September 24, 2003 Testimony

Testimony of Russell Claus, September 24, 2003

Good afternoon,

My name is Russell Claus. I am an owner of lakefront property in Vermilion, as well as a member 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 Energy and Environment Committee, we desperately need this legislation.

I am here to address the issue of fairness and reasonableness. When something of value is taken without due process, this taking is not fair. When rules and procedures are arbitrary and overly complex, the process is not fair. I want to be clear, my disagreement is not with the Ohio Department of Natural Resources (ODNR) in general, but with the Ohio Coastal Management Office (OCMO) within that department.

I have a deed that indicates ownership to the Low Water Mark along the shoreline of Lake Erie. The Ohio Coastal Management Office has ignored this deed and taken ownership of approximately 20 % of my property.

Around 1998, my wife and I purchased a parcel of property to build a home along Lake Erie. After purchasing the property, I found out the property was in what ODNR defined as a "Coastal Erosion Area." ODNR said I could not build my home unless I first obtained a coastal erosion area construction permit from them. Before ODNR would grant this permit, they said I must first build an erosion control structure after applying for an erosion control permit. Then ODNR told me I could not build an erosion control structure unless I obtained a submerged lands lease. This submerged lands lease required plans designed by a professional engineer and surveyed by a registered surveyor.

I was aware of ODNR's use of the High Water Mark as the boundary between public and private property. I decided I would avoid the lease by keeping my erosion control structure landward of the High Water Mark. When I made an application for an erosion control structure above this boundary, my application was rejected. They performed a "historical land survey" and created a property line that is well south of the shoreline. They lay claim to not just my beach, but to a great deal of upland property. My property rights were taken away without documentation or any justification. I am certain that this land survey is incorrect.

Although I am not a lawyer, it appears to me that ODNR's practices violate judicial presents such as: 1) State, ex. rel. Duffy v. Lakefront East 55th Street Corp., 137 Ohio St. 8, 12 (1940) and 2) Baumhart v. McClure, 21 Ohio App. 491, 493 (1926).

In the end, there was no way ODNR would allow me to build an erosion control structure without getting a lease. They would not allow me to build my home without the erosion control structure. I was basically forced into signing away 20% of my property in order to build a home on the property I just purchased.

After my erosion control structure was constructed, my local property taxes doubled. The county was not aware of my land-lease. I informed the county of my land-lease and they did not adjust my taxes. ODNR states that I do not own the property and must pay a lease fee. The county states that I do own the property and I must pay the taxes on this same property. One of these government agencies is incorrect.

I am also concerned about the arbitrary nature of ODNR's decisions and the overly complex regulatory process. My neighbor refused to sign the land lease documents in his erosion control application. Using his Army Corp Of Engineer's (COE) permit, he installed a stone revetment for erosion control. The COE permit ensured that the stone revetment was technically sound. ODNR's only contribution is to extract lease payments. In a sense, the property owners that follow ODNR direction are being penalized by the loss of their ownership rights.

I have found the Ohio permitting process to be time-consuming and burdensome. My erosion control structure permit required about 9 months to be issued. I had to enquire about once a month to ensure that the paperwork did not get lost in the system. Most of the delay was related to the submerged land lease.

The Army Corp of Engineers permit required only a few weeks of processing time. The process was timely and efficient. The COE permit ensured that my stone revetment was technically sound.

To conclude, I want to be a good steward of the Lake for future generations. I wish to leave a legacy of a beautiful Lake Erie to my grandchildren. I feel that we need HB 218 to reduce the regulatory maze that is impeding this stewardship. Instead of taking people's property, please have ODNR focus on real problems.

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Testimony of Bud Edwards, Shoreline Contractors Inc., September 24, 2003

Good afternoon Madam Chairman and members of the Committee.

My name is Bud Edwards. I have a B.S. in Chemistry and a M.S. in Environmental Science. I have worked as the Supervisor of the Environmental Service Section of the City of Cleveland. I worked with Dr. Andrew White, an ichthyologist, of John Carroll University in performing studies regarding fish populations in Lake Erie. In 1974, I designed and built the first artificial reef in the Great Lakes. Today, I am a contractor that specializes in erosion control and marine construction for both residential and commercial purposes.

I appear before you today in support of House Bill 218.

