[From the U.S. Government Printing Office, www.gpo.gov]
PUBLIC ACCESS TO THE. BEACHES: A SURVEY OF REC-ENT STATE ACTIONS David' J Brower Chapel Hill, NC Mar 1980 GB 454 B3 B76 1980 'A * ,@ rtLI ZONF co ,s INY-OILMATIO14 C-ENrf 4 "I *Wi j 0 COASTAL ZONE INFORMATION CENTER Public Access to the Beaches: A Survey of Recent State Action Property of CSC Library U.S. DEPARTMENT OF COMMERCE NOAA COASTAL SERVICES CENTER David J. Brower 2234 SOUTH HOBSON AVENUE CHARLESTON SC 29405-2413 March 1980 Chapel Hill, North Carolina CONTENTS Title Page Contents Foreword Part One Beach Access Problems, Progress, and Programs Introduction The Legal Right of the Public to Use the Nations Beaches The Sea The Wet-Sand The Dry-Sand Public Trust Implied Dedication Customary Rights Prescriptive Easements The Upland The Great Lakes What Can Be Done About Access? Coastal Zone Management Act Access to Access Management of Existing Access Acquisition Purchase Dedication As a Condition of a Permit As a Condition of Public Expenditures As a Part of a Regulatory Program Through Usage Federal Lands Case, Studies California Maine New Jersey North Carolina 'Oregon Rhode Island Texas Conclusions Part Two Beach Access Programs Part Two - continued BEACH ACCESS PROGRAMS 0 > S- M r Federal Approval Date 0 Jurisdiction By Fiscal Year (ends 9/301 Alabama 1979 0 P Alaska 1979 P California 1978 0 P E Connecticut 1980 est. 0 Delaware 1979 0 P Guam P Hawaii 1978 0 P E Louisiana 1980 est. 0 P Maine 1978 0 P E Maryland 1978 0 P E Massachusetts 1978 0 P Michigan 1978 0 P E New Jersey 1978 0 P E North Carolina 1978 0 P E Oregon 1977 0 P E* Pennsylvania 1980 est. 0 Puerto Rico 1978 0 P E Rhode Island 1978 0 P E South Carolina 1979 0 P Texas 1981 est. 0 P Virgin Islands 1979 P Washington 1976 0 P E Wisconsin 1978 0 P E .*Beach Bill 0 Part Three Interview Sheet Part Four Coastal Zone Management Act & Regulations Part Five Bibliography FOREWORD The purpose of this study is (1) to describe what is being done at the state level under the Coastal Zone Management Act to achieve more access to the nation's beaches for the public and (2) to suggest some things that could be done at both federal and state levels of government to achieve that goal. The first step of the study was to obtain the approved Coastal Zone Management Programs and the Section 312 evaluations that had been completed. The relevant portions of each were extracted and are included in Part III. Then each jurisdiction was called on the telephone and either the program director or the person responsible for the beach access portion of the pro- gram was interviewed using the interview sheet included in Part V. The in- terview was then summarized and included in Part III. (Because of time limitations and some logistical problems not all of the above was obtained for all jurisdictions. A list at the front part III indicates the material and interviews that are a part of the study. Note that several states whose programs are not approved are included because of their special in- terest.) In reviewing the materials collected and the results of the interviews three questions were asked: 1. What is the nature of state programs; how much progress is being made? 2. What problems are the states ex eriencing? p 3. Are there exceptional programs or parts of programs that could be transferred to other states? Part One of the study contains a general introduction to the beach access issue, a discussion of steps that are being taken to deal with the problem, case studies of eight state programs and some general conclusions. Part Two contains the beach access portion of each Coastal Zone Management Program, the relevant portion of the evaluation of these pro- grams if one had been conducted under Section 312 of the Coastal Zone Management Act and an overview of each program prepared for the responses to the interviews conducted. Notall of these are available for each pro- gram. The Table of Contents indicates what is included for each. Part Three contains the Interview Schedule used to obtain the informa- tion summarized in Part Two and the Case Studies in Part One. Part Four contains relevant sections of the Coastal Zone Management Act and the regulations implementing it. 18 Part Five is a bibliography. iv - I- L PART ONE :[email protected] Beach Access Problems, Programs and,Progress Introduction Man throughout history has been drawn to the coast. The coa-st has been and continues to he a source of replenishment for mind, body and spirit in all cultures. In this country where the amount of disposable income and time is rapidly increasing, water related recreational activ- ity continues to be the most popular form of outdoor recreation. The notion of simply "going to the beach" is still one of the most popular outdoor pastimes. But going to the beach is not what it once was. It used to involve quietly lying in the sun, peaceful picnics, beach grass blowing in the breeze, the cry of gulls, long, isolated walks. But now it going to the beach" often involves long lines of hot station wagons filled with grouchy parents, sullen children, and soggy sandwiches try- ing to get to a crowded beach filled with bodies, beer cans, styrofoam and stereos. In the process the beach-goers run the danger of conflict with hostile residents, defensive land owners and local governments who regard the beach as "theirs." For many., going to the beach has become unpleasant; for others, impossible. As the popularity of coastal areas of this country increases, de- velopment in the coastal areas also increases to take advantage of that popularity. As development increases to meet increased demand, the sup- ply decreases, and quite according to economic theory the price increases... The result is that the coast is becoming increasingly the haven for only upper income people. It is only the upper income groups who can afford the facilities, such as a motel room, a cottage, or a condominium, to assure that going to the beach is a real possibility. The argtiment for a strong public policy encouraging public access to the nation's beaches is a simple one. There has always been a strong demand for the use of beaches, and that demand is increasing and will continue to increase for some time to come. The public now owns and/or has the right to use vast stretches of the coast. The problem is that often there is no way for the public to get to those portions of the coast that they have the right to use because it is separated from the nearest public road by privately owned land. The result is that many stretches of public beach are accessible only by long hikes, by boat or by trespassing on private land. This problem is becoming increasingly intense because private land that has been traditionally used by the pub- lic is being converted to more profitable uses by the owners, and in some cases accessways that have been dedicated to the public are being with- drawn. Unless there is a strong public policy to obtain new accessways and to protect existing ones, the amount of beach available to the public use will continue to decrease at the same time the demand for.it is in- creasing. There are two separate questions involved. The first, does the pub- lic have a right to use the beach? Then, if the public does in fact have the right to use the beach, how can the public get to the beach? It is the latter question that is the real "beach access" question. The paper will first explore the legal questions of beach ownership and of accessways to the beach. Then it will discuss the beach access requirements of the federal Coastal Zone Management Program and will con- clude by describing eight state beach access programs and'how they have responded to the federal program. The Legal Right Of The Public To Use The Nation's Beaches Can the owners of a coastal motel fence off the beach in front of the motel and reserve it for the exclusive use of motel guests? Can the public fish from the surf anywhere they want? Or use any beach for swim- ming, sunbathing, or picnicking? Supposing that they do have the right to use the beach, how can they get to it? To what extent can owners of water front cottages prohibit anyone from sitting on "their" beach or walking across their property to get to the beach? These questions raise the issue of who owns the beach, and to what extent the public has a legal right to use the beach, and to gain access to it. The answers to these questions are based on sometimes complex legal issues and doctrines. For the purposes of this discussion, the "beach" consists of four parts: the sea, the wet-sand, the dry-sand, and the upland. First, that area seaward of the mean low tide line is termed the sea, or sea bed (lake or lake bed in non-oceanic situations). Second, the area between the mean low tide and mean high tide lines, which is covered 'by the usual flow of tides, is termed the wet-sand. "Foreshore" and "tideland" are generally synonymous with this term. Third, the area between the mean high tide line and the line of vegetation, or dune line, an area inun- dated only during severe storms, is termed the dry-sand. Fourth, that area landward of the vegetation-line is termed the upland. The follow- @ing diagram illustrates this division. UPLAND DRY-SAND WET-SAND SEA veget tion me n me n line high tide low tide line line 2 The question of the extent to which the publi c has the right to use coastal beaches has come before the courts on several occasions. Major cases have been decided in New Jersey, California, New York, Oregon, Florida, and Texas. Each of these cases involved different factual sit- [email protected] and different aspects of the beach use and access questions. Each decision was also based on different legal theories. The Sea American courts have held consistently that navigable waters and associated tidelands are held in trust by the government for the public. In the leading case on this point, the U. S. Supreme Court in 1892 said that these lands are held in trust for the people so that public rights of navigation, fishing, and commerce could be preserved. The court fur- ther said that the state could not abdicate its control over these areas in any fashion that would diminish the public's right in the trust lands. The Wet-Sand As the following chart indicates, approximately three-fourths of the oceanic states have held that wet-sand beaches are publicly owned: Publicly Owned Privately Owned Alabama New Jersey Delaware Alaska New York Maine California North Carolina Massachusetts Florida Oregon New Hampshire Georgia Rhode Island Pennsylvania Hawaii South Carolina. Virginia Louisiana Texas Maryland Washington Mississippi In most of these states, the public ownership of the wet-sand [email protected] is subject to a "public trust." The Dry-Sand In almost all states the dry-sand is privately owned but in a number of states the courts have used a variety of theories or concepts to find public ownership-or a public right to use the dry-sand portion of the beach: Public Trust: Avon is a small resort community in New Jersey bor- dering the Atlantic. The city owned a dry-sand beach that for many years was free to all comers. In the 1950s, the New Jersey legislature allowed cities to start collecting user fees for the beaches to defray mainten- ance costs. Avon established such a fee, which was the same for residents 3 and non-residents. In 1970, Avon changed their beach fee ordinance so that it would charge non:-residents about twice as much as residents to use the beach. Neptune City, a neighboring 'inland city, brought suit to challenge this change in the ordinance. The court invalidated the ordinance. They said that where a muni- cipality owns a dry-sand beach and dedicates it to public beach pur- poses, the public trust doctrine requires the beach to be open to all on equal terms. So while New Jersey cities could charge reasonable user fees, they may not discriminate between residents and'non-residents. Implied Dedication: In 1970 the California Supreme Court found that the public had a right to use two privately owned beaches. The court said that when the public has used a beach for a long period of time, paying no attention to the fact that the beach is pri- vately owned, the public acquires a legal right to use that beach. Unlike the common notion of "express dedication," where the private owner overtly conveys land to the public and the public body formally accepts the dedication, there are no formalities required for "implied dedications." The owner's intent to give the land to the public is implied from his conduct of not preventing public use of the beach. And' the public's acceptance of the dedication is implied from public use of the beach. Customary Rights: In 1969, the Oregon Supreme Court in Thornton v. Hay, employed the legal doctrine of "customary rights" to confirm the right of the public to use Oregon's dry-sand beaches. This case involved the efforts of Hay, a motel owner, to fence in a portion of the dry-sand beach adjacent to his motel for the exclusive use of motel guests. The publicity generated by this action helped trigger legislation recognizing the public's right to use the dry-sand beaches of the state. However, since legislation of this sort cannot change or determine property rights, the matter of Hay's fence was sure to wind up in court. And wind up in court it did when, after a winter storm destroyed his fence, Hay replaced it without obtaining a permit required by the legislation. The state went to court seeking an order to force Hay to remove the fence. In reviewing Hay's claim of a right to exclude the public from this dry-sand area, the Oregon court noted that the public had been freely using the state's dry-sand beaches as if they belonged to the public for over sixty years. At no time had anyone sought or obtained the upland owner's permission to use the dry-sand area. Virtually everyone, in- cluding the upland owners, had always assumed that the public had a right to use the dry-sand area. For these reasons, the court held that the public had obtained the right to continue to use the dry-sand beach. 4 Prescriptive Easements: If it is found that the public has ac- quired a prescriptive easement for the use of a specific beach area, then the public has a right to continue to use the area in the same fashion as before. What had started out as a trespass becomes, when enough time passes without the owner evicting the trespassers, a legal right to use the beach. The owner still "owns" the property, but can- not do anything on it that would reduce the public's established rights to use it. The Upland In all states, the upland, that area above the vegetation or dune line, is privately owned with the exception of land acquired by the pub- lic. Many of the "adverse possession" doctrines applied to the dry-sand portion of beach have been applied and are available to be applied to the upland portions of the beach as well. Indeed many of the cases re- ferred to in the Dry-Sand section dealt with public rights in the upland as well as in the dry-sand areas. Typically, however, public rights in the upland portion of the beach are obtained through some sort of acquisition program. The Nation- al Seashores and the many state and local parks that are found on the coast are the product of these programs. A few states (Oregon, Rhode Island and California) have been especially active while others have done very little. From this description it can be seen that vast portions of the nation's beaches are owned by the public and/or the public has the right to use them. The pattern of public rights varies from state to state. In some states, the public owns only the sea, in some they own from the vegetation line seaward, but in all states, the public does have the right to use some portion of the beach even if it is only the land below the water which can be used only by wading. The Great Lakes While the Great Lakes are technically "inland lakes" rather than oceans, their shorelands share many of the attributes and problems of oceanic coasts. Some of the areas have a number of the physical char- acteristics of ocean beaches; many areas are also increasingly being faced with the same public versus private use conflicts that led to the litigation discussed earlier. Over the years, state and federal courts have developed a strong position that the states must manage the Great Lakes in a fashion to benefit all residents of the state; that the Great Lakes are a public resource that cannot be appropriated for private gain or use. In fact, the U. S. Supreme Court's landmark decision on the public trust doc- trine, Illinois Central R.R. v. Illinois, set aside an attempt of the 5 Illinois legislature to convey part of the lake bed of Lake Michigan. However, as is the case in many oceanic states, this doctrine has gen- erally been interpreted only to protect public rights lakeward of the "ordinary high water mark". What Can Be Done About Access? Concern about the ability of the public to have access to the coast and to make use of the coastal beaches is by no means a new issue. The public trust doctrine was developed by the Romans in part to ensure that the public could make use of the shore. The public trust doctrine was incorporated into English law, brought to the colonies and later adopted by the United States. In Hawaii, a system of trails leading to and along the coast, that under tribal law could be used by all of the peo- ple, led to what is now known as the "Ancient Trails Doctrine." In 1959 the Texas legislature adopted the Texas Open Beaches Act which was passed after private landowners attempted to close some Galveston Island beaches to the public. Shortly before the turn of the century, a part of tile Oregon beach was declared to be a public highway in an effort to keep it open to the public. In 1913 that policy was extended to all of the Oregon wet-sand beaches by the Oregon legislature. From 1913 until the early 'GOs, most Oregonians were secure in their belief that they owned the entirety of the Oregon beach. Certainly they had been free to use the entire beach without interference until the owner of a motel erected a fence on the dry-sand portion of the beach and posted a sign that read: "Surfsand Guests Only Please." This led to the passage of the Oregon Beach Law in 1967 which was similar to the Texas Open Beaches Act. This Act codified into law already existing public rights to dry-sand beaches and gave the State Highway Commission the authority to police, protect, and maintain them. The Act said that the legislature: . . . recognizes that over the years the public has made fre- quent and uninterrupted use of the ocean shore . . . sufficient to create easements in the public through dedication, prescrip- tion, grant or other use . . . the Legislative Assembly hereby declares that all public rights are vested exclusively in the State of Oregon. Both of these acts codified the common law of beach ownership and gave the Attorney General legislative authority to protect that owner- ship. Both acts have been challenged several times but have been con- sistently upheld by the courts. Other states have dealt with access through park programs, but few acted with the force and direction of Oregon and Texas. Coastal Zone Management Act 6 In 1976, in order to give added direction and focus to the coastal zone management program, Congress added Section 305(b)(7) the Shorefront Access Amendment to the Coastal Zone Management Act. The amendment re- quires that "the management program for each coastal state include . . . a definition of the terin 'beach' and a planning process for the protec- tion of, and access to, public beaches . - . ." The Report of the House of Representatives Committee on Merchant Marine and Fisheries commented on Section 305(b)(7): The Committee wants, by this requirement, for state Coastal Zone Management Programs to identify their publicly held coastal areas and to devise policies which will either provide for their protection, where that is appropriate as with ecologically significant wildlife areas, and for their ready access as is appropriate with a public beach. Whereas the present management programs must include an inventory and designation of 'areas of particular concern,' this new requirement focuses particular attention on publicly held properties and directs that plans for their best management be included in the state program. Access to public beaches and other attractions in pub- lic ownership in the coasts has come to be identified as one of the critical problems facing loc'al and state governments . . . . The Committee position is that action is needed now to help provide the needed access, especially, in urban areas, and that to wait will only mean additional expense to the taxpayers. The key gain is that the purchase of such access, as is provided in the addition to Section 315 (2) . . . be tied to a comprehensive plan. That is the intent of this new requirement under 305 program d6velop- ment--that all such purchases fit into an overall program for each state. Regulations implementing 305(b)(7) were hurriedly drawn, and the state managers were advised to "expedite" their shorefront plans. This was interpreted by them, apparently correctly, to mean "don't spend much tinie on this, it isn't very important." The result of this less than enthusiastic performance of OCZM in implementing the shorefront access planning amendment resulted in a wide range of uneven responses from the states. Thus far twenty-one states have prepared shorefront access planning elements. Of these, seventeen have been approved by OCZM. They vary from being almost totally devoid of substantive content to being very imaginative and creative. Gener- ally the states that had been concerned with beach access prior to pas- sage of 305(b)(7) prepared the more significant programs, and the states that were uninterested before were still uninterested. The substance of the programs fell into several areas: 7 Access to access Several states concluded that the chief problem was not the lack of accessways but the inability of people to get to the ac,cessways. From this observation a number of programs were developed which involved some sort of mass transit. New Jersey and North Carolina experimented with shuttle buses running from remote parking lots to accessways. Hawaii attached surfboard racks to some of the buses serving the coast of Oahu so that surfers could use mass transit to get to the beach. In the San Francisco metropolitan area, special buses go to the Golden Gate Recreation Area and Point Reyes National Seashore. Time sharing pro- grams for industrial and commercial parking-lots have been suggested whereby the public would lease private parking lots or spaces that are not used on weekends. On the negative side, the lack of parking and inability to provide it has been used as a rationale for denying access and as a means of limiting it. Management of existing access Perhaps the most interesting access programs have been developed in this area. States have developed programs to systematically review their coastal areas to discover accessways that are already in the public -he right to use. Some- ownership and areas of beach that the public has 1. times known as "protection of public property rights programs" public ownership and use rights are documented and programs to protect them in the future are developed. These range from the ancient trails of Hawaii and early rights of way contained in Rhode Island's King James Charter to deeds "lost" in an eastern North Carolina courthouse and "unowned" islands in Maine. Acquisition There are any number of variations on this theme that are used by various public bodies to obtain accessways. Purchase: A number of states have active programs to purchase ac- cessways. Oregon and California, for example, have been systematically buying relatively small accessways along the coast with the intent, in the case of Oregon, of providing an accessway every 1.5 to 3 miles. Up until now the,U. S. Land and Water Conservation Program has been a re- liable source of federal money for this sort of purchase program. Some states (Massachusetts, Michigan, Oregon and New Jersey) have or are studying the possibility of creating special statekfunding sources to acquire accessw'ays. One of the interesting variations is the rights that are suggested for purchase. For example, an easement acquired by the public to use an accessway restricted to the use of lot owners in a subdivision or the acquisition of an access easement on top of a util- ity right of way, etc. 8 As a condition of a permit: Several states and many communities require that accessways be dedicated to the public as a condition of obtaining a permit to develop or subdivide a parcel of shorefront land. In some states, the developer is simply precluded from closing existing accessways, but in others they are required to provide new accesswaysl and in others they must provide and develop (pave and landscape) the accessway. As a condition of public expenditure: Some programs such as the Corps of Engineers beach nourishment program and a number of state pro- grams require that before public funds can be spent on a beach project some arrangement to ensure public access to that beach must be estab- lished. Acquisition as a part of a coastal regulatory program to mitigate loss in market value: It has been suggested that oceanfront lots should be acquired for access in situations in which the regulations imoosed by the coastal zone program come close to leaving the owner with no rea- sonable use of his land and thus tempting a taking challenge. A related suggestion is the acquisition of properties destroyed or seriousl'y dam- aged by a natural hazard, thus providing access and preventing the re- development of a hazardous area. An obvious advantage to the latter program is that Federal Insurance Administration funds may pay a part of the purchase price. Acquisition through usage: The acquisition of an easement by the public through continuous usage under some form of implied dedication or customary use doctrine has already been discussed and is often a part of management prog,rams. Federal land: The federal government and the Department of Defense in particular own a great deal of the coast, and much of it is located close to urban centers. It has been suggested that at least a part of the coast owned by the military could be opened for civilian,recreation without jeopardizing the national security. In some few cases military bases have.been declared surplus and made available to state and local governments for public use. Case Studies The eight state beach access programs that are described in this section were prepared in response to the federal Coastal Zone Management Act although as will be seen several of the states were active in beach access long before Section 305(b)(7) was adopted. All of the programs have been approved by the Office of Coastal Zone Management except for Texas which, as of this writing, is not participating in the federal program. As will be seen, these are not presented as models but rather as examples of how states are dealing with beach access. 9 Cal ifornia California public policy has long recognized the recreational value of its coastal resources but access to the beaches decreased as coastal development increased. The state constitution and federal Coastal Zone Management Act provided the incentive and authority for an aggressive state program which among other things requires new development to pro- vide public access to the shore. While the definition of the public portion of the California beach is the area from mean high tide seaward, the California Constitution guarantees access across private property to all coastal tidelands. Over the years this right has been defined by various statutes and court decisions. California courts, have recognized an implied dedication if the public has used a privately owned area for at least five years. California's coastal management program addressed the access issue extensively prior to the adoption of the 1976 amendments to the federal Coastal Zone Management Act. The California basic access policy is to 11maximize public access to and along the coast and maximize public rec- reation opportunities in the coastal zone consistent with sound resource conservation principles and the constitutionally protected rights of private property owners." The policies of the management program expand on this theme asserting that development shall not interfere with the public's right of access to the shorefront where it has been acquired through use or legislative authority, including use of the dry-sand por- tion of the beaches and rocky coastal beaches to the first line of vege- tation. The policies also call for public access from the nearest pub- lic roadway to the shoreline and along the coast wherever possible and in addition for the provision of adequate public facilities (such as parking lots and bathrooms) in order to distribute use throughout the area and prevent overcrowding. At the heart of the California coastal management plan's access ele- ment is the consistent exercise of development review and permit condi- tioning. All propos 'ed coastal developments must be reviewed for their consistency with state policies among which is the provision of adequate access from the nearest public road. This access provision usually re- sults in the dedication of an easement, but can also include a require- ment that the,developer provide a stairway or ramp to the beach, a public parking lot, or a bikeway. The dedication requirement has been unpopular with developers, but continues to be upheld in court. The major problem with the dedicated rights-of-way is finding a public body willing to ac- cept and maintain them. The California legislature requires that a pub- lic body must agree to maintain a right-of-way before it may be opened to the public. The financial cutbacks imposed by Proposition 13 have discouraged local governments from accepting the burden of maintenance, security and liability that accessways carry with them. The California Coastal Commission and California Coastal Conservancy are currently work- ing together to find agencies and homeowner groups which are willing to accept these responsibilities. 10 The coastal management prograin also coordinates the efforts of many other agencies to acquire coastal land for public recreational purposes. The State Urban Coastal Bond Act which was passed by Cali- fornia voters in 1976 provided $145 million for the acquisition of coastal areas and $10 million for the California Conservancy to'begin its acquisition program. Approximately.$250 million of state and local bonds have been approved for acquisition purposes during the last six years. The California Coastal Commission has recognized that the lack of public transportation prevents many citizens from getting to the coast. Thus, although coastal management program funds do not directly subsi- dize any transportation programs, local governments are being encouraged by the Coastal Commission to arrange for transportation to the beaches through their transit authorities. Transportation programs also work to reduce the demand for parking at the point of access. Coastal management officials continue to seek solutions to four major shorefront access problems in California. In southern California there is inadequate transportation to the coast and inadequate parking to serve coastal recreational demands. In many areas of northern Cali- fornia agricultural land must be crossed to get to the shorefront. In rocky coastal areas, topographic conditions such as steep bluffs pose hazards for those seeking to use the beach below. Finally, as is the case in most coastal areas, the delicate balance between the right of public access and the protection of natural resources must be struck. Maine Shorefront access is a delicate political issue in-the state of Maine, which has a long tradition of private property rights along the coast. As a result, state coastal management officials have been cau- tious and conservative about developing new public access opportunities and/or attitudes. Except in a very few cases, private ownership extends to mean low tide or 100 rods (503 meters) from mean high tide (whichever is less). The Colony Ordinance of 1641 authorized private land ownership in the intertidal zone, subject to public rights for fishing, fowling and navi- gation. Recreational rights are notably absent from this list. Since that time there has been no litigation or legislation redefining shore- line ownership and the attitude toward public access to the shoreline remains basically closed. Only a small percentage of Maine's predominantly rocky coast is sandy beach. An inventory by the Maine State Planning' Office found that only 75 miles or 27% of the state's coast was sandy. Of this, approxi- mately .5% belong to the federal government, 8.5% belong to the state government, 12.5% belong to local governments and 78.5% are in private 11 ownership. Thus, publicly owned sandy beaches are extremely limited in Maine. Boating access is perhaps a more important issue in the state, not only for recreational boaters and fishermen, but also for commercial fishermen whose livelihood depends on their access to the water. Traditionally, Maine's coastal communities have provided access to the shorefront for local residents only. Where a town beach or a town harbor has been established, its use is generally restricted to local residents. State coastal program officials had intended to work with the Attorney General to set forth a broader state position for public shorefront access and use rights, but the case upon which this process was to start was dismissed and the program has not been pursued. There has been little or no change in Maine's policy toward shore- front access since the passage of the 1976 amendments to thefederal 'Coastal Zone Management Act. State officials are wary of introducing shorefront access legislation for fear that it will be defeated and that a "legislative intent" argument could then be used against any future attempts to provide public access. They also assert that there is little demand for increased access. Thus, there has been little activity at the state level to develop new access policies or to create new access opportunities. Provision of shorefront access remains at the discretion of the property owners. Given this political environment, the shorefront access policy statenient.of the Maine coastal management program is, not surprisingly, weak. It contains some definitions, ideas for planning and inventory and a description of existing Maine legislation which protects existing shorefront access. The two major pieces of legislation cited are the Coastal Wetlands Alteration Act and the Mandatory Shoreland Zoning and Subdivision Control Act. The former requires permits for dredging, draining, filling, and the construction of permanent structures on or over any tidal or subtidal land and conditions these permits on the pro- tection of existing navigational and recreational uses. The latter en- ables municipalities to plan, zone, and control the subdivision of land to "conserve shore cover, visual as well as actual points of access to inland and coastal waters, and natural beauty." Both of these existed prior to 1976 and neither takes an aggressive stance toward access (i.e. both protect "existing" access only). The policy statement does not propose any stronger methods for expanding access opportunities. Some coastal management program projects have had an affect on shorefront access. Coastal Zone Management funds have been granted to approximately a dozen municipalities for feasibility and design studies for the development of urban waterfront parks and fish ports and have also sponsored a State Bureau of Parks and Recreation study to identify .potential sites for acquisition as state shorefront parks. Approximately fifteen commgnities have taken advantage of the Title Search Assistance Fund for legal research to identify existing public access points. Fi- nally, CZM funds were used for a study which identified potential sites 12 for fish piers. The state is now using Economic Development Administra- tion and bonds funds to construct six of these facilities. The legal definition of shorefront ownership and the conservative political attitude toward public access are the major obstacles which state coastal program officials face. Michigan The rights of private owners of lakefront property are so extensive in Michigan that state officials have decided that providing access - across private property to the shore is an inadequate solution to meet recreational-needs. Instead, they have focused on acquisition and devel- opment of whole shorefront parcels to be managed as public recreation areas. According to Michigan law, the high water mark is the legal boundary between public and private ownership. The state holds the "bottomlands" located on the lakeward side of the ordinary high water mark in public trust under the provisions of the Submerged Lands Act. Riparian private property owners hold the land above the ordinary high water mark and have exclusive use of the state-controlled bottomlands when they become exposed by declining water levels. Thus, the public has a right to use the water, but access to the shore is limited by the "one foot in the water at all times" rule. Historically, the state of Michigan has sought to increase public access opportunities by actively encouraging state, county, township and municipal acquisition of shorefront property. Three major sources of funds have been used to finance and acquisition. The Michigan Waterways Funds, which has been administered by the Michigan Waterways Commission since 1945, matches a 90% federal contribution with a 10% state or local contribution to develop facilities for public access to Michigan waters. These funds have been used for the construction of boat launching ramps to docks. Nearly 1,000 public access sites have been built and equipped for boaters since this program began. Since 1965 the Michigan Department of Natural Resources has allocated federal Lahd and Water Conservation Funds for recreation-related acquisition and development programs through- out the state. Shorefront properties have been a major priority of the Michigan LAWCON program. In 1976 the Michigan Recreational Land Trust Fund Program was established. The fund raises revenues from leases and royalities from oil, gas, and mineral extraction activities on state lands and uses this money to acquire property as public recreation sites. Michigan's response to the 1976 access amendments to the Coastal Zone Management Act has not been particularly innovative. Basically, the coastal management program has been used to reinforce existing state ac- cess policies and programs. The Department of Natural Resources, which has the responsibility for the state's environmental and recreational 13 programs, is the lead agency for coastal management. Policy is set at the state level and technical assistance and grants are made available to the local level to implement access programs. The Michigan shorefront access policy statement follows the OCZM guidelines and refers extensively to the policies defined in the 1974 Michigan Outdoor Recreation Plan (SCORP) and those expressed by various divisions of the Department of Natural Resources. The emphasis on public acquisition of land for recreational purposes is reinforced, but few other management techniques for increasing shorefroht access are presented. Coastal management officials have defined their responsibilities toward access in terms of providing technical assistance and "seed money" to local communities to help leverage additional funding for the acqui- sition and development of access sites. Approximately half of the Mich- igan coastal management program access budget goes toward grants to local communities. The majority of these grants fund projects which create, improve, or preserve shorefront access. At the time of applica- tion for state coastal management funds for project feasibility review and design, local communities are asked to identify potential funding sources for land acquisition and/or project development. After the design phase is complete, state coastal management officials provide technical assistance to help procure this outside funding. Urban waterfront parks have been popular local projects which in- crease shorefront access opportunities. In Detroit three small, exist- ing parks will be tied together by a riverfront walkway, part of which extends through an industrial section of the city. Similarly, several small public parcels in Mackinaw have been tied together with a walkway which necessitated the granting of easements across private property. In St. Ignace, a 3/4 mile long promenade will provide visual access to the shore, but no physical access. Bike path designs have been funded in Detroit, Marquette, Grand Haven and Sault Ste. Marie. Michigan coastal management funds have also been granted to seven state parks for the construction of boardwal,ks which provide access across dunes and wetlands while preserving these environmentally fragile areas. The major access problems which Michigan coastal management offic- ials cite as needing ongoing attention are a lack of shorefront access in urban areas (especially Detroit) and protection of sensitive environ- mental areas from the pressures exerted by those seeking access to the shore. New Jersey 14 Although the legal definition of the "public" portion of the beach allows for liberal use of New Jersey beaches, a history of shorefront development and exclusionary local regulations has made access to the beach itself difficult. The New Jersey Department of Environmental Pro- tection is currently implementing regulatory, financial incentive and transportation programs designed to open up more shorefront access op- portunities for the public. The public portion of the New Jersey beach is from the vegetation line seaward. Thus, the public has the right to use both the wet-sand and dry-sand portions of the beach. However, most shorefront develop- ments have blocked visual and/or physical access to the shore. Some municipalities which own land adjacent to the vegetation line have en- acted laws or regulations which make shorefront access inconvenient, expensive or impossible for non-residents. Inland residents have been deprived of adequate access to shorefront recreation areas. .The state of New Jersey placed the responsibility for administering its coastal management program within the Department of Environmental Protection. The Department has begun to tak .e a more aggressive stance on providing public shorefront access. Actions of the Department are based on New Jersey's simply stated shorefront acce.ss policy: "Coastal development adjacent to coastal waters shall provide maximum practicable public access to the shorefront, including both beach and built- up waterfront areas and both visual and physical access. Shorefront development that limits pub- lic access and the diversity of shorefront exper- iences is discouraged." The Department of Environmental Protection is currently using four methods to implement its shorefront access program. First access reg- ulations are imposed on new shorefront developments. The Department of Regulation requires that each project provide "maximum practicable ac- cess" to the shorefront as a condition for the issuance of a development permit. Projects'can provide access through such means as public walk- ways, boat launch ramps, or public parking lots. Second, shorefront access conditions are also placed on Shorefront Protection Funds, which finance dune restoration, erosion control and beach nourishment projects. Municipalities which accept these funds must pledge to establish and maintain public access to the area being funded: Third, provision of waterfront access is an eligible activity encouraged by CZM grants to local communities. Grants of this type are being used for such projects as developing urban waterfront parks. Fourth, the Department of Pro- tection sponsors shuttle bus transportation each summer weekend from a parking lot near the Garden State Parkway to a state beach 12 miles away. Approximately 8,000 people each summer take advantage of this service which provides shorefront access to inland residents of New Jersey. 