November 19 , 2003 Testimony

Testimony of David A. Carek, P.E., November 19, 2003

Good Morning,

My name is David Carek.   I am the Chairman of the Ohio Lakefront Group.

Chairman Hollister and members of the committee, I appreciate the opportunity to comment on Substitute H.B. 218.   As indicated in prior testimony, the Ohio Lakefront Group desires meaningful regulation that protects the interests of shoreline property owners, protects the environment and health of Lake Erie, and protects the public's right to use those waters.   We desire regulations that are reasonable, simplified, and take into account the needs of our local communities.

Before commenting on the Substitute Bill I would like to briefly reiterate the goals of the Ohio Lakefront Group's legislative request.   More complete summaries of these goals are included as an attachment.

Several of the main objectives of H.B. 218 as originally introduced included:

•  Honoring the deeds of lakefront property owners and local governments

•  Clarification of lease requirements - in that leases were never intended to be applied to littoral     owners reasonably exercising their littoral rights

•  Simplification of the permitting process

•  A more fair penalty and appeal process

•  Providing for categorization of common law littoral rights

•  Ensuring the public has unbiased input to Coastal Management policies

While the Substitute Bill covers some of these items, we believe several modifications are necessary to adequately address others.   There are some portions of the Substitute Bill, which could potentially create additional confusion and complications with the regulatory process.   However, I believe these can be easily corrected within the Substitute Bill by not adopting the new regulatory process proposed in 1506.111 and including all permitting activities under 1506.40.

Honoring the deeds of lakefront property owners and municipalities

Section 1506.10 - Definition of Low Water Mark

While the Substitute Bill recognizes the deeds of shoreline owners, it then goes on to define the meaning of Low Water Mark to be a level that is actually an average level.   This is entirely inconsistent with usage of Low Water Mark in common law.   The historic use of Low Water Mark for Lake Erie has been the use of Low Water Datum of 568.6 ft (IGLD 1955).   A definition of Low Water that is not "Low Water" would be of little value.   The proposed definition requires modification to reflect "Low Water," such as the one in H.B. 218 as originally submitted.

Clarification of Lease Requirements, in that leases were never intended to be applied to littoral owners reasonably exercising their littoral rights

One of the predominant problems in the current regulatory process has been the inappropriate use of the submerged land lease law (ORC 1506.11).   Lease legislation was included in the codification of Public Trust law in 1917 with the Flemming Act.   This was in response to the 1916 Ohio Supreme Court Decision of State of Ohio v. Cleveland & Pittsburgh Railroad Co.

In that case the State argued that a littoral owner was prohibited from wharfing out to navigable waters - citing the Public Trust Doctrine as dominating authority.   The court squarely rejected this position and affirmed the littoral rights of the upland owner.   The general assembly codified this decision in 1917 with Flemming Act which:

•  Declared public trust rights to include navigation, water commerce and the fishery

•  Declared littoral owners' rights to use submerged public trust lands fronting their land; that such uses did not interfere with the public trust rights; and that such uses need not be expressly authorized by the general assembly

•  Delegated authority to local municipalities to regulate, manage, and determine what constituted unlawful encroachments on to public trust lands.

•  Allowed municipalities to lease submerged lands for public purposes in aid of navigation and water commerce

•  Prevented municipalities from leasing portions of public trust lands that were used by private upland owners without first paying the private owner for the taking of their littoral rights and the privately owned fill or structures on the site

All of this authority exists today in current law.   The only substantial difference is that administration of leasing was moved from the municipal level to the state level in 1955.   In addition, allowable uses for leases were expanded to include purposes other than water commerce and navigation.   This was necessary because a section of the Flemming Act that exempted a two mile stretch of Cleveland was declared unconstitutional.   Since the filled lands were not associated with water commerce, navigation, or exercise of littoral rights, they could no longer be legally occupied.   By expanding the leasing authority to include other developments or improvements, the legislature allowed the continued occupation of this filled public trust land.   A grandfather clause was also included to allow occupants who "erected, developed, or maintained structures, facilities, buildings, or improvements" to be granted a lease on the filled land.   A full review of this legislative and judicial history is included as an attachment.

The original H.B. 218 would have clarified that leases were not intended for reasonable uses submerged lands in exercise of littoral rights.   This bill reverses that objective.   Littoral rights structures would now be explicitly subject to sections 1506.11, 1506.111, and 1506.40 (lines 716-719).   This is somewhat in conflict with the delegation of authority to municipalities to regulate and determine allowable uses of the submerged lands within two miles of the shoreline.   Lines 716 to 719 should be removed.

I am very concerned that the repetition of 1506.11 as enacted under 1506.111 for non-commercial applications further confuses and unnecessarily complicates the permitting process.   This creates yet an additional regulatory authority.   Even if one assumed the intent of 1506.11 was for littoral rights structures, it has been shown to be overly burdensome requiring metes and bounds surveys and passage of local ordinances and other restrictive conditions.   1506.111 would suffer from the same problems.   The provisions within both of these sections go well beyond that required for reasonable regulation.   A more appropriate option would be to expand the provisions of the 1506.40 permit law to include all shore structures under one permit authority.

Section 1506.11   - Submerged Lands Leasing and Permitting

Section 1506.11 should be retained in its original form, as the law exists today, with the clarification that it does not apply to erosion control structures or structures in exercise of littoral rights.   It would also be beneficial to local governments if all of the proceeds of leases were returned to the municipalities, as the law read prior to 1989, and that these revenues should only be used for public aids to navigation or public access to the waters of Lake Erie.   This would result in a net increase in funding to the local governments.  

