September 17 , 2003 Testimony

Testimony of Adrian Betleski ,September 17, 2003

Good afternoon.

My name is Adrian Betleski. I appear before you today in support of House Bill 218, which was introduced by Representative Tim Grendell.

I am a lakefront property owner. I have owned my property for 49 years. I am also a retired judge. I was a common pleas judge for Lorain County for 12 years. Prior to being a judge, I was in private practice where I was proficient in real estate law. I also worked for Ohio Bar Title, doing their title searches.

The purpose of my testimony is to demonstrate that the Office of Coastal Management's policy that the State of Ohio owns the land up to the "Ordinary High Water Mark" is not legally supportable.

What is the legal basis for the State claiming property to the High Water Mark? One would expect that such authority would be found in the Ohio Revised Code, and/or in the ODNR's Administrative Rules.

But, neither the Ohio Revised Code nor the Administrative Code contain such a reference regarding the High Water Mark.

Those that administer the Coastal Management Program assert in vague terms that the "Public Trust Doctrine" provides the requisite authority.

That is utter nonsense. Let's review the current law in Ohio.

Section 1506.10 of the Revised Code specifically defines the State's rights to the waters and submerged lands of Lake Erie, commonly called the "public trust." However, even a casual review of Section 1506 is enough to dispense with the Coastal Management's assertion regarding the Public Trust Doctrine.

What the Office of Coastal Management conveniently and completely ignores is that Section 1506 of the Ohio Revised Code specifically states that the waters of Lake Erie and the soil beneath and their contents belong to the State, however this is:

"... subject to ... the property rights of littoral owners , including the right to make reasonable use of the waters in front of or flowing past their lands." (ORC 1506.10, emphasis added)

That short phrase is key and it has two distinct points.

First, it states that the Public Trust is subject to the property rights of the littoral owners. Littoral owners are the upland property owners. It means that a lakefront property owner's deed is not superceded by the Public Trust.

Most lakefront property deeds state that the property extends to the Low Water Mark, not the High Water Mark as the Office of Coastal Management asserts. The description on the deed recites: "to the low water mark," thereby ensuring that no submerged lands be conveyed by the deed instrument.

Thus, a lakefront property owner may place a structure on the land up to the Low Water Mark without intervention by the State exercising its authority to manage the Public Trust, as it is the lakefront property owner's land, not the State's.

The second point is that the property owner is allowed to make reasonable use of the waters in front of their land. This language allows, for example, a property owner to build a structure in making reasonable use of the water even if the structure extends past Low Water Mark.

Given Section 1506, there is no legal basis for the Office of Coastal Management to require submerged lands leases and permits for lakefront property owners whose structures are within their property line of the Low Water Mark, as well as for structures that may extend past Low Water Mark where there is reasonable use of the water.

There is no doubt that Ohio needs to have effective regulation. But it must be reasonable, and most importantly, it must have legal foundation. The current Program is not reasonable. Nor does it have legal foundation.

Please note that the Ohio Lakefront Group is not advocating the abolishment of the Coastal Management Program. We seek a reasonable Program that has legal foundation. House Bill 218 accomplishes this worthy goal.

I also want to take this opportunity to briefly rebut the rumors and allegations that the Ohio Lakefront Group and House Bill 218 are somehow placing the environment at risk. How utterly absurd. Such allegations do not even merit a dignified response. Those guilty of making such defamatory allegations ought to be ashamed, as they disgrace themselves and the government they represent. Don't believe a word they say.

Environmental review is performed by the Ohio EPA, and HB 218 does not change that authority.

In closing, Chairman Hollister and members of the Energy and Environment Committee, I urge you to support House Bill 218.

Please vote it unanimously out of this Committee in an expedient manner. Urge your peers to pass it in the full House.

Thank you.

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David A. Carek, P.E., Sheffield Lake, Ohio; 09-17-2003

Good afternoon. My name is David Carek. I am the Chairman of the Ohio Lakefront Group. I appear before you today in support of H.B. 218, which was introduced by Representative Grendell.

Chairman Hollister and members of the committee, this legislation is necessary to alleviate the burden the Coastal Management Office of ODNR has forced upon Lake Erie's shoreline communities and property owners.

The Ohio Lakefront Group is a non-profit organization of over 2,200 members, united in the preservation and enhancement of the Lake Erie shoreline. Our mission is to advocate reasonable goals for Ohio Coastal Management. We want to ensure the protection of the environment and use of Lake Erie through reasonable, common-sense regulation. And most importantly, we want regulation in a manner that prevents the erosion of shoreline property rights.

We are ordinary citizens--some of us, such as myself, are lifetime residents of the shoreline. However, this is not just a shoreline issue; it affects citizens all over the state.   As an example, the graphic included shows the mailing addresses for cottage and vacation property owners for the short stretch of shoreline from Port Clinton to Huron. As you can see, shoreline property owners live in every corner of the State.

The Ohio Department of Natural Resources does many great things for this State. Unfortunately, coastal management is one area that needs serious reform. When I speak of the ODNR in this testimony, I am referring to the Coastal Management Office. This group of a dozen or so employees does not seem to care about constitutional property rights of the citizens of this state. With no credible legal authority, the Coastal Management Office has resorted to what I consider to be outright public deception.

