As it stood on Jan. 25, in the most recent draft available, a number of local projects were funded under the 2008 Bond Bill that is currently awaiting a likely June 30 vote in Delaware’s Senate.
Garnering perhaps the most notice — particularly among those opposed to taxpayer funding of the replenishment of the state’s public beaches — has been some $3.142 million in bond authorization for beach preservation, “to renourish and preserve the State’s beaches.”
That amount goes toward the state’s contribution to the federal-state cost share that is expected to reconstruct beaches in Bethany Beach and South Bethany starting after Labor Day.
Also in the Bond Bill is some $1.895 million in reverted, reauthorized or reprogrammed funds for beach preservation, left over from prior years, bringing the total in state funding under the draft bond bill to $5.037 million for the 2008 fiscal year.
The Bond Bill specifies that the Delaware Department of Natural Resources and Environmental Control, which oversees beach replenishment projects, “may not encumber the funds appropriated herein for publicly accessible municipal ocean beaches until at least an equal amount of non-state funds are available for such projects.”
Generally, those funds have come in the form of the 65 percent cost match from the federal government — something that was approved in funding for the U.S. Army Corps of Engineers budget for the 2008 fiscal year, under its non-military projects.
Funding also comes — if indirectly — from local government, which is considered by DNREC to have provided a portion of beach preservation funding through the state’s accommodations tax.
Some have taken issue with that indirect provision of funds from the municipalities, where officials also frequently note the additional expense they take on of maintaining beach walkways and boardwalks, and of cleaning the beaches, as well as offering lifeguard service.
The Bond Bill notes that “funds provided for beach preservation … can be used for local match and if so designated, shall be reimbursed by the Department on an equal basis to each such county or town for which a beach preservation project has been accomplished.”
It further specifies that “the availability of the aforementioned non-state matching funds must be approved by the Director of the Office of Management and Budget and Secretary of the Department of Natural Resources and Environmental Control.”
Controversial private beaches not funded
Also dealing with an area of controversy, this year’s draft Bond Bill dictates that DNREC “may not encumber the funds appropriated herein for privately-owned ocean beaches.” That aims to ensure that the beaches funded by the state appropriations do provide access to the public.
A new campaign of visibility for the area’s public beaches was marked in recent months by the installation of signs along the roadways leading to public beaches.
Meanwhile, as the annual rush to the beach has continued to grow, controversy has continued over the state’s long-ago decision to deed right up to the water line many of what have become private beaches. A comparatively cordial relationship between Bethany beach-goers and their neighbors in Sea Colony has been contrasted with less cordial run-ins with private security at Sussex Shores, to the north.
The issue, when raised by the Coastal Point this past April, was enough to get state Sen. George Howard Bunting — who was openly skeptical that such legislation would make it into law — working on possible legislation aimed at providing more beach access to the public.
Bunting told the Coastal Point on April 9 that he was working with lobbyist John Flaherty of Common Cause of Delaware to see if some changes couldn’t be made to the public’s access to shorelines statewide.
Bunting said he had met with Flaherty since the Coastal Point’s April 6 issue had gone on the stands, to try to find a way to enhance public access. Flaherty has repeatedly called on the state to consider adding public access rights to private beaches that benefit from state dollars spent on replenishment.
“He’s trying to draft some legislation that will try to increase the amount of beach for public use under the Public Trust Doctrine,” Bunting said of Flaherty. “
In October 2006, Flaherty urged the state to hold a public hearing on the issue, citing the indirect use of state funds for replenishment of private beaches, due to the trend to “piggyback” private replenishment on public replenishment projects, thus saving the private communities the initial cost — estimated at $1 million — of bringing in dredging equipment.
“Using public dollars to replenish private beaches is unacceptable from a public policy standpoint unless there is a public access provision attached to the permit,” Flaherty said then.
Bunting said that he and Flaherty had focused in their discussion on the Public Trust Doctrine as a key element of any legislation.
Ancient law at work in modern times
The Public Trust Doctrine, according to the National Public Trust Study conducted by the Coastal States Organization (CSO) in 1990, stems from the writing down of the laws of the Roman Empire in 530 A.D., under the Emperor Justinian. Specifically, the “Institutes of Justinian” included the statement, “By the law of nature these things are common to all mankind: the air, running water, the sea, and consequently the shores of the sea.”
In essence, the law guaranteed to everyone the right to go to the beach.
“The Institutes assured the citizens of Rome that all could ‘approach the seashore, provided that he respects habitations, monuments, and the buildings, which are not, like the sea, subject only to the law of nations,’” the report reads. “Further, the right to build a cottage, dry or repair nets, fish, or use the banks of rivers to tie boats to trees, and to place any part of their cargo there, even though the banks of a river are private property, were assured by the Institutes.”
After the Roman Empire fell, European governments still incorporated this right into their laws, and it was imported to North America as part of the legacy of English Common law. There, it was of vital importance in day-to-day life, as many early colonists relied upon the sea and waterways to feed themselves and conduct the business that otherwise kept them alive.
The exceptions were Maine and Massachusetts, where extensive private wharfs were built to access distant open water and where private property rights were ceded to the mean low water line.
On the other extreme, in Texas, property on the Gulf Coast is titled to the mean high water line, but property owners cannot exclude the public from the area between that line and the vegetation or dune line. In Hawaii, property is titled only to the vegetation or dune line — everything seaward is held in public trust.