Section 1506.111 - Permitting Authority (Lines 909-1061)

Section 1506.111 should not be enacted.   It would be far simpler to just make all structures file for a permit under Section 1506.40.   This would need to be coupled with the clarification in 1506.11 above.

Section 1506.111(E) Term of the Permit (Lines 985-986):

It appears that a permit under this Section would be issued for a finite period of time.   The Bill needs to make clear the fact that Permits are permanent and that ODNR cannot require additional applications or simply removal after some finite period.   Again this would better be placed under a single permit authority under 1506.40.

Simplification of the Permitting Process

The Substitute Bill does not seem to adequately simplify the permitting and regulatory authority, which is a requirement for the Coastal Management Program under ORC 1506.02.   The following table shows the various permit and regulatory authorities that would be required for an erosion control structure with a pier for various legislative scenarios.

It is interesting to note that Navigable Rivers (where the Public Trust Doctrine equally applies) have shoreline that far exceeds that of the Lake Erie shoreline, yet the permit process is much more reasonable.

NOAA has indicated that statewide standards on permitting are required for Coastal Managment Program approval.   This is somewhat confusing, as there are currently no statewide standards.   However, If the Legislature feels that a statewide permit is necessary, we would recommend including provisions for this in the 1506.40 permit and eliminating the 1506.111.   In this case 1506.40 should be modified to include all shoreline structures beyond the high water mark, provided that clear standards are developed and approved by an independent board.   This could allow the large majority of shoreline structures for reasonable littoral use or erosion control to be permitted with varying degrees of review based on the scope of the project (just as the Army Corps process allows).   Additionally, if local permit authority meets state standards, permits could be administered at the local level with no threat of losing Federal Funding.   This would be consistent with the NOAA's Federal Coastal Management Guidelines to "Improve Government Efficiency," which include simplifying permitting procedures and delegating permitting authorities to the local level.

Sections 1506.40 - Professional Engineering requirement.

This requirement for a professional engineer should be eliminated for residential applications.   This would significantly reduce the financial burden on applicants.

Section 1506.40 - Grandfather Clause

A provision should be added to grandfather any structures for erosion control or littoral rights that are in existence at the time of the passage of this Bill, provided the are not unlawful by the local governments historical uses or regulations.

Section 1506.03 - Coastal consistency

Substitute H.B. 218 eliminates the repeal of 1506.03.   While there is no problem with this, ODNR currently asserts that individual permit applicants must certify their project is consistent with the two-volume Coastal Management Program Document.   This is not only unreasonable, it is perhaps impossible.   This is because the Coastal Management Program document has so many conflicting policies that it would be near impossible to certify that any project is consistent with the document.   While it already appears this is an incorrect interpretation of the law, a provision should be added to ensure individual applicants are not responsible for determining this consistency (the law indicates it is the Director's responsibility to determine consistency).

Sections 1506.06 and 1506.07 - Erosion area designations and associated building permits.

Substitute H.B. 218 removes the repeal of 1506.06 and 1506.07.   These sections of the law declare coastal erosion areas and require building permits from ODNR for homes in those designated areas.   Only 35% of the shoreline has been declared to be in "erosion areas" and even the validity of those are often in question.   Only ten building permits have been issued under this section, which makes it unclear as to the value to the public relative to the expenditures for aerial surveying of the entire shoreline.   The application of this law amounts to mandated zoning restrictions for local governments.   As a minimum these sections should be amended to allow shoreline residents to object to the designation at any time.   Local governments should be able to override a building permit rejection if they believe the erosion area assessment is incorrect.

Revise Penalties and Appeals Process

Sections 1506.99 (Lines 1675-1676) - Fines

One of the purposes of H.B. 218 was to restore the changes that ODNR slipped into the law when they mischaracterized the purpose of H.B. 601 in May of 2000.   In that bill ODNR claimed its amendment to an unrelated mineral resources bill at the end of the session was only to transfer erosion control permitting from the ODNR Division of Engineering to the Division of Water.   Supposedly this was to enhance the erosion control permitting process.   In actuality, many changes, detrimental to shoreline owners, were included in this bill - one of which increased the fines to daily occurrences.   H.B. 218 would have restored this, but it has subsequently been reintroduced in the Substitute Bill.   Given the heavy penalty authority of both the Army Corps as well as Ohio EPA, this daily occurrence is unreasonable.   In addition any penalty should not be assessed until after all appeals have been exhausted and a reasonable amount of time has been given by the last appeals court for compliance.

Section 1506.08 - Court Appeals (Line 682):

Throughout the hearings on this Bill there has been testimony regarding the manner in which the citizens of this State have been treated.   A provision should be added that if the court of common pleas rules against ODNR, then ODNR shall pay all legal fees of the property owner. This provision is necessary to insure that if ODNR continues to place unreasonable demands on people, they will be responsible for the legal entanglements they create.   In addition, a provision should be added to allow for an appeal "where the shoreline property is located."   Some people have vacation homes and would prefer to file suit in the county where the property is located as opposed to where they reside.

Providing for categorization of common law littoral rights

Section 1506.10 (Line 692) - Definition of Littoral Rights

This definition should be included at the head of the chapter.   These are common law rights and are applicable to the entire chapter, not just the referenced sections.   Notably absent from this definition is the Common Law right to own additional lands created by natural accretion or reliction or the right to restore lands lost by avulsion or artificially induced erosion.   These should be included in the definition to ensure regulators follow the judicial precedents of the courts.