I want to make clear that the problems you hear today should not be considered as reflective of ODNR in general. There are many good divisions of ODNR that don't deserve to be characterized by the actions of a few.

In 1988 the State of Ohio passed legislation authorizing the ODNR to create the Ohio Coastal Management Program. The adoption of this law was done with the understanding that no new state programs, regulations, or laws would be needed for its implementation and there would be benefits to all. Unfortunately, many new regulations and changes in law have ensued, causing numerous problems, such as:

•  Taking of deeded property without compensation

•  Violation of shoreline owners' littoral rights

•  Making the permitting process much more costly and burdensome

•  Overriding local zoning authority with "Coastal Erosion" area designations

The ODNR's policies have forced individuals with piers, breakwalls, and docks, to endure a costly, burdensome, and complicated process that simply did not exist prior to 1988. And this is for both new and existing structures. Permits that used to take weeks for approval with the Army Corps of Engineers now take a year or more. While the coastal management program calls for simplification and consolidation of regulatory activities, the exact opposite has occurred.

ODNR policies have pushed regulations well beyond their historical intent and in some cases, such as H.B. 601, ODNR has misleadingly slipped changes into the law. For instance, leases were never intended to be applied to shoreline owners making reasonable use of the public trust lands. Yet, the ODNR is going after property owners with an aggressive submerged lands lease program--forcing residents to sign away part of the property they bought and pay taxes on. The effect has been a significant infringement upon shoreline owners' littoral rights and a taking of their legally deeded property.

One key assertion by ODNR is that ownership of land only extends to the high water mark. The figure below shows the difference in property between the high and low water mark.

In what seems to be an act of desperation, the Coastal Management Office is characterizing H.B. 218 as a huge land grab of public property by private owners that will destroy public trust rights. This view is not only legally unfounded, but also statistically unfounded. Of the 10,000 square miles of public trust waters in Lake Erie, about 3,500 of them are within the State of Ohio. The strip of land between the high and low water mark is only six one-hundredths of one percent (0.06%) of land compared to the public trust waters in Ohio. Presuming ODNR was correct, which it is not, how can any rational mind consider this an impairment of the public's right to fish and navigate on Lake Erie? Far more land than this has already been lost due to erosion. While this strip of land is insignificant, in relation to Ohio waters, it can amount to a large portion of a shoreline owners' deeded property. In fact, it is not uncommon for a person to be forced to sign away 20% of their deeded land before ODNR will grant a permit for an erosion control structure.

The misinformation coming from the Coastal Management Office regarding high water mark is troubling to say the least. In a recent interview with the Ohio News Network, the Coastal Management Chief said,

"The ordinary high water mark is not established by the State. It's established by the US Army Corps of Engineers. So this is not an arbitrary thing by the department. This is the law of the State of Ohio   It's been this way since the state entered statehood in 1803 ."

Obviously, the Coastal Management Office misunderstands the law. First, the Corps authority didn't exist in 1803. This authority for regulation wasn't established until the Rivers and Harbors Appropriation Act of 1899. Second, the ordinary high water mark didn't exist when Ohio entered statehood. In fact it wasn't until 170 years after statehood that Lake Erie first reached that level.

Furthermore, the current high water mark was only set by the Corps in 1974. This level was set to determine regulatory jurisdiction only. It is perfectly clear from Army Corps memorandum that this level was set entirely for regulatory purposes, and has no bearing on property ownership.

The Federal Coastal Zone Management's website includes a legal review that specifically addresses this point. It says:

"Regardless of what definition is used by the Corps, it should be clearly borne in mind that the definition is promulgated for regulatory purposes only and should not be considered an attempt to redefine property rights." (page 33, Land and Water Law Review)

The ODNR also argues that the high water mark has been consistently upheld in the courts. In fact, in 1974 the 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)

And the Ohio 9 th 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)

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)

ODNR's use of 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)

It is clear that this rationale should apply equally for not only the navigable southern boundary of the state but also the navigable northern boundary of the state.

Does this sound like a consistent upholding of high water mark to you?

I would be remiss if I told you that Ohio Law is consistent on the use of Low Water Mark. It is not. There have been two common boundary descriptions in Ohio case law. Low water mark, as I have previously shown, and natural shoreline. In either case, Ohio Courts have consistently ruled that the upland property owners own the dry beaches. ODNR is attempting to convert substantial portions of private and city owned property into State property by redefining the boundary.

If ODNR is not forced to correct their policy regarding high water mark, the impact to shoreline communities will be devastating. Municipalities will have no regulatory authority or police powers over public and private beaches in their communities. Hunters could discharge firearms from the dry beach, and the local government would be powerless to prevent it. Vast portions of Ottawa County that were diked and drained early in the 20 th century would have to be leased from the State. Numerous associations, parks and shoreline tourism facilities would lose control of their beaches.

The misleading information from the Coastal Management Office goes well beyond the high water mark. You will likely hear opposition to this bill--by groups that were encouraged and misinformed by the Coastal Management Office.

The Ohio Lakefront Group supports the passage of House Bill 218 in order to protect the interests of not only the shoreline residents, but also shoreline communities and the general public. This bill will protect not only the Public's use of Lake Erie, but also the shoreline property owners' rights to access and use the waters of Lake Erie.

