Citizens along the Lake Erie shoreline are most impacted (positively or negatively) by coastal management. They desire a balanced program that reflects the needs of the public, lakefront municipalities and shoreline property owners. The Ohio Coastal Management Program (OCMP) was largely copied from ocean bordering states with very different erosion concerns, legal authorities, and public needs. Consequently, many problems have ensued with respect to the Ohio shoreline.
Ohio law regarding regulation and use of Lake Erie and its shoreline has been in place many years prior to the adoption of the OCMP, some parts since 1910. The adoption of the law authorizing the OCMP in 1988 was done with the understanding that no new state programs, regulations, or laws would be needed for its implementation. However, since its implementation, regulations have been extended beyond their historical intent. This has resulted in very complicated, frustrating, and costly regulations for private property owners when constructing erosion control or littoral shoreline structures. The OCMP has also caused similar problems for those with existing shoreline structures. Of greatest concern, the OCMP has resulted in the taking of private property based on incorrect property demarcation.
There are three main authorities in Ohio law regarding shoreline development which have been in existence for decades. The first, O.R.C. 1506.10, defines the State's rights to the waters and submerged lands of Lake Erie ("the public trust"). This establishes the boundary of the public trust to extend from the "southerly shore" of Lake Erie to the international boundary. It establishes that the public trust is "subject to" powers of the U.S. government; public rights to navigation, water commerce and the fishery; and property rights of littoral owners to make reasonable use of the waters . These littoral rights embodied in case law include things such as the right to build structures to access and use the waters, construct piers or wharfs for boating, and rights to property gained by natural causes. This section establishes uses of public trust lands lakeward of the "natural shoreline" that are not considered to prejudice publics rights. These include uses by littoral owners, uses authorized by leases (O.R.C. 1506.11) or uses expressly authorized by the general assembly.
The second authority, O.R.C. 1506.11, defines leasing of public trust lands. Leases were the mechanism the legislature created to allow development (beyond reasonable littoral use) on public trust lands. These included developments for structures, facilities or buildings in aid of navigation, water commerce or the continued use of existing filled areas that might not be water dependent such as commercial buildings, homes, or other such structures. The lease mechanism provides a method to regulate uses of public trust lands that could constitute significant impairments to the public trust.
The third, O.R.C. 1521.20-30 (formerly 1507) is the shore erosion authority which includes the erosion control structure permit program. The law treats littoral structures differently from erosion control structures. This was enacted to help shoreline owners protect their property by ensuring the erosion control structure would indeed stop erosion (1954 OAG 3437). It's application was only for "erosion control" structures and could provided a method to ensure structures did not impair the public's rights of use of the waters of Lake Erie.
In addition to state authorities, federal authorities under the Rivers and Harbors Act and the Clean Water Act regulate shoreline activities. These require a U.S. Army Corp Permit for any shoreline development (littoral or erosion control structure) placed below the Corp defined Ordinary High Water Mark. This process provides public notice and hearings and considers impacts to navigation, fisheries, environmental degradation, and allows any member of the public to challenge the issuance of a permit. The process is structured to increase the rigor based on the increased scope of a project. They also provide guidelines and may check that the structure is not grossly overbuilt, or underbuilt and will notify applicants that they will be obligated to restore the site to previously existing condition if the structure fails.
This legislative request is being submitted to provide statutory authority to clarify, simplify and consolidate shoreline regulatory activities as required by 1506.02 of the Ohio Revised Code and the OCMP. Paramount to this request is the protection of existing littoral owner property rights and the prevention of property takings due to unilateral changes in property boundaries. This request also clarifies the existing littoral and property rights granted to public and private owners of lands adjacent to Lake Erie. The following is an outline of the proposed request. A more detailed listing is described in the "Detailed Overview of Legislative Request" section. Additional material will be provided as background and justification for these changes.
• Clarification of Submerged Lands Lease/Permit Requirements, Simplification of Regulatory Authority
• Stipulate a reasonable penalty and an appeals process with respect to shoreline activities
• Supply a better definition of property boundaries
• Provide for categorization of littoral rights of public and private upland owners.
• Enhance the appointment process of the Coastal Resources Advisory Council
Your timely attention to this matter is greatly appreciated.
• Clarification of Submerged Lands Lease/Permit Requirements, Simplification of Regulatory Authority
With respect to this section of the Code (O.R.C 1506.11), we will use the term "lease," but consistent with the existing statute, we mean lease or permit for use of submerged lands under Lake Erie. It should be noted that the lease law is a separate authority from a construction permit. Any construction on private or public lands below the Ordinary High Water Mark requires a permit from the U.S. Army Corp of Engineers requiring public notice and review. Also, erosion control structures require an additional erosion control structure permit from the ODNR.