Ensuring the Public has unbiased input to Coastal Management

Section 1506.12 - Coastal Resources Advisiory Council

The Council should include individuals with a permanent residence on the shoreline.   Former Council's only contained vacation property owners.   The provision that residents reside in "close proximity" in the Substitute Bill does not achieve this objective.   In addition an appointment process that allows one appointment from each Legislator from the Ohio House of Representatives, whose district includes part of the shore of Lake Erie,   would provide for better localized selection of candidates.   The Governor could appoint remaining members.

Section 1506.02 - Public Input and Review of OCMP

In November of 1996, ODNR took public comment on its draft Coastal Management Program Document.   The recorded testimony indicates that the overwhelming majority of comments were negative.   Virtually all of the comments from public citizens were negative, yet the program was approved without consideration of these concerns.   Examples of recorded comments include:

•  "the OCMP suggests that the ODNR will require public access as a condition for granting a submerged land lease or erosion control permit"

•  "imprecise statements ... raise serious concerns as to what the ODNR really intends to do"

•  "this document was written to get power for the ODNR, not protect the coastal area"

•  "the ODNR does not want input with which it does not agree"

•    "this has nothing to do with our best interests; this is about ODNR power"

Based on this input, a provision should be added to require a periodic public review of this plan every 4 years.   Currently there are no provisions to require the plan to be updated.  

Problematic Provisions of Substitute H.B. 218

Under Section 1506.49 (Lines 1661-1672), a new right of entry provision has been added.   This section deals with access by ODNR to private property.   The right of entry given in this Substitute Bill is far too encompassing and amounts to a significant infringement on a property owners right of exclusion.   It would be reasonable for inspections during the construction phase of permitted activities, however, an expansive right of entry for the entire chapter is not only excessive, there is no compelling evidence that it is warranted.   There should be an extremely high burden of public purpose for any law that restricts basic property rights, and this provision seems unreasonable.

On behalf of the over 3,000 members of the Ohio Lakefront Group, I urge you to pass Substitute House Bill 218 with the modifications proposed herein.

Thank you for this opportunity to speak and I would be happy to answer any questions.

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Testimony of Ed Hauser, November 19, 2003

I recently reviewed the Substitute House Bill 218 and am greatly concerned about the impact that this bill will have on the citizens of Ohio and our Ohio Coastal Management Program (OCMP). I urge you to table this bill until it is significantly modified to address our rights as citizens of Ohio and the protection of our Lake Erie Coastal zone. Substitute HB 218 seems to on a fast track through legislation. I will submit my detailed assessment of Substitute HB 218 in the near future.

This committee must view Substitute HB 218 from the perspective of your constituents. As an engineer, I tend to view complex issues with best and worst case scenarios and find a solution striving towards the best case scenario. For example, I will illustrate a best and worst case scenario for yu to visualize:

Best Case Scenario

•  The State of Ohio continues to keep title to the lands and waters of Lake Erie by way of the "public Trust Doctrine" at an elevation of 573.3 feet above sea lever (High Water Mark).

•  The Ohio Department of Natural Resources (ODNR) resolves issues with property owners concerning submerged land leases and permitting.

•  The OCMP "consistency review" (ORC 1506.03) is strengthened to require that all state actions must be consistent with the policies of the OCMP.

Worst Case Scenario

•  Substitute HB 218 passes and changes the State of Ohio title to the lands and waters of Lake Erie to an elevation of 568.l above sea level (Low Water Mark) and grants "littoral rights" to the Low Water Mark.

•  The ODNR would lo9se most of its authority to manage and protect the shoreline and the public would transfer thousands of acres of public property to private owners.

•  The OCMP becomes decertified, loses federal funding and coastal consistency is eliminated.

The citizens of Ohio rely on the stewardship of the ODNR to manage and protect Ohio's greatest natural resource - LAKE ERIE. The ODNR steward ship of Lake Erie is bounded by the state lines and from the international border to the Ohio Coastal Zone border as defined in the OCMP.

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Testimony of Dr. Charles E. Herdendorf, Emeritus Professor of Geological Sciences , The Ohio State University, November 19, 2003

Good Morning Madam Chairman and members of the Committee.

I am Dr. Charles E. Herdenforf, Emeritus Professor of Geological Sciences at The Ohio State University. I have a B.S. and M.S. in Geology from Ohio University and a Ph. D. in Limnology (the study of lakes) from The Ohio State University. I have completed post-doctoral course work in Coastal Engineering at UCLA, Physical Oceanography at Oregon State University, and Marine Biology at the University of Maryland.

I worked for 11 years for the Ohio Department of Natural Resources (ODNR), serving as a Geologist for the Division of Shore Erosion and later as Geologist and Head of the Lake Erie Section of the Division of Geological Survey. In 1971 I joined the faculty of The Ohio State University where I was the founding Director of the Center for Lake Erie Area Research (CLEAR) and the Ohio Sea Grant College Program.

I also served 15 years as Director of the Franz Theodore Stone Laboratory--Ohio's Lake Erie research station at Put-in-Bay. At the University, I held Professorships in the Departments of Geology and Zoology and in the School of Natural Resources. I served two terms on National Oceanic and Atmospheric Administration's (NOAA) National Coastal Zone Advisory Council and I currently serve as a Governor appointee to the Submerged Lands Advisory Council. Today, I am an active participant in many facets of the protection of the Lake Erie environment, including the Black River Remedial Action Plan Coordinating Committee, the Great Lakes Commission's Coastal Wetlands Inventory Project, and the Old Woman Creek State Nature Preserve and National Estuarine Research Reserve's site profile project.