We desire meaningful regulation that protects the interests of shoreline property owners; protects the environment and health of Lake Erie; provides public notice and review for shoreline activities; and encourages compliance of regulations. H.B. 218 provides that regulation. On behalf of the over 2,200 members of the Ohio Lakefront Group, I urge you to support H.B. 218.

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

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Testimony of James O'Connor. September 17, 2003

Good afternoon Chairman Hollister and members of the Energy and Environment Committee.

My name is Jim O'Connor, and I appear before you today in support of H.B. 218, which was introduced by Representative Tim Grendell. Thank you for hearing my testimony today.

Growing up in greater Cleveland, I had this lifelong dream, to live along the Lake. While I was young I spent a lot of time in or on the Lake, and soon made it a personal goal of mine to live in a house on Lake Erie when I was older.

In 1997, at 42, I was able to realize that lifelong dream of living on the lake. It was a small house in Sheffield Lake, but it was ON the Lake. I had my dream home.

The land along the lake was unstable and had eroded as an old break wall and jetty that was once there had been completely destroyed by the force of the Lake. I knew I had to protect my home and family from the ravages of the lake, as do almost all lakefront property owners. I expected this work when I bought the property---I didn't expect the intimidation and radical regulations of the Coastal Managers that was soon to follow.

To stop the erosion and put my family and kids out of harms way I needed to do something. My neighbor suggested building a new small jetty and break wall. I asked my neighbor how he new it would work, and he said because he had lived next to that property for over 50 years and it use to have a beautiful beach when the jetty was still sound. I did some research, and I found information from the U.S. Army Corps of Engineers confirming that a jetty and break wall was a natural and preferred option to stop erosion and protect the environment.

A contractor informed me that I would need to obtain a permit from the Ohio Department of Natural Resources for the project. I called the ODNR and explained what I wanted to do. I expected guidance and assistance. They said they'd come out to see me.

My dream soon became a nightmare.

Imagine anxiously waiting for a state employee to come to your home to help you, and instead they inform you that THEY now own your property because "we changed the boundary line." Imagine the state employee telling you that your deed is wrong and it is "only a guideline." Then imagine that after they take your property, they extort you into signing a lease that requires that you pay them money for the property they have just stolen from you.

The lease even requires me to continue to pay the real estate taxes on that same confiscated property that they claim is now theirs! It can't happen, you might say, certainly not in this country.

Well you don't have to imagine it. That is exactly what happened to me, and it is happening to others here in Ohio - and it needs to be stopped.

A representative from the ODNR Coastal Management Office came into my home. I explained that I wanted to follow the Army Corps guidelines, as well as my neighbor's recommendation, and restore the original jetty behind my property. I explained that this would build a beach that would naturally break the waves and prevent erosion. The ODNR representative just looked at me for a moment then coldly replied "there is only so much sand in the lake." My heart sank, and I knew then that this man was not here to help me.

He proceeded to explain to me how the State now owns my land and that my deed was wrong. His arrogance was overwhelming. He wanted me to sign a submerged lands lease, explaining that it was no big deal. Intimidation was a tool he used very well to get me to sign that lease. I felt like someone had ripped my heart out. My dream was dead.

Deceit, lies and intimidation will get you to sign almost anything-- and they got me to sign a lease that attorneys told me I was a fool to sign.

I stand before you as a victim, a victim of the renegade Coastal Managers. A victim of an absurd policy that steals property from people that paid for, own and pay taxes on it. Maybe the worst part is that I'm a victim of government intimidation - I can't fully put into words the feeling you get when a State Official claims ownership to your property and extorts you into signing away your property rights. State employees, I might add that are paid by my tax dollars that were supposed to HELP me.

But where do I, as a victim, go for help? If my car is stolen I call the police. If my business is robbed I call the police. The FBI will help if my child is kidnapped. But where do you go when a renegade from the Office of Coastal Management steals your property? I came here.

Please help.

The simple fact that I stand before you TODAY should speak volumes. Ownership wasn't ever an issue until this small group of so-called "Coastal Managers" started stealing private property. Private residential lots along the lake have been bought and sold since before Ohio was a state and the legal deeded description of those lots has always been acknowledged and respected. But property deeds that prove you own your property to the Low Water Mark will not and do not stop the Coastal Managers. They want it so they will take it by any means necessary!

What's going on here? How can these people get away with this? They enforce policies that are not supported by any Ohio law. How can this possibly happen?

As a legislator, you should be outraged. What happened to the Fifth Amendment? Apparently the Office of Coastal Management doesn't know there is a Fifth Amendment.

Today I ask for your support, bi-partisan support, for a bill that upholds the Fifth Amendment. A government cannot take my property without just compensation. The ODNR stole my property and are charging me for it! What occurred to me should never happen to anyone in this great country.

I also want to address the sea of deceit and deception that have been circulated by some opponents to House Bill 218. The propaganda that is out there against this bill holds no truth, and is overwhelmingly biased toward a radical, unreasonable agenda and paints victims like me, fighting for my land, as the villain!