15 New Jersey coastal management officials continue to search for so- lutions to the state's four major shorefront access problems: (1) the best beaches are difficult to get to without a p rivate auto; (2) almost none of the beaches are free any more (most charge an admission price); (3) the supply of bath-houses and parking lots is inadequate to meet demands; (4) the large amount of development on the shorefront is caus- ing major erosion problems which could necessitate the closing of beaches to use by the public. North Carolina Unlike most coastal management programs, the North Carolina Coastal Area Management Act places major responsibility at the local level. As a recent addition to the coastal management mandate, the issue of shore- front access is being treated in a similar manner. Lack of adequate public access to beaches had been a concern in North Carolina prior to the passage of the 1976 amendments to the fed- eral Coastal Zone Management Act. Each year coastal communities were experiencing an increase in the volume of day visitors to their beaches, yet few of these municipalities had the incentive or tools to meet de- mands for access. According to North Carolina law, the public has a right to use the wet-sand portions of the beach, but in order to get to these areas, privately owned upland areas must be crossed. Coastal com- munities perceived their financial resources to be inadequate to acquire, police, maintain and service accessways to the public portion of the beach on a large scale. Private property owners were generally unwilling to allow public access across their land. Some communities had passed ordinances which required subdivison developers to dedicate the ends of streets running perpendicular to the beach and other accessways to the public. However, these accessways have traditionally been unmarked and tend to have little or no parking capacity. In keeping with the coastal management framework which had already been established, general shorefront access policies viere established in 1978 at the state level, but the primary responsibility of insuring ade- quate public access to the public portions of the beach was delegated to the local level. The shorefront access policy statement in the North Carolina Coastal Management Program declares that state policies are designed to "supplement and strengthen any local efforts." The state's shorefront access policies assert that: -development shall not interfere with the public's existing rights of shorefront access (i.e. those acquired-through public acquisition, dedication, or customary use established through the courts); -public beach area projects will not receive state or federal funding unless provisions are made for adequate Public access 16 (including rights, identification and parking); -coastal dunes shall be protected; -the state shall continue to support and improve highway, bridges and ferry access to coastal areas; -the state shall continue to support the development of fishing pier facilities; -access shall be made available to people to all socio- economic groups. The North Carolina Coastal Resources Commission (CRC) had mandated coastal communities to include a shorefront access element in their up- dated land-use plans, which are due to be submitted to the CRC for re- view and approval during the fall of 1980 and 1981. Specific issues to be addressed in these plans include the definition of "access," identi- fication of existing and potential access points within the jurisdiction, identification of methods for improving access and provision of adequate parking to meet access needs. The CRC hopes that the state's shorefront access program will be adequately defined by these local plans; the Com- mission does not anticipate designing a program at the state level unless the local plans prove inadequate. Approximately $100,000 of 306 funds have been granted to local com- munities to assist in shorefront access planning. Twelve municipalities have been granted funds to either develop beach access plans or design waterfront parks which will increase public access opportunities. Edenton a peninsula which juts into Queene Anne Bay will be developed as a park; a bulkhead will be installed to stem erosion, an icehouse will be restored for use by the public, and a parking lot will be devel- oped. Wilmington is planning a six block long riverfront park. Cape Carteret, a non-beach community, is studying the feasibility of acquir- ing land for a parking lot at Emerald Isle to allow Cape Carteret resi- dents access to beach areas. Holden Beach, Washington Park, Kill Devil Hills, Nags Head, Surf City and Carteret County are amoung the localities which have conducted studies to identify potential and existing access points and tools for developing more. The North Carolina Office of Coastal Management has imposed provi- sion of shorefront access as a condition on some major Coastal Area Management Act (CAMA) permits. Large oceanfront projects such as hotels and condoniums have been encouraged to provide public walkways and parking lots, but the permit review officials are unsure of their legal authority and have therefore been somewhat inconsistent in exercising this option. During the summer of 1979 the North Carolina Department of Natural Resources and Community Development's Office of Coastal Management and Wrightsville Beach jointly funded a shuttle bus to bring people from a feeder parking lot in Wilmington to Wrightsville Beach. By all accounts, the experiment was a failure; ridership was extremely low and the project lost money. Some reasons cited for the failure include inadequate ad- vertising and locating the feeder lot too near the beach (i.e. people 17 who had driven as far as the feeder lot decided that they might as well drive the remaining distance to the beach). There are no plans to fund a revised attempt at providing mass transportation for beach access in North Carolina. Oregon The state of Oregon has been a forerunner in guaranteeing public access to the shore. Sanctions for public use of the beach date back to the nineteenth century. Oregon had passed a Beach Law which opened all beaches to public use long before the federal Coastal Zone Manage- ment Act was passed and thus had no problem complying with the 1976 amendments. State and local officials are now using the coastal manage- ment program to extend access rights into estuarine areas. In 1893 the beaches of Clatsop County, Oregon were declared to be a public highway. In 1913 the Oswald West Act extended this policy by declaring that all wet-sand beaches were public highways. The "public" portion of Oregon beaches had been generously defined as the area from the non-aquatic vegetation line seaward. Thus, Oregon residents have historically had good use of the shorefront. By the mid-'60s the state legislature was becoming increasingly concerned about the potential loss of public use of and access to Ore- gon's beaches as development pressures increased. In 1967 the Oregon Beach Bill was passed; it declared all beaches to be open to public use. A concerted effort has also been made to keep as much of Oregon's coastal land as possible in public ownership. Thirty state parks are located in coastal areas. The goal of providing public accessways every 1.5 to 3 miles along the coast has nearly been met.. The Oregon Department of Land Conservation and Development (DLCD) has been designated the lead agency for coastal management. Prior to the adoption of the 1976 amendments to the federal Coastal Zone Manage- ment Act the DLCD had defined the state's policies for shorefront access in the Statewide Planning Goals. Oregon DLCD officials consider shore- front access provision an important element in the state coordinated land-use planning process. The DLCD also coordinates the many access- related programs which various state agencies administer. Among these are the Oregon Beach Access and Parks Acquisition Program, the Depart- nient of Fish and Wildlife Angler Access Program. Each update of Oregon's Statewide Comprehensive Outdoor Recreation Plan (SCORP) provides supply and demand information and policies on shorefront access which are con- sistent with Statewide Planning Goals. The Department of Land Conservation and Development is in the pro- cess of extending access program development and enforcement to the lo- cal level. Cities and counties are presently preparing comprehensive land use plans which are to comply with the Statewide Planning Goals. 18 Among the shorefront access issues to be addressed in these plans are the identification of further public access needs and the development and adoption of tools and controls to meet them. The local land use plans are due for LDCD review in July 1930. Based on the information gathered from these plans, state level coastal management officials will design a program of technical assistance to help strengthen and/or sup- plement the local plans and programs. Oregon coastal management officials are presently working on the next step toward increasing public access to the shore. The issue of balancing access to estuarine areas with the protection of their fragile ecosystems is currently being studied for future policy and program de- velopment. Rhode Island The state of Rhode Island has a plentiful supply of shorefront ac- cess opportunities via public parks and beaches, conservation areas, scenic view points, and rights-of-ways. The physical configuration of the state and its shoreline allow many people to live within walking and biking distance of the coast. Coastal management program officials have given public recreational use and enjoyment of the coastal region a high priority. Thus, the shorefront access element of the Rhode Island coast- al management program stresses the ongoing verification of public rights- of-way, publication of their location, and continued evaluation of devel- opment proposals to insure that they do not jeopardize the public's right to use and enjoy the shore. Legal rights to shorefront access have a long history in Rhode Island. During the seventeenth century the King James Charter desig- nated rights-of-way to the shoreline for fishermen and seaweed collectors. Since that time-, some of these rights-of-way have been built upon, some forgotten, and others kept in continuous use as accessways. In more re- cent times, the state and many municipalities have been active in setting aside coastal land for development as public recreational areas. Eighty- five parks of various sizes currently provide public access to the shore- line; 66 of these are locally managed, 18 are state parks, and 1 is man- aged by the federal government. Thus, even before the Coastal Zone Management Act was passed and a state CZM program was set up in Rhode Island, state and local officials had developed management capacities for providing public access to the shore. The Rhode Island Department of Environmental Management is the lead agency for most forms of recreational access; it implements various recreational programs and.policies and has the authority to acquire and manage parks, beaches, launch ramps and conservation or management areas as set forth under Title 42, Chapter 17 of the Rhode Island General Laws. The amendment to the Coastal Resources Management Council's.enabling 19 legislation has assigned the Council the responsibility for identifying and opening public rights-of-way to the shore. Local municipal recrea- tion authorities also establish and maintain recreation areas.which pro- vide shorefront access. The shorefront access policy statement in Rhode Island's coastal management progran, is one of the best written to date. It recognizes that the state is already richly endowed with public shorefront access opportunities, but also points out that the distribution of coastal rights-of-way is geographically uneven, that public rights-of-way along substantial lengths of shoreline remain unverified, that public rights in many presumed rights-of-way are contested, that parking at popular rights-of-way is frequently inadequate, and that vandalism, littering and trespassing on neighboring private areas are issues of growing con- cern. Four access policies are set forth: (1) Public recreational use and enjoyment of parks and beaches is a high priority use of the coastal region. (2) No permit shall be issued for development if it inter- feres with public use or enjoyment of the shore. (3) Legally protected rights-of-way are to be verified and their existence publicized. (4) The Coastal Resources Management Council recognizes the management responsibility of the Department of Environmental Protection and municipal recreation authorities as they relate to public beaches and parks, and shall endeavor to support these responsibilities to the maximum extent, consistent with other Council policies and requirements. The coastal management program in Rhode Island is funding efforts to solve two of the major shorefront access problems in the state: lack of lateral access at beaches (i.e. access to both the "wet-sand" and "dry- sand" portions of the beach) and ill-defined rights-of-way to the beaches. Coastal management officials are also exercising the permit review power to place conditions on new coastal development in order to protect shore- front access opportunities for the public. The "public" area of Rhode Island beaches is generally defined as the area front the mean high water mark seaward. 306 funds are currently underwriting a study to investigate the potential of broadening this definition of public beach. The constitutional, legislative, and judi- cial principles of shorefront access are being examined in anticipation of the drafting of future legislation to open up more of the beach to the public. 306 funds are also being used to complete the process of verifying the Ki-ng James Charter rights-of-ways. This effort was begun with mostly 20 volunteer assistance in the mid-1960's. The earlier study identified as many rights-of-way as possible without doing a full scale search of ,legal documents. The rights-u-f-way which were identified by that study are presently being maintained through a partnership between the Coast- al Resources Management Council (which uses CZM money to fund two main- tenance workers) and the Rhode Island Plarine and Fisheries Divis-ion (which uses state funds for four to six maintenance workers). Mainten- ance includes grass cutting, trash collection, rock clearing and stair- way construction and maintenance. Using CZM funding, the state has hired twelve attorneys to doc *ument every possible right-of-way. Public meetings are being held on a town- by-tovin basis to identify public perceptions of rights-of way, land is surveyed, and title searches are conducted. Program administrators in- tend to file new deeds which will document existing public accessways. All practical rights-of-way will be opened; those in environmentally sensitive areas and those located very close together will not necessar- ily be kept open and maintained. The third major element of Rhode Island's shorefront access program is the stringent use of the development permit review power. Permits for development within the coastal zone are always conditioned on pro- tecting the existing public access to the shorefront. Thus, the Rhode Island coastal management program is currently Vlork- ing to Solve two of the major shorefront access problems (beach use, ownership and identification of access), but other access issues remain to be dealt with. Among concerns voiced by coastal management officials are the lack of parking near access and the disappearance of natural coastal areas as development pressures grow. Texas The state of Texas does not yet have a coastal management program approved by the federal Office of Coastal Zone Management, but public access to the shorefront is protected under the provisions of the Texas Open Beaches Act of 1959. Access planning and program management falls under the jurisdiction of the Texas Parks and Wildlife Department. The Texas Open Beaches Act was passed in reaction to attempts by private landowners to close some Galveston Island beaches to the public, thereby challenging a right which the public had acquired through the continuous use of the beaches, bays and gulf waters of Texas since the time of Spanish ownership. The Texas Open Beaches Act guarantees the public unrestricted access to and the use of (1) the state owned portion of beaches below the mean high tide line (wet-sand), and (2) the larger area extending from the mean high tide line to the first line of vege- tation (dry-sand) in all areas where the public has acquired a right of use of easement by presecription, dedication, or continuous use. The 21 The provisions of the Act do not apply to any beaches on barrier islands or peninsulas that are not accessible by public road or common carrier ferry. This includes San Tose Island, Matagorda Island, and the Mata- gorda Peninsula west of the Colorado River channel. A coastal area is considered accessible if it meets any of the following three criteria: (1)' if it is presumptively legally open (2) if it is in public ownership (3) if for any reason the public has a legally protected right of access to and use of the area. The Texas Open Beaches Act is enforced by the Texas Attorney General, county attorneys, and criminal district attorneys. Early judicial tests of the Open Beach Act by littoral landowners failed to either invalidate the Act or find any beach covered by the Act to be closed to the public. These early failures, combined with a policy of rigorous enforcement by the State Attorney General and local legal officers, have discouraged any subsequent attempts to close a beach which is covered by the Act. The Texas Parks and Wildlife Department (TPWD) has employed two methods to obtain public access to the shorefront. First, a program has been established to provide boat ramps in coastal areas. Second, a land acquisition program has been instituted to provide public recreation areas along the coast. The TPWD Special Boat Fund is supported by'revenues collected from boat registration fees and a portion of the unclaimed water boat fuel taxes. The state provides 70% of a boat ramp project's cost if the lo- cality where the access facility is to be located provides the remaining 30%. A completed project includes a boat ramp, parking area and access road. Once the facility is constructed, it is maintained by the TPWD. Recently, approximately three boat ramp projects have been constructed in coastal areas each year. The TPWD has the authority to acquire new public shorefront recrea- tion areas as the public need arises. Determination of this need is based on the Texas Outdoor Recreation Plan (TORP). Acquisition is funded by the TPWD's Fund 31, which is supported by a portion of the state cig- arette tax revenues. Approximately $11 million are available each year for acquisition and development. Local acquisition projects are assisted by federal Land and Water Conservation Funds which are administered by TPWD. The provision of increased public access to Texas.beaches has caused some management problems. Among the major problems which must be address- ed are congestion (even though other accessible beaches are not crowded, Galveston and Mustang Beaches and the North Padre Islands sustain heavy use), vehicular traffic on the beaches (which can endanger non-vehicular beach users), and litter. 22 Conclusions It will probably surprise no one that the accomplishments of the states ranged from virtually none to a great deal. Those states which reported a great deal being accomplished were invariably those which reported a commitment to public access to beaches preceding the passage of the Coastal Zone Management Act. In the states with little or no prior interest in beach access, in some cases, participation in the CZMA moved them to action but in others little change occurred. What emerged is that in the states with a strong commitment to and a political foundation for beach access prior to the CZMA, the beach access amendment 305(b)(7) and the regulations that followed meant very little. The availability of money under Section 305 for planning and under Section 306 to implement their programs served to strengthen but not substantially change the already existing programs. In a few states the CZMA served as a catalyst to bring together incipient concerns and mold them into what appears to be significant programs. In other states the responses to 305(b)(7) and the regulations are merely perfunctory; enough to get the program approved by OCZM but not enough to make much impact. The states with a commitment to beach access have been encouraged and strengthened by CZM. Where there was some concern this has often been nurtured and brought to life but where there was no commitment a few states have made some tentative steps forward, but others have done as close to nothing as possible. Commitment A primary problem appears to be that some of the states are just not interested in becoming involved in achieving access. This was explained in the interviews by: (1) the political environment in which the state CZM Program had to exist is either indifferent or neg- ative to beach access for the public. (2) there are other more'important things that.had to be done and "next year" access will be given a higher priority. (3) we have done it all and there really isn't much more we can do. Identi Three quite different perceptions of the access program emerged: (1) Facilitator of access. These states view their role as arranging for more access ways by what- ever means available. Their job is to increase the number of sites the public can use to get to the beach. 23 (2) Maintenance of existing access These states view their role as enhancing already existing accessways by providing walkways, bath houses, parking lots, etc. through construction programs and by providing regular maintenance such as trash pickup, etc. (3) Recreation programs. These states view the access problem as being one of "access to access", that is getting people to the already existing accessways by providing mass transit, parking lots, etc. Funding A majority of the states interviewed cited money for ac- quisition as one of their greatest needs. Many urged funding of 315(2). When asked about using HCRS money for access, their common response was that they could not adequately control HCRS money that was spent in the coastal zone and could not successfully compete for the remainder. Funding 315(2) would provide funds which would be under the control of the state CZM Programs but the effect of this might be to drive away other funds since the other agencies might reason that they no longer had to concern themselves with access since 315(2) funds could do it all. Thus the net effect of funding 315(2) might be a reduction of funds available for access. If however, 318(c) were amended to clearly state that 315(2) money could be used as matching grants for other federal programs the net effect would undoubtedly be the opposite. Training and Information Exchangl There are a great many things that are being done by some of the states and that have been suggested in the literature that could be transferred to other states. To date, however, there has been very little communication amongst the states and therefore the "wheel has been reinvented many times over," The major reason for the lack of communication is that there are no formal or in- formal channels through which to communicate. The Coastal Zone Informa- tion Center does a masterful job circulating published materials but often the most important things to be communicated have not been published: they are ideas, theories, practices that have not and probably will not be published, but nevertheless would be of immense value. A relatively small investment in research and training could yield great returns. Relationship with DOD The Department of Defense owns large segments of the coast including a great many beaches which are available for use by the military but not the general public. Programs to share these areas with or to transfer them to the public have not been worked out. Role of the State The role the states play varies tremendously from state to state, but there are essentially three types: 24 (1) strong state programs in which the state government has assumed major responsibility for obtaining and managing access. In these states, local programs often play a part but are not critical to the success of the program. (2) strong local programs with the state providing help in the form of technical assistance, en- couragement, funding, and the like, but with little or no action at the state level. (3) local programs that depend almost completely on local initiative with the state providi.ng pass through funding for discreet planning projects. 25 PART TWO ALABAMA Alabama's coastal program was approved recently and is now in the preliminary stages of implementation. State coastal officials have targeted recovery from Hurricane Frederick as the highest priority and therefore other program,elements, such'as beach access, have not yet been addressed. The Alabama Coastal Areas Management Program and Final Environmental Impact Statement Department of Commerce United States of America U. S. Department of Commerce National Oceanic and Atmospheric Administration Office of Coastal Zone Management and Alabama Coastal Area Board August 1979 APPENDIX D SPECIAL PLkiNNING ELEKENTS SHOREFRONT ACCESS AND PROTECTION PLANNING A Procedure for Assessing Public Areas Requiring Access or Protection A. 1. Public Access Inventory A total of 10,963 acres of shorefront publicly owned or maintained recreation areas are available for access in the two counties (Figure D-1). Public access in Baldwin County is provided by 9248 acres of public owned recreation areas. About 1715 acres of publicly owned land provide access in Mobile County (modified from Trussell, in press). a. Pluk @@in Island At this time only one-half mile of Gulf shoreline on Dauphin Island is open to the public. These areas are the Casino (528 acres) and Fort Gaines 31 @,g s). Shell Mound Park (3 acres) provides visual access to Dauphin acre z [email protected] Bay. The uninhabited portion of . estern Dauphin Island had been i leased by Mobile County from a private concern for the past dccade. gowever, the lease has expired, and the owners wish to sell the land. If purchased by the state, approximately eight additional miles of shore- d be available for public access. Access to the waters surround- line woul ing Dauphin Island is provided at a county facility with twelve boat ramps on the island's eastern end. b. South Mobile County Very little public access to coastal lands and waters is provided in South Mobile County. One publicly owiied boat ramp in Bayou La Batre is the only public access point along Mobile Bay and Mississippi Sound south of the Mobile city limits. @5.jc c City of Mobile Four access points to coastal waters are provided by the City of Mobile. the foot of Government Street in downtown Mobi-le, the Anchor Bed and rfront Park (less than '-2 acre combined) provide visual access. Luscher Vate park (23.0 acres) provides boat and visual access to upper Dog River. McNally Park (50.0 acres) provides visual, boat, and beach access. Bay- front Park (18.9 acres) in the Brookley Complex is now in the planning stages - 'IVA d Mobile-Tensaw River Delta 4 Several public and private facilities provide access to the Mobile- Tensaw River Delta. Chickasabogue Creek Park (1050 acres) , the U.S.S. klabama Recreation Area (32 acres), and Meaher State Park (1327 acres) provide recreational facilities, and boat ramps are available at Chickasa- bogue Creek as well as at Meaher State Park, Chacaloochie Bay, and Appalachee a. liver in the lower delt, 193 @[email protected],..117 JI t"I Figure D-1 Publicly owned or maintained recreation areas Name Acres' 1) Casino, Dauphin Island 528 2) Fort Gaines 10 3) Shell Mound Park 3 4) Anchor Bed and Waterfront Park 0.5 iq I [email protected] i 5) Lucsher Park 23 6) McNally Park 50 7) Bay Front Park (under development) 19 8) Chickasabogue Creek Park 1050 @4 9) U.S.S. Alabama Recreation Area 32 10) Meaher State Park 1327 11) Daphne Park 0.5 12) Fairhope beach/park 38 13) Mullett Point Park 10 14) Fort Morgan 410 15) Perdue Property 1297 16) Gulf Shores public beach 5.5 17) Gulf State Park (main section) 5687 18) Gulf State Park (undeveloped western section) 160 19) Gulf StaLe Park (undeveloped eastern section) 283 20) Romar Beach State Park 5 21) Alabama Point Wayside Park 25 TOTAL 10,963.5 194 Coastal Area boundary 5 10 15 Mir Miles ""0470" COUN" Citronelle Mount Vernon f BayMinette 0 0 db [email protected] @JXCAJXX JA- PRICHARD MOB E Loxley 9 4 aphne Robertsdale FairhoPe WW Foley MOBILE BA Y ;Ippl so I *2 17 I-P, 16 1,41 owned or mainWned areas. e. South Baldwin County Public.access to the Gulf of Mexico, Mobile Bay and other estuarine waters is adequately provided for in south Baldwin County. Along Mobile Bay, access is provided from a small park with boat ramp in Daphne, from two boat ramps and 38 acres of beach and park in Fairhope, from one boat ramp and 10 acres of bayside park near Mullett Point, and from two boat ramps at Weeks Bay. Two other ramps along the northern shore of, the Fort Morgan peninsula provide access for boats to lower Mobile Bay and the Gulf of Mexico. 410 acres of state park at Fort Morgan on the peninsula's western tip also provide access, as well as an opportunity to explore a piece of south Alabama's colorful history. Access to coastal waters is also available from approximately 5.5 acres of public beach provided by the town of Gulf Shores and Gulf State Park with 6160 acres in 5 units. These areas adequately provide the beact, access desired by both local residents and regional or national tourists alike. Boat access is provided from publicly maintained ramps at Cotton Bayou and Boggy Point. Other ramps in southeastern Baldwin County are planned for Lillian and Old River. f. Other Access to Coastal Waters Access to coastal recreational opportunities is further provided by numerous fish camps, privately operated boat ramps, and marinas. These privately owned operations, which usually charge a fee for the access opportunity they provide, supplement the public areas previously discussed and often provide access to areas where no public facilities are available. This is especially true in the upper reaches of the Mobile-Tensaw River Delta (see Figure D-2). 3. Coastal Area Board Public Access Priorities The Coastal Area Board recognizes the need for more public access opportunity in both counties, most especially Mobile County. To help alleviate this growing public access problem the five following priorities have been identified for action by the Coastal Area Board. a. Acquisition of Dauphin Island's West End Acquisition of public access rights to the west end of Dauphin Island will easily provide the opportunity for public access that Mobile County [email protected] Efforts are being made to alleviate a worsening public access problem by acquiriag this property. Until the -,pring of 1978, this area (includi ng its nearly 8 miles of Gulf shoreline) had been leased by Mobile County for public use. The property is now for sale by its owners, no access is provided as the lease has not been renewed, and neither Mobile County nor the State of Alabama has been able to appropriate the necessary funds for acquisition. 196 Uoastal Area boundary sew 10 15 !0"@-Miles EXPLANATION 0 Fishing Cams A [email protected] Marinas Citronelle Mount Vernon4 NIN r @Bavminettv 0 0 k PRICHARD -7 MOB LE -Z Loxley i-phne Robertsdale o Falrbope C 40 Apt A 'Y Foley [email protected] [email protected]@4 MOBILE BA Y A 74 MISSISSIPPI SOIJ I K pop --2 <i .iva, f1gure D- 2 Fishing camps and marinas in coastal 197 Alabama. Source: Chermock, 1974. b. Develop Access Opportunities within the Urban Waterfron-t The provision of public access to coastal Alabama's urban waterfronts is another of the CAB's priorities. Though urban waterfronts are usually of high density land use,'opportunities for public access do exist. It is exactly this high density of land use and high level of waterfront activity which creates public access demand. Waterfront urban parks have been very successful in other parts of the country. In coastal Alabama, these parks could provide access convenient to a large population, and could assist in the revitalization of our urban centers. c. Provide More Boat Access to Coastal Waters Presently, many opportunities for boat launching into coastal waters do exist. Nearly every publicly owned piece of waterfront property provides this type of facility. Also, many boat ramps are provided by the Alabama Department of Conservation and National Resources from properties purchased or leased over a long period (usually not less than 20 years) r this purpose. In addition, many privately operated launches are available for public use, usually at a reasonable cost. The Coastal Area Board recognizes the value of these facilities and strongly supports the provision of public boat launching opportunities. The CAB also recognizes the need for additional launching sites, particularly from the shores of South Mobile County. Not only can more launches be provided where demand is highest, but they can also be provided in close proximity to existing sites such as that on the eastern end of Dauphin Island. This will reduce waterway, traffic, and parking congestion at pre- existing sites. d. Development of Facilities Supporting Commercial Fisheries and Recreational Boating The Coastal Area Board recognizes an existing need for facilities which provide commercial fisheries support and marina facilities for recreational boating. A facility providing commercial fisheries support could include inexpensive dockage and layover space, fuel, unloading facilities, ice house, minor refitting services and supply houses. These same facilities could provide services to recreational boaters. One further value of this type of facility would be its value as a tourist attraction, for facilities of this type could easily be operated and maintained in an attractive condition. e. Guarantee of Public Access Rights to.Tidelands, Submerged Lands, and Navigable Waters In Alabama, a problem arises concerning ownership and access to tidelands, submerged lands, and navigable waters. Much of the law concerning ownership of these three areas is rooted in early English common law. The Crown held these areas in trust for the people, and after the American Revolution, the states continued to hold these properties in trust for the people. Title to tidelands, submerged lands, and navigable waters is in the state. 198 The tidelands, however., are sometimes occupied, possessed, and claimed by private individuals. Steps taken to enforce this claim include the erection of fences or other forms which imply restricted access. Questions arise concerning the limits of these tidelands, especially where accretion, erosion, reliction and filling has occurred. Submerged lands also are often falsely cl 'aimed and/or restricted. Though owned and controlled by the state, private persons can lease these lands for specific purposes. In the case of oyster growing on state owned bottom within 600 yards of a riparian owners shore, there is belief that some riparian owners actually "own" this submerged land. This is not the case, however, and without enforcement of the public's rights to these areas, public recreational use of theseNlands is limited. The title to navigable waters lies with the State. The Federal Government does have interest in these waters regarding interstate commerce and navigation, pollution control, and water resources. "The absence of suits to quiet title and other forms of litigation, and the absence of a strong State.policy concerning the tidelands causes the law in this area to be tentative, ill-defined, and vague" (SCORP Vol. 13, 1971). The Coastal Area Board seeks to clear the ownership of these lands, to establish a clear control by the State, and to open their use to un- restricted public access. B. A Definition of the Term "Beach" and an Identification of Public Areas Meeting that Definition Beaches are sandy shoreline areas characterized by low relief, generally of gentle slope, and some vegetation. The beach extends from the waterline to 1) a change in physiographic form such as a dune or bluff, 2) a change in sediment type, such as clay from sand, and/or 3) a change in vegetation type. Gulf beaches are those sand beaches of the mainland and islands in Alabama which are subjected to the direct wave action of the Gulf of Mexico. The upper limit of Gulf beaches is usually a transition from halophytic, succulent, prostrate plant forms such as Hydrocotyl bonariensis (pennywort) Cakile epentula (sea rocket), Iva imbricata (no common name), and [email protected] stolonifera (seaside morning glory) to a zone occupied by grasses, glirubs, and the same prostrate forms mentioned above. Some grasses indicative of this transition are Uniala paniculata (sea oats), Spartina [email protected]@ (saltmeadow cordgrass), Panicum amarulum (dune panicgrass), and Distich-lis spicata (saltgrass). Shrubs found at this transition are fo-lidigo pauciflosculosa (seaside goldenrod), Ceratiola ericoides (seaside r,)senlarv), Ilex vomitaria (yaupon), Quercus virgillica var. maritima (live oak), ind Myrica cerifera (wa%-mvrtle). Estuarine beaches are narrow, low energy beaches occurring along the Virotected margins of Mobile Bay, Perdido Bay, Mississippi Sound, and their variOL,s tributaries. The upper limit of estuarine beaches in Alabama can 199 be distinguished easily by any or all of the three houndaries mentioned previously, that is: 1) a change in physiograpliic form, 2) a change in sediment typo, or 3) a change in vegetation type. C. Articulation of Enforceable State Policies Pertaining to Shorefront Access and Protection The Coastal Area Board has long recognized the importance of publi.c access to Alabama's beaches for all citizens. T'hus, the following POlic,es pertaining to shorefront access have been formulated. The Coastal. Area Board's operational rules and regulations by which the policies will be implemented are presented in parentheses. ti 1. Coastal Development I a, The Alabama Coastal Area Board will encourage and support to the maxjr,,,uj extent practicable the continued development of the economLc resources of the Coastal Area, including the port, industrial, energy and recreational resources, so that they may continue their full contribution to the econom well-being of all citizens, and devclapmenL within coastal Alabama will b(, carried out in a manner which is consistent with the Board's policies for natural resources. (Chapter 4, Section VI, Operational Rules and Regulation7, for public access). 2. Recreation Public access to and use of existing recreational lands and 'waters such as beaches, marinas, and fishing grounds, will be safeguarded, and the Coastal Area Board encourages the development of additional recreatio',,,i opportunites to enhance the well-being of Alabama citizens' as well as residents of other states. (Chapter 4, Sect-ion VI, Operational Rules and Regulations for public access). 3. Beach and Dune Protection Recognizing the natural value of beaches and dtines for erosion [email protected] wildlife habitat, and recreational opportunities, it is the policy of th. Alabama Coastal Area Board to maintain the natural integrity of the and dune systems and to restore and enhance these valuable resources feasible. (Chapter 4, Section VI, Operational Rules and Regulations for and dunes). D. A Method for Des itaat [email protected]@@ref rant Areas as Areas of Particular C or Areas for Preservation and Restoration IS One approach to preserving public access to Alabama's coastal area, the nomination and designation of shorefront areas as Geographic Areas Particular Concern (GAPC) or Areas for Preservation and Restoration None of the GAPC's or APR's presently designated has been established F their public access value. However, a process for designating additi,G_. areas as CAPC's and APR's has been establishQd and is described in 4, Section IV. One criteria for both GAPC and APR designation is value or opportunity. 200 An Identification of Legal Authorities, Funding Programs and other Tec iniques that can be used to Meet Manwel 11 Needs Aside from the policies set by the Coastal Area Board and opportunities for pro-vision-of public access through designation of GAPC's and APR's, ;ariouS legal authorities and funding programs are available to neet th-_ Coastal Area Board's management needs with respect to public iccess. 