I believe I am well qualified to testify before you regarding House Bill 218. I appear before you today in general support of Substitute House Bill 218. However, I believe that in many respects the original House Bill 218 was more on the mark and I hope that changes can be made to the substitute bill that will bring it in line with common sense and reality.

My chief focus today is to dispel some of the many myths and fabrications that have been generated regarding these two Bills. I believe that Laws should be enacted based upon facts and the truth, not on self-serving misinformation distributed by the Ohio Department of Natural Resources.

The greatest inaccuracy of all is that the State of Ohio owns the land surrounding the shore of Lake Erie to the Ordinary High Water Mark and has always owned this land via the "Public Trust Doctrine" since Statehood in 1803. I would like to address this Great Myth from several perspectives.

First, in my 44 years of experience of conducting research on Lake Erie, I well know what the Ordinary High Water Mark (OHWM) is--it is a U.S. Army Corps of Engineers (USACE) standard established in 1974 for jurisdictional purposes. The Army Corps of Engineers uses OHWM as a regulatory boundary, not a property boundary; USACE recognizes property ownership as something quite different than regulatory control.

When I worked for the Geological Survey, the Ohio Department of Natural Resources (as well as the Ohio Department of Public Works) used Low Water Datum (LWD) as the demarcation between State Lands under Lake Erie and upland property owners. When ordered by the Ohio Supreme Court (Case No. 69-349) to hold a hearing on this matter, the Director of Public Works ruled that "the legal shoreline of Lake Erie is that line at which Low Water Datum intersects the emerging land mass."

In fact in 1970 while I was serving as Lake Erie Section Head, this ruling was tested in Franklin County Common Pleas Court (Case No. 242923), which held that the correct boundary between upland property and the property of the State of Ohio is Low Water Datum and that this determination is "supported by reliable, probative, and substantial evidence."

The evidence used in this case stemmed from research conducted by the Lake Erie Section under my direction. It is only in very recent years that the ODNR has attempted to claim ownership of the land surrounding the Lake Erie shore from the shoreline up to OHWM.

There is no reasonable justification for such action.

Second, today ODNR is now asserting ownership over private property. This is not something that has been in existence since Statehood. Clearly this is an attempt to expropriate land by inciting a group of people to first believe that they suddenly own something that was never theirs, then subsequently telling them that upland property owners are trying to take it away from them.

Essentially, this Committee has before it the question of either honoring every deed along the Lake Erie shoreline, or rewriting approximately 15,000 deeds to take away the property that ODNR is suddenly claiming without justification or legal authority.

Third, it is quite disturbing that the ODNR is inconsistent with its use of low water and high water. The only consistent thing seems to be that it will pick a standard that best suits its own interest at any given time. On November 10, 2003 former ODNR Director William Nye made statements asserting ownership to the Ordinary High Water Mark. However in the early 1970s under Mr. Nye's Directorship, the ODNR argued that the standard of ownership was the Low Water Datum. As I have testified earlier, this is a case in which I was directly involved and provided evidence as an employee of the ODNR.

Another misconception is that if a property owner losses land to Lake Erie, it automatically becomes the property of the State. This is only true in the limited case of erosion which is defined as the slow, imperceptible loss of land due to natural forces .

However my research, as well as that of colleagues, has shown that more than 80% of the shoreline recession and land loss to Lake Erie is due to avulsion--the sudden loss of land due to a short-term event, such as a storm . Legal principles hold that land lost due to avulsion can be replaced or reclaimed with no loss of ownership.

An important aspect here is the term "natural forces;" shore structure can adversely impact nearby properties. Typically residential structures have only minor impacts, but large commercial and municipal structures often have major impacts that have greatly altered the shore with significant loss of land. These large-scale impacts cannot be considered as "natural" and land so lost should not automatically revert to State ownership.

Another piece of misinformation that is being circulated is that the ODNR's review of shore structure permit applications is undertaken by engineers while the U.S. Army Corps of Engineers only uses biologists. On its face, such a statement is absurd. I have personally been involved with the permit review process used by the USACE for over 40 years. The Buffalo District, which handles applications for the Ohio shore of Lake Erie, has an outstanding coastal engineering staff headed by Mr. Thomas Bender. No matter what the background of the contact person with the USACE, be it biologist, geologist, or engineer, Mr. Bender's coastal engineering section reviews applications to ensure that the proposed project meets acceptable engineering standards. To this end, USACE has published standard engineering designs for various applications in the Great Lakes. The engineering review of permit applications by less qualified and less experienced ODNR staff is redundant and could be eliminated with a significant savings to the ODNR budget without any loss in safeguards.

Yet another myth is the suggestion by ODNR's Office of Coastal Management that they are somehow responsible for the restoration of the quality of the Lake. There is no question that Lake Erie's environmental quality was deplorable 40 years ago. However, that restoration began in the 1970s and has proceeded rapidly ever since. The Ohio Department of Natural Resources only had minimal participation in the restoration effort and the Office of Coastal Management did not receive federal certification until 1997--well after the Lake was restored.

Unfortunately there has been a major shift in ODNR's policies in recent years--away from being there to serve the needs of Ohio citizens to now embracing actions that adversely affect the very enjoyment of our rights and our natural resources. We all need to look past these deceptive statements, especially the many myths, and search for the truth.

For these reasons, I ask you to pass Substitute House Bill 218 with the changes recommended by the Ohio Lakefront Group. Please urge your colleagues in the Senate to pass this bill as well.