First, H.B. 218 is not about taking land away from the Public Trust. As others testified before me, Ohio law states that the Public Trust is subject to property owners' rights. We simply want back what we bought, OUR LAND, what our deeds state we own and pay taxes on. Nothing more.

Second, H.B. 218 is not about the rich lakefront property owners trying to restrict the public's access to the water. If you want to see rich, you certainly won't see any in my neighborhood. My gravel driveway isn't made of gold nuggets! I don't think my 60 year old 1,900 hundred square foot house qualifies as a house of the rich.

Third, H.B. 218 is not about eliminating the Coastal Management Program. It is about restoring reasonable and common sense regulations. Effective regulations that were followed for years - before the so-called "Coastal Managers" took over. As such, federal funding is not affected.

Fourth, H.B. 218 is not about adversely affecting environmental policy. Lakefront property owners love the Lake. We live next to it, and obviously we wouldn't want to pollute it. In fact, an EPA official told me that private lakefront residents are the #1 source for reporting illegal dumping of materials into Lake Erie that adversely affect the environment of the lake.

Fifth, H.B. 218 is not about giving property owners the right to place unreasonable structures in the water that affect other property owners or the environment. The Ohio EPA and Army Corps of

Engineers' roles are not affected in any way by this Bill. Anything you've heard to the contrary is an outright lie.

Lastly, I want to make it clear to this committee that nothing short of this bill will stop these renegade Coastal Managers. They don't care about what is just. They don't' care about what is fair. They don't care if you legally own the property. They don't care about reasonable regulation. All they want to do is to take our land. Please take a look at my property and tell me if this infringes on navigation or the public trust--trust me it doesn't!

Please support H.B. 218. It is the right and just thing to do.

Thank you, and I would be happy to try to answer any questions you might have.

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Testimony of Thomas O. Jordan, September 17, 2003

Good afternoon.

My name is Tom Jordan. I appear before you today in wholehearted support of House Bill 218, which was introduced by Representative Tim Grendell.

Why? I believe the manner in which the Ohio Department of Natural Resource's (ODNR's) administers the Coastal Management Program, specifically the submerged lands lease program and permitting process, is completely out of control.

I have resided at and owned my property, which is adjacent to the shores of Lake Erie, for over 30 years. My father first bought the property in 1945.

I am a licensed realtor in the State of Ohio, with over 45 years experience. Therefore, I well understand property lines, deeds, surveys, etc.

The deed to my property has always stated that the northern boundary of the property is the "Low Water Mark of Lake Erie." (See Attachment A)

The jetty on the northwest corner of my property was built in 1911-- over 90 years ago. This structure is approximately 8 feet wide and 100 feet long. Its length is partially in the water and partially on dry land. The extent to which the structure is on dry land versus water is dependent upon the level of the Lake at any given time. At Low Water Mark, it is mostly on dry land.

One of the Attachments to my testimony, Attachment B, is a photo of the jetty taken last year. Note that last year, the level of the Lake was higher than Low Water Mark. The photograph shows that that it is almost all on dry land.

There are other erosion control structures on my property that were constructed after 1911, yet before I owned the property. In order to prevent erosion and protect my property, I have maintained and repaired these structures over the years.

The Office of Coastal Management first contacted me by letter on December 23, 1993 (Attachment C). That letter claimed that I was occupying the submerged lands of Lake Erie and that I would have to obtain a submerged lands lease from the ODNR. The letter indicated that aerial photographs were used to calculate that approximately 10,000 square feet of my property was within the waters of Lake Erie.

The letter did not indicate how this calculation was performed or justified. My jetties are less than half of the area listed in their letter, and the far majority of these structures are out of the water.

Most importantly, the Office of Coastal Management ignored my deed that states my property extends to the Low Water Mark of Lake Erie.

The Office of Coastal Management's December 23, 1993 letter instructed me to have a registered surveyor develop a "metes and bounds" description of the submerged lands. Not only did I not know what they were considering submerged lands, but also the structures (like most erosion protection devices on the lake) were irregularly shaped and at odd angles-making a "metes and bounds" description impractical.

The letter also instructed me to provide a detailed construction drawing of the "existing fill". Given the age of the structures, the fact the structures were erected before I took possession of the property, and the fact that there have been numerous repairs and/or patches to the structures, a detailed construction drawing was impossible to provide.

The requirement to have an engineer say what is under the structures is far more expensive than merely having the structure surveyed to determine its size. Basically, they wanted me to survey eight irregular structures that totaled less than 5,000 square feet (much of which is out of the water) and determine how it was built, rebuilt, and repaired over the last 90 years.

The letter further instructed me to provide a resolution from the City of Sheffield Lake approving the existing use of the submerged lands. I do not understand the Office of Coastal Management's need for such a resolution. If the City of Sheffield Lake had a problem with my use of the existing structures, it could have said so any time since 1911. Further, why would the City have a problem with the structures when they are on my property?

Over the next 3 and 1/2 years I had many conversations with representatives of the Office of Coastal Management. During most of these conversations, I was told that if I did not comply with Office of Coastal Management's requests, they may have my erosion protection structures removed at my expense.

I was extremely intimidated by those statements, those threats, as such an expense would likely bankrupt me.