1. State Statutes Statutes within the Code of Alabama, 1975 which directly contribute .0 the provisions of visual and physical public access include: Section 9-7-1 through 9-7-22 . Alabama Coastal Area Board. This Act creates a reconstituted Coastal Area Board with responsibility and authority for developing, coordinating and maintaining a coastal area program for the area in direct proximity to the coasts of Alabama to insure the enhancement of tourism and orderly economic development along coasts; and to provide for the promulgation of regulations and provisions for the enforcement of this act. One provision of this act, states that when necessary to achieve conformance with the management program provided for in the Act, the Board sball have the power to acquire fee simple and less than fee simple interest in land, water and other property under the procedures Title 19, Code of Alabama, or other means, so long that such power ,.,,--/iall not applyto property and interest therein which is devoted to public use. This power vested in the Board will enable the acquisition or interest in lands for public access purposes, provided this conforms with the Board's managemenf- [email protected] Section 9-14-1 through 9-14-29. Department of Conservation and Natural esources - State Park System The State Park System is defined to be comprised of existing and after-acqqired parks, monuments and historical sites, and parkways. The statute provides the authority' by which sites designated by the Coastal Area Board to have particular scenic, historic, archaeological, scientific or aesthetic value may be preserved and maintained. The Department of Conservation and Natural Resources is specifically authorized to accept lands for inclusion within the State Park System (see Appendix B., Section D-3). Section 9-15-1 through 9-15-53. Department of Conservation and Natural -sources - State Lands Division. Authority over state owned lands for their utilization and management in accordance with the Management Program is provided. Control is assured over Lhe coastal lands and beaches from Eoastal waters up. to the mean high tide boundary, if effectively implemented. The legal authority to manage nd preserve this "unused" land will provide public access if effectively plemented (See Appendix B, Section D-4). 201 d) Sections 23-1-1 through 23-1-228. State Highway Department On the authority of the "Highway Beautification Act" the State Highway Director is "authorized to acquire land necessary for the restoration, preservation a:id enhancement of scenic beauty and the establishment of rest areas (associated with state highway)." By this authority, coastal areas having special aesthetic and scenic qualities may be preserved in accordance with coastal management program objectives (see Appendix B, Section G). 2. Federal Programs Federal programs useful to the provision of visual and physical public access in Alabama include: a) Coastal Zone Management Program Administration - Authorization: Coastal Zone Management Act of 1972, Section 306, Public Law 92-583; Coastal Zone Management Act Amendments Of 1976t Section 306, Public Law 94-370. - Administration: National Oceanic and Atmospheric Administration, Department of Commerce. Funds are channeled through the Alabama Coastal Area Board upon approval of the state's Coastal Zone C) Management Program. I - Eligibility: Any coastal state whose Coastal Zone Management Program has been approved by the Secretary of Commerce. - Types of Assistance: Project grants are available. At least 33 1/3 percent of the total project cost must be provided by tt.e applicant. Federal funds from other sources cannot be used to match. - Uses and Use Restrictions Applicable to Public Access: Grants may be used only to administer the State's approved Coastal Zone Management Program. States are encouraged to apply implementation-funding for these purposes in which there are national interests including the provision of access to and use of the shorefront and urban waterfronts. Other purposes includ., the management of designated areas of particular concern. b) Outdoor Recreation - Acquisition, Development, and Planning - Authorization: 16 U.S.t. 1-4 et seq. Land and Water [email protected]_, Fund Act of 1965; Public Law 88-578; 78 Stat. 897; as amended j.,;. Public Law 90-401 (82 Stat. 354); Public Law 91-485 (84 Stat. I Public Law 91-308 (84 Stat. 410) ; Public Law 92-347 (86 Stat. 4." Public Law 93-81 (87 Stat. 178); Public Law 94-422 (90 Stat. 1-,@ and Public Law 95-42 (91 Stat. 210). - Administration: Heritage Conservation and Recreation Service, Department of Interior. Funds are channeled through the [email protected],, Department of Conservation and Natural Resources, Outdoor Recr,j.,_ Section. 202 Eligibility: For acquisition and development grants, the DCNR Outdoor Recreation Service, may apply for assistance for itself, or on behalf of other state agencies or political subdivisions, such as cities, counties, or park districts. Individuals and private organizations are not eligible. Types of Assistance: Project grants available to 50 per cent of cost. Under certain conditions, all or part of the project sponsor's share may be from certain other Federal assistance programs, such as Title I Community Development. Funds are available for obligation during the fiscal year in which appropriated and for the following fiscal years. Uses and Use Restrictions Applicable to Public Access: Acquisition and development grants may be used for a wide range of outdoor recreation projects and support facilities for these same projects. Facilities must be open to the general public. Development of basic rather than elaborate facilities is favored. Priority consideration generally is given to projects serving urban populations. C) Economic Development - Grants and Loans for Public Works and Development Facilities Authorization: Public Works and Economic Development Act of 1965; Public Law 89-136, as amended; 42 U.S.C. 3131, 3132, 3135, 3141, 3171. Administration: Economic Development Administration, Department of Commerce. Eligibility: States, local subdivisions thereof, and private or public nonprofit organizations or associations representing a redevelopment area are eligible to receive grants and loans. Corporations and associations organized for profit are not eligible. Types of Assistance: Project Grants and Direct Loans. The basic grant rate may be up to 50 per cent of the project cost. Severely depressed areas that cannot match Federal funds may receive supplementary grants to bring the Federal contribution up to 80 per cent of the project cost. Additionally, redevelopment areas located within designated economic development districts may, subject to the 80 per cent maximum [email protected] grant limit, beeligible for a 10 per cent bonus on grants for public works projects. Long- term (up to 40 years) low interest loans may be made to the applicant when financial assistance is not otherwise available from private lenders or Federal agencies on terms which would permit accomplishment of the project. Uses and Use Restrictions Applicable to Public Access: Grants for public tourism facilities are available. To qualify, these projects must fulfill a pressing need of the area and must: 1) tend to 203 improve the opportunities for the successful establishment or expansion of industrial or commercial plants or facilities, 2) assist in the creation of additional long-term employment oppor- tunities, or 3) benefit the long-term unemployed and members of low-income familites or otherwise substantially further the objectives of the Economic [email protected],ity Act of 1964. In addition, proposed projects must be consistent with the currently approved overall economic development program for the area in which it is located. d) Public Land for Recreation, Public Purposes and Historic Monuments - Authorization: , Recreation and Public Purposes Act of June 14, 1926, as amended; 43 U.S.C. 869; 869-4, as amended by 90 Stat. 2759- 6o. - Administration: Bureau of Land Management, Department of the Intericr, - Eligibility: States, Federal and State instrumentalities and political subdivisions, including counties and municipalities, and nonprofit corporations. Individuals do not qualify. - Types of Assistance: The sale, exchange, or donation of property and goods is available. For public recreation purposes, a price of $2.50 per acre with a minimum of $50 per transaction, lease at $0.25 per acre per year with minimum payment of $10 per lease. - Uses and Use Restrictions Applicable to Public Access: Available public lands may be leased or purchased for public recreation and other recreational and public purposes. The applicant cannot secL!,e lands under this act for any use authorized under any other publrc land law. If applicant attempts to change use of land to other than that for which land is conveyed, or transfer title withc)ut consent of the Secretary of the Interior, title of land will revert to the United States. e) Disposal of Federal Surplus Real Property - Authorization: Section 203 of the Federal Property and Admirlistr.,.,. Services Act of 1949, 63 Stat. 385, as amended, 40 U.S.C. 484; Section 13 (g) of the Surplus Property Act of 1944, as amended tn U.S.C. App. 1622 (g); Public Law 80-537, 62 Stat. 240, as amen 16 U.S.C. 667 b-d; Section 414 of Public Law 91-152, 83 Stat. as amended, 40 U.S.C. 484b; and Section 218 of Public Law 91-64.6, 84 Stat. 1902, 42 U.S.C. 4638. - Administration: General Services Administration; applicatic.,If, made to the Heritage Conservation and Recreation Service, Depj_"' of the Interior. - Eligibility: States and local government agencies are eligibi-, apply for surplus real property for, park, recreational, a:A general public purposes. 204 Types of Assistance:, The sale, exchange, or donation of property and goods is available. Uses and Use Restrictions Applicable to Public Access: Surplus real property may be conveyed for public park or recreation use at discounts up to 100 per cent. Surplus property conveyed for public park or recreation use must be used for the purposes so conveyed in perpetuity. Surplus real property which is not deeded to public bodies is generally offered for sale to the public on a competitive bid basis. 3. Other Means to Provide Access Other states and political subdivisions have used various means to I, provide access to beaches. These means include a) the acquisition of fee simple and less than fee simple interest in land, water and other property, b) the acquisition in fee by gift, c) the legal determination 1 of public rights of access, d) police power, e) preferential taxation, J". and f) passage of legislation providing access. The Coastal Area Board j:@ may find some of these means useful in providing more public access, especially with respect to their five established priorities discussed earlier. I a)" Land for public access purposes can be obtained through the acquisition It @ @ @4; of fee simple or less than. fee simple interest. The Coastal Area Board is given the power to acquire fee simple and less than fee simple interest in land, water and other property under the procedures of Title V;k 19, Code of Alabama, or other means. This power is provided in Act 534 Section 51. Purchase of fee simple title involves the purchase of property by the state. This is the most direct means of acquiring access, however, because the state competes with other buyers for properties on the open market, this option can be the most expensive acquisition tool Purchase of fee simple title is efficient only where intensive use is anticipated and ownership would serve some useful public purpose. Less than fee simple interest involves the granting by the property owner of a limited right or set of rights to a second party. Easements, one form of less than fee simple interest, are generally purchased in circumstances in which it is unneccssary and unfeasible to purchase the land itself. Affirmative easements are rights to use land, negative easements preclude a use of land. A conservation easement is a method by which a,landowner can secure both present enjoyment of his land and future limitations on the land's use. The owner retains title; the easement precludes certain uses of the land. Future owners must take title subject to the terms of the easement. 205 Leasehold agreements, a common form of less than fee simple ownership, a lesser (owner of land) grants a lessee (interested party) the right to use the land in a speciFied manner for a limited period of time. At the time of lease expiration, the restricted rights revert to the lesser. b) Acquisition in fee by gift of land for public purposes is a highly desirable me-thod of conveying property. Donation holds advantages for the donor especially with regard to tax savings, and is a I relatively simple process which gives the state a measure of freedom to vary the uses of the property as it sees fit. The landowner can include use restrictions in the deed of transfer to ensure the land will be used according to the donor's wishes, however, the receiving government must accept the conditions attached to the grant. c) There are many theories supporting the creation of public access rights over private land o' -on-consenting landowners. Prescriptive easements refer to a process by which one person obtains the right to use another's land in a specified manner because of continued adverse and notorious use of this land for a considerable number of years. The original landholder maintains title, hOWever, law now recognizes a new party's right to continue that use. Adverse prescription and possession are legal doctrines which recognize that rightG to land may be obtained through use and may be applied to maintain public access. For these rights to apply, use of property in question must be actual, adverse, continuous and uninterrupted, and 4 either be so open, notorious, and visible,. that knowledge of the use is implied to the owner. In adverse possession, the claimant must be in possession of land, while under prescription, the claimant may have the use or privilege without possession. Implied dedication is a common law doctrine in which the landowner by his conduct has indicated his intent to dedicate his land for public use, and that public use itself is evidence of the public's intention to accept the dedication offered. The public acquires the right to continue the use of such property, regardless of the land- ownerls later intent or actions. The customary use doctrine establishes that customary use of land peaceably engaged, with or without landowner consent, for a long period of time without a claim of superior right interrupting ouch use, establishes public rights to that land irregardless of title. Securing beach access through the customary use doctrine, while requiring no capital outlay, would require lengthy court procedures and a documented history of public use. d) A fourth means of acquiring public access. is through police power. The two most useful police power techniques are the application of er-minent domain and the imposition of land use controls and regulati 206 Emminent domain is a process by which governmental entities can acquire proprietary interests in privately held land in exchange forIcompensation, regardless of the owner's willingness to sell. Compensation is usually fixed at market price, Land -acquired through this process must be used for public use or benefit. In acquiring shorelands and waters access with emminent domain, property can be condemned in fee, thereby acquiring land such as parking.lots and parks. A second and less expensive application of emminent domain is to condemn easements for public rights-of-way. A variety of land use and regulatory controls may be applied to secure and protect public access. Of course, for these regulations to be implemented, enabling legislation must be in place. Zoning is a widely applied regulatory mechanism to manage development activities. Aside from preventing non-confor-ming uses, zoning ation and open space zones. has now become a means of creating recre, Subdivision developers have'been subject. to a number of conditions for approval. These conditions might include the dedication of land for s treets and utilities, and even the dedication of land for parks. Further, water access lots might be required as a condition for approval. other examples of land use control and its application to public access include the provision of pedestrian accessways through or between privately owned land and the dedication of roads to the public and their extension to the beach. e) Preferential taxation is a process which can be applied to public access acquisition. A shoreland owner can be encouraged to maintain his property in low density development. Taxation is based on current use rather than assessment of potential. Postponement of taxes or deferral is another technique which can aid in providing public access, as can tax breaks as an incentive for land donation, discussed previously. A sixth approach to providing public access involves the statutory establishment of public rights to beach utilization and access. The Texas Open Beaches Act (Tex. Stat. Ann. Sec. 5415 (d) (Vernon Supp. 1972)) in effect since 1959, is a model for future legislation regarding public access. Two presumptions are made in the Act which provide the public access: 1) "the State (of Texas) never divested itself of its protection of the people's right to vise the beach by the grant in the beginning, and 2) that even if it did, in certain instances, and it can be shown, there is a presumption that the people have obtained a prescriptive right in the use of the beach by long usage." (Eckhardt, 1974) The designation of a public zone and recognition of public rights is the necessary basis for a legislatively initiated access development program. 207 @[email protected] ate of Alaska Coastal Manazetmmu-1.nit Program and Final Environ, m-ental Impact State w.,.Lent @L=- Sim ol Mdquh U.S up[milt 011. con! Mon 0111ce 01 Codsidl Zone Mdupnenl PREFACE Unlike other coastal states, Alaska,'s 33,904 miles of coastline is virtually undeveloped and access to and along the shoreline is for the most part unhindered. However, there are many current developments that could dramatically change this situation. Industrial and residential construction in developed areas, d-2 legislation, Native land selection, homesteading, resource development and natural resource extraction will all affect the amount and location of shoreline available for public use. The Alaska shoreline abounds with traditional and potential public use areas. Coastal areas have long been major tourist attractions. Recre- ation is one of the primary uses of the Alaska shoreline. The developments above can, and probably will, isolate vast coastline areas from public use. Public access to the shoreline should be planned for now to insure continued public use and enjoyment of this important natural resource. This planning process is developed in the spirit of the increasing awareness of the value of wise management of the coastal zone resource. The time factor for implementing this program is short. As each of the mentioned issues is settled, the preservation of public use areas and the reservation of access will become more difficult. 453 I.. INTRODUCTION The federal Coastal Zone Management Act of 1972, as amended, speci- fically calls for states to develop a planning and management process to address public access tb and protection of coastal areas. Federal regulations pursuant to, Section 1305 (b)(7) of the Act cite six elements that are required in order for a state to adequately address the access and protection issue in the context ofits coastal management program. This addresses the questions enumerated in federal program approval regulations and describes the state's coastal planning process which assures that public access to coastal resources is adequately considered through the Alaska Coastal Management Program. Accordingly, this discusses, in major part, current issues that affect shoreline USE and access; the importance of assuring access to certain areas; and the need for additional, coordinated planning and management activities to evaluate and manage areas that are critical for public access. section 11 discusses, in brief, the origins of public concern for access to coastal areas. Section III discusses a number of important statewide issues that,will affect or limit shoreline access. Section IV discusses technical and.legal definitions that apply to beaches., including a . summary of state regulations relating to shoreline access and protection. Section V identifies critical areas (generically and specifically) where access and protection should be provided. Section VI describes the planning progra.m. II. HISTORICAL PERSPECT1VE The conflict of private use versus public use of the coastal shoreline and tidelands dates back to the time of England's Magna Charta, the foundation of English Common Law, which is the basis of the American @legal system. At this time in England's history, private title to the coastlands was interferring with coastal commercial activity. English common law expancfed the [email protected]_publicum (public rights) principle to hold the shoreline and tidelands in public trust, even if title had been granted to individual subjects. These public rights to the shoreline held fast up to the time of American Independence and were maintained by .the original 13 states and passed on to the non-col,onial states as they were admitted to the Union. In short, early American law clearly intended for the states to hold title,to their tidelands and submerged lands. The recent history of legislation concerning coastal zone management and shoreline access in Alaska can be traced to the 1940's and 1950's when ,the federal government expanded the states' boundaries to include a point three geographical miles seaward of the ordinary low water mark outside inland waters with the passage of the Submerged Lands Act of 1953 (Public Law 83-31;.67 Stat. 29). When the Alaska Statehood Act of 1959 (Public Law 85-508),became law, Alaska received full ownership of 4 5 4r its tidelands and submerged lands pursuant o-f the Submerged Lands Act of 1953. The Alaska Constitution further addresses shoreline access in Article VIII when it discusses common use of resources in their natural state (Section 3) and public access to navigable and public waters (Section 14). The environmental awakening years in the late 1960's saw certain states, such as Oregon, move to preserve their beaches for public use. The 'Oregon Beach Bill of 1967 (Chapter 601 of 1967) assured continued public use of Oregon's beaches based on doctrines of customary use. Later, the U.S. Congress, realizing the importance of coastal resources, enacted the Coastal Zone Management Act of 1972 (Public Law 92-583, 86 Stat. 1280) and the Coastal Zone Management Act Amendments of 1976 (Public ffaw 94-370). These laws not only recognized the commercial and industrial importance of the coastal zone, but also the importance of the natural, recreational, ecological, cultural, and historic resources to the present and future well-being of the people of individual states and the nation as a whole. Alaska, working within the federal framework,. enacted the Alaska Coastal Management Act of 1977. This act established the basic framework in which the Alaska Coastal Management Program is to evolve. In summary, three themes are evident: 1. Both Congress and the Alaska Legislature have recognized the im- portance of the proper management of the coasta-1 zone for the benefit and enjoyment of the people now and in the future with the nassage of their respective Coastal Zone Management Acts. 2. The State of Alaska, therefore its people, owns the.tidelands, submerged lands, and lands beneath navigable and public waters. 3. The federal government and the.Alaska State Constitution recognize the importance ofaccess to coastal shoreline areas and navigable. waters. NT III. CURRE I ALASKA ISSUES AFFECTING SHORELINE ACCESS Many current issues will have a significant effect on shoreline access in Alaska. These issues can be grouped under the general headings of upland ownership, tideland ownership, and local and state coastal manage- ment planning programs. The generally unrestricted access to the coastal zone enjoyed by past generations of Alaskans is coming to a rapid end. 'Shoreline access will become more and more limited as each one of these issues is settled. These issues exemplify the usefulness of a compre- hensive planning,process that will identify and, reserve shoreline access and protect shorefront [email protected] 4 5 5- A. Upland Ownership Land ownership patterns in upland areas can play a critical role in planning programs to protect public access opportunities. A number of issues in Alaska relate to future public coastal access. 1. Alaska Native Claims Settlement Act The Alaska Native Claims Settlement Act (ANCSA) will have a lasting effect on shoreline access in Alaska. Forty-four million acres of unreserved federal land will be transferred to the Native Corpor- ations, and 26 percent of all coastal townships contain Native selections. Section 17(b)(1) of ANCSA cave the authority to review and reserve easements through Native selected lands to the joint Federal-State Land Use Planninq Team (LUPT). The LUPT relinquished its authority to the Secretary of the Interior, who delegated the task to State Director of the Bureu of Land Management (BLM). Guidelines for reviewing easements through Native selected lands were promulgated in 1976 by Secretatial Order 2982. Included in this order was a continous shoreline easement 25 feet above the mean high water mark. Order 2982 was successfully con- tested in District Court by the Native Corporations in Calista v. Andrus, 435 F. Supp. 664 (D. AK 1977). Current Secretarial poli- cies assure that public access easements which are necessary for access to public lands and major waterways will be reserved. General easements for recreation and scenic purposes will not be reserved before or after conveyance of lands under ANCSA. Access easements will be granted only through Native selected lands to preserve existing transportation corridor's between two coastal communities, two upland public land areas, or a community and a public land area. Access easements will also be reserved across Native selected lands to the coastline only if significant present use occurs on lands below the mean high tide mark. Site easements may be reserved for boat and float plane pullout access upon a shore and for temporary camping, loading, or un- loading for a period of no wore than 24 hours upon a shore, along an access route, at a trailhead, or within a reasonable distance of these points where it is necessary to provide for the use of and access to public lands and major waterways. Site easements will be designated on the coastline only at determined intervals along the coast where there is a need to use coastal waters for travel or access to upland publiclands. The spirit of the current easement policy, however, is to grant a minimum number only where necessary and only then no alternatives are available. Further, the BLM intends to designate all easements by September of 1978. 2. D-2 Legislation Section 17 (d)(2) of the granted the Secretary of the Interior authority to withdraw up to 30 million acres Of unreserved public lands and to add them to the National Park,.Forest, Wildlife Refuge, and Wild and Scenic Rivers Systems in Alaska. Wilderness classifi- 456 cation may disallow most vehicular traffic. Pending d-2 legislat-ion, if enacted, will have a limiting effect cn shoreline access for vehicular oriented recreation. Access through the wilderness areas to the shoreline will be provided for foot travel. Boats will be permitted unlimited access to the shoreline from saltwater. Aircraft access will be allowed where landing sites have been used. D-2 lands not classified wilderness may permit some roads for vehicular access. The extent of:shoreline access on d-2 lands will depend on the final classification of these lands. Non-wilderness National Forest and National Refuge lands will potentially be the least restrictive, allowing access to most recreationists. Lands classified wilderness would be the most limiting, allowing access via navigable saltwater (byboat or floatplane), on foot and in special situations by air in upland areas. All valid existing rights will be recognized on d-2 lands. 3. Subdivision of Private Lands -In the past, shoreline access in Alaska has been virtually un- restricted. In many cases, people have gained access to the shoreline by traversing or trespassing over whatever land they had to, whether it was private, borough, state or federal. Alaska's small population and lack of development have made this situation possible. However, in recent years, Alaska's population has grown tremendously and urban expansion and second homes out-side popula- tion centers have become more coingion.. This trend will continue. To meet the demand, of the increasing urban and community develop- ment and second hcme development and to cope with high property taxes, landowners in outlying areas are subdividing their holdings. The Matanuska Valley and Kenai Peninsula are areas where subdivid- .ing activities are evident. These activities are reducing access to the shoreline. 4. Uses of Public Lands Adverse to Shoreline Access Certain uses of state public lands could have a lasting adverse effect on shoreline access. Ideally ' if an individual Teases or purchases state lands adjacent to the shoreline, public access will be guaranteed in accordance with Alaska Statute 38.05.127. How- ever, there are cases where the conveyance or leasing.of public lands caused the disruption of access from one point on the shore- line to another. The shoreline staging dock at Nikiski oil the Kenai Peninsula is an.example.of industrial activity disruptingthe [email protected] along the coastline below the mean high water mark. Numerous other cases of,this situation at-e documented.in coiiiniunities such as Cordova, Juneau, Ketchikart and Kodiak, where filling of tidelands.has occurred for industrial purposes, Shoreline access also has a visual as well as physical mode. Industrialization, urban development, and other activities can disrupt visualaccess to the coastal zone. [email protected] 5. Land Disposal Activities Various state land disposal act ivities have been touched upon in previous sections. The Department of Natural Resources, Division of Land and Water Management is directed in 11 AAC 70.030 to in- clude in land planning and disposal activities, provisions for access to public or navigable waters and to lands where heavy recreation or non-recre.ational use exists or is expected. Homesteading is one type of land [email protected],al employed by the state. Present and proposed homesteading activities, if not properly controlled, will have a significant affect on shoreline.access as well as overall land management activities in the State. Home- steading will remove land froi,,i public use and restrict public access in varying degrees. Where Alaskans once had unrestrictive access they might find homesites with "no trespassing" signs. Uncontrolled homesteading could also disrupt visual access to the shoreline. Access to navigable waters along section line easements is not sufficient as these easements are not located with regard to topography, highviays, resources valued by the public, or other adjacent land uses. Another means of disposing land is by leasing or sellinq acreaqe for recreational or residential, agricultural, or resource development,use. 6. Vacation of Easements An e6senient, when referring to coastal navigable and public waters, is defined by 11 AAC 70.910 as "the perpetual public riqht of access to the water and recreational use of the land covered by the easement; it does not include the right to canip overnight, to cut trees, to build structures, or trespass beyond the easement." When property owners subdivide their lands they are usually re- quired to provide easements to each lot. Lasements are also re- served 6,n section lines. for utilities. . Fa,,eim-nts, way al,lo he obtained by customary use, dedication, and prescription. Ihe majority of these are public property and individuals have the right to use these easements for public access. But these easements are @often unmarked or undeveloped arid thus unknown to the general public. State and local governments way vocate or make void these easements or rights-of-way and sell them to the adjoininq property owner(s). The public land thus becoiiies private and public access is blocked. The vacation of easements by yuvernments can have a significant effect-on limiting upland access to coastal resources il Undertaken indiscriminately. 458 B. Tideland Ownership State ownership of tidelands provides a major capability to assure public access is protected. Two issues are important when considering access across these lands. 1. Tideland Leasing The State of Alaska owns all tidal and submerged lands from the mean high tide mark seaward for three nautical miles. The State holds title to the natural resources found in these lands (totaling about 34 million acres) except for some 25,000 acres of tidelands conveyed to individuals and muncipalities who were required to exercise their preference rights prior to 1965. The State may lease.tidelands and submerged lands to private parties for resource extraction. Present tideland leases retain for the State the right to provide easements across leased lands. This provision becomes more important with the increasing number of tideland leases being let each year because these leases will have the net effect of limiting access across the tideland. 2. Dredging and Filling Dredging and filling activities can block passage from one point on the shoreline to another or from one point oi,, the shoreline to a point on the tidelands. These activities limit longshore access and access across the tidelands. Although tideland lease agreements and easement regulations reserve access rights to the State, dredging and filling activities as well as tideland leases for resource extraction may disrupt historic uses of these lands as well as critical habitat are,-- IV. DEFINITION OF BEACH This section defines "beach" in terms of those areas of the coast which will be addressed in the shorefront access and protection planning process. The ACMP Guidelines define "beach" as follows: "the area affected by wave action directly from the sea" (6 AAC 85.900(l)). The ACMP Standards define "coastal water" as "all water bodies in the coastal area, including wetlands and the intertidal area" (6 AAC 80.900(2)). "Wetlands" include those vegetated areas extending from extreme low tide to an area above exLreme high tide which is influenced by sea spray or tidally-induced water table changes (6 AAC 80.900(19)).. Intertidal areas are those areas subject to periodic or occasional.inundation by tides (6 AAC 85.900(8)). Hence, as defined above, those areas subject to the shorefront access and protection planning process are beaches and coastal waters. 459 V. CRITICAL AREAS WHERE SHORELINE ACCESS AND PROTECTION SHOULD BE PROVIDED The state and federal coastal management acts recognize that the coastal zone is. comprised of a variety of resources. These resources are to be managed in the best interest of the Public. Recreation, historic, scenic, and wilderness resources are among these mentioned by the acts. Protection of and assurance of access to these areas should be facilitated by im- plementation of the ACMP. A. Shoreline Recreation Areas Shoreline recreation is one of the major activities that occurs in the coastal zone. The shoreline provides the public with a complete spectrum of recreation activities. In Alaska, these activities include, in part, hunting, fishing, clamming, camping, hiking, boating, wildlife observa- tion, and beachcombing. The demand for shoreline access and recreation areas is increasing as their availability is decreasing. This trend is evident nationwide. Ducsik (1974) comments on the demand for shore- line recreation: "The demand for outdoor recreation, especially that which is water oriented, is growing rapidly as the trends toward more leisure time, more real income, and greater mobility enable larger proportions Of our growing population to seek recrea- tion of all types. The American coastal shoreline, as a unique recreational resource, is ideally situated to accommodate a wide range of, these activities; wost planners agree that the "hidden demands for recreational use of this resource are enormous, limited only by effective supply..." The limiting effects of the issues discussed earlier may not become apparent for some time. However, it is important to institute protective measures to insure shoreline access for recreational and other purposes and to set aside areas of importance. The Alaska Coastal Policy Council has responded gener- ally to shoreline access concerns by making the provision of access a high priority for district coastal programs and state agency activities in 6 AAC 8O.060. B. Shoreline Historic Sites Alaska's coastal area has been acenter for cultural development throughout man's history. Alaska Natives now and in the past have depended on coastal resources for food, clothing, shelter. and transportation. Early Russian settlers established trade centers on the coast. Gold seekers entered Alaska through the coastal communities of Skagway, Valdez and Nome. Today, the majority of Alaska's residents live in coastal communities. Coastal areas are rich in sites of historical and archaeological significance. Statewide, nearly 4,000 sites have been identified and catalogued by the State Division of Parks Office of History and Archaeoloqy -- 2,500 of which are located in coastal areas. A recent visitor survey conducted by the Division of Parks (1978) indicates that visiting historical areas is one of the top 10 activities pursued by people visiting state park areas. A marketing survey by the.Alaska Travel Marketing Council showed visiting historic communities and resources to be an important "attractor" for the tourism industry. However, as commercial and residential development expands, the possibility of conflict rises. 460 The state has, in the ACMP Standards, a general obligation to identify historic, prehistoric, arid archaeological sites at the state and local level. (6 AAC 80.150.)' In-addition, for protection of such sites, and for planning the protection of such resources, the state has a number of existing statutory provisions: The Department of Natural Resources shall develop a continuing plan for the conservation and maximum use in the public interest of the historic, archaeological and scientific resources of the state. (AS 41.20.020) The Department of Natural ResourcLs, shall locate, identify, and preserve in suitable records information regardinq historic, pre- historic and archaeological sites, locations and remains. The information shall be submitted to the heads of the executive agen- cies of the state. (AS 41.35.070) Prior to public construction or public improveirent.of any nature which is undertaken by the state or by a private person under contract with or licensed by the state, the Alaska Department of Natural Resources may survey the affected area. If the Department determines that historic, prehistoric or archaeological values will be adversely affected by the proJect, the project may not be com- menced until the Department has performed the necessary field work. Should artifacts be discovered during construction, the Department shall be notified and may stop the project until field [email protected] is completed. The cost of field work shall be paid by the agency spon- soring the project. (AS 41.35.070) A permit from the Department of Natural Resources is required prior 4 C to appropriation, excavation, removal or destruction of any historl ,prehistoric or archaeological resources of the state. (AS 41.35.200) C. Coastal Scenic Resources The entire Alaska coastline is a scenic resource. Some areas on the coastline have more dramatic and spectacular scenic values than others. Visual and physical access are equally important for the enjoyment of scenic resources. Commercial and residential development can seriously disrupt visual access to the shoreline from public places. The City of Anchorage is an example where commercial development has partially disrupted visual access to the scenic.features of the shoreline. Physical access to and longshore access between the significant coastal resources can be disrupted by any of the developments discussed in earlier sections. Homesteading, industrial development, d-2, etc., all will limit the amount of available access to the scenic resources of the shoreline. The West Kenai Peninsula shoreline is noted as',being a magnificent scenic. resource. Subd.ivision.of private lands and resi- dential development are,.greatlY limiting the amount of physical access to the West Kenai shore. This trend will continue, increase and affect other areas as population pressur,- increase. D. Coastal Wilderness Resources The Alaska Coastal Management Program conducted a series of workshops from September through November 1978. Nearly 2,000 questionnaires were filled out and returned at the workshop and through the mail. The purpose of tile workshops was to educate the public on the functions of the Coastal Zone Management Program and to determine the primary concerns of the inhabitants of coastal communities. When asked if wilderness preservation near the coastal areas of their communities would be beneficial, 62% responded good, 20% bad, 13% no effect, and 5% other. The concept of wilderness is vague. Wlilderness is a personal state of mind. To one person, a bicycle ride in one of Anchorage's greenbelt areas is a wilderness experience. To another, wilderness would be kayaking along the pristine coastline of Prince William Sound. To some, the experience is just knowing that there is wilderness to enjoy. Generally, wilderness can be defined as an area where man is a visitor and the land and its systems are untrammeled by man. The majority of communities surveyed by the Coastal Zone Management Program consider wilderness beneficial or good for their community. Presently, all federal land managing agencies are reviewing all lands under their management to identify any areas that meet the requirements of the National Wilderness Preservation Act of 1964. They will make recommendations for areas to be included into the National Wilderness System. The Alaska Division of Parks plans tn introduce wilderness proposals to add areas to the state park system. Several wilderness proposals are included in d-2 legislation. Many areas in Alaska are de facto wilderness because inaccessibility and rugged topography and will remain such after other wilderness legislation is completed. Wilderness areas, by their very nature, limit access through them to pedestrian travel. Most motorized vehicles will he disallowed in wilder- ness areas. Shoreline access by boat or floatplane is permissible unless natural hazards prevent safe docking or landing. These areas will provide an opportunity, for those able, to enjoy a wilderness experience. Perhaps the most critical issue facing wilderness today is not the preservation of such areas but providing access to them. Me Alaska Native Claims Settlement Act and private land owership, as discussed. earlier, will significantly limit access to wilderness areas. Upland access to wilderness areas, as well as other public areas, is in jeopardy after the Native lands are conveyed. After conveyance, easements can either be purchased or obtained through the power of eminent domain. If the wilderness area borders the coastline, access to the area by way of the coastline is assured. However, natural hazards may prohibit access through the coastline, therefore, isolating the area without access. 