I am in daily contact with people that either want an erosion control structure built or some structure to access the water. I have interfaced with thousands of shoreline property owners over the last 25 years.

I would like to give my perspective on the impact that shoreline structures are having on the environment, as well as the impact that ODNR's illogical policies are having on the environment.

Prior to the Ohio Coastal Management Program, permit applications were prepared by a homeowner or contractor at no cost using guidelines provided by the Army Corps of Engineers. Processing time ranged from 3 weeks (nationwide permit of Letter of Permission) to 3 months for Public Notice Permits associated with major commercial properties.

Since ODNR's involvement, a professional engineer and registered surveyor are required. The cost is a minimum of $3,000 to $3,500 and nearly all permits require a year or more to process.

State agencies have bullied lakefront owners and have tried to kill permit applications by "Pocket Veto" because ODNR personnel believe that "the shoreline should revert back to its original condition before man got here."

An elderly woman wanted me to simply put some armor-stone around some existing sheet-piling that was being undermined and was at risk of soon toppling into the Lake. The armor-stone would have actually created fish habitat resulting in an enhancement to the environment. She only had about 60 feet of frontage on the Lake. Before anything could be done, ODNR told her she would have to sign a Lease for what presently existed on what they considered to be State property. However, before ODNR would let her sign a Lease, she was required to prove to them that the present (very small) structure was there when she moved into the house in the 1960's. If she could not prove this to ODNR's satisfaction, ODNR would order this small structure removed - they would not even give her a Lease. Can you imagine what this elderly woman was put through, not just because she was trying to add some protection to what existed, but to ensure that her entire existing structure was not ripped out?

The reason this elderly women is not here testifying, is that she is frightened. She is afraid of the very government that is supposed to be helping her. All she wanted to do was protect her property, but instead she was treated like she had done something wrong.

What does all of this do for the environment? Home owners fear and object to the submerged land lease. Many of the homeowners I work with do not want to have anything to do with the ODNR and these hassles. The property owners have two ways of avoiding this:

1) do nothing and let their property continue to erode, causing further degradation of the Lake due to sedimentation; or

2) build structures at the Ordinary High Water Mark so that the ODNR will not require a lease.

Quite often, structures confined to this area near the bluff are not enough by themselves to build a beach - a beach that could provide a natural form of erosion protection. But the homeowners are unwilling to build any structures beyond the High Water Mark if they have to lease the area from the State.

Placing large rock on a slope along the shoreline is utilized extensively by ODNR and the Army Corps of Engineers. Taking shoreline enhancements a step further, these agencies construct offshore breakwaters and groins (rock jetties) to provide protected swimming areas and beaches. In addition, these structures provide a calm water environment for fish spawning, foraging, and ecosystem development from the tiny zooplankton to large sport fish.

However, construction of the same type of structures by lakefront property owners requires obtaining the dreaded submerged land lease. Homeowners that are willing to spend their own money on a project such as an armor-stone breakwater or groin that will ultimately enhance the environment, are deciding to let their land erode - rather than enter into a submerged lands lease. In addition to the cost of the submerged land lease, the Ohio EPA demands a mitigation "donation" of $30,000 per acre for the affected area within 30 days of issuing its Section 404 permit.

In my opinion the State should encourage homeowners to prevent erosion. And, if the erosion control structure is able to enhance the environment, it's an absolute "win-win" situation: the homeowner is better off, the environment is better off, and therefore the State is better off.

Instead, we have the ODNR's policies that adversely affect the homeowner, the environment, and the State.

For these reasons, I ask you to pass House Bill 218 out of this Committee as soon as possible. Please urge your colleagues in the Senate to pass it as well.

If you really want to protect and enhance the environment, it is imperative that regulations be sensible, not punitive. House Bill 218 is a necessary step.

Protect the environment, not the bad policies of ODNR. Vote for House Bill 218.

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Testimony of Raymond Ginter, September 24, 2003

Good afternoon.

My name is Raymond Ginter. My wife and I have residential lakefront property in Vermilion.

I appear before you today in support of H.B. 218, which was introduced by Representative Tim Grendell. As a member of CWA Local 4309, and a soon-to-be union steward, I want you to understand that I am losing a day's pay to appear before you to testify.

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

I have so many complaints about the ODNR that it's hard to know where to start. Frankly, I cannot believe what has happened to me could occur in the United States.