Ultimately I was given an Application for a Lease for Lake Erie Submerged Lands, which I completed, signed, and submitted in 1997. (Attachment D)

I want to be very clear here - I signed the application only because I was intimidated by the ODNR. I did not, and still do not, believe the ODNR's actions are proper.

The Office of Coastal Management then sent a letter on July 10, 1997 in which it modified its position by stating "that not all of the material north of [my] property is fill resting on public land." (Attachment E) I was instructed to re-submit my lease application and to provide a survey because they believed it was my "responsibility to delineate the amount of public land occupied by [my] structure."

I replied that I was unable to provide a survey per their modified instructions given their fluid definition of where my property line extends, coupled with the obvious conflict with my property deed.

On September 24, 1997, in response to this dilemma, a representative of the Office of Coastal Management provided an outline on an aerial photograph of the areas he wanted surveyed. (Attachment F) Although he stated that "any structure lakeward of the Ordinary High Water Mark (573.4 ft. International Great Lakes Datum 1985) would need to be contained within the legal description" of the lease, he did not state whether these structures were or were not within this definition.

From a review of his "marking," it can be determined that he merely included certain structures, regardless of where they stood with respect to the level of the lake. I do not believe that the Office of Coastal Management (or anyone) is capable of determining where the Ordinary High Water Mark (or Low Water Mark) is from an aerial perspective or photograph.

I had many conversations with them regarding how to accommodate their requests. However, on October 30, 1997, the ODNR reiterated its claim that it wanted a "metes and bonds" description prepared by a registered surveyor. (Attachment G)

Again they threatened, in writing, that they could remove my erosion control structures at my expense.

On March 11, 1998, they ordered me to remove my "fill and groins from the submerged lands of Lake Erie" within 30 days. (Attachment H)

Immediately upon receipt of that order, I requested a hearing on this matter. Many phone conversations followed.

I ultimately had an engineering company do a survey of these structures that were both in and out of the water. This survey cost $4,600 and I do not believe it has provided any benefit or useful knowledge to the ODNR. This survey was supplied to the Office of Coastal Management on February 1, 1999. Since that date, I have not received:

1. Any written or verbal responses regarding the adequacy of the survey;

2. Any written or verbal responses to my request for a hearing that was made five and a half     years ago

3. Any written or verbal responses to my Application filed over five years ago.

The status of my case and the actions of the Office of Coastal Management have placed a cloud over my property and its value. It is virtually impossible to sell a piece of property that is tied up in pending litigation and bureaucratic red tape.

It is because of the Office of Coastal Management's actions that I am here today to support House Bill 218. Simply put, the Office of Coastal Management is out of control. They are abusive. At a minimum, their coastal policies serve no rational purpose. Even if one assumes their policies are rational - which they are not - they are inefficient in their implementation of the policies.

Chairman Hollister and members of the Energy and Environment Committee, I urge you to support House Bill 218. I'm not opposed to reasonable regulation for shoreline activity. But this has simply gone too far.

Put the ODNR's Office of Coastal Management back in its place. Honor my deed. Eliminate residential submerged lands leases for structures that do not extend lakeward past the Low Water Mark. Eliminate the residential permit process, which is redundant with the Army Corps of Engineers' process.

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

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Testimony of Cherry Peirce, September 17, 2003

Good afternoon.

My name is Cherry Peirce, and I own two parcels of land on Marblehead Island. I appear before you today in support of H.B. 218, which was introduced by Representative Tim Grendell.

Chairman Hollister and members of the Energy and Environment Committee, I urge you to support this legislation. The legislation is urgently needed to eliminate the absurd and intolerable burden imposed by the Ohio Department of Natural Resources' (ODNR) administration of the Coastal Management Program (CMP).

Words cannot adequately explain my contempt for the manner in which the Coastal Management Program is being administered.

Approximately two years ago, I was in the process of selling one of my parcels on Marblehead. A group of investors was very interested in the property. In fact, they were so interested in the property, they placed the full purchase price in escrow pending a "due diligence" review of the transaction.

I was extremely confident that the property would transfer to them without issue, as there were no liens of any sort claimed against the property.

Obviously I paid my property taxes on time. Rest assured I pay a lot in property taxes.

In the due diligence review, a note was found in ODNR's file left by a former employee that stated: "check for landfill." Included in that file was an aerial photograph from 1928 that showed there was a dock of some sort on the property. Based only upon this photograph, the ODNR determined that a good portion of my property was "fill."

As it was "fill", an ODNR representative, Bridget Stefan, stated a submerged lands lease was required. After a year of fighting with the ODNR, it is easy to guess what happened to the pending sale of the property.

The investors withdrew their offer. It was plain and simple, the investors did not want any part of a submerged lands lease. No one in their right mind would purchase property and then be required to make lease payments on that property.

As I no longer wanted to fight the ODNR, I agreed to sign the lease. What a mistake that was on my part. I now pay approximately $ 1,600 per year to lease the land I bought years ago. I continue to pay property taxes on the land that the ODNR says the State of Ohio owns.

Adding insult upon injury, I have been unable to find another buyer will to pay the fair market value of the property due to the lease.

Have I been harmed? Absolutely. And it gets worse.

The other parcel I own on Cliff Road has experienced a good deal of erosion. In short, the cliff is eroding. Unless the erosion is stopped soon, my home will literally fall into the lake.

