Editor’s Comments: This Isn’t a Stroll on the Beach

May 1, 2010

As if the technical aspects of preventing or reversing coastal erosion aren’t difficult enough, thorny legal issues come into play as well. Depending on an upcoming decision by the US Supreme Court, they might be somewhat simplified-or at least, there will be a stronger precedent for future cases.

Late last year, the Supreme Court heard arguments in a case called Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection. The situation, briefly, is that the beaches in parts of Destin, FL, on the Florida panhandle, are eroding. A plan to renourish the beach with dredged sand has been opposed by many of the beachfront property owners. They’ve had various reasons for objecting-some felt their property was not badly eroded enough to warrant the procedure, and others object to the practice of beach renourishment altogether. (Beach renourishment-the practice of adding sand to an eroding beach-can be effective but usually has to be repeated, because it doesn’t change the patterns of erosion that threatened the beach in the first place.) Other property owners, watching the sea coming closer to their homes, are in favor of renourishment.

The main legal issue, though, has been one of property rights. The state has said that once the renourishment-which will be paid for with public funding-takes place, the land from the erosion control line to the water will be public property, and the owners of the beachfront lots will not be allowed to deny public access to the beach.

The case has a long history. In 2006, a district court ruled that declaring the newly renourished waterfront property to be public land would be an “uncompensated taking.” The district court said the action would separate landowners from their contact with the water and would deprive them of sand that might naturally accumulate and add to their beachfront property.

In 2009, the Florida Supreme Court overruled the lower court, saying that the action was allowed under Florida’s Beach and Shore Preservation Act. The property owners appealed, and the US Supreme court heard arguments in the case last December. The arguments centered on whether declaring the property to belong to the public violates the regulatory takings clause in the US Constitution. A decision is expected sometime this summer.

Texas, unlike most other states, has an “open-beach” policy and considers everything from the vegetation line to the ocean to be public property, which will be maintained by the state. Florida and most other coastal states have considered land to the waterline to be private property.

The case is being watched closely by legal experts, mainly because of the precedent it might set for the federal court to override state property laws.

What do you think-Should property owners be willing to give up their rights to a strip of land in exchange for a renourished beach? Should they be charged for any repair to the beach, rather than public funds paying for it? Or should the project go ahead without the public being allowed access to the privately owned beaches? You can e-mail your thoughts to [email protected].

About the Author

Janice Kaspersen

Janice Kaspersen is the former editor of Erosion Control and Stormwater magazines.