It all started in late 1999 when my wife and I decided to place two jetties, one at each end of our property. I called the ODNR to obtain a permit. I was told that they would not issue a permit for jetties, but would approve an armor stone revetment and breakwater. I preferred to have jetties built as they were less expensive, but I couldn't build them without a permit. I was told that to obtain a permit for my "armor stone revetment" - which is essentially a big pile of big rocks- it was highly recommended that I work with a contactor, a Professional Engineer, and a licensed surveyor.

So, I hired a Professional Engineer. I paid him $ 3,600 to design my pile of rocks. I filled out the lengthy application form, and mailed the applicable paperwork to the ODNR. I also applied for the appropriate permits with the Ohio EPA, U.S. Fish & Wildlife Service, and the Army Corps of Engineers.

In less than 3 weeks, all agencies replied to my request, except the ODNR. In fact, I received "conditional" approval of the permit in a timely manner from all of the agencies, except the ODNR. By conditional approval, I mean that the other agencies would issue a permit if the ODNR would issue their permit.

I was finally contacted by Bridget Stefan of the ODNR. I was hopeful that she would help move the process along. Instead just the opposite occurred. I was told that there were problems with the permit application and I had to go back to the Professional Engineer to re-design my pile of rocks.

For over a year, I called her regularly asking about the status of my permit. Her response was essentially the same: "it's a very complicated process...we're working on it..."   Months later, I finally received a formal notice that there were problems with my permit application. Apparently there were "nearly extinct" minnows just off my property. I immediately called Bridget to discuss these nearly extinct minnows. We spoke for over two hours, and she stated she would look into it.

My wife however, took a more proactive approach. My wife started calling all the names on the "minnow report", and eventually found the person who had performed the marine survey. He was kind enough to come out to my property to assess the situation.

He laughed and stated the notice I received was completely wrong. The minnows were to the east and over a mile away. He stated that the structure I was proposing to build would not in any way affect these minnows. He further stated that the revetment I was proposing to build would slow down the water flow and be a great place for fish to spawn! He agreed to contact the appropriate people at the ODNR and believed this would solve the problem with my permit.

But, I did not hear from the ODNR for months. I called the ODNR at least fifteen more times, including calls to John Watkins, who is a field representative of the ODNR. Again, nothing. Then, out of the blue, Mr. Watkins called and stated that they had "found" my permit application in a file with several other applications. Were they lost? I don't know, as it was never explained to me.

Mr. Watkins came out to my property and spent over 6 hours there. He checked the property, and explained how ODNR's permitting process worked. He said that the proposed design was great, and that there should not be a problem with obtaining the permit - with just one minor change. This one minor change required that I again contact the Professional Engineer and the surveyor, at my expense of course.

By then, I had paid the Professional Engineer and the surveyor $5,400 for my pile of rocks: $ 3,600 for the original design, and another $ 1,800 for the two re-designs.

I again re-submitted the design to the ODNR, and again waited, and waited.

Then I received a letter from the ODNR advising me that the time limit for my permit application had expired and the permit application had been cancelled. So even though the ODNR had essentially lost my permit, and even required two re-designs, my permit application had expired.

I had to start the whole process over again.

I finally did receive a permit in August 2002. However, with the permit came a submerged land lease.

Ironically, I had to sign and return the lease within 30 days or my permit would be cancelled. So I had 30 days to comply, even though the ODNR had over three years to process my permit application.

Obviously I returned the signed lease within 30 days, and on October 3, 2002 I received an executed copy of the lease. I found it ludicrous that the lease was signed not only by Samuel Speck, the ODNR's Director, but Governor Taft as well.

Even though I absolutely disagree with the entire premise of the lease, after all I had been through, I believed I had no choice other than to sign the lease in order to obtain the permit . I cannot believe that the ODNR is requiring me to lease land that I paid for. Land that I pay taxes on.

Because the ODNR's process took so long, I don't know if I have to start over with the other state and federal agencies.

Note that the lease requires that I "carry and maintain a policy of Comprehensive General Liability insurance with the broad form of endorsement ..." I have contacted over a dozen insurance carriers seeking quotes for the required coverage. Not only could I not receive a quote, I can't even find a carrier willing to issue a policy consistent with the requirements of the lease.

