Regarding Kelly Wolfe’s article on beach usage rights in the October issue of The Coastal Star, let me add: The line of mean high water is the point of demarcation between public beach usage and private land, but over a 19-year period (Florida Statue Chapter 177.27(14). Nineteen years. Not today’s tides.
By Florida law and by the Florida Constitution (and federal law and English Common Law), this includes the forces of sand gain (accretion) and sand loss (erosion), such as from tides or hurricanes, over those 19 years. These are so-called ambulatory boundaries. Public and private property can change under these boundaries. By Florida law then, the line of mean high water and the boundaries of private property/public usage could potentially be up next to A1A or down in the surf, if you include the loss and gain of sand over the last 19 years.
But it is not that simple. When the state helps to repair a beach — such as beach renourishment in Ocean Ridge — then the state can set a fixed erosion control line to be used instead of the mean high water line. The state can potentially claim for itself and the public all the new sand thus accreted; this has yet to be fully constitutionally challenged.
Again, depending where this line is set, the public usage rights could encompass the whole beach up to A1A. Especially if the erosion control line was set years ago, when the ocean almost touched our current dunes.
My guess is that, due to beach improvements made by the state, the public has much more beach than the private landowners.
The fundamental thing is that beach public usage rights are part of the U.S. Public Trust Doctrine. This states the beaches (tidelands) were given by the federal government to the states to be held in trust for public usage.
The Public Trust Doctrine is a big deal and is part of our post-revolutionary federal government’s passing of property rights to the states. States like California and Texas are very proactive in guaranteeing public beach access and usage rights. Florida has been less so. Finally, public beach access is part of federal doctrine. The U.S. Coastal Zone Management Act of 1972, as well as federal subsidies for beach renourishment and federal money for flood insurance, all have binding clauses that give the public certain beach access and usage rights. For example, if Ocean Ridge accepted federal money for its beach renourishment, then the private property owners have to accept these provisions.
Other ways the state takes beach property and sets up fixed boundaries is through retreat from the shoreline and the coastal construction control line.
Don Gentile — County Pocket
Editor’s note: On Oct. 5, Surfrider Foundation entered an amicus curiae, or “friend of the court,” brief in the Florida Department of Environmental Protection vs. Stop the Beach Renourishment case that is pending before the U.S. Supreme Court. The case will determine the constitutionality of Florida’s beach management program with regards to the judicial takings doctrine, and fundamentally will decide when the beach belongs to the public or whether it is private land after beach renourishment has occurred. The high court is scheduled to hear this case Dec. 2.
You need to be a member of The Coastal Star to add comments!
Replies