If you hope to protect and enhance the environment, it is imperative that regulations be sensible, not punitive. Substitute House Bill 218 (with appropriate corrections) is a necessary step. I urge you to take this step to protect the environment, not the bad policies of ODNR.

Thank your for the opportunity to testify on this important issue. I'd be pleased to answer any questions that you may have.

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Testimony of William B. Nye, Ohio DNR Director, 1971-1975, November 19, 2003

Chair Hollister and Honorable Members of the Energy and Environment Committee, Thank you for this opportunity to testify on Substitute House Bill 218. As a former member of the Ohio House of Representatives and the Ohio Senate, and as a former director of the Ohio DNR, it is honor to appear before your committee today - even if it is as an opponent to the proposed legislation.

I respectfully ask this committee to please consider the following serious concerns about Substitute House Bill 218:

Proposed division (B) (3) of Section 1506.10 on page 24, lines 720-723, of the bill most unlawfully attempts to violate the public trust land area of Ohio's portion of Lake Erie. This proposed amendment would define the "lakeward" property boundary of littoral owners as the "ordinary low water mark."

The public trust property starts at the ordinary high water mark, not the low. This attempt to move the public trust boundary further into the lake would violate law established by the United States Supreme Court in 1892 ( Illinois Central Railway Commission vs. Illinois ) and the Ohio Supreme Court in 1945 ( State ex.rel. Squires vs. Cleveland ). The bill attempts to unlawfully shrink the public trust area from the high water mark to the low water mark, which would take away the public's right to enjoy the upland beach area in the public trust area, as the courts have defined it - to the ordinary high water mark. This would also unlawfully prevent the state from exercising wetlands preservation and fish and wildlife spawning area protection, a further reason why the courts would not allow it.

The bill also would exclude public agencies from developing breakwaters, piers, docks, wharves, bulkheads, and water terminal facilities, unless the public agency purchases the very submerged lands proposed division (B) (3) would take from the public trust and give to the littoral owners.

The most important correction that this committee can make to this bill is to restore the high water mark to its lawful place in Ohio and Federal law as the boundary of the public trust land. If the General Assembly does not make this correction, this section would most assuredly be struck down in court.

By contrast, the bill's proposed addition of "the interest of private property owners in the coastal areas;" in division (B) of Section 1506.01 on page 13 lines 389-390 to the scope of the coastal management program is a lawful and reasonable addition. Littoral rights include the right to wharf out to navigable water, which deserves protection. Both littoral right owners and the public share the right to use the beach below the ordinary high water mark for beach and in-lake recreation, including swimming, boating, fishing, wading, and walking.

The addition of proposed new section 1506.111 on page 30 of the bill should be amended, at line 919, by inserting "recreation" after "navigation," in order to more fully state "the public right." No state law can take away the public right to use the public trust area, defined by both U.S. and Ohio Supreme Court judgments as the public trust land, from the ordinary high watermark, now sand beach and wetland areas, to and including the lake to the U.S. (and Ohio) border with Canada. To be consistent, a similar amendment should be inserted in division (B) of Section 1506.11, page 25, line 746.

The proposed definition of "littoral rights" in new division (A) of Section 1506.10 on page 23, lines 683-692, is an expansion of the littoral rights established by the federal and state supreme court decisions. Under these decisions, the littoral right does not include the right to construct fills - as is proposed by this amendment. Littoral rights do include the right to wharf out to navigable water, boat, fish, swim, wade, and walk in the lake water (use of the lake water) and on the beach, and make reasonable volume use of lake water.

In addition, if consumptive use of lake water for household water supply or agricultural irrigation is intended, whether the legal right to this use is included in littoral rights should be further researched. I know it was fostered in the early development of agriculture in Canada. Farmsteads were allotted and sold as long narrow strips of land along Lake St. Clair (the "sixth" Great Lake) in order to give the pioneer farm settlers the opportunity to use the lake water for irrigation. I owned a house and dock on the Canadian shore of Lake St. Clair that once was a part of such a narrow lakefront farm. This was during my four-year American term in Windsor, Ontario, As Director of the Great Lakes Office of the U.S.-Canada International Joint Commission.

On a separate matter, this bill should provide state law that requires waterfront plans of local jurisdictions to undergo review and be approved by the director of the Department of Natural Resources before becoming legally effective law.

Finally, the intent or operation of the following proposed changes in the bill are not clear:

What is the reason for deleting the definition of "shore structure" from existing division (O) of Section 1521.01 on page 57, lines 1753-1761?

What is the reason for deleting the definition of   "erosion control structure" from existing division (R) of Section 1521.01 on page 58, lines 1766-1772?

The bill would repeal the fine provision from existing Section 1521.99 (C) on page 58, lines 1780-1783. Why?

Thank you for your attention and consideration.

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Testimony of John Piskura, Mayor-Elect Sheffield Lake, November 19, 2003

Good Morning,

My name is John Piskura. I have recently been elected Mayor of the City of Sheffield Lake. I am a Navy Veteran and served in the Gulf War. After serving my country, I moved back to my hometown of Sheffield Lake, where I became involved in local government. I served as Chairman of the Planning Commission and spearheaded the creation of a new master plan for revitalizing our city. I was unanimously appointed and subsequently elected to City Council where I have worked to advance programs for our city to better utilize, protect, and enhance our most valuable asset - the shoreline of Lake Erie. I've worked hard to protect the environment of Lake Erie as well as increase recreational opportunities to our shoreline. As mayor I will continue those efforts.

In addition, I have recently been elected to serve on the Board of Trustees for the Ohio Municipal League where I will be promoting, among other things, shoreline rights of municipalities'.