I contacted Accordia, a company that deals with several insurance carriers, hoping that they could find a carrier. Attachment A is their response to me. The letter states that they "submitted the paperwork to the insurance carriers that expressed interest. After reading the wording in the [lease], they have decided that they were not interested in getting involved."

I even contacted the ODNR asking them for a reference. They could not suggest a carrier. Thus, even though I have made extraordinary strides to obtain the required insurance, I cannot find a carrier willing to accept the risk.

As I stated earlier, the Engineering and survey work is required by the ODNR. I spent $5,400 to have the Professional Engineer and the Surveyor design, re-design, and lay out my revetment. In other words, because of the ODNR, I paid thousands of dollars to an Engineer to design a pile of rocks, and to a surveyor to tell me where to put the rocks. This doesn't include the cost of the numerous long distance calls to the ODNR, my personal time, nor my lost wages from work (for when the ODNR came to my property).

What a waste of time and money.

The irony is that I have spent so much money on the Engineer and the Surveyor that I have less money to spend on the revetment! On top of that, since I haven't found an insurance company willing to issue a policy as required by the lease, I haven't been able to start work on the structure yet. According to the Lease, if I don't get the insurance, the lease will be terminated under the "default" provision.

Given my experience with the ODNR for over three years, I urge you to do several things:

•  Immediately eliminate the ODNR's permitting program

  · it is a farce, and even if ODNR personnel were competent to manage such a program, the program is redundant with the Army Corps of Engineers' permitting process;

· they force you to hire a Professional Engineer registered by the State of Ohio, and then they do not accept the professionally engineered design.

•  Immediately eliminate the ODNR's land lease program

· it is ridiculous to require a residential property owner to lease land that they paid for without compensation and still require that they pay taxes on it.

•  Revoke all existing residential land leases

  · there is absolutely no reason for a land lease on structures above low water mark;

· there is absolutely no reason for a land lease on structures approved by the Army Corps for reasonable access to the water.

Thus, I urge you to not only vote HB 218 unanimously from this Committee, but also support its passage in the full House.

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

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Testimony of Ned Schabel, Beach Cliff Board of Trustees, September 24, 2003

I am a member of the Beach Cliff Board of Trustees. The Board was established in the 1920s as part of a not-for-profit Trust by the original developer of a large subdivision in Rocky River, Ohio. This Deed of Trust was recorded in 1927. The Trust provides, among other things, beach and lake access for 1,100 households presently in the subdivision, regardless of those households' proximity to the water. In some ways, the Trust operates as a propertyowners' association, and is governed by that original Deed of Trust.

Since its establishment in the 1920s, the Trust has held title to a strip of property running east to west for about a mile at the foot of the bluff overlooking Lake Erie. Lake Erie lies to the north of the lakefront strip; private residential lots lay to the south. Thus, the Beach Cliff lakefront parcel lies between the private lots along the bluff and Lake Erie.

In about 1998, one of the private homeowners south of the Trust lakefront parcel began planning a construction project at the north end of their property that spilled onto the Beach Cliff lakefront strip. The project was designed to consist of "grout bags" that act as erosion protection for the homeowner's property, a cement pad or bulkhead, and a recreational dock extending northward, all of which were designed for the homeowner's personal use and not for the use of others living within the Beach Cliff Trust. As part of the project, the homeowners applied for an Ohio Department of Natural Resources submerged land lease for property that included part of the historic Beach Cliff lakefront strip lying to the north of the homeowners' property. The Trust has continuously owned, maintained and paid taxes on the effected parcel for more than 70 years.

ODNR made no effort to investigate whether the homeowners actually owned the property described in the homeowners' lease application or whether it lay within another's record property. The ODNR gave the homeowners a lease for an area including Trust property as defined by Beach Cliff's deed.

In March 2000, the Trustees were stunned to find construction equipment excavating the portion of the Beach Cliff lakefront strip north of the homeowners' property. The Trustees were forced to file a court complaint to try to stop the surprising excavation on the Trust's lakefront strip. The ODNR was not a party to the litigation as originally filed, but later became a party at the urging of the private homeowner who received the submerged land lease. Since then, the Trust has been forced to expend large sums of money trying to protect its record title from the ODNR's attempt to lease it away to a private homeowner.

