblehead, OH. The Low Water Mark would then be a spot approximately 2 ft below the surface of the water. A similar process can be used for the Ordinary High Water Mark (573.4 ft). But don't forget that the state can use a historical land survey to take your property.

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What boundaries do other states use?
According to documents handed out at a Public Trust Doctrine workshop:

Illinois - "to waters edge"

Michigan - defined by statute to 572 ft elevation which is substantially lower than OHWM (573.4 ft); court cases had decided on the use of the Low Water Mark

Minnesota - "low water mark"

New York - "low water mark"

Pennsylvania - "low water mark"

Wisconsin - "low water mark"

Read the entire Legislative Service Commissiion Report answering this question.

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What are the legal precedents?
The previous head of ODNR's Coastal Management Office, Mike Colvin stated:

"We have examined statue, AG Opinions, Ohio Supreme Court Decisions, and other relevant case law. Our Statue refers only to the 'natural shoreline' as the delineation between upland ownership and the state's public trust property. Our policy and practice is based in part on the absence of definitive case law on the subject."

However, there are a number of legal precedents:

Baumhart v. McClure, 21 Ohio App. 491, 493 (1926) states:

"land lost by submergence may be regained by reliction, and its disappearance by erosion may be returned by accretion upon which the ownership temporarily lost would be regained."

[ODNR's Coastal Management Program does not recognize this precedent. They state that any property covered by water becomes state property.]

State, ex. rel. Duffy v. Lakefront East 55th Street Corp., 137 Ohio St. 8, 12 (1940) states:

"Title by accretion vests in the littoral [lakefront] owner on the shores of Lake Erie as to all lands formed gradually and imperceptibly in the extension of the shoreline throught the action of the waters of the lake."

As in the previous case, the lakefront property owner can gain title to property that is deposited, either naturally or due to a neighboring pier. Again this is not recognized by the Ohio Coastal Management Program.

The Ohio Attorney General's 1993 Opinion has been noted above. A Michigan State Supreme Court case argues for the use of the Low Water Mark (in Ohio that would be 569 ft elevation).

In 1974 ODNR argued for the Low Water Mark as the rightful boundary line.  In an amicus curiae brief filed by the Assistant Attorney General of Ohio on behalf of ODNR he argued that:

"… the corporate boundary of Avon Lake is set at the Low Water Mark " (Amicus Curiae OAG for ODNR - emphasis added)

And the Ohio 9th District Court agreed.  In the decision and journal entry, the Court stated:

"The northern geographical boundary of Avon Lake is the Low Water Mark of Lake Erie " (City of Avon Lake v. W.W. Paine - emphasis added)

The deed of incorporation from 1911 for Avon Lake describes the boundary to the “low water mark” of Lake Erie.

And this isn’t a recent phenomenon.  In 1878 the Ohio Supreme court discounted the use of English public trust common law in assigning boundaries.  In it’s decision the court cited the following regarding the extent of ownership along the shoreline of Lake Erie:

“Our large fresh-water lakes ... are wholly unprovided for by the law of England.  As to these, there is neither flow of the tide nor thread of the stream; and our local law appears to have assigned the shores down to ordinary low-water mark ” (Sloan v. Biemiller - emphasis added)

ODNR’s use of Ordinary High Water Mark would leave large strips of land along the shore with a cloud in title to the dry land.  In 1890 the Ohio Supreme Court weighed in on this subject and showed their dissent to such a policy:

“The existence of ‘strips or gores’ of land along the margin of non-navigable lakes, to which the title may be held in abeyance for indefinite periods of time, is as great an evil as are strips and gores of land along highways or running streams; the litigation that may arise ... is equally probable” (Lembeck v. Nye, 1890)

While the case was specifically in regard to non-navigable lakes the court also referenced navigable waters bordering the state (being the Ohio River).  The court stated:

“the clear tendency of judicial opinion in this state is to limit the title of the riparian proprietor to low-water mark ” (Lembeck v. Nye, 1890)

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Copyright 2004, Ohio Lakefront Group.

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