Being a rational homeowner, wanting to protect my home, property and investment, I requested that a contractor prepare an estimate for an erosion control structure. The contractor informed me that a permit from the ODNR would be necessary prior to the start of any construction.

The contractor prepared a drawing of the property and the proposed erosion control structure. The drawing and a photograph of the cliff were mailed to the ODNR's April Dunlap. The contractor and I had the expectation that a permit would soon be issued, and I would be able to relax knowing there would be no more erosion.

Given my previous experience with the ODNR, I should have known better.

Much to my chagrin, I received a letter from the ODNR stating that I would need to sign a submerged lands lease before the permit would be issued. In other words, the property that I bought and pay taxes on, which partially eroded away, which I wanted to protect from further erosion, would need to be leased back from the State of Ohio.

Not a chance. I made that mistake once. I won't make the same mistake again.

I want to make this perfectly clear: I absolutely refuse to lease back my own land from the State. If I am precluded from building a structure on my land to prevent further erosion to that land, I will simply allow the erosion to continue and allow my house to fall into the lake. Does this sound unreasonable to you? It's not. This is a matter of principle, and I do not acquiesce on matters of principle.

The Coastal Management Program is being administered in a ludicrous manner. The Program must be appropriately modified as is proposed in House Bill 218.

Note that I am NOT suggesting that the Coastal Management Program be eliminated. I believe there needs to be reasonable regulation for shoreline activities, and I am not opposed to such reasonable regulation. In fact, I am willing to obtain an appropriate permit from the ODNR and the Army Corps of Engineers in a reasonable manner.

But, I will not lease back my own land.

As currently administered, the Coastal Management Program has gotten completely out of control. I've already lost the sale on one property, and that property's value has plummeted. I'll soon lose another, along with my house. Both are casualties of the policies of the current Coastal Management Program.

Thus, I urge you to not only vote HB 218 unanimously out of this Committee, but also support its passage in the full House, through the Senate, and to the Governor, until it becomes law. We do need a Coastal Management Program, but it must be reasonable. Further, it must be administered in a reasonable manner by reasonable people.

Thank you, and I would be happy to try to answer any questions you might have.

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Opponent Testimony of Bernice Kammiller, September 17, 2003

"When the well is dry we know the worth of water." Benjamin Franklin states these prophetic words 250 years ago. In the 2003 Northeast United States "BLACKOUT," we experienced no water for a few days due to an electrical failure. A serious wake up call.

The Energy and Environment Committee of the Ohio House of Representatives is gathered today to hear testimony regarding House Bill 218. I want to share what I have learned about FRESH WATER .

Here are a few global facts.

William Graves 1993 Editor of National Geographic: "Today those same wells, above, are in danger of running dry, and along with the rest of the world we face a critical shortage of clean, fresh water." He went on to say, "The problem is simply people - our increasing numbers and our flagrant abuse of one of our most precious and limited resources. There is no substitute for water." Mr. Graves explains how a National Geographic team explored peoples habits and attitudes about water throughout North America. He said, "The team found historic mismanagement of water, blatant cases of waste and pollution and widespread ignorance of water problems. He emphasized we must mend our ways.

Michael Parfit, National Geographic: THE WORLD'S WATER SUPPLY . "If all earth's water fit in a gallon jug, available fresh water would equal just over a tablespoon, less than half of one percent of the total. About ninety-seven percent of the planet's water is sea water; another tow percent is locked in ice caps and glaciers. A change is coming in the way we use, see, and think abut water. It is a change that all of us through our own actions will influence. It is no longer possible to ignore fresh water."

Peter Jennings, journalist said recently, "Millions of people take the Great Lakes for granted - that's a mistake."

I believe there is a very small group of people who want "no government telling them what to do with their coastline property on Lake Erie." They ask for "freedom to make their own decisions, and use their property as they choose" regardless of how it affects structured programs or humanity. Many members of this group have personal, powerful hate vendettas toward ODNR and the Army Corps of Engineer's, disparities, some of which have existed for more than twenty years. There exists a state of confusion and political disorder. The R. W. Menninger, psychiatrist, I quote "Hate rhetoric attacks hate and becomes a group."

This group has influenced legislators to write HB 218. As written the bill is a subliminal attempt to destroy Ohio's Coastal Management Progam of the ODNR, and further is more regressive than their first HB 583 which was defeated. Their rhetoric at meetings is about the high water low water mark of Lake Erie. If they wish to define this standard differently, then develop a "stand alone" bill, not thirty-nine pages about restructuring the present government in Ohio to the far right. Please read the wording struck from this bill. The intent is ver clearly written and understood by many others.

There are volumes of references from national groups who do know the seriousness of managing well what is left of our fresh water and the ecosystem. I dedicated my life to the preservation of all life on earth. If there is no water there is no life. You do know how many cities are using recycled toilet water for drinking. It is called "Toilet to Tap." There is no excuse for this procedure. If the people in power, namely community leaders and politics let this happen, why then did they not provide guidance and laws to prevent this?

Ohio's Coastal Management staff has done a miraculous job of gathering data, teaching, and bringing together local governments, professionals, builders, and farmers, while consulting and compromising to save habitat and healthy water to name a few. The public must openly communicate with this department, study, and help seek answers.