Most disappointing is that not once during the litigation has the ODNR taken an objective view of its grant of the submerged land lease at issue and tried to determine how this could have been avoided in the first place. Throughout the course of this litigation, the ODNR has taken at least three different positions about how the present submerged land law applies. At the outset, the ODNR claimed that the Beach Cliff Trust had lost title to the piece of property at issue because it lay below 573.4 feet in elevation, which ODNR claimed was the defining boundary of the "original high water mark" and thus the boundary of public trust property. Discovery in the lawsuit showed, however, that the Trust property at issue did not lay below 573.4 feet in elevation; rather, the Trust property is above that elevation. So the ODNR and the other defendants, after the onset of litigation, switched positions and claimed that, at some point in the 1960s, the Trust forever lost title to its property at issue because it had been overtopped by water.

The ODNR backed off from this position when confronted with the well established rule that if a property owner temporarily loses unrestricted title to land by a rise in water level, that homeowner also benefits when the water level falls and property reappears. Even if the Trust property at issue had been submerged at some point in the 1960s, it was dry in 1998.

After this argument was jettisoned, the ODNR undertook an apparently elaborate study of aerial photographs and determined that, when the water level was high in the 1960s, the previous homeowner to the south of the Trust property at issue placed fill on his property in order to protect the bluff. Thus, ODNR's current argument is that the natural shoreline has become "locked" at the southward point where the neighboring homeowner allegedly placed fill. Even though the lake has naturally receded, and even though the Beach Cliff Trust had nothing to do with the fill placed by the neighbor, the ODNR says that the Beach Cliff Trust has lost title to its historic property. This is an unfair and unjust result, and it has the effect of depriving 1,100 homeowners access to a portion of beach so that one homeowner can build a dock for personal and private use.

The current ODNR rules and customs as applied have cost the Beach Cliff Trust greatly:

First, the ODNR does not cross-check submerged land applications against title records to see if a submerged land lease will affect a property owner other than the applicant. There is no procedural safeguard to keep a "land grab" from happening.

Second, once the litigation had begun, the ODNR undertook an elaborate study of aerial photographs to determine the most southerly point that Lake Erie ever reached in the area at issue. It is unfair and unworkable for the ODNR to base its interpretation of what constitutes "submerged land" on esoteric and historical information--of debatable accuracy -- that property owners may not be able to discern, acquire or understand on their own.

Third, it is unfathomable that the ODNR does not feel required to give a record property owner "first dibs" on a submerged land lease for an area within a duly recorded deed. Once the ODNR learned that the allegedly submerged property had been deeded to the Trust in the 1920s, it should have asked the Trust first if it wanted a submerged land lease for the property. It did not do this.

The Trust believes that the ODNR's administration of the submerged lands program, at least in this instance, has been inconsistent with the existing letter of the law and, moreover, contrary to principles of fairness and common sense. The Trust supports any legislation that works to protect the right of record titleholders to their deeded property, and especially urges the Legislature to ensure that the law is changed to prevent one's property from being leased away to another private party without the consent of the record owner. Such a rule would protect the old and wise principle that a property owner is entitled to the benefit of having land reappear naturally.

Because of pending litigation, I am restricted in my ability to answer questions bearing upon the lawsuit.

Thank you very much for your time.

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Testimony of Ken Tatter, September 24, 2003

Good afternoon Madam Chairman and members of the Committee.

My name is Ken Tatter, and my testimony will be very brief. Please note that although like other people here today I am a member of the Ohio Lakefront Group and a lakefront property owner, the purpose of my testimony is different from that of previous witnesses.

I am a licensed Real Estate Appraiser in the State of Ohio. I have worked in real estate since 1968 and have been appraising since 1986. My specialty is single-family residential properties. Because of my experience in the real estate field, I have a thorough understanding of what factors influence the valuation of lakefront property.

Consequently, the purpose of my testimony is to respond to a question raised by a committee member following last week's proponent testimony. The question concerned what part of lakefront property and its value, including tax value, would be lost given the current policies of the ODNR.

I feel the easiest way to best explain the potential loss in value, and therefore potential loss of property tax dollars, is through the following hypothetical example.

Assume that a lakefront property owner's deed states that they own the property to the low water mark, but that the ODNR believes the State owns the property to the high water mark. Further assume that the physical area of the lakefront property owner's lot is decreased by twenty-percent due to the ODNR's enforcement of ownership to the high water mark.