The Flemming Act of 1917 and lease legislation of 1910 were enacted with the idea of asserting common law title of submerged lands to the State, declaring both public and private rights to those lands, and enabling submerged lands to be put to use for other purposes as demand arose. The General Assembly authorized leases as the mechanism to allow for other uses such as facilities and buildings in aid of navigation and water commerce, provided they did not interfere with littoral owners uses. Lease language as late as 1948 was clear that it was not intended to be applied to property-owners making reasonable use of submerged lands for littoral purposes (access, boating, etc.). It contained specific provisions for the protection of littoral owners from leases (Ohio Code 3699-2 "When any part of the territory ... has been filled in or improved by said private upland owner ... municipal corporation shall not have the power to take possession of or lease ... without the consent of said upland owner").
The original law required public bidding on the lease to the highest bidder, which demonstrates it was not intended for littoral uses. It was changed in the 1950's to allow upland owners to apply for a lease directly from the state, but again for purposes other than reasonable littoral use (e.g. "structures, facilities, and buildings"). The authority of the lease language has remained largely unchanged since the 1950's. The takings clause in the current lease law (1506.11 E) still contains language that indicates littoral structures are separately authorized uses of submerged lands (e.g. "... uses erected or placed upon the territory pursuant to the lease or permit or the littoral rights of the person ...").
Prior to 1992 only 12 submerged lands leases were issued by the State. With no apparent change in the law or it's intent, the ODNR has begun requiring all littoral owners to obtain leases for submerged lands use. Those leases included land and structures under the waters of Lake Erie as well as those on dry land. This change is not authorized by legislation and more importantly not required for effective regulation of the minimal use of submerged lands typically associated with residential applications. The application of leases in this manner will force thousands of littoral owners along the entire Ohio shoreline to obtain leases for existing structures . If allowed to continue this will result in escalating problems and law suits related to property boundary disputes, takings claims, infringements of littoral rights, property devaluations and many others. It conditions the ownership, transfer, or sale of lakefront property to an attached lease requiring registered surveys, special $1million policy insuring the State of Ohio, removal clauses and various other extreme restrictions. This is an excessive encumbrance to be applied to thousands of lakefront property owners and will create an unwieldy State program to manage these leases forever.
A clarification to this section of the law will allow construction permit applications to proceed with clear legal authority for the ODNR to allow reasonable littoral use of submerged lands without a submerged lands lease . It will also eliminate recent leases that can be considered legally invalid since they claim state ownership based on invalid property boundaries at the Ordinary High Water Mark.
We request that O.R.C. 1506.11 be amended to clarify uses that do not require a submerged lands lease or submerged lands permit as follows:
• Streamline Shoreline Permit Process for Erosion Control and Littoral Structures, Clarify Authority
The adoption of coastal management legislation in 1988 included an element (1506.02 A5) to simplify and consolidate the regulation of activities along the Lake Erie shoreline by coordinating rules and polices of state and federal agencies. This can be accomplished for the majority of small residential shoreline activities by utilizing a single unified permit process with the U.S. Army Corp of Engineers. However, recent changes to the shore erosion law have actually removed authority for coordinated policies with the Army Corp of Engineers.
The shore erosion law has existed for many years. This was enacted to help insure the effectiveness of the structure in preventing erosion. The scope of the erosion control structure permit requirement has remained fairly consistent since 1953. According to a 1954 Attorney General Opinion (OAG 4552), this law is only applicable to erosion control structures and not littoral structures (e.g. structures for boating, accessing the water, etc.). It was further noted that this regulation could be used to ensure erosion control structures did not impair the public's rights of use of the waters of Lake Erie (1954 OAG 3437).
The ODNR recently amended a mining resources bill (H.B. 601) and attached significant changes to the shore erosion law. These changes were done without the full knowledge of the legislature. The amendment purported no significant changes and was only required to transfer authority for shore erosion law from the division of engineering to the division of water. These changes have confused the scope of authority of the law, expanded permits to things beyond erosion control structures, can be interpreted to change the focus of the law, increased fines, and removed permit fee caps. Other provisions that authorized use of Army Corp Permit applications and required technical assistance were removed. These changes should be restored.
O.R.C. 1521 shall be amended as follows:
• All changes to former O.R.C 1507 resulting from H.B. 601 shall be restored except for the transfer of authority from the division of engineering to the division of water. Most significantly, the restoration shall explicitly ensure that the scope of authority is for erosion control structures only and explicitly does not include littoral use structures as potentially inferred by HB 601; return the landward reach of authority only to areas subject to wave action or inundation; allow Army Corp Permits as applications; restore the intent of the law "to prevent and arrest erosion" as opposed to manage or control erosion; recognize groins as acceptable erosion control structures; and restore permit fee cap of $500.
• Utilization of Army Corp permits shall be changed from optional to mandatory as the application for state erosion control permits.
• Approval of an Army Corp permit for residential erosion control structures shall constitute necessary approval for State purposes following standard Army Corp public review procedures to ensure reasonableness.
