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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.