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The Ohio Lakefront Group
Comments Regarding Proposed Coastal Management Rules
September 4, 2008
Regarding the Ohio Department of Natural Resources’ revised portions of the Ohio
Administrative Code’s (OAC) Section 1501-6, this document contains some issues that
remain of significant concern for the Ohio Lakefront Group. These issues, and others,
will be raised via formal comments later this month.
Whereas the ODNR claims that the “revised and new draft rules take into consideration
Governor Ted Strickland’s July 13, 2007 policy announcement, applicable court rulings,
and concerns voiced by littoral property owners, local decision makers, the general
public, and others who have an interest in Lake Erie,” the proposed rules in fact fall short.
They also fall short of being consistent with Judge Lucci’s decision in our lawsuit.
Recall that the Governor’s July 13, 2007, statement included the following:
“The Governor and ODNR recognize that there are arguable legal claims that
some of the deeds have specific defects and that deeds purporting to cover lands
below the OHWM may ultimately be found by the Ohio courts to be subordinate
to the public’s interest in those lands. Still, without such a determination by the
Ohio courts, ODNR believes that it must honor those deeds.”
But, in the proposed rules, the “Ohio Coastal Management Program" is defined as:
the comprehensive action of the state and its political subdivisions to preserve,
protect, develop, restore or enhance the resources of the coastal area in
accordance with established objectives, policies, standards and criteria
concerning;
(1) protection of the natural resources in the coastal area;
(2) management of coastal development and redevelopment;
(3) preservation and restoration of historic, and/or cultural and aesthetic coastal
features;
(4) public access to the coastal area for recreational purposes; and
(5) as otherwise described in divisions (B) and (C) of section 1506.01 of the
Revised Code and the Ohio coastal management program document.
The Program’s goal to develop and enhance “public access to the coastal area for
recreational purposes” seems to be inconsistent with the Governor’s policy statement, and
Judge Lucci’s decision. The goal should be to develop and enhance “public access to the
public portions of the coastal area for recreational purposes.” The goal cannot be to
develop and enhance public access to the privately owned portions of the coastal area.
It is also disconcerting that in spite of the Governor’s policy statement and Judge Lucci’s
decision, the definition of “territory” in the proposed rules is unchanged from that used
for the previous ten years. However, a letter sent by the ODNR’s Chief of Coastal
Management dated June 6, 2008, states:
“For purposes of applying for authorizations under ORC 1506.11 or for
determining whether an authorization is needed under ORC 1506.11, the
boundaries of the territory and the boundaries of the upland parcel will need to be
established based upon the Merrill decision. This boundary is described as a
moveable boundary consisting of the water’s edge, which means the most
landward place where the lake water actually touched the land at any given
time. The location of this moveable boundary on any particular littoral parcel is a
question that should be determined by an Ohio Registered Professional Surveyor
on a case by case basis.” [emphasis added]
One can easily (and incorrectly) interpret the “most landward place where the lake water
actually touched the land at any given time” to be the Ordinary High Water Mark
(inconsistent with the Ohio Revised Code, Judge Lucci’s order and the proposed rules.)
It is not clear whether the proposed rules require a permit or lease for structures that are
placed landward of the water’s edge and not on artificial fill.
The Ohio Lakefront Group recognizes, and appreciates that the ODNR has proposed a
voluntary process to convert existing submerged lands leases to permits. But as the
permits also require annual payments, which appear to require higher payments than
required by the lease and as opposed to the typical “one-time” permit fee, the benefits of
converting to a permit are questionable.
We are also still concerned that the applications for permits and leases are extremely
burdensome, unnecessarily complex and expensive to prepare given the structures the
vast majority of residential lakefront property would pursue. There is no logical reason
for such a burdensome and expensive application. Fees for professional engineers and
professional surveyors to prepare “maps,” “detailed plans,” a “plat based upon a field
survey,” a “plan view,” a “metes and bounds description,” an “existing plan showing: …
the location of the limits of all existing structures, fills, developments…[t]he existing site
conditions … [e]xisting topographic and underwater contour lines and contour intervals,”
proposed pans, etc., would be very expensive.1
Add to that the potential need for an environmental impact assessment, the need for
which is left to the discretion of the director of the ODNR. The fact that the proposed
rules state that the “director may require an environmental impact assessment” provides
little comfort. All that such language provides is uncertainly to the applicant and perhaps
delay. The rules must be clear on or as to what the application must include, otherwise
the applicant has no way of knowing whether they are submitting a complete, or
deficient, application.