• The State shall require adjacent property owner notification of permit applications.
• Changes from 1994 S 182 shall be restored to allow property owners or their marine contractors to develop plans and specifications without a state certified P.E.
• Clarification shall indicate that permit requirements are for erosion control structures only, as specified by 1954 OAG 4552.
• Erosion control structure permit requirements shall only extend landward to the maximum reach of the waters of Lake Erie defined by the Ordinary High Water Mark, consistent with the Army Corps of Engineers jurisdiction.
• Penalties and Appeals for sections 1506 and 1521.20 to 1521.30
Currently, little protection exists in the law to allow littoral owners to appeal regulatory determinations made with respect to submerged lands use applications or construction permitting applications. Furthermore penalties exceed that necessary and reasonable for the potential infractions. It is recognized that these penalties are only for violations of the permitting process and that penalties for problems such as water quality degradation of the waters of Lake Erie are covered under existing EPA authorities.
We request that O.R.C. 1506 and 1521 be amended to include the following:
• Prior to any enforcement action of the State, littoral property owners shall be given appeal rights in the court of common pleas in the county in which the violation occurred.
• Penalties for erosion control structure permit violations shall be reasonable and commensurate with those allowed in 1506.
• Definition of property ownership of littoral owners along Lake Erie.
The recent application of the lease provisions under O.R.C. 1506.11 to all littoral owners has caused serious property disputes with the ODNR. The ODNR is claiming state ownership of private lands up to the Ordinary High Water Mark. Most deeds along the Lake Erie shoreline extend to the low water mark. By setting the area of lease control (and thus State ownership) up to the Ordinary High Water Mark, ODNR is effectively taking a large swath of land across the entire State. Contrary to the deeds that have been in existence since the early 1900's, ODNR contends that the upland owner no longer owns his beach. Given the fact that the elevation difference between low water and high water is approximately six feet, this unilateral decision removes a large portion of beach from everyone's property and puts it in the public domain. It also ignores Municipal incorporation property descriptions. For instance, the city of Avon Lake's territorial description of 1911 describes property to the low water mark of Lake Erie. This boundary was confirmed in the 9 th district court of appeals in City of Avon Lake v. W. W. Paine. The jurisdiction of the City was declared to extend to the low water mark of Lake Erie.
The consequences of ODNR's assertion of State ownership to the OHWM are sever:
• Under equal application of the law, vast portions of Ottawa County that were diked and drained early in the 20th century may have to be leased from the State
• Numerous lakefront associations along the entire Ohio Shoreline may loose access and control of their beaches.
We request that O.R.C. 1506.10 be amended as follows to more clearly define shoreline property boundaries as follows:
• The legislature shall expressly declare its prior grant of ownership rights to upland littoral owners of Lake Erie to be a grant of the lands extending lakeward to the natural low water mark. The natural low water mark shall be defined as the lowest water level of Lake Erie averaged over a one-month period from historical record.
• Lands lost by avulsion or lands lost by artificially influenced erosion shall not alter the historic deeded boundary of the upland property owner.
• Public and private upland owners of Lake Erie, its bays and inlets own the lands within the deeded side lot lines of their property to the point on the shoreline where the water depth equals the natural low water mark as defined above. This recognizes upland owner's ownership of land above the natural low water mark in conformity with long standing case law and historical deed and title practice in Ohio, but does not change the publics rights to navigation and fisheries of the waters of Lake Erie. It also recognizes the longstanding legal principal that whatever is actually out of the water (beach, etc.) is owned and controlled by private owners, and is not part of the public lands described in O.R.C 1506.10. It is consistent with cases decided by the Ohio Supreme Court, the opinion of the Ohio Attorney General and historical application of littoral ownership by most other Great Lakes states.
• Designation of littoral rights of upland owners (regardless of use, e.g. commercial or residential).
Certain littoral rights have been granted to littoral owners along the natural shoreline of Lake Erie, its bays and inlets, by the Ohio General Assembly since its earliest pronouncements. To clarify and enforce these rights, the General Assembly should explicitly catalog the following rights:
• the right to use of the waters flowing past the land
• the right to access the waters of Lake Erie
• the right to wharf out to navigable waters
• the right to natural accretion of additional lands
• the right to restore lands lost by avulsion
• the right to lands created by reliction (any natural long term recession of the waters) of Lake Erie
Further, the right to protect ones property should be included as:
• the right to protect lands from erosion
• Coastal Resources Advisory Council
Appointments to the Coastal Resources Advisory Council shall be modified to allow better consideration of shoreline owners and an unbiased selection of remaining candidates as follows:
• Each member of the Ohio Senate whose district includes any portion of the coastal management zone shall be entitled to name one representative to the council.
• A minimum of one third of the council members shall be permanent shoreline residents.
• The governor shall appoint all remaining members.
• The governor shall appoint the Chair of the Council.
Copyright 2004, Ohio Lakefront Group.