Ohio lakefront at risk

In recent years, the Ohio Department of Natural Resources has been trying to do a better job managing the Ohio Lake Erie shoreline. This involves balancing the needs of all lakefront property owners (e.g., making sure that one person's dock or shoreline protection doesn't cause increased erosion or other damage to a neighbor's property) with the need to protect the wetlands, fish spawning areas and other natural systems that make the lake great in the first place.

The overall goal is to manage the lake as an vital asset for all Ohioans. In response to a more active state role, lakefront property owners have organized to pursue legal and legislative means to roll back the state's authority to regulate activities in the coastal zone. The letter below comments on one such attempt.

At the January 29, 2004 Northeast Ohio Watershed Council meeting, the nine voting members present at the meeting (representing more than 51% of the total voting member list) voted unanimously to send a letter regarding their
concerns with House Bill 218 ("The Great Lake Erie Giveaway") to members of the Senate Energy, Natural Resources, and Environment Committee.

Members of that committee include: Senator Robert Spada - R, Senator John Carey, Jr. - R, Senator Kevin Coughlin - R, Senator Robert Gardner - R, Senator Robert Hagan - D, Senator Jay Hottinger - R, Senator Eric Fingerhut - D, Senator Tom Roberts - D, and Senator Robert L. Schuler -
R.

Chris Vild, Chairman of the NEOW Council, approved and signed the letter. It was printed on the NEOW Council's stationary and was hand delivered to each Senator's office on Wednesday, February 18. Email OEC with any questions regarding this bill.

Senator Robert Spada
Senate Building
Room #143, First Floor
Columbus, Ohio 43215

Dear Senator Spada:

The Northeast Ohio Watershed (NEOW) Council is writing to express our strong opposition to House Bill 218.

We are a consortium of sixteen organizations concerned with protecting the quality and quantity of our water resources. We believe that this bill could tragically undermine efforts to protect Lake Erie and the
waters of Northeast Ohio. The NEOW Council believes that House Bill 218 is a radical step backwards in maintaining proper stewardship of the Lake Erie shore and the public's access to it. The NEOW Council urges you to amend House Bill 218, in order to protect Lake Erie today and
for our future generations.

Lake Erie is vitally important to the citizens of Ohio. More than three million Ohioans from Toledo to Cleveland to Ashtabula drink Lake Erie water everyday. Millions more enjoy outdoor recreation and sport on these priceless waters. Farmers use the water to irrigate their crops
which provide food for our families. Industries throughout the Lake Erie basin use Lake Erie's water to produce the power that runs our TV sets, to manufacture products we have in our homes, and to attract more than $7.4 billion dollars which is annually spent in Ohio on Lake Erie travel
and tourism.

Countless creatures, from fresh water plankton and beach grasses to the resurgent lake sturgeon and the bald eagle, depend upon the lake and its coastal lands for life itself.

Additionally, the Lake Erie shoreline serves as a sort of public sidewalk, making it possible for all Ohioans and visitors to access the Lake for recreation and relaxation. By any measure, this Great Lake is truly one of Ohio's greatest natural resources—a resource shared by all.

Lake Erie belongs to all Ohioans. Under state and federal law, Lake Erie—including the water, the land beneath the water, and all of the living resources in the water—belongs to the people of Ohio. This territory, which was granted by the federal government to ALL Ohio citizens upon statehood in 1803, is referred to as the Lake Erie Public
Trust.

The Lake Erie Public Trust extends from the international border with Canada to the southerly shore of Lake Erie. By law, the State of Ohio holds title to the Trust for all of the citizens of Ohio, a responsibility which can never be abrogated. The Ohio Department of Natural Resources (DNR) is designated by Ohio law as the lead state
agency in all matters pertaining to the care, protection, and
enforcement of Ohio citizens' public trust rights.

The public's ownership of the Lake Erie shore—up to the ordinary high water mark—is supported by State and Federal law, the DNR, and 200 years of tradition.

The United States Supreme Court held in 1892 in Illinois Central Railroad v. Illinois that ownership of and dominion and sovereignty over lands covered by tide waters— including the navigable waters of water bodies such as Lake Erie—belongs to the respective states within
which they are found.

The Ohio Supreme Court ruled in a landmark case in 1916 that the State "cannot, by acquiescence or otherwise, abandon the trust property or permit a diversion of it to private uses." The Ohio Supreme Court held in 1948 in State ex rel Squires v. Cleveland that the State of Ohio, through its Legislature, is without power to relinquish and abandon its
trusteeship and its control over the shores of Lake Erie.

Under Federal law, "The term 'lands beneath navigable waters' means all lands within the boundaries of each of the respective States which are covered by nontidal waters up to the ordinary high water mark" (U.S. Code, Title 43, Chapter 29, Section 1301).

Just last summer, the Ohio Court of Appeals reaffirmed the State's authority to lease lakelands up to the OHWM. (Beach Cliff Board of Trustees v. Ferchill) The Ohio Supreme Court, on November 19, 2003, declined to consider an appeal of this case.

House Bill 218 will give away thousands of acres of valuable Lake Erie shoreline to adjoining private property owners — giving them new rights to fill in and build in shallow lakelands, physically alter the existing shore, and charge with trespassing any citizen who tries to walk or fish from shore along the "common ground" of Lake Erie's Public Trust lands.

We believe that House Bill 218 is a radical step backwards for Ohio public policy. 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 states' sovereign ownership
over coastal lands and waters. This bill flies in the face of
long-standing legal principles.

The Lake Erie shoreline is part of the public trust . It belongs to all eleven million Ohioans. It is unacceptable and illegal to allow the Lake Erie shoreline to be privatized! Please, do not be a part of giving away the Public Trust.

Instead, please protect Lake Erie for all Ohioans while respecting the rights of upland property owners by amending House Bill 218 to:

Maintain the state's title to the Lake Erie public trust lands,
up to the Ordinary High Water Mark

Respect the rights of upland property owners to wharf out to the waters of Lake Erie, while maintaining reasonable public oversight over shoreline structures as well as concern for the rights of adjacent landowners in the sensitive coastal lands of Lake Erie

Maintain the public's right to access and recreate along the
Lake Erie public trust lands, up to the Ordianry High Water Mark

Thank you for your consideration of the NEOW Council's position on House Bill 218. We stand ready to work with you to achieve a reasonable outcome — one that respects the rights of all parties, while not giving away title to Public Trust lands that the state has been entrusted to guard for the public for more than 200 years..


Sincerely,

Chris Vild
Chair
Northeast Ohio Watershed Council

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Back to Lake Erie coastal programs

Related links:

• Northeast Ohio Watershed Council
• Ohio Coastal Management Program
• Ohio Lakefront Group (property owners)
• Analysis of HB 218 by the Ohio Legislative Service Commission
• Ohio Environmental Council alert page
• Ohio Lakefront Group (property owners who support HB 218)

Understanding HB 218:

National Sea Grant Law
Center's analysis of Ohio's HB 218

Local environmentalists raise concerns, write lawmakers about HB 218