462 VI. ACCESS AND PROTECTION STANDARDS AND RULES The most important state regulations concerninq shoreline access and protection are contained in the ACHP Guidel ines and Standards set forth in 6 AAC Chapter 80. 6 AAC 80.060, "Recreation," provides: Districts shall desionate areas for recreational use. Criteria for designation of areas of recreational use are: (1) the area receives significant use by persons engaging in,recreational pursuits or is a major tourist destination; or (2) the area has potential for high quality recreational use because o,f physical, biological, or cultural fcatures.,- Because the designation of recreational areas on or near the shoreline would be pointless if access to those areas were not also provided for in district programs, a requirement to +that effect could be read into the "Recreation" standard. In order to make this requirement explicit and to clarify that it applies to activities of state agencies in the coastal area, thei Alaska Coastal Policy Council, at its December 14, 1973, meeting, added the following new subsection to 6 AAC 80.060: (b) Districts and state anencies shall give high priority to maintaining [email protected], where appropriate, increasing public access to coastal waters. This provision will go into effect upon its approval by the legislature., 6 AAC .80.160 provides for the designation. by districts, the Council, and other agencies of "areas which merit special attention" (AM'Ws). The types of areas suitable for designation and subsequent protection cire listed in the standard and in AS 46.35.210(l). Aw,onq these are: "areas of substantial recreational value or opportunity" "areas needed to protect, maintain, or replenish coastal land or resources, including... beaches..." Hence, this special area designation is available for heightened attention to shorefront access and protection. It should also be noted that, of the habitat standards contained in 6 AAC cliffs, barrier islands 80.130, those dealing with. rocky islands and sea, and 'lagoons, and exposed high energy coasts help assure the protection of beaches. The other habitat standards in general assure the protection of both beaches and coastal waters. There are also.other existing state repulation-s pertaining to shoreline access. The state 'DIepartment of Natural Resou-rces, Division of Land and %J Water Management is responsible for the establishment of easements and rights-of-way across conveyed lands to navigable. arid public waters (11 AAIC 70.00). Oceans, seas., bays, arid inlets are defined as navigable or public waters by AS 38.05.365. 11 AAC 70.011,10 perLainino to easements to and along navigable and pUblic waters, states: "The director shall reserve a continous easement for public access along any water affected by tidal action when land adjacent to that water is conveyed unless the director deter- mines that such an easement -is contrary to public interest. The easement must extend 25 feet Upland and 25 feet seaward of the mean highwater line. Where access along the easement is difficult because of topography of obstructions, an alternate upland access route may also be reserved. If reasonable access is not otherwise available, the director shall reserve an easement or, right-of-way to provide access to coastal or inland navigable or public waters in the c(,,riveyance of land adjaceni to or containina that water unless tile director, determines that such an easement is contrary to the public interest. The easement must be at least 25 feet wide. Further additional easevients may be reserved to provide increased access where heavy recreational or non-recreational activity exists or is anticipated, to protect port-age routes, or to secure access between aircraft landing sites and nearby navigable or public waters. ie In determining the easewents to.be reserved to and alonq navirable and public @,.,ater, the director shall solicit comment from the [email protected]@ent of Fish and Gai,,ie and the Division of Parks and, if appropriate, from other state and municipal agencies." The authority for these rules is granted by Alaska Statutes 38.05.020, 38.05.035, and '68.05.127. Alaska Statutes 38.05.020, 38.05.070, 38.05.035, and 38.05.127 grant the power to lease state owned lands, includinq tidelands, submerged lands, and lands adjacent to coastlines. Written into.the C.Urrent tideland lease agreement are the following stipulations concerning access and certain recreation,activities: "Tile Lessor (State) expressly reserves the right to grant edsements jr ri( -0its-cf-way across the land herein leased if it is determined to be in the best interest of tile State to do so provided, however ' that tile Lessee L shall be Prititled .(local government or- private party) to compensation for all improvewents or crops.which are damaged or destroyed as a direct result of the easerient 01' right-of-way. IF The Lessee shall not deny the lawful pursuit or the hunting of game or the taking of fish, provided, however, the Director, upon request in writing, may allow the lands leased herein, or portions thereof, to be Posted to prohibit hunting and fishing when it appears necessary in order to properly pro- tect the Lessee and his property." VII. [email protected] GENERAL PLANNING PROCESS The basic planning process for provision of access to coastal areas is embodied in the district coastal program development process. In organized areas districts will assess shorefront access and protection needs; inventor; resources including land and water areas, uses, and ownership of' these areas; analyze resources in terms of anticipated needs and the environmental capability of lands and waters for uses. and activities; and develop policies for shorefront access and pro- tection. District programs will also include methods for implementing the programs and provisions for access. The process will also rely on the efforts of state agencies, especially the Departments of Fish and Game and Natural Resources. The state will continue its programs of park and recreation area development and v,,ill probably continue the current practices of selecting park areas on and near shorelines, and imposing access conditions on disposal and lease of state-owned lands. Both phases.of the process must comply with the ACMP Guidelines and Standards, and will utilize the ACMP authorities and procedures for i nip l ementati on. The protection of shoreline areas will also be assured through the district program development and implementation process and state agency activities subject to the ACIMP Guidelines and Standards , particularly the habitat standards of 6 AAC 80.130. In addition, however, the special management designation procedures described in Part II, Chapter 4, will be available for this purpose. Another means for protecting or providing shoreline access lies in the Department of Natural Resources. The Division of Lands may reserve easements or rights-of-way,for access over state lands which are conveyed to.others (11 AAC 70.030)'. VIII. FUNDING SOURCES FOR FURTHER PROGRAM DEVELOPMENT, RESEARCH, AND ACQUISITION OF SHORELINE ACCESS Funding sources are available to conduct further research and planning studies concerning shoreline access. These studies'woUld further develop the Alaska Coastal Manacement Program's ability to meet the requirements of section (7) of the federal Coastal @one Mananewent Act. Fundina is madt], 305(b) L available for program. expansion through section 306 nianagew-: ,[email protected] prograrn devel opment grants: Furthor fundinci for resu.-i-ch and plarining activities is available throunh the Coastal Enero 'y Tinpact Program [email protected] by the 1976 A;ticndwents to the CZIMA. SecLion 310 of the amended Act makes planning grants available for research studies and technical assistance. PC the planning and research studies indicate -that the purchase of easements is necessary to insure shoreline access, Secticn 315 of the CZMA provides federal grants to purchase such easements. Grants are also available for acquisition through the Land and Water Conservation Fund administered by the Heritage Conservation and Recreation Service, U. S. Department of Interior 46-10 CALIFORNIA Coastal program administrators in California have taken an aggressive stance on increasing public access to the state's shore. To some extent their commitment has been legally reinforced by the California Constitution; while the public beach in this state is legally defined as the area from mean high tide seaward, the state constitution prohibits blocking access to the public beach. Thus, the state's aggressive stance on making public access a condition of coastal ievelopment oermits continues to be upheld in the courts. Required access may range from the dedication of an easement to the provision of a bike path, to the construction of a parking lot, de- pending on the size and location of the project. The reg'ional costal commissions are presently working with local governments to develop their local coastal zone plans and procedures for implementation. Access is an issue which is being addressed through plans and ordinances, as well as the permitting procedures which the local governments will soon inherit from the regional commissions. Although development permit requirements are resulting in the dedication of numerous easements for public access to the shore, Proposition 13 has stymied their utilization. The state legislature requires that somebody must agree to maintain a right-of-way before it may be opened to the public. Proposition 13 cuts have discouraged local governments from accepting the burden of funding maintenance, security, and liability for these areas. Thus, many rights-of-way CALIFORNIA 2 which have been dedicated to the public remain legally closed. The California Coastal Commission and the California Coastal Conservancy are working together to identify these areas and find agencies or homeowner groups willing to maintain them. Many transit authorities are providing bus access to coastal areas. These initiatives are not financially supported by the state coastal program, but the California Coastal Commission is encouraging local governments to arrange such services. Approximately $250,000,000 worth of state bonds have been approved in the past six years for shorefront acquisition. The California Coastal Commission is also committed to opening up housing opportunities along the coast for all income groups. Approxi- mately 25% of the units in permit-seeking developments along the coast must be se t aside for low and/or moderate income households. In many cases the local housing authority is given the right of first refusal in an effort to insure that these units will remain available for people in these income groups and not be sold for great profit later. UNITED STATES DEPARTMENT OF COMMERCE COMBINED STATE OF CALIFORNIA COASTAL MANAGEMENT PROGRAM (SEGMENT)* AND FINAL ENVIRONMENTAL IMPACT STATEMENT AUGUST, 1977 PREPARED BY: OFFICE OF COASTAL ZONE MANAGEMENT NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION 3300 WHITEHAVEN STREET, N.W. WASHINGTON, D.C. 20235 AND CALIFORNIA COASTAL COMMISSION 1540 MARKET STREET SAN FRANCISCO, CA 94104 *For the purposes of coastal zone management, California has been divided into segments including the areas covered by the Coastal Act and the Bay Plan. The San Francisco Bay Conservation and Development Commission (BCDC) submitted a program to OCZM in accordance with Section 306(h) of the CZMA. The BCDC program was approved by the Secretary of Commerce on February 16, 1977. This program covers the Test of the coastal zone of the State. B. Public Access Public access to all coastal tidel:uids is guziranteed by the California Constitution. Over the years, this Tight has been expanded by various statutes and court decisions that [email protected];iized the historical public use of the coastline for recreation. Moreover, nearly half of California's 1,072 mile coastline is in public ownership, although about 75 miles of the publicly awmed shoreline are along military lands generally not available for public access. Despite these legal givirantees and historic public use of the California coastline, much access to the shoreline was lost when homes, businesses, and industries cut off existing pubiic ac,:ess to the shore. Increasing recreation demands put a heavy burden on the publicly Owned recreation areas. As a result of this situation, Much Of the debate over whether Proposition 20 should bc approved focused on the public access issue. To address this problem, Proposition 20 required that a public access element be developed 3s part of the coastal planning process so that maximum visLuil and physical U-se of the coastal' zone by the public could be achieved. MorCOVeT, while the Coastal Plan was being prepared, the Coastal Conardssion was required to condition most development permits that it issued so that access would be provided as a part of new coastal projects. As a result of the Coastal Comsission's analysis of the public access issue, a major section of the Coastal Plan was devoted to the subject (sL.,. '-oastal Plan, pp. IS2-IS7). Another section oi the Coastal plan (pp. 173-174) addressed the need for public acquisition of some coastal lands for Vie purposes of increasing public access and protecting coastal rcsOLLI'CeS. A third section of the Coastal Plan outlined a proposal for a new State agency that would be empowered to protect coastal resources and to increase public access through a variety of acquisition and management techniques (see Coastal Plan, pp. 192-193). Because the Coastal Conussion's assessment of public access needs found that the shortage of access would become more critical as more of the coast is developed, both the Coastal Plan and the Coastal Act call for the provision of access along much of the coast except where special problems are encountered. The Coastal Act's basic access policy states: "The Legislature . . . finds and declares thkIt the basic goals for the state for the coastal zone are to . . .(c) maximize public access to and along the coast and maximize public recreational opportunities in the coastal zone consistent with sound resource conservation principles and constitutionally protected rights of private property owners." (30001.5) Statutory Provisions. Chapter 4, Section C (Geographic Areas of Particular Concern Within the Coastal @one) discusses the types of areas that need special protection and outlines the management policies that will apply to these areas.- The State's major polices on shoreline access make up Article 2 of Chapter 3 of the Coastal Act and include: "In carrying out the requirement of Section 2 of Article XV of the California Constitution, maximum access, which shall be conspicuously.posted, and recreational opportunities shall be provided for all the people consistent with public safety needs and the need to protect public rights, rights of private property owners, and natural resource areas from overuse." (30210) "Development shall not interfere with the public's right of access to the sea where acquired through use, or legislative authorization, including, but not limited to, the use of dry sand and rocky coastal beaches to the first line of terrestrial vegetation." (30211) "Public access from the nearest public roadway to the shoreline and along the coast shall be provided in new development projects except where (1) it is inccnsistent with public safety, military security needs, or the protection of fragile coastal resources, (2) adequate access exists nearby, or (3) agriculture would be adversely affected. Dedicated accessway shall not be required to be opened to public use until a public agency or private association agrees to accept responsibility for maintenance and liability of the accessway." (30212) "Nothing in this division shall restrict public access nor shall it excuse the performance of duties and responsibilities of public agencies which are required by Sections 664718.1 to 66478.14, inclusive of the Government Code and by Section 2 of Article XV of the California Constitution." (30212) 'IN'herever appropriate and feasible, public facilities, including parking areas or facilities, shall be distributed throughout an area so as to mitigate against the impacts, social and otherwise, of overcrowding or overuse by the public of any single area." (30212.5) "Lower cost visitor and recreational facilities, and housing opportunities for persons of low and moderate income shall be protected, encouraged, and, where feasible, provided. Developments providing public recreational opportunities are preferred. New housing in the coastal zone shall be 'developed in conformity with the standards, policies, and goals of local housing elements adopted in accordance with the requirements of subdivision (c) of Section 6S302 of the Government Code." (30213) Section 30211 contains California's definition of "beach" that is called for in Sections 305(b)(7) of the C-"MA, it is "dry sand and rocky coastal beaches to the first line of terrestrial vegetation". In addition to these policies that.address public access directly, two of the Coastal Act's policies on development amplify the need to protect both physical and visual access to the coast. These policies state: 'Mne scenicand visual qualities of coastal areas shall be considered and protected as a resource of public bTiportance. Permitted development shall be sited and designed to protect views to and along the ocean and scenic coastal areas, to minimize the alteration of natural land forms, to be visually compatible with the character of surroLziding areas, and where feasible, to restore and enhance visual quality in visually degraded areas. New development in highly scenic areas such as those designated in the California Coastline Preservation and Recreation Plan prepared by the Department of Parks and Recreation and by local government shall be subordinate to the character of its setting". (30251) "The location and amount of new development should maintain,and enhance public access to the coast by (1) facilitating the provision or extension of transit service, (2) pro- viding commercial facilities within or adjoining residential development or in other areas that will minimize the use of coastal access roads, (3) providing non-automibile circulation within the development, (4) providing adequate parking facilities or providing substitute means of serving the development with public transportation, (S) assuring the potential for public transit for high intensity uses such as high-rise offic6 buildings, and by (6) assuring that the recreational needs of new residents will not overload nearby coastal recreation areas by correlating the amount of development with local park acquisition and development plans with the provision of onsite recreational facilities to serve the new development". (302S2) Decisions on the appropriateness of public access in a particular area will be made under the provisions of Section 30212 through the Coastal Commission's regulatory process and through the local coastal program development process. 74 ementation Techniques Three major legislative elements were enacted in California in 1976 that provide techniques for the continuing refinement, implementation, and management of areas needing protection or public access. First is the Coastal Act with its access and resource protection policies that will be implemented by the Coastal Commission and incorporated into local coastal programs. The second implementation tool available is provided by the establishment of the State Coastal Conservancy, which has at its disposal a number of techniques for the preservation of agricultural lands, restoration, enhancement, reserva- tion, and protection of coastal resources, and increase of public accessways. The State Coastal Conservancy is discussed further in Chapter 10, Section C. The enactment of the State Urban Coastal Park Bond Act of 1976 is the third major program that is available to implement the State's access and resource protection policies. The Bond Act was approved by California voters in November 1976. It provides $145 million for the acquisition of coastal areas and $10 million for the State Coastal Conservancy to begin its program. In enacting the Bond Act, the State Legislature stated that: "There is a pressing need to provide statutory authority and funding for a coordinated state program designed to provide expanded public access to the coast, to preserve prime coastal agricultural lands, and to restore and enhance natural and man-made coastal environments." (5O96.113(j)) In purchasing areas with funds provided by the Bond Act, the following criteria and priorities will be used: "(1) The first priority for the acquisition of coastal recreational resources is as follows: (i) Land and water areas best suited to serve the recreational needs of urban populations. (ii) Land and water areas of significant environmental importance, such as habitat protection. (iii) Land and water areas in either of the above categories shall be given the highest priority when incompatible uses threaten to destroy or substantially diminish the resource value of such area. (2) The second priority for the acquisition of coastal recreational resources is as follows: (i) Land for physical and visual access to the coastline where public access opportunities are inadequate or could be impeded by incompatible uses. (ii) Remaining areas of high recreational value. (iii) Areas proposed as a coastal reserve or preserve, including areas that are restricted natural communities, such as ecological areas that are scarce, involving only a limited area; rare and endangered wildlife species habitat; rare and endangered plant species range; specialized wildlife habitat; outstanding representative natural communities; sites with outstanding educational value; fragile or environmentally sensitive resources; and wilderness or primitive areas. Areas meeting more than one of these criteria may be considered as being especially important. (iv) Highly scenic areas that are or include landscape preservation projects designated by the Department of Parks and Recreation; open areas identified as being of particualr value in providing visual contrast to urbanization, in preserving natural landforms and signifi- cant vegetation, in providing attractive transitions between natural and urbanized areas; or as scenic open space; and scenic areas and historical districts by cities and counties." (5096.124) Many of the sites recommended for acquisition by the Coastal Commission will be purchased with Bond Act funds because these criteria are based, in part, on the criteria the Coastal Commission used in developing its acquisition recommendations. Further refinement of the public access and shoreline protection policies are provided in the Coastal Commission's Interpretive Guidelines and in Coastal Act Policies section of the Local Coastal Program Manual (see Attachment A). C. Shoreline Erosion Coastline erosion in California, particularily in Southern California, has long been the subject of studies and corrective projects by Federal, State, and local construction agencies. The State of California has carried out a shoreline erosion program for about 30 years. Since 1970, the State Department of Navigation and Ocean Development (DNOD) has had the primary responsi- bility for studying shoreline erosion, developing means for stabilizing eroding areas, and administering a program to provide financial assistance for the construction of erosion control projects. UNITED STATES DEPARTMENT OF COMMERCE National Cceanic and Atmospheric Administration Office of Coastal Zone Management Washington, D.C. 20235 SECTION 312 EVALUATION FINDINGS THE CALIFORNIA COASTAL ZONE MANAGEMENT PROGRAM BACKGROUND Section 312 of the Coastal Zone Management Act (CZMA) requires a continuing review of states with federally approved coastal management programs. The purpose of the review is to evaluate perforTrznce of the states with respect to coastal management and adherence to approved management programs. The California Coastal Management Program (CCMP) is comprised of two segments. The management program, for the San Francisco Bay segment, administered by the Bay Conservation and Development Con'nission (Bay Commission), was approved on February 16, 1977; the management program for the remaining segment of the coast, administered by the California Coastal Commission (Coastal Commission), was approved on November 7, 1977. Federal program implementation funding in the amount of $6,000,000 has been awarded during that time. As part of the Office of Coastal' Zone Management's (OCZM) evaluation responsibilities, a review of the CCMP was conducl.ed in San Francisco, Los Angeles and Sacramento from September 11 to 14, 1978 and recent visits during the Spring of 1979 have updated our information. Grant Dehart, Policy and Program Evaluation; Carol Sondheimer, Acting Pacific Regional Manager; William Brah, Assistant Pacific Region Manager; and John O'Donnell, External Relations, participated in the review which included meetings with Bay Ccmmission and Coastal Commission staffs, representatives of state agencies, ports, cities and counties, environ- mental groups, business interests, academicians, and federal agencies Involved in the state's coastal management program. A list of individuals attending these meetings is provided in Appendix 1. No public meeting was held as part of the review, but interested persons were invited to submit written comments on the state's performance, and several were received. At the time of the review, independentevaluations were also being conducted by executive and legislative branches of the st'ate government. On October 1978, the Department of Finance published the CaliTornia Coastal Comrission Manacement.Planninq and Staffing Needs. On FebrtTary 1575, the Assemoly Ortice of ke-search puolished An Assessment of the California Coastal Plannina Prcc2ss. Qoth these reporzs were ocCa5'ionally referred to curing the [email protected] of this report. C. Increased Access tothe Coast for Recreat-ional Purvoses. In this area the roFT-owing ress-u-Its-had occurred at the tire of the evaluation site visit: (1) In issuing its shoreline development permit, the Say Cormission has attached conditions requiring provision of public access. in the period covered by this report, more than 22 acres of new shorelin.- access has been provided. (2) To improveimplementation of this policy to provide "maxirmm available public access", the Bay Cornmission is completing a public access plan supplement to the Say Plan. The access supplement consists of three parts. The first part contains findings and conclusions concerning additional public access areas for nine geographic areas, which to.gether c-omprise the entire shoreline. The second part contains guidelines for the appearance and design of public accessways. The third part addresses implementation and contains amended public access policies on access, appearance, design and scenic views. The public access supplement will serve as a comprehensive advisory guide to the Bay Coanission in providing for and maintaining shoreline public access. (3) To implement its policy of providing "maximum public access," the state and regional coastal ccri7nissions have attached public access conditions to coastal development per-mit approvals. As a result, numerous public accessways have been dedicated. For example, in the,Malibu area alone more than 125 access easements along the coast, and more than one dozen accessways from the public road to-the beach have been required. The Coastal Commission formed an interagency coastal accessway group, which includes the Conservancy, to develop an effective accessway management program, addressing accesssway acceptance, liability, maintenance and improvement issues. (4) The Bay Commission appr *oved or amended three special area plans for Benicia, San Francisco and South Richmond waterfronts. Another special area plan for Redwood City was identified. These plans focus on public access, water-related industry, and appearance and design of development.. They are Implemented through Bay Coqnission per-mits. (5) The Bay Commission approved an amendment to its special area plan for the San Francisco waterfront. The amendment allows marina and assoc4.nted coamerdial and recreational uses in the vicinity of Pier 39, and subst-antially reduces the allowable redevelopment intensity from piers 9 through 24.. A total design plan for this area is being completed as a condition of the approved special area plan. CONNECTICUT Eighty-five miles of Connecticut's approximately 500 mile long coastline is sandy beach area. Forty percent of these beaches are accessible to the public. State coastal program administrators have concentrated on opening up the larger beaches and have tended to ignore the smaller ones. Four large state beaches at approximately equal distances across the Connecticut shoreline have been developed. Previously the highest priority was acquisition to put these parks together. Now the priority is beach development (including beach nourishment) and transportation programs to get people to these beaches. Presently a non-CZM program (Title XX) provides bus service from urban areas to recreational areas of the participant's choice. Approximately 20% of the participants prefer to come to the beach. The state coastal program is currently working on a major study for providing adequate parking lot facilities and public transit (bus and rail) to the large state park which is situated halfway between Bridgeport and New Haven. Coastal administrators plan to publish a brochure illustrating state coastal areas available by public transit. To some extent coastal administrators impose conditions on develop- ment permits to encourage beach access. Any coastal structure requir- ing permits is conditioned on at least not diminishing existing access. Further, the state's coastal act gives priority to water-dependent activities. Thus, for a condominium type of project to accrue adequate points to receive a permit, it usually has to deed access easements to CONNECTICUT - 2 - the municipality or actually construct the accessways in order to make the municipality or actually construct the accessways in order to make the project palatable. DELAWARE Because most of Delaware's Atlantic-exposed beaches are already owned by the state government and open to the public, the state has a head start on shorefront access. The state's coastal program has developed mechanisms for encouraging public access through private property and has settled private v public ownership disputes. The pro- gram has also increased access for the handicapped to its beaches. The Delaware State Beach Act requires that all private lands which receive state assistance for maintenance or nourishment must dedicate an easement to the public. This beach maintenance program is inde- pendent of CZM Funding, since it depends on a state revolving fund. CZM 305 and 306 funds have been used to settle ownership disputes. A $250,000 program sponsored a survey of the coast, title searches, historical research, and litigation over disputes dealing with public v private ownership of patented and unpatented land dating back to William Penn's era. The state coastal program has sponsored the retrofitting of public beach houses for handicapped access and the building of ramps to get wheelchairs to the beach. Public transportation alternatives have been investigated without CZM funding assistance. The Delaware Authority for Regional Transit runs a bus from Wilmington to the beach during the summer. The State Park Department conducted a feasibility study of public transportation to its beaches last year and concluded that the costs for staging, parking and transit would be higher than justifiable, given the few people expected to be served. UNITED '-7TkTES DEPARTMENT OF COMMERCE FINAL ENVIRONMENTAL IMPACT STATEMENT PROPOSED COASTAL MANAGEMENT. PROGRAM FOR THE STATE OF DELAWARE 10 f ri T-t Prepared by: and Office of Coastal Zone Management Delaware Coastal Management National Oceanic and Program Atmospheric Administration Office of Management, Budget Department of Commerce and Planning 3300 Whitehaven Street, N.W. P.O. Box 1401 Washington, DC 20235 Dover, DE 19901 This publication is financed in part through a federal grant from the Office of Coastal Zone Management, NOAA under the provision of Section 305 of the Coastal Zone Management Act of 1972 (Public Law 92-583) This publication is available in microfiche from the Bureau of Archives and Records, Hall of Records, P.O. Box 1401, Dover, Delaware 19901 Printed in U.S.A. DOCUMENT NO. 1003-79-05-01 Beach And Shoreline Access THE SUPPLY AND DEMAND FOR ACCESS TO DELAWARE'S PUBLIC BEACHES AND OTHER SHORELINES SHALL BE STUDIED PERIODICALLY THROUGH THE STATEWIDE COMPREHENSIVE OUTDOOR RECREATION PLAN- NING PROCESS(SCORP). WHEN THE NEED FOR ADDITIONAL ACCESS @FACILITIES TO THESE PUBLIC BEACHES AND SHORELINES, BEYOND THOSE ALREADY IN PLACE,THE STATE WILL MqDERTAKE EFFORTS TO PROVIDE SUCH ACCESS AS LONG AS IT CAN BE DONE IN A MANNER CONSISTENT WITH THE PURPOSES FOR WHICH THESE LANDS WERE SET ASIDE. Delaware is fortuate to own a substantial amount of shore and beach land, particularly along the Atlantic coast, which is readily accessible to the public. There is, at present, plenty of publicly accessible beachfront in Delaware. Growth in public usage of these lands, however, has been increasing yearly and there may come a time when the demand for access facilities, Particularly parking And sanitation, will approach the existing @nd planned supply. The policy recognizes this possibility and provides for continued monitoring of beach and shore use, so that additional access areas can be provided in advance of the need. --'or a detailed assessment of access to all public shorelines in )elaware, the reader is referred to Working Paper No. 8, Beach "rosion Control and Shoreline Access Planning. Other policies which act to protect public shorelines and 3 hes and access thereto may be found in Sections 5.B.1. (Public. *s) and 5.B.2. (Natural Areas). kUTHORITIES Management of the barrier beaches in Delaware is vested in DNREC pursuant to Title 7, Chapter 68, of the Delaware Code (Beach 3reservation Act of 1972) and the regulation adopted thereunder. )uring development of the CMP it became evident that the Regulations joverning Beach Protection and the Use of Beaches needed to be ,iodified to provide the predictability required for federal approval if the CMF. As mentioned in the discussion under Policy 7, these )roposed changes will not take effect until after the new building ,ine has been surveyed and another public hearing is held. Although :he proposed regulation would be an improvement over the present )ne, it is the opinion of the Attorney General's.Office that the )resent regulation contains sufficient authority to enforce the )olicies in the [email protected] Moreover, the Secretary of DNREC and the )irector of OMBP have signed a Memorandum of Understanding which ;tates that DNR'EC will interpret the present regulation in a manner ,-onsistent with CMP policy until such time that*the new regulation Ls adopted. 18 5. A. 2. Working Paper No. 8, Beach Erosion Control and Shoreline Access Planning, contains a copy of the proposed regulations that went to public hearing in August 1978. Although this regulation will be modified as a result of the building line survey and the hearing officers report, it should provide interested persons with an idea of the kind of changes contemplated. St.atutes which help the State acquire. and protect access to public beaches and shorelines include the Nature Preserves Act (Title 7, Chapter 73 of the Delaware Code), Title 7, Chapter 45 (Public Lands), and Title 7, Chapter 47 (State Parks). tor the most part these statutes and the policies derived from them serve other purposes beside shoreline access and are more ap- propriately discussed in Subsections on Natural Areas (5.B.2.) and Public Lands (5.B.1.). Insofar as these policies provide and protect access to public shorelines, they have been incorporated here by reference. Working Paper No. 8 contains a detailed discussioi'r: of the applicable policies and authorities. In addition to these laws, several other State statutes used to implement the CMP by protecting various natural resources also help protect the beaches and shorelines. In this regard, the Delaware Environmental Protection Act, the Delaware Wetlands Act, and the Delaware Coastal Zone Act are particularly important. These statutes are discussed elsewhere in the document and in Appendix E (Legal Authorities and Organization). AUTHORITIES TABLE 1140 Policy Number 'Authority 1 7 Delaware Code 6801, 6803, and 6810 2 7 Delaware Code 4701(c) 3 7 Delaware Code 6803(c); 7 Delaware Code 6151; Regulations Governing the Use of Water Resources and Public Subaqueous Lands, Regulation IV, Section 1. 4 Regulations Governing Beach Protection and the Use of Water Resources and Public Subaqueous Lands,. Regulation IV, Section 4. 5 Regulations Governing Beach Protection and the Use of Beaches, Section 3.01. 6 Regulations Governing Beach Prote*ction and the Use of Beaches, Sections 3.01, 4.01, 4.02 19 ,A. 2. Wicy N mber Authority Regulations Governing,the Use of Water Resources and Public Subaqueous Lands, RegulatJ.on IV, Section 4 7 Regulations Governing Beach Protection and the Use of Beaches, Section 1. 8 7 Delaware Code 6803(c) and 6803(d); Regulations Governing Beach Protection and the Use of Beaches Section 3.02 9 7 Delaware Code 6803(b) and 6806 10 7 Delaware Code 6801, 6803(f), 6806, and 6810. 11 Executive Order Number 61 12 Executive Order Number 61 13 Executive Order Number 61 14 7 Delaware Code 4701(c); Executive Order Number 61 Pending revision of the Regulations Governing Beach Protection and the Use of Beaches enforcement of the policies contained herein have been asgured through a Memorandum of Understanding between the Secretary of the Department of Natural Resources d Environmental Control and the Director of the Office of 16clagement, Budget-, and Planning. 20 APPENDIX C - SPECIAL MANAGEMENT AREAS Some Delaware areas are of particular concern because of their coastal-related values or characteristics, or because they may face pressures which require attention beyond that provided in the general CMIP planning and regulatory system. This attention could take several forms including increased public expenditures, inter- governmental coordination, technical assistance, or additional maintenance. Most importantly, the attention might foster public awareness of the importance [email protected] the special areas, thereby generating support for their wise utilization in the future. The federal Coastal Zone Management Act (CZMA) and reculations adopted pursuant thereto require that the CM) consider the following: (1) areas of particular concern; (2) priorities of uses; (3) other areas of particular-.concern; (4) areas for preservation or restoration;L,,._(5) shorefront- access'and- p and (6) shoreline erosio lanning n/mitigation ?lanning, 5. Shorefront Access and Protection Planning The C12 must develop a planning process that can identify public shorefront areas appropriate for access or protection. The basic purpose in focusing special planning attention on shore- front access and protection is to express more than local concern w "th respect to additional access or protection needs for public l beaches and other public coastal areas of environmental, recreational historic, esthetic, ecological or cultural value and to include these areas for special management attention within the purview of the CMP. Fortunately, adequate public access to an(i protection of Delaware's ocean front beaches are assured by virtue of the State Park holdings in this area. Program document Sections which combine to satisfy the planning requirement include 5.A.2. (Beaches) 5-B.I. Public Lands 5.C.5. (State-owned Coastal Recreation and Conservation Lands), 5.D.5. (Recreation), and, to a lesser extent, 5.A.l. (Wetlands), 5.A.3. (Coastal Waters, S.A.4. (Coastal Strip and Underwater Lands), 5.B.2. (Nature Preserves), 5.C.l. (Woodlands and Agricultural Lands), 5.C.2. (Historic and Cultural Areas), and 5.D.9. (Transportation Facilities). In addition, Working Paper No. 8, Beach Erosion Control and Shoreline Access Planning, p ovides a [email protected]_entory and analysis of Del els PuFricry- accessible shorelines. This long list is not surprising given that the requirement deals with the access and protection needs for other shorefront areas beside beaches. These shorefront areas--are comprised of many types of coastal resources, each of which the [email protected] considers to some extent. Volume 1 of 2 Jul t ............ RARI mi 1--l" F". un-, v ill F @ G, R I Impact M-alkMt U.S. DEPART,",5B.'IT OF CM.U.,"IERCE National Oceanic and Atmoste-herive Adminlistmflon office of Coast,-J Zone Management Me, N Of 151 (5) An identification of legal authorities, funding programs and other techniques that can be used to meet management needs. (1) The approach developed for assessing those shoreline areas requiring management attention for public access or protection included: (a) Analysis of available data relative to shoreline and reef physiography, shoreline use, proposed development, recreation, military lands and public opinion, (b) Data-base development including on-site physiographic study of all shore and reef areas within the definition of "beach", (c) Coordination with the Department of Parks and Recreation for identification of public, private, and military beaches, projected demands for beach recreation areas, plans for expansion of public facilities and criteria for evaluation of publicly-owned beaches with development potential, and (d) Analysis of existing legal authorities for provision of public access and shoreline protection. This planning approach resulted in the preparation of a study by the GCMP entitled, Beach Access on Guam. The study identified all of the island's beaches and classified them in respect to public access: open access, access with ownerls permission and restricted access. Beach availability statistics derived from the study are summarized below and the Beach Strand-Inventory is found in.Table 6. Access Category Number of Beaches Length Beaches Adjacent to GovGuam 14 8.5 Kilometers Lands with Open Access 5.1 Miles Beaches Adjacent to Private 49 39.5 Kilometers Lands with Access by Owner's 23.7 Miles Permission Beaches Adjacent to Federal 6 5.5 Kilometers Lands with Open Access 3.3 Miles Beaches Adjacent to Federal 13 13 Kilometers La.nds with Restricted Access 7.8 Miles Total Beach Strand 82 66.6 Kilometers 39.9 152 TABLE 6 BEACH STRAND INVENTORY Place Name Length Width Ownership Inland Access (Meters (Meters) 1. Amantes Pt.-Biji Pt. 594 1-15 Private None 2. Fafai Beach 366 8-32 Private Secondary Road 3. Gogua Beach 220 3-10 Private Through Okura 4. Naton Beach 1775 8-27 Private Secondary Road 5. Ypao Beach 671 5-8 GovGuam Secondary Road 6. Ypao Pt. 40 Private None 7. Alupang 27 Private None 8. Dungcas 846 3-8 Private Seco ndary Road 9. Dungcas-Trinchera Gap 1844 3-16 Private Through Private Property 10. Trinchera Beach 693 3-16 GovGuam Marine Drive 11. Naval Cemetary 175 16 GovGuam Marine Drive 12. Agana 1619 3-16 GovGuam Marine Drive 13. Anigua-Pigo 213 3-12 Private Through Private Property 14. Adelup 667 3-19 GovGuam 15. Asan 594 319 Private Marine Drive 16. Asan Pt. 853 6-19 Private Marine Drive 17. Piti 1585 10-20 Federal Marine Drive 18. Tapungan Channel 149 3-10 Federal Marine Drive 19. Hotel Beach 244 Federal Paved Road 20. Atantano River 1020 Federal Restricted 21. Orote Peninsula #1 80 3-10 Federal Restricted 22. Orote Peninsula #2 202 3-16 Federal Restricted 23. Orote Peninsula #3 65 3-16 Federal Restricted 24. Gabgab Beach 524 Federal Base Pass 25. Tipalo Beach 236 Federal Base Pass 26. Dadi Beach 1330 2 Federal Base Pass 27. Rizal Beach 1330 2 Federal Primary Road 28. Togcha Beach 1505 15 Private Primary Road 29. Salinas Beach 1505 Private Prinary Road 30. Gaan Pt. 1909 19 Private Primary Road 31. Bangi Pt. 1909 19 Private Dirt Road 32. Chaligan 1798 23 Private Primary Road 33. Nimitz Beach 1798 23 Federal Primary Road 153 34. Taleyfac River 1798 23 Private Dirt Road 35. Taelayag. Beach 1402 15 GovGuam Dirt Road 36. Sagua Beach 1006 27 Private Foot Trails 37. Facpi 1062 12 Private Foot Trails 38. Acqugao Pt. 472 12 GovGuam Foot Trails 39. Sella Bay & Abong 1457 34 GovGuam Foot Trails 40. Cetti Bay 610 3-16 Private Foot Trails 41. Fouha Bay 100 Private Foot Trails 42. Umatac Say 229 23 GovGuam Primary Road 43. Machadgun Pt. 457 Private None 44. Mamatgun Pt. 457 Private Dirt Road 45. Toguan Bay 966 9 Private Primary Road 46. Ajmo Beach 381 9 Private Primary Road 47. Bile River South 53 5-14 Private Primary Road 48. Piqua River 136 5-20 Private Primary Road 49. Cocos Island 524 5-25 Federal None 50. Cocos Island 1247 5-25 Private None 51. Cocos Sand-Islet 118 34 GovGuam None 52. Piqua Beach-Ada 975 1-5 Private Primary Road 53. Aang Beach 1303 3-10 Private Primary Road 54. Liyog River Mouth 137 Private 55. Ayajan Bay 213 124 Private Primary Road 56. A.ga Say 122 3-5 Private Primary Road 57. Guijen Pt. 701 5-15 Private Primary Road 58. Atao Beach-Acho Pt. 610 15 Private Dirt Road 59. Acho Pt. 427 20 Private 60. Agfayan Bay 118 20 Private Primary Road 61. Inarajan Bay & Guae 678 2-60 Private 62. Paullac Bay 457 1-20 Private Foot Trails 63.. Perez Beach 412 to-50 Private Primary Road 64. Asiga Beach 107 Private 65. Asalanso River Mouth 141 1,5 Private 66. Talofofo Bay 335 46 GovGuam Primary Road 68. Cruz Beach 123 42 Private Dirt Road 69. Jones Beach 823 42 Private Dirt Road 70. Ipan Beach 480 23 GovGuam Park 71. Togcha 427 15 Private Dirt Road 154 72. Ylig Say 290 27 Private Dirt Road 73. North Ylig 109 15 Private Dirt Road 74. Tagachan 118 30 GovGuam Park 75. Pago Bay 1543 is Private Dirt Road 76. Tagua Pt. Mouth 4938 69 Federal Restricted 77. Taraque 572 61 Federal Restricted 78. Jinapsan 2065 38 Private Through AAFB 79. Ritidian 1562 46 Federal Restricted 1734 46 Federal Restricted 255 23 Federal Restricted 80. Uruno Beach 2084 34 Private Through Base 81. Falcona Beach 594 27 Private Through Base 82. Haputo Beach 310 19 Federal Restricted 83. Tilaan-Tanguissan 412 38 Federal Secondary Road 155 (2) The preceding table identifies those ar*as that are defined as "beach" in the definition developed in another GCMP study entitled Atlas of Reefs and Beaches on Guam. The definition utilized in the context of shoreline access and protection is: An accumulation of unconsolidated deposits along the shore with their seaward boundary being at the low-tide or reef flat plat- form level and extending in a landward direction to the strand vegetation or first change in physiographic relief to topographic shoreline. (3) Enforceable policies and legal authorities for shoreline access and protection are detailed in Chapter III, "Coastal Management Program Policies", and Chapter VI, "Authorities". The overall GCMP policy regarding public access states: The public's right of access shall be ensured to all non-Federally-owned beach areas and all territorial recreation areas, parks, scenic overlooks, designated conservation areas and other public lands; agreements shall be encouraged with the owners of private and Federal property for the provision of reasonable access to, and use of, resources of a public nature located on such land. Policies for Shore Area Development, Urban Development, Hazard Areas, Housing, Fragile Areas, Visual Quality and Recreational Areas also collec- tively support requirements for shorefront access and protection. Chapter VI. "Authorities", specifically outlines the regulatory mechanisms and agencies concerned with shoreline access and protection. Appendix I con- tains the complete text of referenced authorities. Public Law 14-41, established a resort-hotel zone with height, setback and design regulations and provides support for shorefront access consi- deration within resort areas. Flood Hazard Areas and Regulations preclude the development of flood control measures which would impair public access within shoreline areas. The regulations generally inhibit creation of hazardous conditions which would restrict shorefront access. Wetland Rules and Regulations also encourage open space within coastal wetlands and mangrove areas, thus promoting open access to such lands. The Territorial Beach Areas Act (GCG, Section 13451), declares as the public policy of the Territory, that: "It is the public right to have unrestricted access to the ocean shores of Guam for common use by all the people of Guam, and therefore that strip of public land above the high mean watermark must be preserved and protected for generations to assu.re free access to the beaches of the Territory to the maximum extent, to 156 preserve the natural beauty of Guam's beaches, and to alleviate the health problems caused by construction near tidal areas. It is, therefore, the purpose of this Chapter to forever preserve and maintain the sovereignty of the Territory heretofore legally existing over the ocean shores of the Territory so that the public may have the free and uninterrupted use thereof; to protect, settle and confirm the public rights the use of the ocean shore"heretofore acquired by public [email protected], prescription, or otherwise and to authorize the reacquisition of the ocean shore where a portion thereof has been lost to private ownership and no public rights exist therein as a result of dedication, prescription, or otherwise. (4) The Conservation DistricL designation of shoreline areas on the Land- Use Districting Map further ensures their protection and encourage their accessibility to the public. Either site specific locations or the beach areas as a general class can be designated as APC's through the Governor's authority to issue Executive Orders, by the TPC through their rule-making authority or specifically so designated within the Seashore Reserve Plan. (5) The Territorial Seashore Protection Act (P.L. 12-108) provides the primary legal mechanism for shoreline management. This legislation requires issuance of permits for development within the Seashore ResQrvp and preparation of a Seashore Reserve Plan. Applications for development within the Seashore Reserve Plan are reviewed by the Territorial Seashore Protection Commission. Currently, the Seashore Reserve extends only 10 meters inland from the mean high watermark having been reduced from the original 100 meter boundary in the wake of Supertyphoon Pamela to facili- tate shoreline reconstruction. Consistent with the original intent of the Act, and to facilitate development of the required Seashore Reserve Plan, the GCMP has proposed amendment of this 10 meter boundary. Utilizing roadways and natural cli'fflines and assessing potential impacts of future development along Guam's coastline, the GCMP has prepared a series of maps outlining a broader and more useful inland boundary. Legislation submitted to the Guam Legislature, if adopted, would recognize these maps as the amended Seashore Reserve boundary and provide an excellent tool for shoreline management-Shoreline areas outside the Seashore Reserve are subject to the other authorities identified in Chapter VI. C. SHORELINE EROSION AND MITIGATION PLANNING Section 305(b)(9) of the CZMA requires a planning process for assessing the effects of shoreline erosion, and studying and evaluating ways to control or lessen the impact of such erosion, and to restore areas adversely affected by such erosion. The following discussion explains why shoreline erosion is not a significant problem on Guam. Briefly, the geological structure of Hawa i i The state of Hawaii's coastal configuration reduces the distances which must be travelled for shorefront access, but increases the administrative contraints of implementing access programs, since seven different counties are involved. The state owns all shoreline up to the highest reach of the wash of the waves, as evidenced by the vegetation or debris line, whichever is higher. However, since 74% of the sandy beach coastline is abutted by privately owned or managed land, perpendicular access to the public portion of the beach is a problem. The Hawaii coastal management program seeks to overcome the perpendicular access problem through two methods: the conditioning of coastal area permits on the provision of public access to the shore and the development of a Statewide Trail and Access System. Threetypes of permit conditions can potentially affect coastal de- velopment. First, county subdivision approval is conditioned on the dedication of adequate public access to the coastal shoreline by right- of-way or easement if none exists. Second, Special Management Area per- mits are conditioned on the provision of adequate access to publicly owned or used beaches. Third, since all public shorelands are within t 4 . State Conserva ion Districts, permits for activities there are con-' ditioned on the protection or improvement of existing accessways. State law (Act 69, 1974) provides for the conceptual planning, coordination, development, land acquisition, construction and im- plementation of a Statewide Trail and Access System which will provide Hawaii Page 2 public access to and around the shore. A preliminary plan prepared by the Department of Land and Natural Resources in 1977 identified existing access resource potentials. The plan recommends several legal mechanisms for establishing public rights-of-way for the trail system, including: implied dedication, Native Hawaiian Right, Ancient Trail Doctrine and Public Trust Doctrine. A combination of state, county and federal funds will also be used to acquire property for the shoreline access routes. One million dollars was appropriated to the Department of Land and Natural Resources as "seed money" for program administration. Many Hawaiians live within walking distance of the shore. For those who do not, county bus systems provide access to beaches. Oahu sponsors special "Surf's Up!" buses equipped with surfboard racks. 306 funds are currently being used by the counties of Hawaii and Kauai to inventory existing and potential accessways and develop in- stitutional means to fund, open up, and manage new access areas. 'OAT OF @.o R r rz-, an ina runnnav,. 'ArEs of Impact @'B 43 U.S. DEPARTMENT OF COUR0ERCE National Oceanic and Atmospheric Administration Offlice of Coastal Zone Management 7 A V 'A"6 t @l SHOREFRONT ACCESS AND PROTECTION PLANNING Hawaii's Coastline The general coastline of Hawaii's major and minor islands is 750 miles, fourth longest among all States and territories in the nation. Hawaii's coastline varies greatly in physical characteristics from island to island as well as from one district to another on the same island. Due to the volcanic origin and mountainous nature of the islands, a bold and rugged coastline predominates, encompassing towering cliffs of 1,000 feet or more along the northwest coast of Kauai and somewhat less precipitous cliffs on Hawaii, Maui, and Lanai. In contrast, low lying, sweepingbeaches are found primarily on Maui, Oahu, and Kauai. Low and rocky shore- line areas with occasional small pocket beaches reated by insho re and barrier coral reefs or an L-itermittent low shore interrupted by bold headlands are found extensively along the east and north sides of Oahu and Lani and the south coast of Molokai. Public Coastal Areas -- Deffned and Described For the purposes of Hawaii's CZM Program "beach" is defined as all land up to ttle highest reach of the wash of the waves, as evidenced by the vegetation or debris line, whichever is higher. 1/ The State of Hawaii owns all shoreline or beach areas as defined above. These public lands are within the State Conservation District and subject to the permit [email protected],nts of the DLNR under Regulation 4. (See Appendix 10.) Although all beaches are publicly owned, the lands abutting Hawaii's 185 miles Of saj.,dy beach on the six major islands are owned and managed by both public agencies and private parties. According to the State Comprehensive Outdoor Recreation Plan (SCORP) of 1975, the Counties manage 30.18 linear miles of upland 2/ areas adjacent to sandy beaches; State agencies manage 6.20 liflear miles; and the Federal government manages 10.53 linear miles. I/ With respect to the interpretation of the term "highest wash of the waves," the Hawaii Supreme Court held "... that where the wash of the waves is marked by both a debris line and vegetation line lying further mauka (inland); the presumption is that the upper reaches of the wash of waves over the course of a year lies along the line marking the edge of vegetation growth." County of Hawaii vs. Sotomura,.(1973) 2/ "Upland" means the land area beginning at the vegetation line and extending landward from there. 118 County management is primarily of recreational beach parks. For recreational, environ- mental, ecological, aesthetic. historic, and cultural purposes the State administers lands for State parks, Marine Life Conservation Districts, and historic monuments. The DOT manages lands necessary for recreational boating purposes, State harbors and waterfront improvements, and beaches encumbered with easements in favor of the public. The Federally administered areas are primarily under the Department of Defense and not open to the public except for certain sandy beaches which are open on weekends for recreational use. Although State and County management of upland areas guarantees access to the publicly owned beach areas, 137.19 linear miles (74%) of the sandy beach coastline is abutted by privately owned or managed lands. In fact, providing access to the shoreline has become a major problem in the State because adjoining landowners exercise control over perpendicular access. Specific private uses include residences, hotel and tourist facilities, industrial developments, and agricultural activities. Federal agencies also have restricted public use of shoreline areas Statewide Trail and Access System Accessibility is a major factor in determining the magnitude of usage of publ c areas i This determination involves the examination of access linkages for personal transportation to areas valued by the public because of their environmental, recreational,,aesthetic, cultural, or historic qualities. State law (Act 69, SLH 1974) provides for the conceptual planning, coordination, development, land acquisition, construction and implementation of a statewide trail and access system to meet recreational needs; to provide a showcase for cultural and environmental education; to assure that economic development is compatible with natural and cultural resource s; and to provide non-vehicular modes of transportation in urban is well 88 natural areas. The preliminary Statewide Trail and Access System plan prepared by the DLNR in 1977, has identified access resource potentials, including coastal access, which currently exist in Hawaii. As data sources such as SCORP are updated, the determination of demand and need for shoreline access will be similarly revised. Th6 Plan's inventory includes specific information on the jurisdiction, length, type (i.e., access jeep, bike), finish (developmenr standard), grade, amenities, and status of availability for general public use of identified access routes. Qualitative indicators such as the natural, functional, and cultural aspects of the trail 'experience expand the scope of the inventory beyond assessment only in terms of utility. 119 The trail system consists of functional, administrative, and jurisdictionally distinct trail components, overlayed by a proposed statewide policy of definition, classification, and standards. In this manner, a network of various transportation modzs utilizing trails, paths, and corridors for diverse purposes such as vehicular recreation, hiking, and shoreline access, will be established. Unifying mechanisms will include a common classification system to be used by all managing agencies and minimum design standards to Improve the trail experience and promote pub lic safety. Coordination efforts at the State level will assist in resolving conflicts among users, management agencies, and landowners and in setting statewide priorities. The preliminary plan proposes that the trail system consist of functional, administrative, and Jurisdictionally distinct trail components, overlayed by a proposed statewide policy of definition, classification, and standards. In this manner, a network of various transportation modes utilizing trails, paths, and corridors for diverse purposes such as vehicular recreation, hiking, and shoreline access, will, be established. Unifying mechanisms will include a common classification system to be used by all managing agencies and minimum de3ign standards to improve the trail experience and promote public safety. Coordination efforts at the State level will assist in resolving conflicts among users, management agencies, and landowners and in setting statewide priorities. State Pali cies Regarding Shorefront Access and/or Protection State policy for shorefront access and/or protection in all areas of the State is set forth in the Rawaii'C'".M objectives and policies (see Chapter 2) dealing with recreational resources; scenic and open space resources; historic resources; coastal-ecosystems; and economic uses. Other State laws providing related policy and responsible agencies are cited in Table 5. 120 In addition, the statutory guidelines of the SMA permit process (see Table 4, page 79) require consideration of both physical and visual access including the imposition of reasonable terms and conditions for their provision and preservation. State law (Chapter 205, HRS) has also establi8hed the State policy of protection for the shoreline by means of the shoreline setback requirements (see page 21). identification of Funding Progrms and Other ImpleirentaCion Techniques to Meet Management Feeds State, County, and Federal funding resources for the acquisition of shoreline access routes will be utilized in conjunction with existing authorities for the purchase and provision of public rights-of-way. When this is not applicable, the several Counties may purchase land for public rights-of-way to and along the shoreline under Chapter 115, 11RS. Along cliffs or other areas where the topography prohibits safe transit along the public shoreline area, the Counties can, through condemnation, acquire public transit corridors along the shoreline which must be not less than six feet wide. An appropriation of $1 million was recently made to the DLNR to carry out, this program and to assist the-Counties in their responsibilities under the program. The funds are available through 1079 and may be applied to match County funds for the purchase of such rights-of-way. The DLNR has the authority to acquire "resource value lands" by purchase, gift, or eminent domain, subject to the Governor's approval (Chapter 173A, ITRS). This includes "landr. which have natural, environmental, recreational, scenic, or historic value." Provision is also made for the acquisition of park and trail systems to assure access to these areas. Grants may also be made to Counties for the acquisition of theseroutesand lands by eminent domain. Prior to the disposition of any public lands, the DLUR is required to lay out and establish across such lands rights-of-way to public beaches from the nearest highway (Chapter 171, HRS). When finalized, the 5tatewide Trail and Access System plan will provide a comprehensive framework for the coordination of existing acquisition programs.. U. S. Bureau of Outdoor Recreation Land and Water Conservation Fund grant monies used to acquire beachfront land for parks, for example, will be coordinated with access acquisition priorities. The Plan also recommends several legal mechanisms for the establishment of public rights-cf-way including implied dedication, Native Hawaiian Rights, -the Ancient Trail Doctrine and the Public Trust Doctrine. These could be used In support of actions to open existing rights- of-way to the public and to prevent the lose of publicly used rights-of-way. Land exchanges 121 between the State and private property owners (Chapter 171, 11'RS) and private surrender cl land for public purposes for a term of not less than 20 years (Chapter 183, ILPS) are possible methods of providing new land for public access routes. In regard to visual access in urbanized areas, Chapter 57, HRS directs the Counties to prepare urban design plans for all areas designated for urban design in the County. Required elements of such plans include "Historic sites, significant natural land and water features, and views and vistas which must be protected and enhanced." In addition, Chapter 57, HRS provides that "Buildings and structures should be restrained from encroaching upon the shoreline and other designated land forms as well as street and road rights-of-way. Manmade features on the land should not be in conflict with natural formations along the shoreline." Urban design plans have been prepared for such areas as Kakaako on Oahu and Kailua-Kona on Hawaii as well as for the entire island of Kauai. Methods for Designating Shoreline Areas for Special Consideration Under the Hawaii CZM Program. the designated SMAs and the applicable guidelines for development review, provide for special consideration of physical and visual access to all shoreline areas. Areas which meet the requirements for designation as Marine Life Conservation Districts (see page 66), Natural Areas Reserves (see page 66), and Conservation District lands are placed under direct State jurisdiction for conservation purposes (see PaRe 69). Particular attention has been directed toward the preservation of islands under these various State programs. For example, the State has recently established a Hawaii State Seabird Sanctuary incorporating 36 islets and rocks from the island of Hawaii to Kure in the leeward chain to protect seabird habitats. In addition, all off-shore islands have been placed witIlin the Conservation District by the LUC (Chapter 205, HRS) and are subject to Regulation 4 permits from the DLNR. Shorefront access and protection is an integral part of the Hawaii CZM Program which will involve an on-going process of assessment and review of those public coastal areas of environmeatal,.recreaticnal, historic, aesthetic, ecological and cultural value which need special management attention. !r to CQr 122 C. Recreational Access and Protection of Cultural, Historic, and Aesthetic To a -st a T-Te -so u r c e s The following results have occurred in this area: o An inventory and mapping of existing and potential public access to and along the shoreline-of Hawaii County is completed for the western side and coverage of the remaining shoreline will be finished this year. This study will provide baseline analysis for the two additional phases of the County's comprehensive public access acquisition program: 1) devel- opment of priorities, and 2) standards for SMA permit conditions related to access. Acceleration of this program will give the County a strong basis for making access related decisions. Intensified efforts in the grant period should lead to completion of the remaining phases. o A demonstration historic sensitivity mapping study is almost completed for the island of Kauai. Refinement of the mapping system, including incorporation of archaeological criteria and format revisions to improve its practical utility, has been conducted with the assistance of the State Historic Preservation Office. The mapping system provides a model for use on other islands and can be programed into a proposed com- puter information system. Expansion of the study'to map other areas in the State is being considered for the forthcoming grant period. o The DOT enforcement staff has been increased, providing improved security in public boating facilities and the near shore waters and regu- lation of recreational boatinn nnd harbors activities. The addition of one staff person has allowed the existing staff to attend training programs leading to certification as a boat pilot permitting the DOT to expand its marine enforcement coverage. o Permit conditions included in recent SMA permit approvals have included requirements for public coastal access and archaeological sur- veys in excess of other statutory requirements, thereby strengthening the Counties' ability to protect historic and recreational coastal resources. o State transportation engineers have begun designing a loading dock to be constructed this fall adjacent to an existing boat ramp and beach park on the Puna coast,of Hawaii County. The dock project is part of a plan to improv e the area for use by fishermen and boaters. The Army Corps of Engineers Is currently-constructing a breakwater to decrease the rough waters in the area and-further enhance its recreational usefulness. LOUISIANA The physical configuration of Louisiana's coast makes shorefront access difficult. Coastal wetlands reach so far inland, hampering landward access. Few beaches exist. While water access is possible, few boating facilities have been provided. Coastal program officials recently completed the Louisiana Shore- front Access Plan, which inventories existing and potential sites for shoreline access and recreation. No access program has been developed yet. 4V 0 'j- r 4fP L ISI A OU 1-%NA COAZSTAL RESOURC"Z3 PROGRAM DRAFT EINVI RON MENTAL IMPACT STATEINIENT U.S. DEPARTMENT OF COMMERCE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION OFFICE OF COASTAL ZONE MANAGEMENT and LOUISIANA DEPARTMENT OF TRANSPORTATION & DEVELOPMENT COASTAL MANAGEMENT SECTION 'L",r Or C-0 00 APPENDIX d SHORELINE ACCESS 'AND PROTECTION A) INTRODUCTION Section 305(b)(7) of the CZMA requires a planning process for access to and protection of public beaches and other public coastal areas. The process developed by the state must include the factors listed in Section 923.24 of the federal program approval regulations. These are: 0 A procedure for assessing public beaches and other public areas requiring access or protection; and a description of appropriate types of access and protection. 0 A broad definition of the term "beach" and a planning process for the protection of, and access to, public beaches and other public coastal areas of environmental., recreational, historical, esthetic, ecological or cultural value 0 An identification and description of legal authorities, enforceable policies, funding programs and other techniques that can be used to meet management needs. B) HISTORICAL SITUATION With its many bays, coastal lakes and marshes, Louisiana has a tremendous amount of shoreline. The coast is as diverse as it is long, featuring sandy beaches, marshes, swamps, barrier islands and historic sites, There is a great potential for public recreation along the coast, but this potential has not been fully realized for several reasons. One reason for the underutilization of beaches in Louisiana is the extent of the coastal wetlands which .. following the shore, reach ninety miles inland rendering landward access difficult. Another factor hindering public access to and use of the shore is the development of camps or vacation homes. These second homes present two problems: 0 Residential developments may directly block landward access to the shore-, 0 Camps are often abandoned and left to deteriorate in the water or on the beach or shore. Other general factors which have limited shoreline access and facilities follow: 0 The Louisiana coastal shore is not utilized as much for more intensive outdoor recreational pursuits (i.e. , swimming, camping ... ) as for hunting ... d - I 0 Topography has dictated a reliance on water access, hen ce the great number of boat launches. However, currently available boat ramps are not adequate to meet demands on use or location. 0 There is a lack of bathing beaches and beach facilities and a great demand for such areas. 0 Of the many sites along the coast, few are developed to their full recreational potential. 0 @Due primarily to terrain, certain coastal areas are underutilized, shifting recreational use to more suitable areas. C) REQUIREMENTS 1) Procedure for Assessing Public Areas-Requiring Access or Protection The LCRP has inventoried existing and potential sites for beach and shoreline access and recreation. The Louisiana Shorefront Access Plan, a study conducted during development of the LCRP, contains maps and other information concerning existing, potential and recommended sites for shoreline access. Figure d-l lists and maps existing recreation sites and access points. The LCRP will continue to assess areas for public access and recreation based on the following considerations: the need and priority of islands; the provision of increased physical and visual access; the natural and cultural features; the needs of urban residents; and the present supply versus future demand for public facilities. In the continuing assessment of the need for shoreline protection the following elements have been and will be considered; environmental, esthetic and ecological preserv- ation; the protecton of areas for public uses; and the preserv- ation of. islands. Furthermore beaches and barrier islands are specifically mentioned as areas that may be designated special (Section 213.10(A)). Local programs are expected to contain an assessment of public recreational areas along the shoreline and their patterns of use. Financial and technical. assistance by the Secretary of DOTI) to other state agencies and local governments for shoreline access and protection is also available under Section 213.10(E) of Act 361, which provides for such assistance in managing specific sites in the coastal zone. 2) Definition of "beach" In Louisiana, the seashore, i.e., thearea of land along the coast which lies between low water and mean high water, is publicly owned and available for public use. Such state,ownership and public use of seashores also applies to the shores of wa' -er bodies referred to as "arms of the sea". A body of water is considered an arm of the sea if it is located in the immediate vicinity of the open coast and is directly overflowed by the tides. d - 2 APPENDIX d SHORELINE ACCESS -AND PROTECTION A) INTRODUCTION Section 305(b)(7d) of the CZMA requires a planning process for access to and protection of public beaches and other public coastal areas. The process developed by the state must include the factors listed in Section 923.24 of the federal program approval regulations. These are: 0 A procedure for assessing @ public beaches and other public areas requiring access or protection; and a description of appropriate types of access and protection. � A broad definition of the term "beach" and a planning process for the protection of, and access to, public beaches and other public coastal areas of environmental., recreational, historical, esthetic, ecological or cultural value � An identification and description of legal authorities, enforceable policies, funding programs and other techniques that can be used to meet management needs. B) HISTORICAL SITUATION With its many bays, coastal lakes and marshes ., Louisiana has a tremendous amount of shoreline. The coast is as diverse as it is long, featuring sandy beaches, marshes, swamps, barrier islands and historic sites. There is a great potential for public recreation along the coast, but this. potential has not been fuUy realized for several reasons. One reason for the underutilization of beaches in Louisiana is the extent of the coastal wetlands which, following the shore, reach ninety miles inland rendering landward access difficult. Another factor hindering public access to and use of the shore is the development of camps or vacation homes. These second homes present two problems: 0 Residential developments may directly" block landward access to the shore-, 0 Camps are often abandoned and left to deteriorate in the water or on the beach or shore. Other general factors which have limited shoreline access and facilities follow: 0 The Louisiana coastal shore is not utilized as much for more intensive outdoor recreational pursuits (i.e. swimming, camping ... ) as for hunting ... d - I 0 Topography has dictated a reliance on water access, hence the great number of boat launches. However, currently available boat ramps are not adequate to meet demands on use or location. � There is a lack of bathing beaches and beach facilities and a great demand for such areas. � Of the many sites along the coast, few are developed to their full recreational potential. � -Due primarily to terrain, certain coastal areas are underutilized, shifting recreational use to more suitable areas. C) REQUIREMENTS 1) Procedure for Assessing Public Areas-Requiring Access or Protection The LCRP has inventoried existing and potential sites for beach and shoreline access and recreation. The Louisiana Shorefront Access Plan, a study conducted during development of t h LCRP, contains maps and other information concerning existing, potential and recommended sites for shoreline access. Figure d-1 lists and maps existing recreation sites and access points. The LCRP will continue to assess areas for public access and recreation based on the following considerations: the need and priority of islands; the provision of increased physical and visual access; the natural and cultural features; the needs of urban residents; and the present supply versus future demand for public facilities. In the continuing assessment of the need for shoreline protection the following elements have been and will be considered; environmental, esthetic and ecological preserv- ation; the protecton of areas for pubhc uses; and the preserv- ation of islands. Furthermore beaches and barrier islands are specifically mentioned as areas that may be designated special (Section 213.10(A)). Local programs are expected to contain an assessment of public recreational areas along the shoreline and their patterns of use. Financial and technical. assistance by the Secretary of DOTI) to other state agencies and local governments for. shoreline access and protection is also available under Section 213.10(E) of Act 361, which provides for such assistance in managing specific sites in the coastal zone. 2) Definition of "beach" In Louisiana, the seashore, i.e., the area of land along the coast which lies between low water and mean high water, is publicly owned and available for public use. E-uch state ownership and public use of seashores also applies to the shores of wa'.er bodies referred to as "arms of the sea". A body of water is considered an arm of the sea if it is located in the immediate vicinity of the open coast and is directly overflowed by the tides. d - 2 3) En forceable Policies,Legal Auth.orities Funding Programs and Other Techniques for Shorefront Access and Protection Act 361 recognizes shorefront areas and beaches as valuable features and directs that ways should be provided to enhance opportunities for their use and enjoyment for recreation (see Section 213.8 (c)(4)(10)). Specific state policy on shoreline access is expressed in several other sections of the coastal use guidelines: 0 Guideline 1. 3(i) states that proximity to beaches and likely impacts on them are considered in evaluating all proposed act- ivities, to the extent allowed by the specific guidelines. 0 Guideline 1.3(n) provides for consideration of the effects of a proposed project on navigation, fishing,, public access, and recreational opportunities. 0 Guideline 1.4(e & q) states that in siting of any facility on a shoreline or beach, any adv Crse alteration or destruction should be avoided or minimized. 0 Guideline 1.6 states that all uses should be conducted to permit multiple u-ses including recreation. 0 Guideline 3.8 states that "Linear facilities involving dredging S of shall not traverse -beaches, tidal passes, protective reef other natural gulf shorelines unless no other alternative exists". 0 Guideline 5.2 directs that "Shoreline modification structures shall be designed and built using best practical techniques to minimize adverse environmental impacts" to prevent loss of the shoreline, 0 Guideline 6.8 states "Surface alterations which have high adverse impacts on natural functions shall not occur to the maximum extent practicable, on barrier islands and beaches, isolated cheniers, isolated natural ridges or levees, or in wildlife and aquatic species breeding or spawning areas, or in important migratory routes". Funding for recreation and natural preservation projects is available for the planning, design, land acquisition, construction, management, promotion and technical assistance related to such projects. The following is a brief description of possible funding sources, including both federal and state funding sources: 0 First Use Tax (see appendix e) 0 The Heritage Cons.ervation and Recreation' Service of the U. S. Department of the Interior is a [email protected] source of funding for public shorefront access planning and development. Grants for acquisition and development of public outdoor recreation projects may be. used for boat launches, picnic areas, camp grounds and support facilities such as roads, water supply, etc. d - 3 Generally priority for such grants is given to projects serving urban populations. These grants provide 50 percent of the cost pf acquisition and development. There is also a joint HCRS/OCZM urban waterfront revitalization demonstration grant program. � The National Park Service administers the Historic Preservation Act, Public Law 89-665, which provides up to 70 percent matching funds to states and local governments for the purpose of acquisition, preservation and development of historic sites. This source of funding is particularly appropriate for the forts along the Louisiana gulf .