Even in Maine and Massachusetts, the right of the public to fish and use the shoreline and waterways for navigational purposes was historically guaranteed. Those rights have generally been expanded in the modern era to specifically include sunbathing and swimming, with some notable exceptions — Delaware, Maine and Massachusetts included.
Further complicating the understanding of private and public access rights, according to the CSO, is a difference in how such property is titled.
“Because of the special nature and public character of these lands, the title is not a singular title in the manner of most other real estate titles. Rather, public trust land is vested with two titles: the jus publicum — the collective rights of the public to fully use and enjoy trust lands and waters for commerce, navigation, fishing, bathing and other related public purposes — and the jus privatum, or the private proprietary rights in the use and possession of trust lands,” the CSO report reads.
“The jus publicum interest cannot be conveyed or alienated to private ownership, for the State cannot abdicate its trust responsibilities to the people,” it says. “These collective rights are the public’s property rights in these lands, waters and resources, rights that are held in trust by the State.”
Nearly one-third of all public trust land is privately owned, the CSO estimated, adding that when a private individual or firm “owns” tidelands, shorelands, or submerged lands, he or she holds only the jus privatum interest, an interest that remains subservient to the public’s dominant jus publicum interest.
Delaware stands apart from most states
Delaware law defines a “public beach” as “any beach owned in fee simple title by the Federal or State government or any county, city, town or municipality; or any beach for which the State has obtained an easement or agreement for public use.” All other beaches in the state are considered private beaches.
According to the Surfrider Foundation’s 2006 “State of the Beach” report, 75 percent of the state’s shoreline is privately owned. A 1999 document the foundation cites mentions some 215 public access sites — averaging one for every 1.5 miles of shoreline, 10 to 15 sites per mile in urban areas and two sites per mile in rural areas.
The report also notes that the property boundary between public and private lands at the beach in Delaware varies between mean low tide, mean high tide, and a meets-and-bounds description on a deed, depending on location along the shoreline.
However, in a 2002 response to inquiries from the Bethany Beach Landowners Association (BBLA), state Attorney General Jane Brady concluded that Delaware law limited public access in the area to below the mean low tide mark of private beaches. Delaware is one of just six coastal states (Massachusetts, Maine, Pennsylvania, Virginia and Wisconsin are the others) that do not own the inter-tidal zone.
Particularly in Massachusetts and Maine, as a result of a Colonial ordinance enacted in 1647, private property extends to the low tide line. Although the public rights of fishing, fowling and navigation were retained there, the courts in those states have been strict in holding that the public does not possess additional rights to the inter-tidal zone there.
In Delaware, Brady said in that 2002 opinion, courts have held that the state’s power to assert public rights to the beach is limited only to navigation, fishing and police power. At the time, she invited the BBLA to try to get legislators behind their cause and attempt to have state law changed in regards to how the legal issues are interpreted.
That appears to be happening, if belatedly, with Bunting’s push this year for legislation on the issue.
Authoritarian access controls rile public
Despite those existing limitations, the public has generally been held to have the right to walk along the shorelines of otherwise private beaches.
In most cases these “pass-through walkers” do so without being confronted by private property owners and private security guards. But the origin of the BBLA’s letter — and much consternation for beachgoers accessing the shore from the public beach — is in how some private communities have handled the issue.
Those walking onto private beaches from their public neighbors have reported being asked to leave, and those trying to lay down a towel or set up a chair are routinely evicted — even threatened with trespassing charges.
Bunting, as a resident of Bethany Beach, has himself had a bad experience with the situation.
“They had stopped me one time as well,” he said last week of a walk one summer on the private Sussex Shores beach to the north. Bunting said he’d corrected the security guard who had challenged him on the issue, noting that the state allows the public to walk along even private beaches. “If you want to go north, you can walk all the way to the Inlet legally,” he emphasized. “And Sea Colony – there have been many times I’ve walked past there.”
His concern over that aspect of the situation seemed to have spurred him to action in April. “I’m particularly offended at how arrogant Sussex Shores has been in trying to post guards on the beach,” Bunting told the Coastal Point.
Conflicts such as that may be the force behind new moves to change state law. Such a change could include expanding the uses for which public access is guaranteed, to possibly include sunbathing; legislating such uses to be permissible even on otherwise private property, up to the mean high water mark, instead of the mean low water mark; or, at the extreme, even push the state to employ another element of the Public Trust Doctrine — eminent domain — to reclaim all rights to tidal sections of its shore.
Delaware law permits the state to require or negotiate public access for sunbathing and swimming, as well as fishing and navigation, to any previously private beach that uses public monies for replenishment — provided that owners of two-thirds of the property in the project area agree to the state taking on the project. Such access can run “to the dune vegetation line or structure line, whichever is further seaward.”
But beyond the savings provided by piggybacking such projects, none of the area’s private beaches have requested public monies for their projects. Sussex Shores has generally chosen not to replenish its beach at all. Thus, there is little room for that particular path to greater public access.
Legislation for change not yet drafted
As of this week, Bunting had yet to introduce any legislation on the issue of enhanced public access. But in April he and Rep. Gerald Hocker (who was not ready to pursue legislation on the issue) were in agreement, despite the press for such changes, that the road ahead will be a long and hard one, and likely fraught with heavy legal opposition from property owners in the private communities.
“This is going to be a huge uphill battle,” Bunting warned. “We’re going to try, but it’s going to take a long time to make it happen.”
Of Flaherty’s most recent efforts toward a change, Bunting said, “He’s trying to see if he can make it work with some lawyers and draft it into law.”
“This is not something simple, but it is something we can go after,” Bunting said.