As Mayor-elect of Sheffield Lake, I am here in support of H.B. 218 as originally introduced. The people of the City of Sheffield Lake, through their elected officials, also support the original bill. Attached is a resolution in support of the bill that Sheffield Lake City Council has passed unanimously. (Exhibit A). H.B. 218 contained many needed provisions for shoreline owners and municipalities. I have concerns that the substitute bill does not contain the needed provisions from the original bill. Although I am pleased that the Substitute Bill attempts to recognize the deeds of our city's shoreline property, the Ohio Lakefront Group and I share the same concerns.

From the city's perspective, ODNR policies are attempting to take private property from our shoreline residents, and also public property owned by our city - all without compensation. Our City has four shoreline parks and two additional shoreline properties, so this issue is important in affirming the deeds of city owned land.

The substitute bill defines "low water mark" as the 100-year average . This is entirely incorrect because it gives too much weight to the abnormally high levels we have seen for the last 30 years.

Also, the definition would leave large portions of dry beaches outside of the jurisdiction of our city, which represents a significant problem for public safety. According to the 9th District Court of Appeals our city would not be able to prevent the discharge of firearms, or enforce city codes along the dry beach that would be out of our jurisdiction. Assume if you will that the substitute Bill is passed into law. Will the ODNR supply law enforcement for the entire Lake Erie shoreline? Is the ODNR going to respond to complaints? Does the State even have the time or money to fill this gap? Does this make any sense? The answers are obvious.

There were provisions in the original House Bill that protected our local building and zoning authority. Specifically this was the elimination of the "erosion area designations" (§1506.06) and the "ODNR building permit" for homes in erosion areas (§1506.07). According to Director Speck's testimony, "The need for such permitting was identified years ago after the loss of many homes due to the forces of Lake Erie. Homes simply fell into the lake as the land below them eroded away."

The pictures submitted during Director Speck's testimony do not reflect Sheffield Lake's shoreline, and I can attest that those images are far from the normal character of the vast majority of the Ohio shoreline. Sheffield Lake has many areas designated by the ODNR as "erosion areas," yet none of our homes are falling into lake, and they haven't over the last 30 years.

ODNR's assessments on erosion rates are often inaccurate, and have had little value as a planning tool. These inaccuracies unjustly prevent our property owners from redeveloping or improving older homes because the erosion area requires a set back. State setbacks should not override our city's decision on the allowable location of a home. At the very least, a homeowner should have the ability to protest the designation; currently they have to wait 10 years. Despite the ODNR's statements that the removal of erosion area designations would limit our city's authority, it in fact restricts our authority, and may ultimately hold property values down.

In previous testimony and press material, the ODNR indicated that H.B. 218 would strip away local government's ability to enforce reasonable protection and regulation of the shoreline. I do not agree with this assessment. H.B. 218 as originally introduced would have enhanced and clarified local government's rights that were delegated to municipalities with the Flemming Act. That delegation of authority has been intact and unchanged since 1917 - currently residing in sections 721.04 to 721.10 of the Revised Code (Exhibit C). As a result of the ODNR extending lease legislation beyond its intended purpose, our city's authority to determine allowable encroachments into Lake Erie is stripped away.

Over the last 10 years the ODNR has begun to apply leasing to shoreline owners merely exercising their littoral rights. This misapplication of the law creates redundant and conflicting regulatory authority already delegated to local municipalities. H.B. 218 clarified this; the Substitute bill further confuses and complicates the issue by creating an additional permit process under 1506.111. Lines 716 to 719 of the Substitute Bill would essentially void the primary delegation of authority granted to municipalities and should be removed. I would hope the original bill's lease legislation could remain intact with the clarification that it does not apply to property owners exercising the littoral rights.

I don't believe the state needs permit authority when local city government already has it. If you disagree, at least create something that makes sense: 1506.111 in the substitute bill is just a replication of 1506.11. The fact that a lease under 1506.11 or permit under 1506.111 requires the City to enact an Ordinance every time someone wishes to build a dock or erosion control structure makes no sense, and is an unnecessary burden to both the residents and our local government.

As Mayor of Sheffield Lake, I plan to emphasize enhancing access and use of Lake Erie. I intend to utilize the authority the state has granted to the City, and I oppose the legislature changing it. From a practical perspective, a state permit authority may be appropriate if the local government doesn't exercise its authority. However, even this is redundant because the Army Corps' permitting process has been more than adequate.

Because The Department of Natural Resources doesn't have the experience, knowledge, or resources to establish policies governing acceptable uses for every shoreline community, it is critically important that local governments retain the right to determine what constitutes an allowable use. Local officials have an intimate knowledge of their community's shoreline, shoreline characteristics, and future plans. This idea, coupled with an Army Corps permit and Ohio EPA permit, is more than adequate in ensuring wise and responsible use of the shores of Lake Erie.

Much has also been stated about the great things Ohio Coastal Management is doing for the shoreline. From my community's perspective, we have seen no benefit from the program.

For years Sheffield Lake has been pursuing a grant for small boat launch with a pier to create a multi use property with a beach that would protect the shoreline and create public access. That is exactly what the ODNR claims to support. For some reason, we can't get a grant. We jump through all the hoops, prepare all the letters and documents requested, and we are told to submit it in phases to keep costs down, and yet our request is denied. Then we are told to resubmit and not to worry so much about phases, - and again we are denied.

We've spent over $4000 just in making applications for a grant for our shoreline. How can the ODNR affirm a position advocating shoreline protection and public usage and fail to apply it consistently.