-,,oast. � The Coastal Ener y Impact Program (CEIP), administered in Louisiana by the Department of Transportation and Development provides grants and loans to accomodate growth and other impacts from new and expanded coastal energy activities. Grants for recreational projects (100 percent) are given a high priority. Since the impacts of oil and gas exploration and pro- duction are evident in most areas of the coastal zone, this program is a particularly appropriate funding source. � The Soil Conservation Service (SCS) of the U.S. Department of Agriculture has the au h ity, through local soil and water conservation districts, to assist in recreation area development and in the planning and application of conservation practices. Assistance applicable to shorefont recreational planning develop- ment includes recreation area development, access roads, pro- tection for heavy use areas, park and lake construction, manage- ment of wildlife wetland habitats, and grading and shaping of recreation land. The Watershed Protection and Flood Prevention Act of 1954 gives the SCS authority to provide technical and financial assistance for projects involving public water based recreation is available and all installation costs are eligible for loans. That act also authorizes reimbursable advances for preservation sites. The U. S. Army Corps of Engineers, under the Federal Water Project Recreation Act of 1965 (Public Law 89-72) may fund up to 50 percent of the separate costs for recreation facility develop- ment at a water resource development project location. The local sponsors of the project must agree to operate, maintain and replace the constructed facilities when needed. It should be noted that due to a recent decision (May, 1978) the cost of lands donated to the Corps for recreational development may not be considered as part of the 50 percent share of local project sponsors. The Federal Highway [email protected]@[email protected] appropriates funds to the State Office of Highways for highway construction and improve- ments. Providing access to the state's scenic and recreational areas is an important aspect of this program. These funds may d - 4 also be used for recreational use of rights-of-way, cor ridors, small parks, and the designing, planning and construction of access ramps to public boat launching areas from highway bridges. In urban areas, bicycle and pedestrian facilities projects may be eligible for funding on a 70-30 percent matching fund basis. The Loui siana Department of Wildlife and Fisheries is responsible for the management and protection of wildlife and fish resources in the state. Providing outdoor recreational opportunities -such as boat launches, adequate access and facility construction are part of the duties of the Department of Wildlife and Fisheries. Another possible source of funding is through the Department of Housing and Urban Development in the form of Community Development Block Grants. Assistance from the grant may be used for the acquisition of real property; for the provision of recreation; conservation of open space, scenic areas or natural resources; and the installation or construction of public works and related facilities. In order to obtain a Community Develop- ment Block Grant, a summary three-year plan which identifies community needs and methods to meet the needs must be supplied by the applicant. The Louisiana Office of Tourism and Promotion assists designated "tourist promotion agencies" with matching funds for approved projects. Applications are submitted to the appropriate Economic Development District by local tourist promotion agencies. The Economic Develo ment Administration (EDA) of the U. S. provides up to 80 percent funding for public works facilities construction. To be eligible for such funding, the project must respond to a local economic need, since EDA's mandate is specif- ically concerned with economic development and aiding and encouraging employment. d 5 Perish Site Name 6 Description Parish Site Name Description Cameron (1) Rockefeller State Wildlife Vermillion (10) Paul J. Rainey Private Refuge: 64,500 acres; Wildlife Refuge: 27,000 birdwatching, fishing acres; birdwatching (2) Sabine National Wildlife Intracoastal City Boat Refuge: 142,717 acres; Launch limited hunting, bird- lberia Marsh Island State watching, fishing Wildlife Refuge: 78,000 (3) Rutherford Beach State acres; birdwatching, Park: camping, swimming, fishing sun bathing, fishing (13) Shelf Keys Federal Wild- (4) Hackberry Beach: Swim- life Refuge: 8 acres; ming, sun bathing, fishing birdwatching (5) Holly Beach: swimming, (14) Commercial Canal Boat sun bathing, fishing Launch (6) Cameron Camping Area: St. Mary (15) Cypremort Beach: 3,000 swimming, camping, fish- foot manmade beach; ing picnicking, swimming, (7) Sabine Lake Boat Launch sun bathing, fishing (8) Calcasieu Ship Channel (16) Burns Point: picnicking, Boat Launch swimming, sun bathing, (9) Mermentau River Boat fishing Launch (17) Intracoastal Canal Boat Launch Perish Site Name & Description Parish Site # Name & Description Terrebonne (18) Cocodrie Boat Launch (26) Linear Park: 10 miles LaFourche (19) Wisner State Wildlife along Lake Pontchartrain; Management. Area: 21,600 biking, hiking, jogging, acres; hunting, fishing picnicking, fishing (20) East Timbalier Island (27) Fort Livingston: Grand National Wildlife Refuge: Terre Island; historic fort. 337 acres; birdwatching (28) Bonnabel Boulevard Boat (21) Elmer's Island: swimming, Launch sun bathing, fishing (29) Williams Boulevard Boat (22) Fourchon: boat launch, Launch swimming, sun bathing, Plaquemines (30) Pass a Loutre State Wild- fishing life Management Area: Jefferson (23) Grand Isle State Park. 66,000 acres; limited (East End and West End hunting, fishing, bird- combined) 140 acres; watching camping, swimming, sun (31) Delta National Wildlife bathing, fishing Refuge; 48,800 acres; (24) Grand Isle Beach: swim- fishing, birdwatching ming, sun bathing, fishing (32) Bohemia State Wildlife (25) Grand Isle Fishing Pier: Management Area: (old La. I bridge) fishing 33,000 acres; hunting, fishing, birdwatching Perish Site # Name & Description Parish Site Name & Description St. Bernard (33) Biloxi Wildlife Management St. Tammany (45) St. Tammany Wildlife Area: 39,580 acres; hunt- Refuge: limited hunting, ing, birdwatching, fishing birdwatching, fishing (34) Breton Islands National (46) Fountainbleau State Park: Wildlife Refuge: 7,500 2,755 acres; camping,hik- acres; birdwatching, ing, biking, swimming, fishing sun bathing, fishing (47) Fairview Riverside State (35) Fort Proctor: Lake Borgne Park: 100 acres; on historic fort Tchefuncte River 2 miles Orleans (36) Pontchartrain Seawall and from Lake Pontchartrain; camping, swimming, sun Lakeshore: swimming, bathing, fishing, boat fishing, jogging, walking, launch biking. picnicking (37) Fort Pike: 125 acres; historic fort, picnicking, Tanglpahoa (48) North Pass Boat Launch fishing, boat launch St. John (49) Manchac State Wildlife (38) Fort Macomb: historic Management Area; 5,261 fort acres; hunting, fishing, (39) Municipal Yacht Harbor: boating, crawfishing public marina (5O) Akers Fishing Pier (40) Orleans Marina: public (old U.S. 51 bridge) marina (51) Frenler Beach: boat (41) West End Boat Launch launch (42) Seabrook Bridge Boat (52) Ruddock Boat Launch Launch (53) LaPlace Boat Launch (43) Chat Monteur Pass Boat St. Charles (54) Bonnet Carre Cast Levee (44) South Shore Boat Launch EXISTING PUBLIC SH.."02FRONT RECREATION SITES AND ACCESS ROUTES IGURE D-1 A 10 0 io 20 30 c=-CU = a=.:z- [email protected] [email protected] SCALE IN MILES .7 4 .5 --r- 4 -'d o 2,/ 2 30 (30 um Lam 14. L11CWKID 01 [email protected] hot%." 0 two Polo I 180 W lly 2 azu, GULF OF UEXICO MAINE Shorefront access is a delicate political issue in Maine, where private property owners vociferously oppose attempts to let the public use the coastal areas. Except in a very few cases, private ownership extends to low tide or 100 rods (503 meters) from high tide (whichever is less). A colonial ordinance dating back to the mid-seventeenth century authorized private land ownership in the intertidal zone, subject to public rights for fishing, fowling, and navigation, but no mention was made of recreational rights. Maine coastal officials are interested in testing these recreational rights in the courts, but a case which they had planned to use as a feeler in this effort was recently dismissed and the Attorney General's office is now backing off from its former commitment to this issue. The state coastal program has created a Title Search Assistance Fund to help communities identify public access points. To date approximately 15 communities have participated in this program. Once the access points are determined, communities are more likely to allow their own residents to use them and tend to discourage "outsiders." State coastal officials say that they are not aware of any great clamor for improved beach access, and are therefore uncertain about how large a program to develop. They are more aware of inquiries about boat access and have helped fund the Fish Pier Development Program. A study identified potential pier development sites and a combination of Economic Development Administration and state bond issue money was MAINE 2 used to fund the construction of six state-sponsored piers on the coast. Six additional sites are being examined by local governments which re- ceived CZM funding for fish port planning studies. Because of the political climate of beach access in Maine, state coastal officials are hesitant to propose any state legislation. They fear that if such legislation is rejected, the courts will cite that defeat as "legislative intent" and use it against beach access cases. SHOREFRONT ACCESS AND PROTECTION PLANNING IN MAINE Fulfilling Requirements of Section 305 (b) 7 of the Coastal Zone Management Act Amendments of 1976. CONTENTS 0. INTRODUCTION 0.1 Land Ownership . . . . . . . . . . . . . . . 0.2 Requirements of the Coastal Zone Management Act . . . . 2 0.3 Purpose of the Paper . . . . . . . . . . . . . . . . . . 3 1. PROCEDURE FOR ASSESSING AREAS.REQUIRING ACCESS OR PROTECTION 1.1 Assessing Access Needs 4 1.11 Public Facilities for Boats Program . . . . . 4 1.12 Inventories of Public Coastal Areas . . . . . . 4 1.13 Analysis of State Park Use . . . . . . . . . . . . 5 1.14 Statewide Comprehensive Outdo-or Recreation Plan. . 7 1.15 Surveys and Studies . . I . . . . . . . 9 . 9 7 1.16 Litigation . . . . . . . . . . . . .. . . . . . . 9 1.17 Visual Access . - .9 . . . * . 9 a s . . . . . 10 1.2 Assessing Protection Needs . . . 1.21 Critical Areas . . . . s . 9 1.22 Wildlands . . . . . . . 0 # . . . . . . . . . 12 1.23 Rivers . . . . . . . . . . . 6 . 1 0 . . * 13 1.24 Wildlife Areas and Wetlands . . . 14 1.25 Islands . . . . . . . . . . . . . 14 1.26 Historic Sites . . . 16 1.27 Beaches . . 0 0 . . . 16 1.28 Statutes . . . . . . 16 2. DEFINITION AND IDENTITY OF BEACHES 2.1 Confusion of Terms. 18 2.2 Ownership . . . . . . . . . . . . . ... . 18 2.3 Definitions . - . : . . . . . . . . . . . . . . . . . . 20 2.31 Access Planning . . . . . . . . . . . . . . . . . 20 2.32 Protection Planning . . . . . . . . . . . . . . . 23 3. ACCESS AND PROTECTION PLANNING POLICIES AND LEGAL AUTHORITIES 3.1 Access Policies and legal authorities . . . . . . . . . 26 3.11 Coastal Wetlands Act # . . . 0 . . . 0 . 0 . 28 3.12 Shoreland Zoning Act 9 . 0 . . . . . . . . . . 30 3.2 Protection Policies and legal authorities . . . . . . . 31 4. DESIGNATION OF SPECIAL MANAGEMENT AREAS 4.1 Areas of Particular Concern . . . . . . . . . 33 4.2 Areas for Preservation or Restoration . . . . . . . . . 33 5. LEGAL AUTHORITIES AND FUNDING VROGRAXS 5.1 Federal . . . ... . . . * . I . I . I . 6 . . . 34 5.2 State . . . . . . . . . . . . . . 0 . 0 . 0 35 5.3 Local . . . . . . . . . . . . . . 37 1. PROCEDURE FOR ASSESSING AREAS REQUIRING ACCESS OR PROTECTION The.purpose of assessing areas requiring additional access or pro- tectlion planning is to ex-press more than local concern with resnect to additional access or protection needs for beaches and other coastal areas of environmental, recreational, historic, esthetic, ecological or cultural value. Because the needs and means for access improvement and site protection are in many cases quite different, assessment of each is treated here separately. 1.1 Assessing Access Needs The procedure for assessing coastal physical access needs in Maine is a six-fold approach based on the following activities and studies: 1.11 Public Facilities For Boats Program 1.12 Inventories of Public Coastal Areas 1.13 Analysis of State Park Use 1.14 Statewide Comprehensive Outdoor Recreation Plan 1.15 Surveys and Studies 1.16 Litigation Although physical access is emphasized here, visual access to the shore and the ocean is also very important. Visual access is dis- cussed separately below (1-17). I.il Public Facilities For Boats Program - One approach to the assessment and provision of actual access to the coast is offered in the State's Public Facilities for Boats Program. Administered by the Bureau of Parks and Recreation, a Public Facilities For Boats plan was prepared by the Bureau (January, 1970") to guide the pro- vision of access sites. Funding for the Program comes from the Boating Facilities Fund. Money from this Fund is to be used among other things, to "acquire, construct and maintain, within the funds available, public facilities for boats in the waters of the State, including but not limited to launching ramps, parking sites and access roads 1.12 Inventories of Public Coastal-Areas - The second aspect of an sessment and documentation o` access needs is an inventory of publicly owned properties in the coastal area. Undertaken cooner- atively by the State Planning Office and the Bureau of Parks and. ',Recreation, the inventory covers publicly owned coastal area parcels, not including submerged lands. Public lands throughout Maine's coastal area are being included, not just those contiguous to the water, to help assess the possibility of banking land. 4 Complementing this is an inventory of public accessways to the [email protected], including those on public beaches, being undertaken by the State Planning Office (unpublished). Local officials and knowledgeable citizens have been contacted for this information. All claimed public accessvays identified in this manner are being mapped and described on inventory forms. By identifying the parcels of land in which the public holds proprietory rights, it can be insured that existing public land is not lost by adverse possession or other procedures, or so encumbered by adjacent development as to destroy the existing access or use potential. The successive step in needs assessment is the selection of sites which have high potential for public access. This has been done in part in a report, The Maine Coast: Recreation and Open Sloace, prepared for the Committee on Coastal Development and Conservation. The report identifies coastal sites suitable for resource protection or outdoor recreation. The Waterways Division of the Bureau of Parks and Recreation also selects sites suitable for recreational boat access as mentioned above. Once potential sites have been selected, onsite assessments can be conducted to determine the relative suitability of each for public access use. This field inventory should consist of two major parts: (1) a physical characteristic/ownership component, and (2) an [email protected]@iment of environmental impacts. The product of the foregoing will be a definition of what the State intends to do, where it intends to do it, and how it pro- poses to do it. This process has been initiated. Prior to adoptic' or other action extensive public discussion will be required. 1.13 Analysis of Park Use The third aspect of an assessment of access needs is analyses of public use of supervised state parks and memorials. Histograms were prepared by the Bureau of Parks and Recreation as part of its State Park System Plan (in preparation) to show public use patterns. Each graph was prepared by determining the average number of people using an area each day during the operating seasons of 1974, 1975 and 1976. Areas of the same use- type were grouped and this information was plotted for the 101 day period between Memorial Day weekend and Labor Day. The shapes of the resultant,graphs indicate how visitation is distributed in time. Figure 2 is the graph for Popham Beach, Peacock Beach and Reid State Parks, three swimming-picnicking parks in the coastal area. An indication of the extent to which the 'oublic is utilizing exist- ing recreational capacities can be gained by examining the figures. (In this respect, the reader is cautioned that the graphs represent, for the most part, groups of facilities of the same use-type. Thus, individual facilities may exhibit use-patterns which differ from those illustrated.) All graphs were.prepared in the same [email protected] making it possible to compare directly the volume of use. Instant Design Capacities on each graph refer to the total number of people who can be accommodated at the areas at any given moment. 5 Figure 2 INsTwT DESIGN CAPACITY L rn U Lr 3 s 33 ss 33 $3 3 5 ss ss iUly May Aucu5t Sept SWM41NG/PlCNICKI,Nr, (PEACOCK 2EXH, PICPHAM 2EACH AND REID STATE PARKS) 1.14 SCORP The fourth aspect of assessing access needs is the analysis of facility and land deficiencies for recreation activitieq in the Statewide Comprehensive Outdoor Recreation Plan (1977). Detailed analyses of a number of coastal related activities were pre. pared for the four coastal planning districts in Maine. Table 1 is a summary of calculated land deficiencies in the coastal planning districts. The Maine SCORP also identified the need for "a study of the needs for additional State Park areas with visual or foot access to the Maine coastal shoreline." I/ 1.15 Surveys and Studies - The fifth aspect of access needs assess- ment is a series of Maine resident preference surveys. A 1975 sur- vey conducted for the SPO found that 53% of the coastal area re- spondents favored increasing publicly accessible coastline in Maine.,j These figures are consistent with an earlier survey which found that 55% of those interviewed across the state revorted they would like to see the State spend more money to acquire coastal beaches and scenic areas, were the funds available. 3/ In a 1977 survey, 42.6% o., those surveyed in the coastal area said that, public coastal land was less than adequate. 4/ In addition to the statewide and coastal surveys citied, there have been in recent years a number of local and regional studies and surveys which have reported the problems of access needs along the Maine coast. At a recent meeting of the Land and Water Resources Planning Committee of the Hancock County Planning Commission, the "lack of access to the shoreline by fishermen due to increasing sales of shore property for residential use" was identified as a serious problem. 5/ J/ Maine Bureau of Park s. and Recreation, Maine Statewide Compre- hensive Outdoor Recreation-Plan (Augusta, 1977) P. 11-18. 2/ Maine State Planning Office, Citizen Evaluation of Public Policy in the Coastal Zone (Augusta, 1975), prepared by the Social Science Research Institute, Univ. of Maine, p. 85. 3/ Maine State Planning Office, An Appraisal by the-Peop-le (Augusta, 1973), prepared by Northeast Markets, Inc., P-30. 4/ Maine Bureau of Parks and Recreation, Maine Resid-ent Outdoor Recreation Particinaticn and Preferences - A Look of the Coast T-Augusta, 1977), prepared by Northeast Markets, Inc. Meeting of the Land and Water Resources Planning Committee, Hancock County Planning Commission, February 15, 1978. 7 -3 P-4 cn 0 rl z 0 r) @J. rL ?I X, a) r? z co l< V) M 0 r? 0 > r) H :3 m " M @-k 0 0 cr U) lu 0 aq (D OQ r? (D 00 r? F" OIQ :3 OQ [email protected] CL (D 0 rt -4 0 lad r. (D rt OD C) 0 ci ct ON C: P, 0 0 (D co D) 0 0 CL (D C+ (IQ t7l cn co Em rlt @-4 M %.D 00 0 Other studies have cited the need for public access in Maine as well. A 1975 Assessment-of Water and Related '.;and Resouirce..s in New England listed access to recreation areas as lacking in three of seven coastal water basins in Maine. l/ A 1-973 Onen S-oace Plan for the Bath-Brunsvick r egion specified sites for the acquisition for boat launch and recreation areas. 2/ RC&D Projects on the coast have identified lack of access for area residents as among serious problems. 3/ Related to these studies are the activities of towns in identifying existing accessways. The communities of Brunswick, Belfast, and Southwest Harbor for example, have conducted indepth investigations to locate existing public rights of way to the water. Funded.by a grant from the Maine Coastal Program the town of Cumberland is ,currently researching the public's legal rights to the shore in several southern Maine communities. To promote increased local activity of this sort, the Time and Tide RC&D in midcoastal Maine has conducted workshops on locating old public rights of way. A report is being issued to reach-more towns interested in this same type of project. 4/ 1.16 Litigation - The final aspect of Maine's process of access evaluation is an ongoing program of litigation. Currently several law suits relating to various aspects of the access issues are pending. As opportunities arise, legal issues will be raised and the Maine Attorney General will intervene in the public's interest where appropriate. New England River Basins Commission, 1975 Assessment of Water and Related Land Resources, New England Region Summary Report, Severe Rescurce Problems and Recommendations for their Resolution, (Boston, December, 1977) p. 143. Bath/Brunswick Regional Planning Commission, Open Space Plan, prepared by Community Planning Services, 1973. 3/ Time and Tide RC&D, Prngram of Action, assisted by USDA, et al, 1974; Down East RC&D Council, Framework Plan, assisted by USDA, et al, 1977. 4/ Maine Department of Marine Resources in cooperation with Time and Tide RC&D, 'Publ-,c Access to Maine-ESh-oreline: A WorkshoD Discussion, DMR Fisheries Information Series #1, June, 1978. Suits are pending, e.g. in the communities of Brunswick and Deer Isle. 9 1.17 Vi.sua'L Access - Visual access to the water is as imDortant to many users of the coast as is physical access. The Maine DeDart- ment of TransDortation provides highway rest areas in scenic coastal jocations. The Maine Comprehensive Outdoor Recreation Plan also recognizes the value of coastal scenery and supports the protection of outstanding coastal areas coupled with the provision of visual access to the shore. 1/ In addition, of all the states, the most prevalent use of conser- vation easements as a technique for/ shoreline preservation has been in Maine. Conservation easements have been granted on approximately 9,000-10,000 acres of private lands in the coastal area to protect shorelands and to preserve the visual attractiveness of the coast. :.I/ Maine Bureau of Parks and Recreation, Maine Comprehensive Cutdoor Recreation Plan (August, 1977), p. 11-18. 10 1.2 Assessing Protection Needs Presented here is a review of those activities undertaken or under- way to assess needs for the protection of important coastal site S 4 Maine. The development of a'process for the protection of such areas is also dealt with in [email protected] sections of Maine's coastal Program concerned with Geogra-phic Areas of Particular Concern (Appendix C), Areas for Preservation or Restorat-ion (Appendix D), and Goals, Objectives and Policies (Section 6). The procedure for assessing coastal protection needs in Maine is C> a manifold approach involving the conservation of: 1.21 Critical Areas 1.22 Wildlands 1.23 Rivers 1.24 Wildlife Areas and Wetlands 1.25 Islands 1.26 Historic Sites 1.27 Beaches A summary of thirteen principal statutes governing land and water use and quality on the coast is presented at the end of this sectic (1.28). 1.21 Critical Areas - The systematic identification, registration and conservation of coastal critical areas is the first aspect of protection needs assessment. In 1974, an act establishing a State Register of Critical Areas was enacted. Under this legislation, the State Planning Office has the responsibility to develop a Critical Areas Program for the pur- pose of identifying, document3ing, and encouraging the conservation of critical areas. An eleven member Critical Areas Advisory Board was created to advise and assist the State Planning Office in this endeavor. The Critical Area Program essentially refines an in- ventory completed through the Natural Resources Council in 1972. This initial project by the NRC established an interest in the iden- tification and protection of natural areas. According to the legislation, critical areas are officially recog- nized (registe red) areas which contain natural features of state significance--either highly unusual natural featur-es or outstand- ing examples of-more common features. Critical areas may include exceptional -olant or animal habitat, areas of great [email protected] or historical interest, and outstanding scenic areas. Examrles in- clude colonial bird nesting sit-es, naturally occurring rhododendran stands, significant fossil deposits, and scenic gorges and waterfalls. 11 The Critical Areas Program consists of two Dhases: Registration and conservation. The registration process consists of the iden- tification of subjects for investigation, the nreparation of plan- ning reports on priority subjects, recommendations for registration from the planning reports, a preliminary decision on the registration with a 60 day review period for the landowner, and final registration if appropriate. The conservation process is dependent upon the cooperation of the landowners and may, with the owners consent, involve management agreements and the sale or donation of property rights. In this process, the State Planning Office attempts io maintain a close relationship with the owners of critical areas. Wide dissemination of information on critical areas is not encouraged without the landowners consent. As discussed in 2. below, the Critical Areas Program has undertaken an inventory and detailed descri-otion of the sand beaches of the Maine coast. This information goes a long way toward long term protection of coastal beach systems. 1.22 Wildlands - The second aspect of protection needs assessment deals with the "wildlands" of Maine's c.oastal area. The Maine Land Use Regulation Commission (LURC) has a mandate to plan for and zone all land use in the unorganized territory of Maine (often colloquially called the "wildlands"), including six unorganized townships and 254 islands in the coastal area. To assist in the evaluation of the attitudes of Maine residents toward wilderness conservation at least three surveys have been undertaken. Lessees in the Unorganized Townships of Maine, by the Maine Land Use Regulation Commission, collected background information, opinions and attitudes, and lease information from lessees of land in the unorganized area. When asked what they liked partic- ularly about the Maine woods, 80 percent indicated the quiet and solitude, 64 Dercent the wilderness atmosphere, 66 percent the f;-shing oppor;@unities, 54 percent the hunting opportunities, 12 percent the vacation communities, and seven percent other. At the very'least, these responses indicated a desire to protect and main- tain the natural environment characteristics of the unorganized area. Maine, An Ano-oraisal by the Peo-ole, conducted for the State Planning Office in also addressed the wilderness issue. The survey found that the features of Maine that respondents liked the most ve-e its scenic beauty and its wide open, uncrowded feeling. The same survey found that a majority of respondents statewide sup- pc,ted the maintenance of undeveloped wildlands. An Analysis of the Attitudes of Resi-dents-Toward Land Use in Maine's urorganizedd Area undertaken -Cor the Land Use Regulation Commission n 1974, found that 88 percent of the Maine residents surveyed -felt that "certain wilderness areas, lakes and rivers should be set aside for primarily primitive recreation like hiking and canoeing." Eighty- -,hree percent of the respcndentls favored State regulation of land the unorganized areas o use I f Maine. 12 A synopis of these studies indicates an underlying concern for the protection of Maine's "wilderness" but at the same time a recogni- tion of the need.fo.- industry and jobs. There seems to be a desire to balance the two, to have some of both if at all possible. One method of limiting development in the unorganized area is through the planning and zoning responsibilities of the Maine Land Use Regulation Commission. Existing areas are being identified by the Commission and zoned as protection districts. These efforts may also serve as an inventory of important recreation and natural areas. From the inventory list, important areas could be selected for possible acquisition by federal or State agencies. The Land Use Regulation Commission has published a Comprehensive Land Use Plan (September, 1976) for the plantations and unorganized 4- of the State. The Commission has also conducted and pub- lished A Preliminary Study of the Coastal Islands in the Land Use Regulation Commission's jurisdiction (April, 1976). Both of these documents go a long way toward outlining the State's interest in conserving its coastal wildlands. 1.23 Rivers - Although Maine do.es not have a State wild and scenic rivers program, there has been considerable activity recently re- garding assessment of rivers deserving protection, including several rivers in Maine's coastal '@asins.' Maine has passed special legislation for the zoning and protection of the Saco River in southern Maine and it has the limited river zoning and regulating protection afforded by the Land Use Regulation Commission. Maine has one designated wild and scenic river, the Allagash. Though State administered, the Allagash is designated as a National. River. under the National Wild and Scenic Rivers Act of 1968. Sev- eral coastal rivers in Maine have been suggested as potential study rivers under the Act. These include the Machias River, the St. Croi: River, the Kennebec River and the Sheenscot River. Recently the National Park Service has been surveying rivers throughout the country, utilizing general criteria, to preliminarily determine which rivers might qualify for further in depth study as potential national wild and scenic rivers. This survey effort has just been ccm,oleted for Maine and several rivers are expected to meet the general criteria. In addition, 25 coastal basin rivers in Maine have been recommended for screening as potential wild, scenic and recreational rivers in a report, The Maine C_oP_9t:._ Recreation and Onen Space, prepared for the Committee on Coastal Development and Conservation. To assess the attitudes of residents..toward wild and scenic,rivers, the subject was addressed in the 1973 survey, Maine, An An-praisal by the Peo-ole, in the context of several recreation questions. On a statewide basis, the prot-ect-ion of wild -and scenic rivers was e third most Popular in a list of seven choices. The nrotection o. wild and scenic rivers was number one or number two priority in several districts, including York County. 13 1.24 Wildlife Areas and Wetlands - The acquisition or protection [email protected] wildlife areas and wetlands in Maine's coastal areas are largely accomplished through the programs of the Department of [email protected] Fisheries and Wildlife and the De-Dartment of Marine Resources and through the regulations of the Coastal Wetlands Alterations Act and the Site Locatio'n Act, administered by the Department of En- vironmental Protection, and the Stream Alteration Act administered by the Department of Inland Fisheries and Wildlife. The long term acquisition objectives of the Department of Inland Fisheries and Wildlife include the acquisition of vulnerable salt marsh areas and coastal eider and seabird nesting islands. To aid in the assessment of which islands to acquire the Department has been cooperating in a multiyear study of significant nesting islands with the U.S. Fish and Wildlife Service and the State Cooperative Wildlife Unit. Exhaustive nesting inventories have been undertaken and a selection procedure formulated to select habitat of highest significance. The zoning activities of the Land Use Regulation Commission in the unorganized area of Maine is also a means of 'assessing the need for Iprotection of coastal wildlife areas and wetlands. LURC's final comprehensive plan, approved in 1976, includes a Wetland Protection Subdistrict, a Flood Prone Protection Subdistrict, and aFish and Wildlife Protection Subdistrict. Finally, the mandatory shoreline zoning law for organized towns in Maine offers some protection of smaller wildlife or wetland at the local level. Each town is required to identify areas fragile wetlands and important wildlife areas. Many of these areas are put into resource protection districts or other zones of restricted use. ,[email protected] Coastal Islands - Maine's coastal islands are unique to the entire eastern coast of the United States in that few other states haveislands with such geological and biological diversity. Many haveargued that these islands are not only nationally significant but of worldwide significance as well. As such, a strong case can be made for the protection of a representative sample of Maine's coastal islands from development. A number of agencies and organizations in Maine are involved in the assessment and- protection of islands. One hundred-three coastal island properties are owned by federal or state public agencies or private conservation organizations in Maine. Several others are held by local governments for recreation or resource conservation. At the state level, the principal island conser- vation activities are undertaken by the Department of Inland Fisheries and wildlife, the Bureau of Public Lands, the Bureau of Parks and Recreation, and the Land Use Regulation Commission. The work of the Depart-ment of inland Fisheries and Wildlife and the Land Use Regulation Commission concerning island evaluation and protection is described above (1.222 and 1.24). 14 The Coastal Island Registry, a program of t.he Maine Bureau of Public Lands includes jurisdiction over approximately 1,300 islands which have not been registered with the State. The Coastal Island Registry was created to clarify and establish the State's interest in coastal islands and to develop and imple- ment management policies for the use and protection of State owned islands. In accordance with MRSA Title 33, Chapter 25, the Registry is authorized to identify, described and assign numbers to all ledges and islands in Maine's coastal waters, to require registration of al" these islands, and to promulgate all rules and regulations necessary to carry out its lawful purposes. As amended in 1975, the law fur- ther requires the Registry to review all claims to coastal islands and determine the validity of these claims through a systematic search and analysis of islpnd titles. The second phase of the Registry program, a review of island titles, is -underway. The Bureau of Public Lands must review each island registration with a view toward disallowing registrations by or on behalf of.persons who are not true owners of the islands. This involves the review and title search of up to 1,500 islands followed by an administrative process and possibly judicial proceedings. At the same time, the Bureau is developing A Management Plan foll the Unregistered Coastal islands of Maine.. The plan will allocate man- agement responsibility for specific islands to public agencies which have a clear interest in assuming such responsibilities. For example, islands which are significant as bird nesting sites will be trans- ferred to Fish and Wildlife. Islands which lend themselves to rer reational development will be transferred to Parks and Recreation. The plan will suggest the most suitable use of each island based largely on natural resource inventories already completed for the islands. Many islands will be set aside for resource protection ia the public interest. Other island protection efforts in Maine relate to island trusts and conservation easements. The passage, in 1971, of an Act to Provide for Coastal I'sland Trusts outlined a method by which municipalities, the State, and the Federal government could work together towards planning for and protecting significant island groupings. The legislation resulted primarily from a federal study of coastal islands. A major recommendation of that study was the Casco Bay Islands be initially studied as a model island grouping. As of the end of 1976, the tviaine Coast Heritage Trust had secured conservation easements on 64 entire islands and 57 portions of islands. The recipient agencies for these easements include the State Bureau of Parks and Recreation, the National Park Service, the Nature Conservancy, the Department of Inland Fisheries and Wildlife, the:Maine Audubon Society, and several municipalities. (See 1.17 and.5.2 for further discussion of conservation easements,) 15 1.26 Historic Sites - The recognition of sites of historic signi- Ficance is the sixth aspect of assessing protection needs in Maine. At the State level, it is primarily the responsibility of the Maine Historic Preservation Commission to screen and nominate areas on the coast as candidates for the various national historic registers. Twenty-three coastal sites in Maine are National Historic Landmarks. of the 328 Maine sites on the National Register of Historic Paces, 215 are located in coastal area communities. Twenty-five of the 32 sites in Maine on the National Register of Historic Districts are in coastal towns. The Historic Preservation Commission is also responsible for the preparation and maintenance of the State Comprehensive Historic Pre-servation Plan, and all of the state responsibilities as re- ouired under the National Historic Preservation Act. Additionally, the Bureau -of Parks and Recreation directly admin- isters twenty-two historic sites and memorials in the coastal area. 1.17 _Beaches - Maine's coastal beaches are one of the state's most irriportant social, ecological recreational assets. They also represent a large part of the public's access to the sea. As such they are treated separately below. 1.28 Statutes - Currently there are about 75 state laws, adminis- t red by more than a dozen separate agencies, which pertain to e management of coastal resources in Maine. Many of these'have already been mentioned in this discussion. Table 2 is a summary of thirteen principal state statutes governing land and water use and quality along the coast. 16 Table 2 PRINCIPAL STATE STATUTES GOVERNING LAND AND WATER USE ALONG THE MAINE COAST STATUTE PURPOSE Coastal Wetlands Act (38 M.R.S.A. 471-478) Directs the Board of Environments Protection to regulate uses that harm tidal and subtidal lands. Coastal Island Trust Act (12 M.R.S.A. 641-646) Enables coastal island trusts tered by coastal island commission be set up to control and guide dev velopment of Maine's coastal island. Submerged Lands Act (12 M.R.S.A. 514-A) Reaffirmed the State's ownership submerged lands. Coastal Conveyance of Petroleum Act (38 M.R.S.A. Established an oil spill prevention 541-560). clean-up program financed by a oil brought into Maine ports. Land Use Regulation Commission (12 M.R.S.A. Directs LURC to zone all land 681-689) unorganized areas of the state, ing six unorganized townships islands in Maine's coastal area. Mandatory Shoreland Zoning Act (12 M.R.S.A. Requires municipalities to enact 4811-4814) enforce zoning for shore areas 250 feet of water. Protection and Improvement of Waters Act (38 M.R.S.A. 356) Mandates that the quality of all waters be protected from degre State Plumbing Code (22 M.R.S.A. 42) Sets up minimum standards for waste water disposal. The Subdivision Law (30 M.R.S.A. 4956) Specifies that communities have proposed subdivisions to see meet minimum state criteria. Site Location of Development Act (38 M.R.S.A. Controls large development projects 481-489) through a permit procedure. Protection and Improvement of Air Law (38 M.R.S.A. Directs the Board of Environment pro- Ch. 4) tection to regulate all air e protect public health, property, natural resources. Solid Waste Management Act (38 M.R.S.A. Encourages programs that will Ch. 13) the volume of and assure the mentally sound disposal of sc and promote the reuse and recover valuable resources. Conservation of Marine Species Act (12 M.R.S.A. Gives the Department of Marine 3504) broad regulatory powers to almost all phases of marine fish. 17 2. DEFINITION AND [email protected] OF BEACHES 2.1 Confusion of Terms Beaches can be defined in a variety of ways. The Maine courts have had a difficult time defining the beach and the shore, The study, Main Lav Affecting Marine Resources, included the following de- finitions from shorefront cases: What is the sea shore must first be defined. The sea shore must 7" in its usual and or- be understood to be the margin of the sea dinary state. Thus, when the tide is out, the low water mark. is the margin of the sea, and when the sea is full, the margin is high water mark. The sea shore is therefore all ground be- tween high water mark and low water mark (Storer v. Freeman, 6 Mass 435, p. 439; Laysesk v. BanEor Bank, 8 Me. 85 Pg, 95' (1831). By beach, it is to be understood the shore or strand; [email protected]*has been decided, that the seashore is the space be- tween high and low vater mark jColtis v. [email protected] 15 Me, 237, 241 (1839). . .0 . The word beach, must be deemed to designate land vashed by the sea and its waves; and to be synonymous with shore 28 Me, 18o, 181 (1848). The 'shore' is the ground between ordinary high and low water mark, the flats, and a well defined monument (Montgomery v. Reed,69 Me. 510, 514 (1879); Morrison v. Bank, 88 Me. 155, T-60, 33 A. 782 (1895). The word [shore] strictly means that space which is alternately covered and exposed by the flow and ebb low water mark (Morrison SuDrai. The term intertidal zone also refers to the area between high and low water, the area over which the ordinary tides flow daily. 2.2 Ownership Federal regulations state that the purpose of defining the term "beach" is to aid in the identification of those public beach areas requiring further acces 's and/or protection. In states where most of the shoreline is beach frontage and public ownership extends only to high tide or the line of vegetation, planning for improved access to and protection of public beach areas is a relatively easy task. In Maine the situation is quite different.. in Maine, except in a very few cases, private ownership extends to low tide or 100 rods (503 meters) from high tide whichever is less. However, many beaches in this state, while technically privately owned, have for years been used as public common lands. In several instances coastal communities have budgeted funds for private beach maintenance (e.g. Scarborough, Wells, York, Saco). In one or two 18 towns recent research has suggested that beaches heretofore thought to be private may actually be publicly owned (e.g. Kittery). Hence, there are no definitive figures on beach ownership for the entire Maine coast. The Army Corps of Engineers in its National Shoreline Study, issued in 1971, estimated that only one-half of one percent of the Maine coast was in public recreational use though 3.2% was in local, state or federal public ownershipl/ (not all of which is available for public use), A report on Coastal Conservation Prioritiea,prepared for the State Planning Office in 1973,estimated. total coastal federal ownership to be 1.2%, state ownership 1,3%, and local ownership 0.5% of the shore- line of the, Maine coast--/. Total linear (mean high tide) sand beach ownership has been esti, mated as follows: Table 3 Jurisdiction Miles (Km) % of Coast % of Beach Federal Beaches 0.2 (0-3) 0.3 State Beaches 6.3 (10-1) 0.2 8.5 Local Beaches 9.2 (14.9) 0.3 12.6 Private Beaches 58.2 (93-7) 1.7 78-06 TOTAL" 73.9 (119.2) 2,1 10010 *Less than 0.01% "Columns are not necessarily additive due to rounding Clearly, public beaches, as defined, comprise a small percentage of the total coastal frontage. Regardless of the statistics, ownership does not tell the entire story. Some private beaches along the Maine coast are used as if they were public and some publicly owned beaches remain unavailable because they are inaccessible or undeveloped. To add to this confusion the public has certain rights along specific parts of the beach irrespective of ownership (except per- haps on federal military lands). Anyone can, for example, moor or rest a boat on tidal flats, sail over the flats, cross the flats to go to or from one's boat, take on or discharge passengers or cargo, fish, dig clams and worms, and hunt for wildfowl.below the high water mark. U.S. Army Corps of Engineers, ,National Shoreline Study,. North Atlantic Region (NY, 3.971), P. 103. 