A comment added in proposed Rule 1501-6-02(D)(5) states: “The map is only for the general purpose of
illustrating the location of the proposed site to reviewers of the application.” Similar conciliatory language
appears elsewhere. If the use of such information is truly so limited, which it likely is, burdening the
Applicant to attain such information is unreasonable.
1
It is unreasonable that the ODNR would require an environmental impact assessment for
the vast majority of residential applications. Such assessments may be appropriate for
very large projects, typically non-residential projects, such as marinas, ports,
redevelopments, etc.
At best, there is little benefit to obtaining such information for residential projects.
Recall that members of the Ohio Lakefront Group testified before the legislature
regarding the expenses they incurred in the process of obtaining a lease.
Therefore, the ODNR should modify all the proposed rules to not require such items for
typical residential applications (i.e., single family, single parcel, etc.). Common sense
dictates that the smaller the project, the less likely there will be an environmental impact
(if any), the less likely adjacent property owners are affected, etc. The application
process should recognize this reality, and modify the rules accordingly.
Such a “carve out” for simple residential applications is not unprecedented in the
proposed rules. For example, proposed rule 1501-6-02(E)(4) is limited to only Port
Developments, Commercial Navigation and Urban Waterfront Development.
Two items regarding public hearings (1501-6-04(A)) are unreasonable. First is the
location of the Hearing. Similar to public meetings, public hearings should be held “in
the geographic locality of the proposed development. This is true for residential and nonresidential hearings, as those most impacted by the application are located near the
proposed development, and it should not be a burden for them to participate at the
hearing.
The second unreasonable item is the requirement that the applicant pay “[a]ll costs
pertaining to the hearing, including but not limited to the court reporter…” Not only is
such language extremely vague and uncertain, it is absurd that the applicant pay for such
a regulatory review. If the ODNR presents a witness at the hearing, which is represented
by the Ohio Attorney General’s office, is the applicant responsible for the time of the
witness and the Attorney General? Does it include other ODNR employees that are in
attendance and observing the hearing? Does it include their travel, lodging and meal
expenses? Are their limits to such expenses?
To our knowledge, no other regulatory body has such a rule.
Rule 1501-6-05 (A)(2) is odd in that it provides the director the discretion to set the
length of the lease. Surely it’s more appropriate to provide the Applicant the flexibility to
request something other than the standard 50 year lease. Then the director may accept of
reject the request as needed.
Rule 1501-6-05(A)(4) is absurd, as it provides significant uncertainty to a prospective
buyer of lakefront property when there is an existing lease. Theoretically, the property
could be transferred appropriately and reasonably, only to have the transfer of the lease
not occur in a timely manner – if at all.
Further, once the lease is transferred, the terms of the lease “shall be subject to revision at
the time of assignment.” Such uncertainly to the prospective property owner is
unreasonable. This rule should be modified to incorporate the language and intent found
in proposed rule 1501-6-05(B)(4) for transferring permits.
Regarding inspections (for example, proposed rule 1501-6-05(D)), such language must be
amended to require that the director or an authorized representative appropriately notify –
in writing – the lessee and/or permittee that a representative from the ODNR will enter
their property to perform an inspection. Such written notice should be provided at least
30 days before, and no more than 45 days before the inspection. Ideally a specific date
and time (morning or afternoon) would be provided to allow the lessee and/or permittee
to observe the inspection.
Because there is similarity and overlap in the definitions of “coastal structure,” “erosion
control measure” and “structure,” in part because of the reference to “facility,” the intent
of proposed rule 1501-6-33 is unclear. It appears that one could submit an application for
a dock under proposed rule 2 or proposed rule 33.
Proposed rule 1501-6-33(B)(5) states: “Design methodologies and procedures that have
been established by the United States Army Corps of Engineers, the American Society of
Civil Engineers and others that are recognized as valid coastal engineering practices will
generally be acceptable.” It is unclear whether the use of such “established”
methodologies and procedures eliminates the need for the application to include
“Detailed plans and specifications, including supporting design calculations, analyses,
studies and other information used by the professional engineer/surveyor or the applicant
in designing the structure” and other items.
Whereas the Ohio Lakefront Group and its members understand the need for regulations,
it urges the ODNR to adopt reasonable regulations. A rule that is applied and enforced
identically to small residential projects and to large commercial projects is not a
reasonable rule. A multi-acre project that requires years of planning, construction and
significant financial resources and potential impact to the environment cannot be
compared to a project that one person will likely do alone over a weekend. ODNR’s
rules need to recognize this disparity and modify their rules accordingly.