Beach Nourishment: Supreme Court To Decide Who Owns the New Sand

June 24, 2009

Where beach erosion strikes, many communities and governments turn to "beach nourishment" (dredging or trucking in and depositing freshsand) to replenish the beach. However, when governments or communities pay to replenish beaches along privately owned beachfront property — or create new beaches by trucking in sand — what does that mean for the landowners' waterfront rights and property value?

A Florida case accepted June 15, 2009, by the US Supreme Court will address this thorny and increasingly common issue. The Christian Science Monitor explains: "The Court [will examine] whether the Florida Supreme Court violated the private property rights of waterfront landowners in a seven-mile-long beach restoration project. ...At issue is whether [the FL] high court violated the US Constitution's takings clause when it upheld a FL government plan to create a state-owned public beach, 60 feet to 120 feet wide, between private waterfront land and the Gulf of Mexico near Destin, Fla."

The SCOTUSblog wiki gets more into the larger legal question that could have national implications: "Whether the state's legislation to restore storm-eroded beaches along the ocean or lakeshores, modifying the private property boundary line, constitutes a judicial taking or violates the due process clause."

This wiki links to all case documents.

Oral arguments for the case (08-1151, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al.) are expected to be heard next term, which begins in October 2009. In the meantime, the docket and background for this case can provide useful context for coastal and river/lake beach nourishment stories happening around the US right now. Docket.

Attorneys for property owners: Hopping Green & Sams, 850-222-7500, Richard Brightman or Kent Safriet. Release.
Attorneys for FL Dept. of Environmental Protection: FL Attorney General office: Scott D. Makar, 850-414-3300; Fowler White Boggs: Hala A. Sandridge, 813-228-7411.

Pacific Legal Foundation filed an amicus brief on behalf of the property owners. Contact attorney: Steven Geoffrey Gieseler, 772-781-7787. Release. Case summary. Full brief.

The key legal concept in this case is "littoral rights," which concern properties abutting an ocean, sea or lake rather than a river or stream (riparian rights).

According to the Christian Science Monitor, the FL Beach and Shore Preservation Act "establishes a procedure for the state to restore eroded shorelines. The seaward boundary of beachfront private property extends to the mean high water line (MHWL), a boundary that shifts over time with the size of the beach. In contrast, the Shore Preservation Act replaces the MHWL with a fixed erosion control line (ECL). Prior to the beach nourishment project, the owner of the waterfront land enjoyed potential rights to any additional land from accretions — should the beach grow seaward. But once the state sets the ECL, that right no longer exists, the landowners complain."

If your coverage area includes coastal or lakefront beaches, check the property law in your state. How is the "beachfront" in "beachfront property" defined? Do any state or local beach erosion regulations or programs conflict with that definition? If current or planned local beach nourishment projects abut private beachfront properties, start exploring this angle with property owners, officials, and attorneys.

NOAA's guide for local officials on beach nourishment includes a section on law and policy issues and history.
US Army Corps of Engineers: Coastal Engineering Research Center. Contact Sharon L. Hanks, 601-634-2004.
USACE beach nourishment projects.
Property rights viewpoint: Eminent Domain Law Blog.
Stephen Leatherman (email, 305-348-1339) is an expert on beach erosion and mitigation, as well as other coastal environmental issues. He works with the National Healthy Beaches Campaign at FL International University's Laboratory for Coastal Research.
Surfrider Foundation: State of the Beach site offers a wealth of specific data and examples related to coastal beach erosion. Press: Alexis Henry, 949-732-6413.
Some coastal states offer extensive oceanfront maps and satellite data. For instance, see the NC Div. of Coastal Management.
For beach erosion-related satellite imagery in a specific region, search the Google Earth Community. (To make full use of what you find there, download and install GoogleEarth.)