2/ Reed and D'Andrea, Coastal Conservation Priorities Plan (South Gardiner, Maine, 1973), P. 1-6. 19 These rights are stated in the Colony Ordinance of 1641 as amend- ed in 1647 which it is generally assumed, forms the basis for public shore rights in Maine, The Colony Ordinance was enacted in ,@Jassachusetts and Maine was previously a territory of that Commonvealth. Notably absent from the list of permitted uses of the intertidal area is mention of recreational activities . Judicial interpretation of the application of the Colony Ordinance in Maine suggests that recreational bathing may be a permitted shore use, although the point has nev.er been clearly tested. In any case, it is certain that the right of trespass across private lands to the seashore as applies to Great Ponds is not in force. The inability to get to the intertidal zone across private property from inland points makes public recreational rights for most people a moot ad- vantage. 2 3 Definitions Beaches can be defined in geologic terms as coastal accumulations of unconsolidated materials (sand beaches of particles �0,625mm - 2mmin diameter; cobble beaches of particles �2mm - 256mm in diameter) around the limit of wave action. Beaches can also be described in terms of their physiographic. parts (Figure 3) . Seaward of the mean low tide line are the offshore zones of the sea; the land under the sea is the seabed or submerged marine lands . The area between mean low tide and mean high tide lines, which is subject to the normal flow of the tides, is the wet sand. "Foreshore", "intertidal zone", and "tideland" are used synonymously with this term, The area between the mean hiah tide line and the line of vegetation, the storm ridge scarp, or an artificial structure parallel to the water line, such as a seawall, is the dry sand or backshore. The wet sand and dry sand together comprise the beachface. The area landward of the vegetation line, the storm ridge scarp, or a seawall or similar structure is the upland. 2 31 Access Planning - For purposes of access planning, beaches are defined as all local and state sand beachf ace areas on the coast as well as the tidelands where the public has the rights specif ied in the Colony Ordinance of 1641-47 -nd the submerged marine lands held in trust by the sovereign State of Maine f or the public . This definition encompasses both public sand beaches, which are among the State's most important recreational resources , and shorelands be- low mean high tide where the public has an interest in commerc-ial as well as recreational pursuits . In identifying access needs the following i,s being analyzed: (a) the SuDply of existing public facilities and areas, (b) the anticibated pressurcs f or f uture use o f thes e areas , and ( c ) the capability and 'Uit,,bi". ity of exis-t-ing areas to support increased access. 0 CL D WO. (D cc >-, 004 tto 4-) 0 cc ch H 0 EA z co bo LAj T 0 W LL The body of literature available for use in determining access needs includes the following: Creteau, Paul G. PrinciDles of Real Estate Law, Portland: Castle Publishirc, Co., 1977. Ducsik, Dennis. Shoreline for the Public. Cambridge: The MIT Press, 1974. Henry, H.P. Coastal Zone Mgt. in Maine: A Legal Perspective. Prepared for the Maine SPO, 1973. Maine Association of Conservation Commissions. "Boat Access Site Needs Survey Results." Kennebunkport, 1977. Maine Audubon Society. "Areas of Concern Questionnaire Results." Falmouth, 1977, Maine Bureau of Parks and Recreation. Maine Comprehensive Outdoor Recreation Plan. Augusta., 1977. Maine Resident Outdoor Recreation Participation a-nd Preferences Survey - A Look at the Coast-. Augusta, 1977. 19_75 Visitor Use Survey: Day Use State Parks & Coastal MuniciDal Beaches from Portland to Kittery. Augusta, 1975. Maine Department of Transportation. File information on "Highway layouts." Right of Way Division, Augusta. Maine State Planning Office, File information on public access ways to water. Augusta, 1976, New England River Basins Commission: Summary Report: Severe Resource Problems and Recommendations for their Resolution. Boston, 1977, Northeast Markets, Inc. Maine, An Appraisal By the People, Prepared for the Maine State-Planning Office, 1973. Parks, Richard B. "Public and Private Ri*ghts to Maine Tidal Waters." in Maine Fish and Game'(Summer, 1967). Social Science Research Institute. citizen Evaluation of Public PolicY in the Coastal Zone. PreDared for the Maine State Planning Office, 1975. Waite, G. Graham. it Public Rights in Maine Waters," in Maine Law Review, 17. 1965. 22 In addition' there are a number of local and regional reports, pre- pared over the past ten years, which have identified access needs in particular coastal areas. Ongoing programs conc'erning beach access plannin g are described above (1.1). 2.32 Protection Planning .. For purposes of protection planning, beacties are defined as those state and local sand beachface and dune sites identified (1) by the Maine Critical Areas Program as significant geological and/or botanical ecosystems and (2) by the Maine Bureau of Parks and Recreation as significant recreational beach systems. This definition includes those public sand beaches which are among the State's most important natural and recreational resources. It is anticipated that nonsand beaches, including those in the public domain, will be inventoried and studied by the Critical Areas Program. All beach systems, sand and nonsand, which meet the following criteria could be considered areas of particular concern: (1) areas of unique, scarce, fragile or vulnerable natural habitat, unique or fragile, physical, figuration, historica? significance, cultural value or scenic importance; (2) areas of substantial recreational value and/or opportunity; (3) areas of significant hazard if developed due to storms, floods, erosion and salt water intrusion; or (4) areas needed to protect, maintain or replenish coastal land;. or resources. The Maine Critical Areas Program has identified 44 principal coasta, beaches with a cumulative length of 60 km. From this list, 29 beaches were selected for field checking based on the geological botanical criteria outlined. in Attachment A. To date, two dozen coastal beach sites have been placed on the State Registry -of Crit jt Areas. The Critical Areas Program list of beaches does not include many the states major recreational beaches. However, these are precise-,,,. the beaches which most need protection to preserve their recreati,,@_.*, values. Thirty-four sand beaches have been identified as of state ' level recreational significance in -a report prepared for the [email protected],. of Parks and Recreation., These were selected due to their size,' sand texture, history of use or geographic location. The malor of these beaches are located southwest of Casco Bay. 23 number of the beach areas identified fcr the Critical Areas Program and the Bureau of Parks and Recreation are publicly owned. These beach areas can be managed for resource conserVation under Shore- U- h e land Zoning, the statutes of 4 Land Use Regulation Commission, the Sub-merged Lands Law and the Coastal Wetlands Act. The administration of each of these laws is described in Section 7 of Maine's Coastal Program. That these laws are being enforced to .protect the public rights in Maine's coastal beaches is evidenced by the denial of an application to construct a seawall on Popham Beach. The project was denied, in part, because it was found that it vould "unreasonably interfere with existing recreational and navi- gational uses in that the wall will restrict the use of the beach by the public" and "may contribute to erosion of adjacent properties." There is a growing body of literature on beach protection in Maine, including public beaches. In determining the needs for protection of public coastal beaches, consideration is being given to such factors as (a) environmental, esthetic or ecological conservation (including protection from overuse and mitigation of erosion losses-!/), and (b) protection for public use benefits (including @ecreational or historic uses). These factors have been considered in the preparation of the draft document Maine's Coastal Beaches: Recreation and Conservation, prepared for the Bureau of Parks and .,ecreation Among the sources available for guidance in the protection of @,fjinets coastal beaches are the following: Maine Audubon Society. Seawall Policy. Approved April 5, 1978 M,aine Bureau of -?arks and Recreation. 1975 Coastal Beach to Portla-,'. Unoublished. Au-usta, May, 1975. Maine Comprehensive Outdoor Recreation Plan. A,ugusta, March, 1977. 1975 Visitor Use Survey: Day Use State Parks ,and Cokstal MuniciDal 3eaches '=m Portland to Kittery. i;[email protected] a -t- i Augusta2 September, 1975. . "Southern Coastal Research-Initial Renort". Unpublished memorandum by B.L. Walker, Augusta,,April 15, 1975. Maine Resident Outdoor Recreation ParticiDation -irvey. Istural Resources Council of Maine. Resolut.ion Re: The Need Po" a Comn-rehensive State Pol icy Regarding Protection of-the [email protected] Sand Beaches. Approved March 10, 1978. tal Program dealiag wit h @ec also the element of Maine's [email protected] [email protected]/mitigation planning. 24 Nelson, B.W. and L.K. Fink, Jr. Geolozical and Botanical Features of Sand Beach Svstems in Maine. Pre-oared for the Maine Critical Areas Program, 1978. CD St. Pierre, James A. Maine's Coastal Beaches: Recreation and Conservai-4on. PreDared for the Maine Bureau of Parks and Re- creation, 19-78, Timson, Barry and Donald Kale, Maine Shoreline Erosion in- ventory. Unpublished. Prepared for the Maine State Planning Office, 1977. Trudeau, Philip, Paul J. Godfrey and Barry S. Timson. Beac.h Vegetation and Oceanic Processes Study of Po2ham State ?ark, Beach, Reid State Park Beach. and Small Point Beach. Unpub- lished. Maine Department of Conservation and Soil Conservatio-, Service. September, 1977. Maine Board of Environmen-%'-,al Protection. Policy on New Seawaii, Adopted May, '1978. Ongoing programs relati ng to beach protection planning are des- cribed above (1.2). 25 3. ACCESS AND PROTECTION PLANNING POLICIES AND LEGAL AUTHORITIES 3.1 Access Policies and Legal Authorities As discussed in section 2.2, all coastal planning in Maine must progress within the unusual framework of the Colony Ordinance of 1'641-47, which authorized private land ownership in the intertidal zone, subject to certain public rights: It is declared, that in all creeks, coves, and other places about and upon salt water, where the sea ebbs and flows, the proprietor, or the land adjoining, shall have propriety to the low water mark, where the sea doth not ebb above a hundred rods, and not more wheresoever it ebbs further. Provided, that such proprietor shall not by this liberty have power to stop or hinder the passage of boats or other vessels, in or through any sea, creeks or coves, to other ments houses or lands.1 While private ownership of the intertidal lands limits the public's opportunities along the seashore, the Colony Ordinance also speci- fiedthe public's rights in the area between high and low tide. Every inhabitant who is an householder shall have free fishing and fowling in any great ponds, bays, coves and rivers, so far as the sea ebbs and flows within the precincts of the town where they dwell, unless the freemen of the same town, or the general court, have otherwise appropriated them.2 Original authority, then, to provide public access to the shore is rooted in this mid seventeenth century statute. For without the ability to get to the intertidal zone across private property, it is difficult, and in many cases impossible, to exercise those rights explicitly reserved for the public. Besides the Colony Ordinance, a number of policies pertaining to the improvement of physical and visual shorefront access in Maine have been arti!culated in recent State statutes and other documents. These policies, with legal authorities, are listed in Table 4. From the 1814 Edition of Ancient Charters and Laws of the Colony and Province of Massachusetts Bay, p. 148. 2Ibid. 26 Table 4 STATE POLICIES AIND LEGAL AUTHORITIES PERTAINING TO SHOREFRONT ACCESS Purpose Authority Require permits for activities on or over *Coastal Wetlands Act, tidal or subtidal lands to insure no 38 M.R.S.A. @471-478 unreasonable interference with re- creacional and other uses. Subject shoreland areas to zoning and sub- *Shoreland Zoning, division controls in order to conserve 12 M.R.S.A. �4811-4814 cover, visual as well as actual points of -access to inland and coastal waters and natural beauty. I Assure that activities do not unreason- *Stream Alteration Act, ably interfere with navigational or 12 M.R.S.A. 12206-2212 recreational uses of rivers abovft head of tide. Acquire in behalf of the State, land or *Bureau of Parks and any interest therein within the Statewith Recreation, 12 X.R.S.A., or without improvements, by purchase or g203 gift, and by eminent domain. Acquire, construct and maintain public Bureau of Parks and Re- facilities for boats to improve public creation, Public Facili- access to the public waters of the State. ties for Boats Program, 38 M.R.S.A. �321-329 Idencify methods and procedures to assure Department of Environ- public access to navigable waters for mental Protection responsi- recreation purposes. bilities under Federal Water Pollution Control. Act Amendments of 1977, Section 208(b) (2)(A) Permits will not normally be aoproved for Policy of the Board of new seawalls or similar obstru,-tions Environmental Protection inasmuch as they interfere with re- creational and navigable uses of the inter- tidal zone. Acquire, construct, operate, and maintain Department of Transporta- such harbor facilities as may be necessary tion, 23 M.R.S.A. �4206 to implement the planned develODment of coastal resources, ports and harbors. Enhance and protect the natural scenic *Maine Traveler Infor- beauty of the State by controlling the mation Services, 23 M.R.S,,k. indiscriminate use of outdoor advertising. �1901-1925 Assure that the subdivision of land is *Subdivision law, 30 conducted in such a way that air and water M.R.S.A. 14956 quality standards are maintained and scenic values and areas of natural beauty are conserved. Retain land or water areas in their *Conservation Restrictiors, natural. scenic, open or wooded con- 33 M.R.S.A. 1667-668 ditions(to preserve visual access). Protect outstanding coastal areas and Burjeau of Parks and provide adequate visual or foot acc-ess Recreation, S.C.O.R.P... to coastal'shoreline. *Enforceable policies. Those that refer to enforceable laws which provide some control over the restriction of the publicis rights in shore areas are distin- leGi,shed by an asterisk, The most important laws pertaining to the protection of physical access are the Coastal Wetlands Alteration Act and the Mandatory Shoreland Zoning and Subdivision Control Act, 3.11 Coastal Wetlands Act - A history and description of uses and areas regulated by the Coastal Wetlands Act are included in Section 7.3 of Maine's Coastal Program. Briefly, the purpose of the law is to assure that dredging, draining, filling, or construction of permanent structures on or over any tidal or subtidal land, is conducted such that it doeS not un.zeazonabty intet6ete witiz ex.4-''6ting navigationat ot &ecteatioytat u.6e-,S, cause unreasonable soil erosion, unreasonably interfere with the natural flow of any waters, un- reasonably harm wildlife or freshwater, estuarine, or marine fisheries, or lower the quality of any waters. The law requires that any person proposing such activity first obtain a permit. Permits for alterations may be issued by the Board of Environmental Protection (BEP) (provided the alterations are consistent with the standards in the Act) or by. a municipality, provided the municipality h'as a) established a planning board, b) adopted a Shoreland Zoning ordinance approved by the BEP and by the Land Use Regulation Com- mission, and c) has made provision by ordinance or regulation for prompt notice to the BEP and the public upon receipt of the application and for written notification to the' applicant and the BEP of the issuance or denial of a permit. The BEF may, after a public hearing, revoke the municipality's permit granting authority, Persons proposing to permanently alter an intertidal or subtidal area must fill out the permit application form supplied by the Department of Environmental Protection (DEP) or by the municipality, if that municipality has permit granting authority. Applicants must indicate the location of the proposed project on the appropriate U.S.G.S. topo- graphic map, and submit it with both a sketch of the project and a scale drawing of the coastal wetland to be affected (showing the project in detail, the landowner's property boundary lines, and low and high water marks). The applicant must describe: a) the present use of the wetland, b) the project, and c) the measures which will be taken to protect the surrounding area from any ad- verse effects of the project. Vhen the application is received by the DEP, it is checked for completeness and then assigned a permanent identification number. A visit to the site is made by at least a Department of Marine Re- 5ources staff member, and perhaps r.epresentatives of the Department Inland Fisheries and Wildlife or th,e Soil. Conservation Service. of the information is then sent to the following Review A summary with a reques t for their comments within two weeks the the Department of Marine, Resources , the kegional Planning _icipality, the Soil and Water Conservation Commission, and the De- @_ft_.ent of Iii1and Fisheries and .;ildlife. After the review comments 4,:it rtceived, the application is acted on by either the Department of 28 Environm ental Protection st,'f or by the Board of Environmental Protection. The DEP staff act on the following types of applications: a) pile structures entirely above,mean low water, b) repairs and/or main- tenance necessary to preserve or restore an existing structure or land contour or one which has existed on the applicant's property within one year prior to the date of application, if the proposed project will not result in any harm to the natural environment, c) erosion preventive measures, d) trenching operations where there will be immediate restoration, e) marine railways or ramps where no significant dredging or filling is involved. The staff order is then written either approving, denying, or approving with conditions, and the order is mailed to the applicant. If the BEP action is required, a working document with recommendati,,..... is prepared by the DEP staff and mailed to the-BEP members one week prior to the next scheduled Board meeting for its consideration and deliberation. At the meeting, a decision is made on the.applicatior to either approve, approve with conditions, deny, or set a date for a public hearing on the application. Within 30 days after receipt of an application, the BEP or the municipality must either issueor deny the permit, or order that a public hearing be held within 30 days of the order. If a public hearing is held, the permit mustbe issued or denied within 30 days after adjournment of the hearing. An applicant may request a public hearing. Before issuing a permit, the BEP must notify the municipality where- the planned activity is proposed and consider any comments [email protected],d from the municipality within a "reasonable period" (usually two,,7e,,. A permit issued by the BEP is effective on the date of approval,t;@ a permit issued by a municipality does not become effective until days after issuance. Immediately after issuance of a permit bYa municipality, a copy of the application for the permit and the per.... issued must be sent to the BEP. The BEP may then review the [email protected] and either approve, deny, or modify it. Failure of the BEP to act within 30 'days of receipt of the permit from the municipality CC)n. stitutes effective approval of the permit. If a permit is denied, the applicant may request a hearing by thL, Board or municipality. An average of perhaps half a dozen appli- cations are appealed annually, and perhaps one of those may be reversed. Within 10 days of the applicant's receipt of the finat, Board decision, anyone who is aggrieved by the decision may [email protected],@@ the BEP for an opportunity to present new or additional evidenc, may resul't in reconsideration of the conditions of approval [email protected] The' BEP may, within 30 days of receipt of such petition and atete, propriate notice, grant the petition in full or in part, orde't. public hearing, or dismiss the petition. Municipalities [email protected] an application may handle appeals in the same manner as does t.11-, Anyone aggrieved by any order or decision of the Board or munic!. in regard to any matter upon which there was a hearing beforet...- Board or municipality and of which a transcript is available,:.! within 30 days af ter notice of the filing of such order or deciz. appeal to the SuperiorCourt. The court's review is limited to questions of law and to whether the Board or municipality acted regularly and within the scope of its authority. The decision of the Board or municipality is final so long as supported by substantial evidence. The court may affirm, reverse, or remand the decison of the Board or munciipality for further proceedings. Any filling, dredging, depositing, altering, or erecting of permanent structures which takes place on tidal or subtidal land without a per- mit or contrary to the provisions of a permit is a violation of the law and is subject to a fine of not more than $500 for day of vio- lation, regardless of whether or not the violation was unintentional. In the event of a violation, the Attorney General may institute pro- ceedings to prevent further violation and to compel restoration of the affected area to its prior condition. Enforcement of the regu- lations in the law can be carried out by all law enforcement officers, but is primarily done by the Department of Marine Resources (DMR) coastal wardens, and to a lesser extent by Department of Inland Fisheries and Wildlife wardens, under a formal cooperative agreement with the DEP. To date, in at least one case a wetlands alteration permit to repair a seawall on a sand beach has been denied. The BEP rejected the application because, among other things, "the project will unreason- ably interfere with existing recreational and navigational uses in that the wall will restrict the use of the beach by the public." Recently the Board of Environmental Protection has approved a policy that hereafter it will normally be unable to make the necessary favor- able findings of fact set forth in the Coastal Wetlands Law when an application is made for new seawalls on sand beaches. By emphasizing the burden of proof on applicants, the Board has clearly recognized that seawalls can be "physical obstructions in the intertidal zone which obstruct public rights in that zone." 3.12 Shoreland Zoning Act - A detailed history and description of uses and areas regulated by the Shoreland Zoning Act are to be found in Section 7.4 of Maine's Coastal Program. Section 4811 of the statute specifies that one purpose of the act is to "conserve shore cover, visual as well as actual points of access to inland and coastal waters and natural beauty." The Act states: "Cities and towns pursuant to presently existing enabling legislation are authorized to plan, zone, and control the subdivision of land." Section 4813 gives the Department of En- vironmental Protection (DEP) and the Land Use Regulation Com- mission (LURC), power to adopt suitable ordinances, following consultation with the State Planning Office (SPO) for those muni- cipalities that fail to meet the requirements of the Act, and re- requires the municipalities to administer and enforce the State imposed ordinance. The role of the DEP, LURC, and SPO is that of ensuring that the objectives of the law are met. The State Planning Office is re- sponsible for coordinating the efforts of the Board of Environmental Protection and the Land Use Regulation Commission and ensuring that municipalities and all state agencies mutually cooperate to accom- plish the purposes of the Act. 30 The Act requires towns to subirit their shoreland ordinances to the State Planning Office for review for conformance with the laws. In practice, this administrative procedure has worked well, and despite inadequate funding, the State Planning Office (with assi-stance from the Regional Planning Commissions) has helped the coastal towns achieve reasonable shoreland ordinances. Nonethe- less, there is still more to be done as many ordinances should be strengthened and refined. The Act makes provision for ensuring that municipalities enforce their ordinances: If a municipaliLy fails to administer and en- force zoning ordinances adopted by it or the State, pursuant to the requirements of this chapter, the Attorney General shall seek an order of the Superior Court of the county in which the municipality lies requiring the municipal officials to enforce such zoning ordinance. The Attorney General shall be made a party to all civil and criminal action-s in which the pleadings challenge the legality of any ordinance or portion thereof adopted pursuant to the guidelines promulgated under section 4813. Every coastal town administers and enforces its own "Shoreland Ordinance." Decision making typically rests with the Code En-r forcement Officer, who is often the Town Manager, or the Planning .Board, depending on the permit required. (In some towns the Board of Selectmen act as the Planning Board.) Appeals are generally heard by a Board of Appeals appointed by the municipal officers. Each local shoreland ordinance lists which uses require a permit from the Code Enforcement Officer or the Planning Board and, although exact submission requirements may vary locally, applications must be submitted in writing. Additional information may then be requir- ed to determine if the application conforms with the ordinance, Generally, action as to whether a permit has been approved, approved with conditions, or denied, should occur within 60 days of receipt of a.complete application. No permit can be denied if it is in conformance'with the provisions of the ordinance. Among other things, the minimum Guidelines require that the Planning Board of Enforcement Officer find that the proposed use 11witt consetve actuaZ pointz 06 pubZic accas to wateu," and "witt conAvLve vi6uat point4 o6 acces4 to watvL4 a6 viewed 6,tom pubZic 6acititie.6.11 Any person found in violation of any provision of a local sh -oreland ordinance may, after reasonable notice, be fined for each.violation. 3.2 Protection Policies and Legal Authorities Enforceable State policies and legal authorities pertaining to shoreland protection have been articulated in the section of Maine's Coastal Program concerned with Goals, Objectives and Policies 31 (Section 6). Drawn from the eleven "core" laws of Maine's Coastal Programy the primary protection Policies can be summarized as follows: Assure that development in shoreland areas is conducted so that healthful conditions and water quality are maintained, wildlife habitat is conserved and structures are placed so as to conserve shore cover, water access, and points of natural beauty. Assure that the subdivision of land is conducted in such a way tha t air and water quality is maintained, soils remain stable, safe highway conditions prevail, and scenic values and areas of natural beauty are conserved. Assure that activities in coastal wetlands conserve wildlife, and freshwater, estuarine or marine fisheries and their habitats, through a permit procedure. 32 4. DESIGNATION OF SPECIAL MANAGEMENT AREAS oration may be considered special because of their coastal related values or because they may face pressures which require detailed attention. 4.1 Areas of Particular Concern Maine's Coastal Program has defined as geographic areas of particular concern all land areas within 250 feet of normal high water of any great pond, river, or salt water body in the state's coastal area (Appendix C). The Shoreland Zoning Law and Land Use Regulation Commission, in its Jurisdiction, provide a means to control and guide development in these areas. 4.2 Areas for Preservation or Restoration Besides this, the Program includes as areas for preservation or restoration (1) Class A waters, (2) resource protection districts vithin 250 feet of shoreline and (3) certain specified protection districts under the jurisdiction of the Land Use Regulation Com,- mission (Appendix D). Each of these areas has been designated under existing state law for the purpose of preserving or restor- ing them for their conservation, recreational, ecological, or esthetic values Critical Areas The Coastal Program is also supportive of Maine's program (Appendix D3) The Critical Areas Program identifies, dccuments , registers , and encourages the conservation of areas natural features of state significance. The Program has been described in greater detail elsewhere in this discussion. 33 5. LEGAL AUTHORITIES AND FUNDING PROGRAMS Every level of jurisdiction and each agency has specified concerns and responsibilities pertaining to shorefront access and protection. The following concepts outline general responsibilities of legal authorities. Federal jurisdiction - protection, acquisition, develop- ment and management of land and facilities of national importance; State jurisdiction - protection, acquisition, develop- ment and management of land and facilities of statewide importance; Municipal jurisdiction - protection, acquisition, develop- ment, and management of land facilities of local importance. of course, there is cooperation among jurisdictionswhere, for instance, the federal government provides financial assistance for state and local programs as through. the Land and Water Con- servation Fund. Theprovision of increased access and nrotection opportunities lepends to a large extent upon adequate funding at all levels. it is germaine to cite the major funding sources through which monies are available for access and conservation projects in coastal _Sine. 5.1 Federal % major source of federal funds for public recreation and open space projects in Maine is the Land and Water Conservation Fund LAWcoif) administered by the Heritage Conservation and Recreation ce, The State of Maine received $1.75 million in LAWCON .cnies during fiscal year 1977. Beginning in FY 1980, Maine is ;Xpected to receive approximately $4.7 million annually due to.a 7ecent amendment to LAWCON authorizing a total national expendi- ;,e of $900 million annually. This new level means a major in :,ease in matching funds available to the State. In addition,, f.AiCON monies can be matched with revenue sharing funds under p%iblic Law 94-488. They can also be matched with Community @evelopment Block Grants. Ple U.S Fish and Wildlife Service has three major refuges in Maine; the Rachel Carson National Wildlife Refuge in ,@-,Ithern Maine and the Moosehorn and Petit Manan National Wild- -ire Refuges in Washington County. Additions, funded through the .aje of "duck stamps" will be made to the Rachel Carson Refuge 4 ut the 4,011 acre total authorized acquisition. Further 0o round 0 .,.,ding may be available under recent amendments to the Land and -er Conservation Fund. The Service now has authority to purchase 34 k nationally significant wildlife ecosystems" and "unique wildlife ecosystems." Increases in authorized LAWCOIT monies bring the national projected funding level to $75-80 million per year for FY 1980-89. The Service may, in the near future, acquire one or more large coastal island properties in eastern Maine to add to its refuge holdings. The National Park Service during the 1970's, has been preparing a master plan for Acadia National Park. This process continues and is expected to include a review of proposed island acquisi- tions in Hancock and Knox Counties. The U.S. DO T, Bureau of Public Roads can assist the state highway department in the control of outdoor advertising, and the screeniniz 0.0 junk yards under the Highway Beautification Act of 1965, both oi which improve visual attractiveness of coastal areas. The Office of Coastal Zone Management has funds for three types of relevant programs. Coastal Zone Management monies can be used for (1) state regional and local planning for coastal re- source conservation and development, (2) the establishment of estuarine sanctuaries, and (3) the acquisition of lands to provide access to public coastal areas, particularly beaches, and to pre- serve coastal islands. The last of these is the most relevant to this discussion, Under Section 315 (2) of the CZMA Amendments of 1976, the Secretary of Commerce is authorized "to make 50% grants to any coastal state to acquire lands to provide access to public beaches and other public coastal areas." To meet these ends, an annual appropriation of $25,000,000 through FY 1980 has been authorized, While not a direct funding program, federal surplus properties should also be mentioned. Several military service branches, including the Air Force, Navy and Coast Guard, hold important pieces of real estate on the Maine coast. If and when these become available as surplus properties, the State or local gov- ernments could acquire them for open space and access. 5.2 State A principal source of funds for outdoor recreation and [email protected] conservation at the state level is the Maine Bureau of Parks and Recreation. As of November, 1977, the Bureau had $3.2 million remaining from two land acquisition bond issues and $1.8 millior, from a develorment bond issue approved in referendum. Much of,@, acquisition money -,,-ill be used to purchase land inland at Bigelo-j Mountain under a referendum mandate approved by Maine voters in 19-10. Besides these bond issue funds, the Bureau anticipates a $25,000 legislative appropriation in matching funds during Fy i9.". for community recreation projects. Finally, $16,050 remains nonlapsing account available on a 50 percent matching basis to local conservation [email protected] for open space and recreation plann:@,ng. There are a number of considerations which affect the funds and available for development of unimproved properties currently 35 h ld by the Bureau of Parks and Recreation. Pending litigation e over the ownership off public lot grass and timber rights is one VSri able If the 'State does not win its claim to ownership of the Bureau may be able to use the donated value of he rights, *,he rights as the States' share to apply formatching LAWCON :10nies. Another unknown factor is the cost of develoDment of some presently undeveloped holdings. Estimates have been made for most but not all of these parcels. Third, development costs of many projects are not matched 50-50, state-federal, since some improvements are not eligible for federal reimbursement. The match is often closer to 60-40, state-federal. All of these considerations aside, it is estimated that through 1980 the State will be able to come up with funds sufficient to match about 40 percent of the Land and Water Conservation Fund monies allocated to Maine as potential matching funds for both state and local projects. As discussed in 1.11, the Bureau of Parks and Recreation also administers the State's Public Facilities for Boats Program, financed through a Boating Facilities Fund. Money for the fund mes from a segment of the gasoline tax paid by the nonhighway co soline user. Based on the 1965 legislative "finding of fact" ga I that motorboat users account for at least 1.25% of the total gasoline consumption, there is set aside 1.25% of the total excise tax on internal combustion engine fuel sold or used within Maine (excluding aircraft). From this 1.25% are deducted refunds of gasoline for commercial motorboats. paid to purchasers and users Tlighty percent of the balance of +he 1.25% after paying out such refunds is credited to the Boating Faciliti-s Fund. About $350,000 is channelled to the fund annually. 4de from the Bureau of Parks and Recreation, the major state A s ency with funding for land conservation and access is the ag Department of Inland Fisheries and Wildlife. In 1974, a $4, rillion referendum was approved by voters for acquisitions by the Maine Department of Inland Fisheries and Wildlife. The Department planned to allocate these funds according to the folloving habitats 1. Upland Areas . . . . . . . . . . 40-50% of money 2. Coastal Salt Marsh . . . . . . . 20-25% 3. Inland Wetland and Stream Flow Augmentation . . . . . . 20-25% 4. Eider Nesting Islands . . . . . 5-10% 5. Miscellaneous . . . . . . . . . . 5-10% tal lands have already been acquired by the Department come coas, vi t hthese monies; approximately $1.3 million dollars remains. The DeDartment also provides water access in imnGrtant coastal areas for wildfowl hunters. 11isual accesq on the coast is enhanced both by the activities of the Maine Department of Transportation and the granting of con- :-,ra-1,ion easements by private landowners to State and other land holding agencies 36 In addition to budgeting money for highway rest areas, the Department of Transportation also will assist in the imple- mentation of the'Maine Traveler Information Services Act, which is designed to protect the scenic beauty of Maine roadsides by controling indiscriminate use of outdoor advertising. Both of these programs improve visual access to the shore. Under Maine statutes Title 33 � 667-668, it conservation restric- tions" are defined and authorized for acquisition by any govern- mental body having power to acquire interest in land. Some non- governmental organizations may also accept conservation easements under particular circumstances, for exam-ple,if they hold title to lands adjacent to or within sight of the land for which an ease- ment is being sought. To date about 9,000 acres of private lands have been encumbered with conservation easements in the coastal area. Easements have been accepted along the Maine coast which restrict development, thus preserving visual access, by the National Park Service, the U.S. Fish and Wildlife Service, the Maine Bureau of Parks and [email protected], the Maine Department of Inland Fisheries and Wildlife, the National Audubon Society, the Nature Conservancy, the Maine Audubon Society, and a number of coastal towns. 5. 3 Local According to the 1977 Statewide Comprehensive Outdoor Recreation Plan, through 1990 communities in Maine are expected to provide approximately $23 million for acquisition of land for outdoor recreation statewide. Local funds are provided through municips recreation committees and/or conservation 'Commissions. 37 Attachment A CRITERIA FOR PROPOSED COASTAL SANDY BEACH AND DUNE CRITICAL AREAS 1. Beach and Dune areas must be in a natural state. 2. Geographic distribution. 3. Scientific and educational values. 4. Only geological and botanical criteria are considered. Geological Criteria - Two criteria were developed to determine the geological significance of a beach or dune area. One criterion was whether an area constituted a good example of the various geomorphic types and features. The second criterion was to include those examples which, either through their dune and beachface morphology or actual response behaviour, manifest the interaction between the physical ele- ments of beach systems and various process agents. These criteria pro- duced two lists, those geomorphic types and features which occur in Maine and those various process agents which leave their imprint on Maine beaches and dunes. These lists are as follows: Botanical Criteria - All undisturbed coastal sand dune and berm plant habitats. in Maine are significant simply because of their limited extent. Additional criteria for the determination of significant coastal sandy dune and berm plant habitats are based.on the following botanical f eatures -Landward to seaward zonation caused by salt spray effects, soil nutrient changes, and sand burial or deflation rates. -Mosaic floristic patterns in stabilized parabolic dune fields, -Dune field successional stages subsequent to accretion, fire, foot traffic, grazing, cutting or eolian activity. .Vegetation development in overT---shes and breaches. .,Vegetation patterns on perennially accreting berms and spits. Good stands of species with limited acreage in the state; e.g. American Beachgrass, Beach Heather, Wormwood, Jointweed. -Disjunct populations, especially stands of American Beachgrass north of Reid State Park. -Geographic trends in abundance or ecotype which are of scientific 0 value. -The range limits of the following coastal sandy dune and berm plants in Maine: wormwood, beach plum, beach heather, earths,tar puffball, Jointweed, pinweed, seaside spurge. Tource: Bruce W. Nelson & L. Kenneth Fink, Jr. Geological and Botanical Features of Sand Beach Svstems in Maine,prepared for Maine Critical Areas Program, March 1978. 1 . Ogunquit Beach 2. Laudholm Beach 3. Crescent Surf Beach 4. ?arsons Beach 5. Goose Recka Beach Western 3each 7. Scarborou3h Beach 8. Main Beach, Ram Island Farm ,4. 9. Strawberry Hill Beach, Ram Island Fat= 10. Crescent Beach 11. Bailey Beach 12. Seawall Beach 13. Popham Beach 14. Reid Beach 15. Pemaquid Beach 16. Louds Island Beach 17. Pond Island Beach 13. Zrchant Island - Focket Beach tA 19. M rchant Island - Cuspate Foreland Beach 20. Marshall Island - Sand Cave Beach 21. !arshaLl Island - Carbonate Sand Seach Cb 2Z. Swan's Island - :rish Cove Beach 23. Swan's Island - Fine Sand Beach 24. Sand Beach IN Z-5. Sandy liver Beach :6. loque 7sland Beach 'Nzque 3lulls 3each td t= 0 M C+ P 0- 1-1 C 0 0 Gq v C+ M M ......... .. .... 