The ODNR was notified of two other properties adjacent to one of our parks, which were simultaneously placed on the market. They were asked if they were interested, or at least interested in helping us expand our lakefront park. The ODNR chose not to take any action at all. Does any of this make any sense, coming from an agency trying to increase shoreline protection, public access and usage?

And as a final comment, I would like bring to your attention that the ODNR, and some misinformed former ODNR Directors have unjustly characterized Sheffield Lake's shoreline residents as "greedy" and "the wealthy privileged few,"

As a public official I find myself apologizing to our residents for the comments and actions of the state. I shouldn't have to apologize for the state, as state and local governments should work together. Many of our shoreline residents have lived in modest homes since the days when no one cared about Lake Erie. They have protected their shoreline as well as our city, with their private investments.

In the 1970's the State was unwilling to help our residents protect the shoreline, claiming it was private property. Now that same agency is trying to lay claim to that property.

I urge you to pass H.B. 218 with the provisions of the original bill. In the alternative, I urge you to pass Substitute House Bill 218, but only with the modifications proposed by the Ohio Lakefront Group.

Thank you, and I'd be happy to try to answer any questions that you might have.

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Testimony of Jack Shaner, Public Affairs Coordinator, Ohio Environmental Council - Ohio House Energy & Environment Committee, November 18, 2003

Chair Hollister, Ranking Minority Member Skindell, and Members of the   Committee,

Good morning. Thank you for this opportunity to present testimony on Substitute House Bill 218 (as accepted by the committee on November 12, 2003). My name is Jack Shaner and I am the Public Affairs Coordinator for the Ohio Environmental Council. The OEC is a non-profit network of more than 100 local and state environmental and conservation groups that advocates for clean air, clean water, and protection of our natural resources.

The Ohio Environmental Council remains strongly and unequivocally opposed to the substitute version of House Bill 218. In fact, with the lone exception of maintaining the state's coastal erosion control program, we believe that this legislation has gone from bad to worse. Further, the substitute bill goes way beyond appeasing the interests of residential property owners to grant new rights and privileges to a whole new class of property owners: commercial interests. If enacted in its current form, Sub. House Bill 218 will:

1. Give away thousands of acres of prime lakefront real estate

2. Block public access to Lake Erie, restricting the public's right to enjoy the Lake Erie shoreline

3. Allow upland property owners to fill in property at will

4. Grant unrestricted consumptive water rights

5. May set the state up for a takings claim of mineral rights

For these reasons, we respectfully urge the committee to reject the substitute bill or, at the very least, excise these special-interest sections and protect and maintain the public interest in Lake Erie.

Here is a brief overview of each of these concerns.

(NOTE: the page and line numbers refer to Sub. H.B. 218 as distributed at the Nov. 12, 2003 hearing of the House Energy & Environment Committee (LSC 125 0380-2). As of today, the only version of House Bill 218 available on the General Assembly's website is the "As Introduced" version.)

Sub. House Bill 218 will result in the illegal give away of hundreds if not thousands of acres of prime lakefront real estate. Sub. House Bill 218 defines the lakeward reach of an upland property adjoining the lakeshore as "the legally deeded lakeward property boundary or, in the absence of a legally deeded lakeward property boundary, the ordinary low water mark." (R.C. Sec. 1506.10-B-3, p. 24, lines 720-723) The effect of this tampering with the legal boundary between Lake Erie's public trust lands and adjoining upland property is to lower that boundary from the ordinary high watermark - as recognized by the Ohio DNR and upheld by the courts - to a 100-year average of monthly lake levels.

This directly conflicts with long established federal and state supreme court decisions, the Ohio Constitution, and the Ohio Department of Natural Resources' determination of the State of Ohio's public trust responsibilities.

Fact: The United States Supreme Court (Illinois Central Railway Commission vs. Illinois, 1892) defined the public trust as "ownership, dominion, and sovereignty over lands   overed by tide waters belonging to the respective states within which they are found."

Fact: The Ohio Supreme Court (State ex. rel. Squires vs. Cleveland, 1945) held that "the state through its legislature can not relinquish or abandon its trusteeship and control over the shores of Lake Erie." Fact: The Ohio Constitution, Art. 2 (Legislative), Sec. 36 (Conservation of Natural Resources) states in pertinent part that "Laws may also be passed to . . . to provide for the conservation of the natural resources of the state,   ncluding streams, lakes, submerged and swamp lands."

Fact: The Ohio Department of Natural Resources has determined that: "The State of Ohio is a proprietor in trust, which is charged with the continuing responsibility to hold title to the lands and waters of Lake Erie, up to the ordinary high water mark, in trust for all of the people of the State for time immemorial. For this reason the United States Supreme Court and the Ohio Supreme Court have held that a public trustee cannot abandon an estate that it holds in trust." . . . "If the 'natural shoreline' and 'the southerly shore' of Lake Erie were held to be anything...lakeward of the ordinary high water mark, it would result in the conveyance of an undefined portion of public trust lands to private parties in direct contradiction of the mandates of the Ohio Supreme Court prohibiting the abdication of the public trust in Lake Erie." (Public and Private Rights and Ownership in the lands and waters of Lake Erie, July 2003) Sub. House Bill 218's proposed abandonment of the State of Ohio's public trust responsibilities is the single most offensive and radical policy change proposed in this legislation. It amounts to a reverse takings, taking lands held in trust for all of the people of Ohio since Ohio became a state in 1803 and giving them it to upland property owners, the vast majority of which are private commercial and residential landowners. The public will get nothing in return. And the General Assembly, to our knowledge, has not even made an effort to calculate how many acres this legislation would give away. We believe that it could be thousands of acres. If enacted, we believe that the courts will surely strike this section down.