One might think that the property value and property taxes would decrease by 20 percent as well. However, that is incorrect. The property's value could decrease by much more than that, for several reasons.

First , once the State claims ownership to the high water mark and the property owner no longer owns the land or beach between high water mark and low water mark, the property owner no longer owns "lake front " property, but "lake view " property. The State owns the lakefront property.

This is a critical change. Historically, "lakefront" property has a significantly greater value than "lakeview" property. It is an established fact that two similar size parcels of vacant land, one "lakefront" and one "lakeview", will have a significant difference in value. Consider two exact homes situated on identical-sized parcels, but on opposite sides of the street. The one that is lakefront property will clearly have a greater value. This is because value lies in the section of the lot on the lakefront, not the road. Otherwise, equal parcels on each side of the road should have equal value.

This is an example of one of the most common phrases in real estate, that "property values are a function of three things: location, location, location." Location is a significant influence on value. In this case, a property has a greater value given its location on the lake. With ODNR's assertion of ownership to the high water mark, a property is no longer on the lake. Essentially, its "location" on the lake has changed. Thus, the property owner has lakeview property, and not lakefront property

But what has the lakefront property owner "lost" due to the ODNR's assertion of ownership to the high water mark? The property owner may no longer have littoral or riparian rights to access the water.

It can be argued that the State still allows access to the water. But that is not necessarily the case.

Take for example the case involving the Beachcliff Property Association. The Association's deed states it owns the property. But, the ODNR completely extinguished the Association's title by claiming State ownership to the high water mark. ODNR then leased the land to a third party. The Association's members now would be trespassing if they try accessing the water via the land leased to the third party. With this loss of only a small portion of land, the Association lost a significant asset, possibly the reason for the existence of the Association itself.

Thus, although the decrease in parcel size may be only 20%, the decrease in the property value may be significantly greater because the parcel is no longer lakefront property, and the property owner may have lost their rights to access the water.

Second , The property has lost some intrinsic value of "privacy." Even if the State doesn't lease the area between high and low water mark to a third party, the fact that it is State property would allow the general public to access that land. Thus, the original property owner's privacy has deteriorated substantially by converting a portion of their land to public access.

Third , the submerged lands lease also causes a decrease in value. The lease itself has a cost, such as the annual lease payment. The lease also requires the property owner to purchase insurance to indemnify the state.

However, the adverse impact of the lease payment and insurance costs to the value of the property pale in comparison to the liability and risk caused by the lease's requirement to remove any structures when the lease expires.

Shoreline erosion control structures are expensive to install. Removing the structures would also be expensive. The liability of potentially incurring a significant expense to remove the structure upon the lease's expiration devalues the property. Further, if the erosion control structure were removed, then erosion would occur to the property also devaluing the property and adding additional land to be claimed by the State.

Because of the change from lakefront to lakeview would necessitate the isolation of costs assigned to littoral and riparian rights, an estimate of the amount of property devaluation would require significant time and research. Couple this with both the intangible loss of privacy and the costs and potential liability associated with an ODNR lease, and what was once thought of as a simple task becomes very complicated and muddied. What is clear is that the loss in value could be significant.

In closing, and recalling my hypothetical example, if a deeded lot's physical size is decreased by twenty-percent due to the ODNR's assertion of ownership to the high water mark, the resulting property devaluation could drastically exceed the twenty-percent loss of physical land. This will not only result in a significant decrease of property values for the land owners, but also a proportionate loss in tax dollars.

Imagine this impact applied to the approximately 15,000 properties along the Lake Erie shoreline. The loss in property value, as well as the loss in property taxes, would be dramatic.

I recognize that this testimony does not answer the question with a specific dollar amount. It is my hope that it does provide a better understanding as to why the question cannot be answered without significant development of data that would require extensive time and expenditures.

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

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Testimony of Sandra Wade, September 24, 2003

Good afternoon Madam Chairman and members of the Committee,

My name is Sandra Wade. I am a member of the Ohio Lakefront Group, and I appear before you today in support of House Bill 218.

I would like to address two main points in my testimony.

First, I would like to address accusations that the Ohio Lakefront Group and its members would support legislation that would degrade the environment and endanger Lake Erie. Nothing could be further from the truth.