What must be done now:

l. HB 218 in its present form should not come out of committee.

2. I urge Mr. Grendell to meet with ODNR, Director Speck, along with president of the Lakefront Group together. This would present an opportunity to get the facts on the table. I would be happy to join you if you so choose to share my professional knowledge and my five years of research on this subject.

3. Obtain a copy of the Lakefront Group by-law and goals.

4. The high water-low water mark should be established in accordance with the Council of the eight Great Lakes Governors and the Premiers of Ontario and Quebec.

Future generations and I thank you for you consideration.

Bernice E. Kammiller

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Opponent Testimony of Larry Mitchell, President, League of Ohio Sportsmen September 17, 2003

Good afternoon Mr. Chairman and members of the committee. I am Larry Mitchell, President of the League of Ohio Sportsmen. My organization dates back to 1908 and has a strong tradition of caring about Ohio's wildlife. The League of Ohio Sportsmen is an affiliate of the National Wildlife Federation, which was founded in 1936 when President Franklin D. Roosevelt convened the first North American Wildlife conference to stimulate public interest in the management and development of America's natural resources.

The League of Ohio Sportsmen has worked the past 95 years to protect the rights of people to hunt and fish. We voted at our monthly meeting to oppose the H.B. 218 because of the impact the change would have on Lake Erie in Ohio. By transferring the coastal property rights to the individual landowners, we lose the ability to manage our resources. To date Ohio has spent over $5 billion dollars on the Great Lakes Restoration Project, this legislation is working against all we have accomplished. It would put wetland habitats and breeding grounds on Lake Erie at the mercy of any one to destroy it or develop it to the point that all of the efforts to preserve our coastline would be destroyed.

By allowing this bill to pass you will be taking the access for fishing, water fowling and recreational boating away from the general public and limiting access to only a few landowners.

Under the law known as the Public Trust Doctrine, each state holds title in trust to the lands of the Great Lakes and Oceans within the territorial boundaries of that State. These lands were granted to the people of the State at statehood up to the ordinary high water mark. With this in mind and considering the impact changing the boundary would create, we feel that it is of the utmost importance NOT to change the boundaries to the low water mark.

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Opponent Testimony of Jack Shaner, Public Affairs Coordinator-Ohio Environmental Council, September 17, 2003

Chair Hollister, Ranking Minority Member Skindell, and Members of the Committee, Good afternoon. Thank you for this opportunity to present opponent testimony on House Bill 218 (As Introduced). 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 is strongly and unequivocally opposed to House Bill 218 - legislation which, we believe, proposes a radical and all-out assault on the State and local governments' stewardship of the Lake Erie shore and the public's right to full and unencumbered enjoyment of the Lake Erie Shore - the people's shore.

Here's why the Ohio Environmental Council is so vigorously opposed to House Bill 218:

1. House Bill 218 would severely weaken the authority of the State and local governments to manage the Lake Erie shoreline in the public interest.

House Bill 218 would:

•  Repeal the requirement that the State identify Lake Erie coastal erosions areas.

•  Revoke the State's authority to regulate by permit the placement of permanent structures in Lake Erie, such as breakwalls and other erosion control devices.

•  Repeal the law that the State and local governments must manage the coast "to ensure wise use of the land and water resources of the coastal area."

•  Revoke the State's authority to manage shoreline development to prevent loss of life and property in coastal flood hazard areas and coastal erosion areas.

•  Redefine littoral (shoreline) rights to allow or the construction of private piers, fills, backwalls, wharfs, and other structures below the "natural low watermark"--a standard set in the Dust Bowl Era of the 1930's when Lake Erie was at its lowest level ever recorded.

2. House Bill 218 likely would severely hobble the State's ability to protect vulnerable coastal areas of this priceless natural resource, including its ability to provide critical protection of significant natural coastal resources, including wetlands, beaches, fish and wildlife habitats, natural areas, prime farmland, and endangered plant and animal species.

Under existing law, both the State and local governments are authorized to approve or disapprove of local projects along the Lake Erie shoreline. House Bill 218 strips this authority.

Removing the State's authority to manage and protect coastal erosion areas/zones would cause Ohio to default on the primary requirement of the Federal Coastal Zone Management Program. This would translate to the loss of $4.2 million in annual federal funding, essentially de-funding the Coastal Management Program in Ohio. This would have a direct and negative impact on the careful management of the Lake Erie shore as it would result in loss of funding for coastal management grants for the following purposes, as authorized by Ohio Revised Code Sec. 1506.02:

•  Feasibility studies and engineering reports for projects that are consistent with the policies in the coastal management program document;

•  The protection and preservation of wetlands, beaches, fish and wildlife habitats, minerals, natural areas, prime agricultural land, endangered plant and animal species, or other significant natural coastal resources;

•  The management of shoreline development to prevent loss of like and property in coastal flood hazard areas and coastal erosion areas, to set priorities for water-dependent energy, commercial, industrial, agricultural, and recreational uses, or to identify environmentally acceptable sites for dredge spoil disposal;

•  Increasing public access to lake Erie and other public places in the coastal area;

•  The protection and preservation of historical, cultural, or aesthetic coastal resources;

•  Improving the predictability and efficiency of governmental decision making related to coastal area management;

•  Adopting, administering, and enforcing zoning ordinances or resolutions relating to coastal flood hazard areas or coastal erosion areas;

•  The redevelopment of deteriorating and underutilized waterfronts and ports;

•  Other purposes approved by the director.