2. Sub. House Bill 218 will block public access to Lake Erie, restricting the public's right to enjoy the Lake Erie shoreline. Public access to Lake Erie will be even further restricted if Sub. House Bill 218 becomes law. Currently, there are just seven miles of public beach along Ohio's 262-mile portion of Lake Erie that extend from a publicly accessible   andward approach to Lake Erie down to where the public trust lands begin at the ordinary high water mark. To be sure, there are several other public lands along the upland approach to Lake Erie. Added together, they still amount to only a fraction of the 262-mile coast. If the General Assembly attempts to push the public trust lands down from the ordinary high water mark, it will literally push the public's access to the coast, off-shore and out to sea. That's because although the difference between the ordinary high water mark as recognized by the Army Corps of Engineers and the State of Ohio and the "ordinary low water mark" proposed by Sub. House Bill 218 is "only" six feet on a vertical axis, the more gradual the slope of the shoreline the more lateral feet and acres of beach and submerged lands that would suddenly be privatized and become the domain of upland property owners. The public is allowed to use the Lake Eire Public Trust -- which includes the land, water and living resources of Lake Erie from the International Boundary Line with Canada to where the Ordinary High Water Mark intersects the natural shoreline -- for recreational purposes such as fishing, swimming, boating and walking along the shore. The public can not transverse private upland property to access the public trust. However, once public trust lands are reached from a public park or other public access point, the public may walk along the beach or wade in the surf as long as the activity is taking place lakeward of the Ordinary High Water Mark.

For Lake Erie, the Ordinary High Water Mark is established at elevation of 573.4 feet based International Great Lakes Datum of 1985. Currently, Lake Erie water levels are about 32 inches below the Ordinary High Water mark. You can find the approximate location of the Ordinary High Water Mark on a calm day when there is little wave action. To do this, place a yard stick vertically at today's intersection of the water and the shore. Measure up 32 inches. From the 32 inch mark extend a line at a right angle toward the shore. Where this line intersects the shore is the approximate location of the Ordinary High Water Mark. To calculate the point where the public trust would begin under Sub. House Bill 218, you would need to place a yard stick vertically at today's intersection of the water and the shore and then measure lakeward until you find the vertical point that is approximately six feet below the current Lake Erie water level. It is fair to say that Sub. House Bill 218 "deep sixes" the public trust.

Lest you think that the public will have a hard time navigating where the privatized uplands end and the new public trust lands begin, please be assured that Ohioans can look forward to a proliferation of helpful "Private Property -- Keep Out" signs and fencing to help steer them clear of former public trust lands. This will surely have the intended effect of intimidating any citizen who may dare to wade or walk along the shore.

3. Sub. House Bill 218 will allow upland property owners to fill in property at will.

Sub. House Bill 218 defines littoral rights to mean: "...the rights of littoral owners to make reasonable use of the submerged lands and waters fronting their lands, including the construction of such things as piers, fills, backwalls, or wharves, for the purpose of accessing and using the waters of Lake Erie for navigation, fishing, recreation, or other purposes, including, but not limited to, launching and storing watercraft, wharfing out to navigable waters, and consumptive use of the water." (R.C. Sec. 1506.10, p. 23, lines 683-692) This grants such broad littoral rights that adjacent upland property owners will be able to fill in submerged lake property without question or condition by the state. Even with state oversight, the Lake Erie uplands of Ohio are already well developed with residential, commercial, and industrial properties. Giving upland owners an unlimited right to fill lands is a sure invitation to poorly managed land use.

4. Sub. House Bill 218 grants consumptive water rights. The littoral rights definition (described above) gives a "Go" signal to commercial bottlers who covet Great Lakes water for withdrawal and export, as has been proposed by at least two private companies to sell and ship water from Lake Michigan and Lake Superior out-of-basin, where it no longer can replenish the fragile Great Lakes ecosystem.

Sub. House Bill's would-be "restriction" on littoral owners to "make reasonable use...of the waters fronting their lands" is a loophole waiting to happen: for a commercial bottler, "reasonable use" means millions of gallons of water a day. 5. Sub. House Bill 218 may set the state up for a takings claim of mineral rights Sub. House Bill 218 states that: "All permits . . . shall contain . . . a reservation to the state of all mineral rights . . ." (R.C. Sec. 1506.111-E, p. 33, lines 996-999) If one accepts the claims of some private property owners that their deed grants them title to submerged lands, then this proposed statute would seem to be a takings: It requires the private property owner to surrender all mineral rights to their submerged property to the state. Why would a private property owner want to give away his control over any portion of his claimed property, especially its mineral rights? On the other hand, perhaps the courts would reject such a claim, ruling that no upland property owner ever had title to submerged lands until Sub. House Bill 218 transferred them from the state to the private property owner, as is proposed in R.C. Sec. 1506.10 (B) (3).

Conclusion

In conclusion, Sub. House Bill 218 now goes way beyond addressing concerns voiced by residential property owners. It gives away hundreds if not thousands of acres of public trust lands, it blocks public access to Lake Erie, it gives property owners an almost unfettered right to fill-in submerged lands, it gives a wide open invitation for consumptive water use, and it may even put the state at risk for a takings claim.

At best, Sub. House Bill 218 is unbalanced. We respectfully urge the committee to reject this version of House Bill 218.

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Page updated 1/11/04 ; Randy Pindor