My husband Tom and I feel we are champions of environmental issues. We have two Lake Erie license plates. This money goes to the Lake Erie Protection Fund for research and grant projects that focus on improving Lake Erie and its waterways, which we fully support. We also have a bald eagle license plate with the proceeds being used to restore this majestic bird to a total of 88 pairs today from only 4 pairs in 1979.

This cap was given to me by ODNR for my participation as a volunteer in the Eagle Watch Program. Starting in February, you observe a nest, most of which are located along the shores of Lake Erie, and report on the birth and patterns of the parents and their eaglets.

e are also in the process of trying to restore a wetland, with the help of the Ottawa County Soil & Water Conservation District. This land now hosts only phragmites and purple loosestrife, which have proved disastrous to wetland habitats. Our goal is to turn this land into a viable wetland with appropriate vegetation that can support ducks, snakes, birds, frogs, etc. I have personally removed over 50 tires, appliances, bedsprings and a plethora of other junk that people have discarded.

Tom donated a much-needed bulldozer to the Oak Harbor Conservation Club. In the early 90's this Club purchased property to establish a large private-land conservation area to stem the loss of habitat for migratory birds in a major flyway and to provide habitat for resting and breeding birds. The overall goal of this purchase was to restore this section of land to its natural, wetland condition, and was part of a cooperative program with the Ohio Department of Natural Resources through the Lake Erie Marsh Restoration Program. Our gift was given without being coerced or without any strings attached.

Tom and I work very hard, along with our neighbors, many who are here today, at being good stewards of Lake Erie. I hope that you can see that we, and everyone who is a member of the Ohio Lakefront Group, work very hard at doing our part, not just in raising awareness to the needs of Lake Erie, but in actions and contributions as well.

We are NOT against the Ohio Department of Natural Resources. NOR ARE WE ANTI-ENVIRONMENT. Just the opposite, we all have a genuine concern for the health of Lake Erie. And I resent anyone who insinuates that Tom and I, or any of these fine people, do not care about Lake Erie.

The second point I want to cover is in response to questions that have been asked of previous witnesses. Specifically, "what part of lakefront property and its value would be lost given the policies of the Coastal Management Office?"

But first I am going to ask you, "What percentage of your own property do you believe the State could take away from you--without compensation--and you would feel it to be reasonable? Five percent? Ten percent?" Your answer would and should be zero, as the Coastal Management Office should not be permitted to steal anyone's legally deeded property.

In 1997, Tom and I bought land in Erie Township, which is in Ottawa County. We have subsequently purchased approximately 5 acres on, and adjacent to, Lake Erie, with approximately 500 feet of shoreline. Our entire property is either at, or below, the Ordinary High Water Mark.

All of it has been filled sometime during the 80 years since the subdivision was platted. Some of the fill might be considered natural because during floods, huge amounts of sand were washed across the road and into the wetlands. Other fill, along with a cement and wood retaining wall, riprap or armor stone, was placed to protect the property and prevent flooding. The Coastal Management Office declares any such "historic fill" as artificial and therefore owned by the State, and anything below the High Water Mark as owned by the State.

Therefore, according to ODNR's policy, one hundred percent, yes, one hundred percent of our deeded property is owned by the State. The totally absurd policies of the Coastal Management Office now being enforced would require a lease for all of our deeded property.

The ODNR's lease requires that we obtain insurance to indemnify the state in case someone is injured on the property that we bought and thought we owned, but must now lease from the state. Worse yet, when the lease expires after 50 years, it requires that all artificial structures be removed and the property be returned to a condition satisfactory to the Director of the ODNR.

The lease indicates that we may apply for a new lease after 50 years, but it is at ODNR's discretion to approve that request. This is of NO comfort to us. We do not put great faith in the Coastal Managers.

For example, just last week I asked a Coastal Manager if she could guarantee that the Coastal Management Office would renew the lease when it expired.

Her answer! "Well no I don't know what the department will decide to do 50 years from now."

That means, in fifty years, the house and the barn that we just finished building would need to be demolished and removed and ALL erosion control and artificial fill removed. If we choose not to remove it, ODNR will be kind enough to do it for us. Not free of charge, of course. We must pay for it.

So, we pay property taxes, even though the Coastal Management Office believes the state owns one hundred percent of our property.