3 . House Bill 218 attempts a land grab of public property that the State of Ohio has held in trust for the people of Ohio since the State's inception - a legal "line in the sand" that has been upheld by the United States Supreme Court and the Ohio Supreme Court.

Ohio and all of the great lakes states recognize the ordinary high water mark as the line of demarcation between public trust lands and shoreline property. This is called the Great Lakes Datum, and it is a fixed vertical point that is 573.4 feet above the zero mark in the St. Lawrence River.

House Bill 218 would move the goal posts or the outfield fence, so to speak, to declare that the public's ownership of Lake Erie and its shoreline extends only to the "natural low water mark" and that all lands inland from that mark belong to littoral owners. Under the bill, the 'natural low water mark" is defined to mean the lowest one month historic average on Lake Erie.

This "ordinary low watermark" is anything but ordinary. In Fact, it is an all-time historic low that occurred some 70 years ago during the Dust Bowl era. This low water mark level is 5.3 feet below the ordinary high-water mark, more than tree feet below the current level of Lake Erie, and more than one foot below Chart Datum (the lowest water level reference currently commonly mapped). Further, average month lake levels have exceeded the high ordinary water mark for more than 40 months since the 1970's.

If the General Assembly were to accept the historic low water mark as proposed by House Bill 218:

•  The State of Ohio would immediately cede title to hundreds of acres of land that it hold in trust for the people of Ohio, placing the individual interests of 15,000 private property owners above the common interests of the 11 million citizens of the state.

•  The State of Ohio would jeopardize biologically-rich marshlands and shallow water zones that are critical nursery ground for certain fish and other wildlife by making them vulnerable to severe impacts from commercial development.

•  The State of Ohio would be the only Great Lake State to not recognize the average high water mark as the boundary separating public property and private property.

•  The State of Ohio would attempt the impossible: overruling the public trust case law that has existed for 200 years and outflanking the federal government, from which Ohio would need permission to amend its public trust.

Changing the public's ownership to this historic 1930's low point conflicts with previous decisions by the United States Supreme Court and the Ohio Supreme Court.

The United States Supreme Court held in 1892 (Illinois Central Railroad v. Illinois) that ownership of and dominion and sovereignty over lands covered by tide waters belong to the respective states within which they are found.

The Ohio Supreme Court held in 1945 in State ex rel Squires v. Cleveland that the State of Ohio, through it Legislature, was without the power to relinquish and abandon its trusteeship and its control over the shores of Lake Erie. A basic statement of the public trust doctrine in Ohio, as applied to the shores of Lake Erie, as set forth by the Ohio Supreme Court is as follows:

"The State of Ohio holds the title to the sub aqueous soil of Lake Erie, which borders the state, as trustee for the public for its use in aid of navigation, water commerce, or fisher, and may, by proper legislative action, carry out its specific duty of protecting the trust estate and regulating its use. . .

"The littoral owners of the upland have not title beyond the natural shoreline ; they have only the right of access and wharfing out to navigable waters. That right is a property right although not a tangible one and is subject to the superior right of the state as owner of title in trust for the people of the state and of the United States with authority accruing to it by virtue of its exclusive power over interstate commerce."

State ex rel. Squire v Cleveland , 150 St. 303, 303, 337 (1948).

Finally, the agreement on the public trust originates from the federal government; legally, it cannot be amended by a state government without permission of the federal government.

Title insurance companies recognize the reality that the State holds exclusive title to lakelands that it holds in the public trust, as evidenced by the fact that title insurance companies simply will not insure property located lakeward beyond the ordinary high water mark. The Cleveland S.D.C. title Agency, for instance, included this disclaimer in its policies:

"The public trust doctrine establishes ownership of all submerged lands or lands nor or formerly underlying the waters of Lake Erie in the state of Ohio in trust for the public to promote public purposes, such as fishing, recreation, navigation, and water commerce. ORC Sec. 1506.11 provides for the leasing of public lands for private development . . . Any buyer will only be able to require a leashold interest in the submerged lands (and filled lands), which will be evident by a submerged land lease from the State of Ohio."

4. H.B.218 will infringe on property owners' rights by opening up the Lake Erie shore for a "free-for-all" of private structures with no State or local oversight.

House Bill 218 is a radical assault on the State's stewardship of the Lake Erie shore - property the state holds in trust. If passed, Ohio will fail minimum federal coastal management program requirements and will lose critical federal funding to manage and protect the Lake Erie shore. The Ohio Constitution entrusts the state government with wise stewardship of Lake Erie - both its lands and waters. State and federal Supreme Court decisions have upheld the state's sovereign ownership over coastal lands and waters. The proposed legislation flies in the face of long-standing legal principles and would virtually disable the State and local governments' authority to carefully manage the shoreline and to protect it from erosion and unwise development. House Bill 208 is public policy at its worst.

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Page updated 1/10/04 ; R. Pindor