What do you think our property is worth right now? Would anyone in his or her right mind buy it? How can we sell it when the state claims it owns the land? And, everything has to be removed when the lease expires 50 years from now.

Note that if for any reason ODNR decides we are in default of their lease agreement, the lease is not valid and guess what?

That's right, we would have to remove everything off that land.

We are wondering if it is possible for our house and property to have a negative value. With the absurd policies of the Office of Coastal Management, perhaps the seemingly impossible--is possible.

Note that we are not the only people in Ohio with this problem. Most people in our neighborhood are in a similar situation. As a matter of fact, there are many neighborhoods in the Western Basin that are built in the flood plain.

FEMA is now requiring you to elevate your home above flood plain if you have suffered multiple losses, or they will not issue flood insurance. Most of us require a mortgage so you must comply--no insurance, no home loan and no one wants to leave their home unprotected from floods.

To be clear, note that I approve of the FEMA program whole-heartedly. I feel FEMA should not be bailing people out time after time if you choose to live in a flood zone. However, many people who have elevated their home above the flood plain have chosen to fill around the foundation rather than leaving the foundation exposed. Under ODNR's interpretation, this means that the State just became the owner of that land that you just filled.

For these reasons, as well as many, many others not mentioned here, I ask you to pass House Bill 218 out of this Committee as soon as possible. Please urge your colleagues in the Senate to pass it as well.

This absurdity must stop. And you have the power to stop it. Please use that power.

Vote for House Bill 218. Thank you.

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Opponent Testimony of Edith Chase, OCRMP, September 24, 2003

The Ohio Coastal Resource Management Project (OCRMP) is a nonprofit citizen's organization that has worked for over 20 years for sustainable use of Ohio's most valuable natural resource, Lake Erie. We oppose H.B. 218 for the following reasons:

-This bill drastically weakens Ohio's coastal program and may lead to withdrawal of federal approval, along with loss of over $500,000 per year in federal funds for shoreline communities . This bill essentially defunds Ohio's entire coastal program and the coastal resources it protects in the public interest .

-This bill sets the boundary of the public trust area at "natural low watermark." The U.S. Army Corps of Engineers uses Ordinary High Water Mark and the state of Ohio uses the same. The U.S. Supreme Court and the Ohio Supreme Court have held that the state is without the power to abandon its trusteeship over public trust lands.

-The bill states that no lease or permit is required for exercising a person's "littoral rights" to make reasonable use of the submerged lands and waters fronting their lands, including construction of piers, fills, backwalls or wharves, or consumptive use of the water. Therefore, if such a structure or activity damages an adjacent property , there is no redress.

-This bill ignores the reality that certain areas along the Lake Erie shoreline are subject to flooding or erosion. It revokes ODNR's authority to manage shoreline development to prevent loss of life and property in coastal flood hazard areas and coastal erosion areas.

Ohio's coastal program is designed to protect and enhance economic development and resource conservation . To us, the important question is how the state can help attract Ohioans and visitors to this special place, to support local communities and businesses, and to make sure that our children and grandchildren can also enjoy Lake Erie. From Toledo to Ashtabula, natural, cultural and historical resources provide jobs and invite people for birding, boating, fishing, swimming, sport diving, parks, hiking, historic lighthouses, Perry's Monument, marine museums, and entertainment.

Lake Erie tourism is a major industry for Ohio. Travel and tourism generated $7.38 billion in direct expenditures along Lake Erie in 1999. These expenditures directly generated 264,000 jobs that year. Travel and tourism also generated $1.2 billion in federal, state and local tax revenue (Ohio Dept. of Development).

The coastal program addresses the potential impacts of coastal activities on coastal resources. Land use planning and zoning are the responsibility of local governments . The Ohio coastal program provides technical assistance and grants to shoreline communities for planning and projects to enhance coastal resources. The state of Ohio may lease areas of Lake Erie waters and submerged lands to local government or a private littoral property owner for particular uses such as docks and marinas.

1.   Who owns Lake Erie? All the citizens of Ohio! The Public Trust Doctrine provides that public trust waters, the lands beneath, as well as the living resources inhabiting these waters within a state are property held by a state in trust for the benefit of all people. These uses include navigation, water commerce, fisheries and recreation.

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Page updated 1/10/04 ; R. Pindor