33 -30 0 [email protected] Go Maine Coastal Recreational Beaches 24 0, 4 %[email protected] of State Level Significance q'y /41 34f 33 0 07 Maine Coastal Recreational Beaches of State Level Significance Af Ile /0 33 0 0 0 0 0 Maine Coastal Recreational Beaches 24 4 of State Level Significance e faej Ao 6,7 th . .4 UNITED STATES DEPARTMENT OF COMMERCE Talional0?ceanic and Atmospheric Administration t ice Coastal Zone Management Washington, D.C. 20235 EVALUATION FINDINGS FOR THE MAINE COASTAL MANAGEMENT PROGRAM COVERING THE GRANT PERIOD OCTOBER 1, 1978 TO MAY 30, 1979 1. BACKGROUND Section 312 of the National Coastal Zone Management Act requires V 4 continuing re Jew be made of states with federally approved coastal manage- ment programs. This review is designed to evaluate performance with respect to coastal management activities and adherence to the approved management program. This evaluation covers the first eight months of the grant period. The Maine Coastal Program (MeCP) was approved in September, 1978, and its first Section 306 program implementation grant was awarded for a 12 month period begining October 1, 1978. The $1,200,000 federal grant was matched by $309,000 from non-federal sources including the State, the lead agency, regional planning agencies, counties, and the Maine Municipal Association. In addition + 'o the basic Section 306 implementation grant, the state received supplemental grants of $100,000 to improve the management capability of the State Department of Environmental Protection and $132,000 for fisheries management. In connection with,the Office of Coastal Zone Management's (OCZM) e valu- ation responsibilities, an on-site review of the MeCP was conducted by OCZ1,11 from June 4 through June 8, 1979. Rosella Sussman and Zoraida Carballeira of the Policy and Evaluation staff and Nancy Carter of the State Programs staff participated in the review. The site visit included meetings with representatives of the State Planning Office (SPO); the Departments of Environmental Protection (DEP), Transportation, Marine Resources, and Conservation; Regional Planning Commissions; local officials and citizens; and various Federal agencies involved in the MeCP. Public meetings were held in Augusta on June 4, 1979 and in Camden on June 5, 1979, in connection with the evaluation. A list of individuals who provided input to the evaluation is attached. II. SUMMARY FINDINGS The State of Maine is adhering to its approved coastal management program. Progress is being made toward reaching the goals of the MeCP, resulting in significant accomplishments and benefits to Maine and the nation. As a result of program implementation, specific substantive and procedural results in a number of aspects of coastal management are being achieved. These are described in the section below entitled Accomplishments. Adoption of regulations under the State's Coastal Wetlands and Site Location- C. Recreational Access and Protection of Cultural, Historic and Aesthetic Rescurces, The accomplishments of the MeCP in increasing access to the coast for recreation purposes, including revitalization of urban waterfronts and enhancing cultural, historic and [email protected]',.'ietic coastal resources are increment- al improvements in areas where there are many needs. Special efforts to improve coastal access and enhance these special coastal resources are being undertaken on the local, regional, and state levels. From these varied activities the following results have occured: 1) In addition to the State boating facilities program, which develops or improves about 12 sites a year, several towns are conducting feasibility studies for development of local piers and launching facilities. This local government attention to increasing public access to the coast will result in greater recreational use of coastal waters and thereby also strengthen Maine's cultural and historic marine heritage. 2).The RPCs are carrying out a project with coastal towns to revise and update shoreline access maps. Maps are being reviewed on a town by town basis and will be used to verify or add to an earlier inventory of the State's current coastal access status. The project also includes local identification of other recreational deficiencies which will be used to improve the State Comprehensive Outdoor Recreation Plan. 3) Four local projects are addressing problems related to public access to the coast,through direct methods such as conducting title searches to establish or verify public rights of way. Other towns concerned with enhancing public access and utilization of the waterfront address their problem less directly using methods such as placing parks and recreational facilities on the water or improving parking and sidewalks to make their urban waterfronts a vital part-of the comrunity. For example, the town of Biddeford's project is focused on the revi- talization of an underused area centered around a historic grainery located at the water's edge. A conceptual plan for the waterfront revitalizatibn includes the restoration of the grainery (by the Heritage Conservation and Recreation Service), development of commercial water-related businesses, provision of a public park and fountain, relocation of the nearby waste treatment plant's outfall, consideration of views to the water, and improvements in the adjacent roads for greater safety and access. The main thrust of the Calais waterfront plan is to secure greater public use and access to a seven acre area including a rebuilt municipal pier. 4) In Ogunquit Village the town project is improving access to the waterfront area used by lobstermen, local residents, and tourists. An innovative plan to limit vehicular access to fishermen s6rvici.ng their boats and to residents who must enter the area to reach their homes, combined with a small mall/park for visitors and shoppers, has resolved the conflict between the area's users and enhanced the viability of the pier as an integral part of the corimunity. Towns also are addressing traffic problems caused by intensive and/or conflicting coastal uses as part of their waterfront plans or harbor development projects. 5) The Attorney General's office is working to set forth the State's position for public shoreline access and use rights. As cases are brought challenging the public right to the use of the shoreline, the State will be prepared to present better arguments and establish a basis for further action to i Wrove or expand public access and rights to the coast. Maryland Maryland beaches are public property from the vegetation line toward the water. Thus, lateral access is not a problem in this state and attention has instead-been focused on providing perpendicular access to the public areas of the beach. A network of seven state beach parks, seven county beach parks, and two federally maintained coastal areas (Eastern Neck National Wildlife Refuge arid Assateague Island (arid National Seashore) provide the major shorefront access opportunities to the public. However, most of these areas are situated on the Atlantic Coast; access to the Chesapeake Bay Coast is more limited. The Maryland Coastal Management program is currently sponsoring the Bay Access Program in an effort to open up more access points to the Chesapeake. Local (county) governments are encouraged to use 306 funds for studies identifying existing and potential access points, in- cluding potential multiple use sites (i.e. providing access through an existing development). The results of these studies will be used in tandem with Maryland's SCORP policies and programs to seek funding for acquisition of land to further access opportunities. Maryland has used Coastal Energy Impact Program (CEIP) money to fund access projects near utility sites. CEIP funds are being used to acquire beach areas at Betterton Beach in Kent County, where an electricity generating plant arid its coal wharves have blocked public access to the shore. CEIP funds are also being used for acquisition of land for public beach areas near a nuclear power plant in Culvert County. jS:e"-r or 0 .6'5""tate of Mavvland ly Coastal Management Prograrn and rEs of Firml Environmental I m pact 16,1x'atem 8 lit U.S. DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Office of Coastal Zone Management 12M SE OF BEACH AREAS ituation Because of concern about the provision of adequate public access to and -otection of public shore areas, there was included in the 1976 Amendments to ,e Coastal Zone Management Act the requirement that a State's coastal zone ,nagement program must include "a definition of the term "beach" and a planning -ocess of the protection of and access to, public beaches and other public coastal :eas of environmental, recreational, historical, esthetic, ecological, or iltural value." The regulations issued pursuant to the Amendments further state that the .anning process must include the following elements: (1) A procedure for assessing public areas requiring access or protection; (2) A definition of the term "beach" and an identification of public areas meeting that definition; (3) Articulation of enforceable State policies pertaining to shorefront access and protection; (4) A method for designating shorefront areas (either as a class or site specifically) as areas of particular concern or areas for preservation or restoration, if appropriate; and (5) An identification of legal authorities, funding programs and other techniques that can be used to meet management needs. To meet the [email protected];uirements of 1976 Amendments, a beach has been defined as gently sloping shore area of the Atlantic Ocean, Chesapeake Bay or other tidal iters covered by sand or similar material, and the lower portion of which is .shed by waves or tides. Public beach areas meeting this definition are -ted in Table 111-2. The only extensive beach areas in Maryland lie along its Atlantic coastline Fenwick and Assateague Islands. There are also a number of less extensive ach areas on Chesapeake Bay. The process and legal authorities by which public access to these areas is sured is described below. In addition, the Maryland Department of Transportation ves considerable attention in its system planning efforts (see the section of is Chapter on Land Transportation Facilities) to identifying ways in which an equate transportation network can be maintained between the Atlantic Coast ach areas and the heavily Populated Baltimore-Washington area where the @ority.of t-he beach users live. In the mid-1970's a second bridge across the .!sapeake Bay was built to reduce traffic delays and studies [email protected] on " to eliminate potential bottlenecks at Kent Narrows, Vienna and Cairtbridge. '*@ssible alternatives for the elimination or reduction of such bottlenecks I careful examination since the removal of wetlands and/or existing velopment may be involved. 133 TABLE 111-2 Public Beaches In Maryland's Coastal Zone COUNTY NAME OWNERSHIP Anne Arundel Sandy Point State Park State Mayo Beach County Baltimore County Gunpowder State Park State Cox's Point County Miami Beach County Turkey Point Park County Rocky Point Park County Calvert Calvert Cliffs State Park State Cecil Elk Neck State P ark State Harford Flying Point Park County Kent Eastern Neck National Wildlife Refuge Federal Betterton Public Beach County St. Mary's Point Lookout State Park State Somerset Jane's Island State Park State, Wbrcester Assateague Island National Seashore Federal Assateaque Island State Park State Ocean City Beach Quasi - Public (open to the public) 134 Due to the characteristics of the Chesapeake Bay shoreline (isolated, non- extensive, generally narrow beaches) there are no beach areas where only the wetiand sand areas alone can be used for intensive recreational purposes even 0 access were provided. Therefore the provision of public access generally ust include the acquisition of upland areas to provide adequate recreational areas. In addition, the sea nettles that invade the Bay and the Bay's warm teTkperature in the summer reduce its attractiveness for water-contact recreation purposes in comparison to the State's Atlatnic Coast Beach Areas. However, the Day is heavily used for recreational boating purposes and the State is committed to providing adequate boating [email protected] through its Waterway Improvement Program. Moreover, the State does have a coramit-ment to providing recreational opportunities on the shorelines of Chesapeake Bay and its tributaries. The State add*resses this commitment and the shorefront access and protection planning requirements of the 1976 Amendments largely through the acquisition and management of public lands in accordance with the State Outdoor Recreation Plan (SCORP) The State is in the process of reassessing its recreation needs, including those relating to shorefront access and protection needs, through updating its SCoRP which guides its acquisition of recreation and open space areas. Based onthe information provided by the SCORP, the State will make appropriate modifications to address such needs in its acquisition programs which are briefly described below and described in more detail in the section of thts Chapter on "Activities Associated with the Provision of Sufficient-Recreational, Open Space and Natural Areas". As noted in Table 111-4 on p. 205, the State has acquired oris acquiring 57 areas in the coastal counties, most of wbich provide shorefront access to the Atlantic Ocean or Chesapeake Bay and its tributaries. The State committed to fuller recreational development of these areas. It also should be noted that, as described in more detail in the portion OfChapter V on the Baltimore Metropolitan Coastal Area Study, the local governments in the Baltimore region in conjunction with the Coastal Zone Unit have developed a series of recommendations regarding the provision of shorefront access and recreational opportunities in their jurisdictions which are presently being reviewed as to the action that should be taken on them in each jurisdiction. In addition, as described in Chapter IV, the State's Critical Areas Program provides a mechanism for designating shorefront areas as Geographic Areas of particular Concern. Finally, the protection aspects of the 305B(7) requirement of the 1976 kmendments have been satisfied by the State's approach to the fulfillment of therequirements for Areas of Particular Concern and Areas for Preservation andRestoration described in Chapter IV. such mechanisms as the State Critical Areas Program and the State Wetlan-3 Permit Program are utilized to ensure protection ofpublic coastal areas of environmental, recreational, historical, aesthetic, ecological, or cultural value. In addition, the Program policies, as enumerated inthis and other relevant*sections of this Chapter, addres:; protection needs. 135 Issues This situation necessitates that state and local governments coordinate their activities and regulatory actions, with federal government cooperation and consistency, to meet the following objectives of the Coastal Zone Management Program: (5) To protect coastal terrestrial areas of significant resource value--areas having scenic, scientific, geologic, hydrologic, biological or ecosystem maintenance importance - such as non-tidal wetlands, endangered species habitat, significant wildlife habitat, and wintering and resting areas for migratory birds. (8) To promote increased recreational opportunities in shoreland areas, to promote increased public access to tidal waters, and to assure that these occur in a manner which protects the quality of coastal resources and which maintains public health and safety. and safety. (15) To promote the use of shore erosion control techniques, where necessary, in a manner which provides long-term protection, minimizes adverse effects on natural systems (both biological and physical), and avoids damage to adjacent property owners. State and local governmental actions relating to beach access and protection must address the following issues: 1. Possible adverse impacts on the stability or integrity of Assateague Island, or on the beaches and dunes of Fenwick Island caused by the burial of sewage outfalls, pipelines, or similar facilities. 2. The effectiveness or potentially adverse impacts of erosion control measures on beach areas and littoral ecosystems. 3. The preemption of beach areas (ocean or bay) for present or future recreational use by other proposed uses. 4. Increase priority to the acquisition of beach areas in State and local outdoor recreation programs. 5. Provision of shorefront access and protection of valuable public coastal areas. 136 policies The Department of Natural Resources shall, in the name of the State, purchase and manage lands suitable for state parks, scenic preserves, historic monuments, parkways, state recreational areas, forest culture, forest reserves, watershed protection, water conservation, open space, the protection, propagation or management of wildlife resources, and hunting. (Natural Resources Article, Sections 5-207, 5-901 et @.e_a., to 10-208, 10-2AO1 et seg., 10-801) 2. it is State policy to make funds available to local governments for the acquisition of outdoor recreation and open space areas and for the development of recreation facilities. The acquisition and development of land for recreation purposes with such funds zihall be consistent with local comprehensive plans, and shall meet a need in whole or in part identified in the State Outdoor Recreation Plan. (Natural Resources Article, Section 5-904 et seq.) 3. The Department of Natural Resources, upon request, shall assist other state units, counties, towns, corporations, and individuals in preparing plans for acquisition and development of park recreation and natural areas, acquisition of multiple-use areas including protection of watersheds, management, and replacement of trees woodlots, and timber tracts. (Natural Resources Article, Section 5-201) 4. it is the State policy to encourage land owners to make their land available to the public for recreational use by limiting their liability towards persons using their land in accordance with Natural Resources Article, Section 5-1101 et seg. 5. The recreational and conservation policies of the State of Maryland shall: a. Encourage low in-tensity recreation on open tracts such as flood plains, wooded areas, steep slopes, and other significant natural features, provided proper safeguards are established to protect local environment. b. Encourage the use of utility easements as outdoor recreation and open space areas. c. Encourage the use of scenic easements of land as a visual part of open space and outdoor recreation. d. Explore the recreation potential of water bodies, agricultural research centers, and wildlife management areas. e. Acquire title to or control of land with conservation or recreation value, before encroaching development and rising land values preclude this possibility. 137 Provide public access to estuaries, the Chesapeake Bay, and every major river in Maryland. g. Analyze surplus state and. federal properties to detormine whether they can he used for recreation. h. Provide corridors for limited recreation uses such as bicycling, hiking, and others which relate to streams, shorelines and unique resource and historic areas. i. Emphasize county and local development of cournmunity parks and school/park complexes to maximize local recreational opportunities. j. Control land use adjacent to parks and major scenic or historic sites to prevent encroachment and to preserve the surrounding aesthetics. k. Protect free-flowing streams and rivers, and carefully evaluate proposed impoundments. 1. Encourage the preservation of submerged lands for wildlife and fish habitats. m. Control shoreline development along the Bay and the ocean through state and local legislation. n. Develop and implement a state-wide river and stream oreservation program. o. Encourage the recreational use of the Chesapeake Bay by acquiring public access points, particularly at the confluence of stream valleys and the bay. p. Preserve outstanding natural and scenic areas, and irreplaceable historic sites and structures, and incorporate them into an open space system. q. Utilize excessive slopes, flood plains, poorly drained lands and other unique natural resources as major sources of open space. r. Continue to emphasize nature interpretation and nature-oriented facilities. s. Emphasize the acquisition of development rights where feasible.in rural areas, along stream valleys, bay and river or ocean shorelines, and discourage development incompatible with the recreation [email protected]; associated with these resources. 138 t. Continue implementing legislation and protection program-, for the Chesapeake Bay and inland wetland3, with emphasis on appropriate land development regulations, conservation zoning land donations and purchase of development rights in lieu of outright acquisition. U. Regulate and preserve all islands in the bay and all rivers wherever feasible for conservation and limited recreation use. V. Create more wildlife sanctuaries and management areas in places that provide areas of unusual flora and fauna. w. Encourage stewardship through the development of State and'local policies and guidelines on tax abatements, tax credits, and special assessments for privately held open s ace. p x. utilize scenic or conservation easements, purchase and leaseback agreements and subdivision regulations. Y. Preserve the best agricultural lands and geologic resource areas for continued production, or preservation as rural landscape. z. Encourage the use of both public and private lands for outdoor recreation, including the purchase of public recreation rights and scenic easements to expand open space beyond publicly owned land, and the provision by land owners of recreational opportunities for the public under multiple-use income producing arrangements. aa. Establish an interconnecting system of trails for walking, hiking, and bicycling along the ocean beaches, bays, estuaries, rivers and streams, linking activity centers. (Article 88C Natural Resources Article, Section 5-901 et sea.; Maryland Outdoor Recreation and Open Space Plan, Phase III-A'@_tion Plan pp 9-10) with the exception of beach erosion, sediment control, storm control, and 6 maintenance projects approved by both the Department of Natural Resources and the Worcester Soil Conservation District, it is State policy to prohibit the construction or placement of permanent structures east the dune line along Maryland's Atlantic Coast. (Natural Resources Article, Section 8-1105.1) 7. Activities which will adversely affect the integrity and natural character of Assateague Island will be inconsistent with the State's Coastal Zone Management Program, and will be prohibited. (Natural Resources Article, Section 1-302, 8-1105.1, 5-201) 8. Dredging, filling, and other activities which adversely affect the integrity of breach areas on Chesapeake Bay and its tributaries will be inconsistent @4ith the State's Coastal Zone Management Program, and will be prohibited. (Natural Resources Article, Section 9-102, 9-202) 139 9. It is state policy to acquire additional beach areas and to provide additional beach access on Chesapeake Bay and its tributaries as part of the State's Outdoor Recreation Program. (Natural Resources-Article, Section 5-903, Maryland Outdoor Recreation and Open Space.Plan - Action Plan III page 9) Implementation Lead Agencies- State: Department of Natural Resources Capital Programs Administration, Water Resources Administration; Department of State Planning (Comprehensive recreation planning acquisition of recreation and natural areas, technical and financial assistance to local pcrts) Maryland Environmental Trust (Conservation easement program) Department of Transporation (Highway planning transporatioD) Local Governments: (Recreational planning and acquisition of recreatiOn.1 and natural areas to meet local needs) Management Procedures Atlantic Coast Maryland's entire 31-mile Atlantic coastline has been preserved for public access and use. Public access to and use of the Ocean City beach area on Fenwick Island has been protected by the Atlantic Coastal-Beach Erosion Control District Act of '1975 which restricts construction seaward of the dune line. Permits for beach erosion control carried out by Ocean City are subjectto annual review by the committee of representatives of the Wetlands Permit Secti of WRA, The Maryland Geologial Survrey, and the Shore Erosion Control Progran. A few lots in Ocean City adjacent to the dune line have been acquired in order to enforce the ban on construction east of the dune line. Lots are acquired only-if the land owner is deprived of all reasonable use of this land and co.,Ile thus claim that an unconstitutional taking of property without compensation had occurred. 140 As noted above the Department of Transportation has the lead responsibility for planning for and constructing highway access to Ocean City. Through its comprehensive planning process it provides for the involvement of all relevant agencies to insure that all relevant factors are considered in. the design or expansion of highways such as Route 50 to Ocean City. Because of the many factors to be considered in determining the most appropriate alternatives to addressing the potential bottlenecks from the Bay Bridge to Ocean City other State agencies, particularly the Department of Natural Resources, will substantially involve to insure full consideration of the tradeoffs involved. Chesapeake Bay and Ifs Tributaries The State Outdoor Recreation Plan provides the framework for the State's recreation, open space, and natural areas planning and acquisition. It contains an analysis of the supply of existing public facilities and areas, the present and anticipated future demand for such facilities and areas, and the capability and suitability of existing areas and facilities for meeting such demand, and the capability and suitability of areas not presently under public ownership for meeting such demands. It also contains a priority ranking system for guiding the State's acquisition and development activities. In addition, the State has undertaken several inventories of potential shoreline access, recreation, and open space areas including Chesa eake Bay: Inventory of Potential Shore 14 ne Access, Recreation, and Open Space Ar as Part I - Western Shore and Part II Eastern Shore; an inventory of potential boat access areas as part of '@h_e report Recreational Boating in the Tidal Waters of Maryland; and An Investigation Into Potential Park Sites With A Boatir.M Fqcus - [email protected]@drant of the Bav. As described in more detail in the section of this Chapter on Activities Associated with the Provision of Sufficient Recreational, Open Space and Natural Areas, the Department of Natural Resources is responsible for administering the State's recreational, natural areas, and open space program and for acquisition and development providing technical and financial assistance to local governments for undertaking such programs at the local level. Funding comes principally from the State Program Open Space Program and the Federal Land and Water Conservation Fund. As noted in Table 111-4 on p. 205, the State has an active acquisition and development program already underway in Maryland's coastal Zone including the acquisition and, where appropriate, development of shorefront areas. Because of the State's commitment to completing the acquisition and development of existing areast opportunities are somewhat limited in the near future for the acquisition of entirely new shorefront areas. Possibilities do exist for modifying the take-lines and development plan of areas already under acquisition to meet shorefront natural areas, recreation, and access needs. In addition, coastal areas of significant aesthetic, natural, scenic and cultural value can be protected through the conservation easement program of the Maryland Environmental Trust. 141 The State's Waterway improvement Program as described in more detail in the section of this Chapter on Recreational Boating., provides funding for C 4 the development of fa ilities to benefit the boating public, particularly the provision of boating access so that people can take advantage of the recreational boating potential of Chesapeake Bay and other State waters. The State has constructed a substantial day-use boating facility at Sandy Point and is looking for other sites for such facilities. The potential exists for combining such a facility into a shorefront park with a boating focus. In addition, through the efforts of the Coastal Zone Unit and other appropriate State agencies as described in the Program Review section that fOllo,as, the State will ensure during program implementation that shorefront acess and protection assessment prodcedures will be further developed and used in the State's acquisition and development program and in the disburse- ment of state funds to local governments through Program Open Space for local land acquisition and development for recreation and open space purposes. Part of this assessment processwill include identification of shorefront areas that should be considered for designation as State Critical Areas to meet demonstrated shorefront access, open space and natural areas protection needs through the process described in Chapter iv. As is the case with the State acquisition of recreational land, local recreational land acquisition with State funds has to be made in accordance with the SCORP and the State's Coastal Zone Management Program. In the disbursement of Program Open Space funds, particular attention will be given as to whether local goverments have given adequate provision to meeting shorefront accessr open space, and natural area protection needs. Finally, the State, in the longer term will use the assessment information developed to give adequate attention to acquiring appropriate new shorefront areas. Island Protection sensitive development of islands. The State of Maryland has made significant progress in the protection an In 1967, the State Board of Natural Resources adopted a resolution which requested that the Board of Public Works direct th Hall of Records to issue no patents to vacant islands in the State Of Marylae and that all such islands be retained in State nd Ownership and adminstered by the agency or agencies designated by the Board of Public Works. The Board of p Works subsequently adopted this resolution, thereby providing a mea Ub vacant islands for the public use. n Of The State has also identified certain islands with natural scenic and aesthetic characteristics, valuable plant and animal habit, and historic am., archeological resources which merit acquisition. The State has determinedth.., these islands should be acquired and managed to conserve and preserve them for low density outdoor recreation activities and open space. Wye I!iland in d approximately 3,500 acre island will be maintained in its natural state as Anne's County has been acquired by the State as a result of these fin ing. space for the benefit and enjoyment of Maryland's present and future residen Low intensity outeoor recreation activities will also be permitted. Assateague Island-is jointly owned by the national and State governme In addit_.,..,, Janes Island, which the State owns and manages is a State Park. ntsand : [email protected] Islands, located near the Baltimore Metropolitan Area will he fi'lled with Hart and material from the Baltimore Harbor. Aft used for recreational activities. er this occurs, the islands are to be 142 The state's Critical Area Program provides an additional mechanism for ensuring the proper management and use of islands. Designation of islands as State Critical Areas will include appropriate management techniques to ensure that they are appropriately-utilized or protected. Coastal Zone Unit Role Project,.Evaluation The Coastal Zone Unit will participate along with other units of the Department of Natural Resources in the review of the alternatives for the elimination or reduction of bottlenecks along Route 50 through the Comprehensive Planning Process undertaken by the Department of Transportation to ensure that Coastal Zone Management concerns are adquately addressed. program.Review The Coastal Zone Unit in corporation with the CaDital Programs Administratio .n will work with the Department of State Planning in accordance with the Governor Executive Order and the Department of Natural Resources Memorandum of Understanding with that Department to ensure that shorefront access and protection needs are given adequate priority in the SCORP planning process. As part of this effort. the Coastal Zone Unit will analyze existing sources of information and in conjunction with relevant State and local agencies undertake supplementary studies if necessary to ensure a complete and detailed assessment of shorefront natural areas, open space, and access needs and'opportunities. The Coastal Zone Unit will work with the Capital Programs Administration and the Department of State Planning on utilizing the results of the SCORP and other relevant studies to identify ways in which the State's acquisition and development plans can be modified to ensure that adequate consideration is given'to %the provision of shorefront access and the protection of public coastal areas of recreational, hirtoric, easthetic, ecological or cultural value. As noted above, in the near future, attention will be focused on providing additional shorefront access and providing adequate protection to other public coastal areas through adding, to or providing appropriate developments in areas already owned or under acquisition by the State and acquisition of shorefront areas that provide boat access opportunities. However, the Coastal Zone Unit will work with the Capital Programs Administration to identify shorefront areas appropriate for inclusion in the State's acquisition program in the longer term. The Coastal Zone Unit will work with the local governments in the Baltimore Metropolitan area on implementing the recommendations of the Baltimore Metropolitan Coastal Area Study concerning provision of park land and public access to the shoreline including alternatives not involving land acquisition. The Coastal Zone Unit will work with local governments in general on ways they can provide increased shorefront access and protect appropriate coastal areas including designation of such areas as State Critical Areas and thus as Geographic Areas of Particular Concern. 143 AUTHORITIES RELATING TO USE OF BEACH AREAS Statutory Au2i @it Controllinq Mechanism L2Lncy Beach Erosion Control District Direct State Planning and DNR (CAP) Act Regulation Art. NR, Section B-1105.1 State Comprehensive outdoor Direct State Planning DSP Recreation Plan DNR (CAP) Program Open Space Direct State Planning and DNR (CAP) Art. NR, Section 5-906 State and/or Local Acquisition and Development Wetlands Law Direct State Planning and DNR (I-IRA) Nat. Res. Art. Regulation Title 9 Rivers and Harbors Act State I-later Quality Federal, U Section 10 Certification and Federal Army Corp. Federal Water Pollution Consistency Engineers Control Act Amendments of DNR (WRA) 1972, Section 402 Sanitation Standards for Direct State Regulation DHMH (E,;iA) Bathing Beaches Art. 43, Section 2-228 DHMH Regulation 10.17.24 State Critical Areas Program State Standards for Local DSP Art. 88C, Section 2(b) (3) Implementation 144 CO 11 UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Office of Coastal Zone Management Washington, D.C. 20235 EVALUATION FINDINGS FOR THE MARYLAND COASTAL MANAGEMENT PROGRAM COVERING THE GRANT PERIOD OCTOBER 1, 1978 - SEPTEMBER 30,1979 I. BACKGROUND Section 312 of the Coastal Zone.Management Act (CZMA) requires continuing review of states with federally approved coastal management programs. This review is designed to evaluate performance with respect to coastal management activities and adherence to the approved management program. The Maryland Coastal Management ProgramjMCMP) was approved in .September, 1978. Maryland's first-year 306 program implementation grant award from the federal government was $1,400,000. The State contributed $415,248. In connection with the Office of Coastal Zone Management's (OCZM) evaluation responsibilities, an on-site review of the MCMP was conducted in Annapolis, Baltimore, Easton, Ocean City and Salisbury from June 12-15, 1979, by Carol Sondheimer, Chief of Policy and Program Evaluation; Catherine Morrison, Program Analyst; John Phillips, Regional Manager, South Atlantic Region; Marcella Jansen, Program Assistant, South Atlantic Region; and Lynn Holloway, Staff Attorney. The on-site review-included meetings with representatives of the Department of Natural Resources (DNR), including Secretary James Coulter and staff from the Coastal Zone Unit (CZU) and the Water Resources Administration (WRA); state and federal agency representatives; Delegate Gerald Winegrad; representatives of local government, environ- mental interests and business and port interests. Two public meetings, sponsored by the Coastal Resources Advisory Committee (CRAC) were held; one in Annapolis June 12 and one in Easton June 14. A list of persons attending these meetings is attached (Appendix 1). In addition, written comments were received by the U.S. Army Corps of Engineers, U.S. Coast Guard (Department of Transportation), Department of Housing and Urban Development, Department of the Air Force, National Marine Fisheries Service, PeoplerS Counsel, Regional Planning Council, Natural Resources Defense Council, Inc., Committee to'Preserve Assateague Island, the Maryland Conservation Council, and the Maryland State Department of Economic and Community Development. C. In the Area of Increased Access to the Coast for Recreation Purposes, ana Protection ana Restoration of Historic, Aes1hetic and CultuFal Resources o CZU has submitted a revised shoreline access element to OCZM, providing increased access to the Bay. It is currently circulating within OCZM for review. o As part of an Archeological Resource Management Study funded by by the CZU, an archeological field survey of the Maryland bay shoreline was undertaken. Approximately 20% of the shoreline was examined and over 100 new prehistoric sites were identified, more than doubling the previously known sites. This infomation is utilized by the Maryland Historic Trust in carrying out their preservationresponsibilities. MASSACHUSETTS Coastal program officials in Massachusetts identify beach-access as a "sensitive issue" in their state. Although the legal definition of the public beach is the area below mean high water, many property owners do not honor that delineation and make it difficult or im- possible for the public to utilize the shoreline. To date the state's coastal program officials have only done preliminary planning and staff- ing up, but during 1980 acquisition and access are expected to be major elements of the program. Massachusetts coastal program administrators state that the major beach access priority should be.the identification of key waterfront parcels which will be coining up for sale and the development of mechanisms for acquiring them. Because of the recently imposed 100% valuation on property, people are deciding that they cannot afford to continue to hold their shorefront property and are putting it on the market. The private sector is acting faster than the public sector and undeveloped parcels are being bought for development before the state or local governments can act to protect their undeveloped state for the public. In an effort to stem this tide, the Massachusetts co-astal pro- gram has funded one staff position in the Department of Environmental Management office which administers HCRS land and water conservation funding. This staff member identifies key coastal parcels and lobbies for their acquisition with the limited LAWCON funds. State coastal officials also convinced the governor to put $1 million for beach MASSACHUSETTS 2 acquisition in his proposal FY81'budget to the legislature. The chances of its appropriation are unknown at present. During program year 1980 coastal officials will continue to explore acquisition alternatives. Grants which are awarded to local governments by the state coastal zone management program for port and harbor development projects are conditioned on the provision of waterfront access. The Massachusetts coastal program helped fund a feasibility study for public transportation between three urban areas (Boston, Lowell and Fall River/New Bedford) and beach areas. The Massachusetts Department of Environmental Management will now continue to work with the regional transit authorities and federal funding sources to implement the pro- gram. One interesting non-CZM funded beach access project began last year under the auspices of the Department of Environmental Management. State and HCRS LAWCON funding were combined to purchase seventeen miles of abandoned railroad right-of-way on Cape Cod for a bikeway. Long range plans are to provide train service from Boston to Chatham and a bikeway from Chatham to Provincetown, with intermediate stops at a state campground and the Cape Cod National Seashore. ovoz NUCHAEL S. DUKAKIS MEMORANDUM EVELYN F. MURPHY SKIFTAXY DATE: July 29, 1977 SUBJ: Fulfillment of 305 (b)( Regulations: Shorefront Access Planning SHOREFRON"r AREAS PT-&%%MNG (1) A procedure for assessing public areas reSuiring access or protection. The CZH program sets forth a procedure to determine access needs based on three factors: the adequacy of existing publicly owned recreation areas to meet demand; transportation availability to existing sites; environmental impacts of recreation on coastal resources. In Hasaachusetts, private shorefront ownership to the mean high water mark was granted by a 17th century Colonial Ordinance, and those ,private property rights have been upheld by successive Itassacbusetts court decisions. The result is that beach recreation is primarily dependent on public acquisition of lateral beach access. The state and coastal towns have, over the years, acquired lateral shorefront lands for public beaches. However, such acquisitions have not been adequate in all areas to meet demand. Several steps were taken to Analyze where and why recreation was deficient: First, the Cal pro- gram used the demand/supply analysis from the State Comprehensive Out- door Recreation 'Plan (SCORP) to identify regions where public shorelands were not adequate to meet current and projected coastal recreation needs. (CZM Plan pp. 194-195).* *The SCORP data was refined and supplemented by a C711 inventory of Coastal Recreation, including information on ownership and access. (CZ11 Plan, Chapter 5 Maps) As described in the Public Participation Appendix, these maps will be updated on a systematic, periodic basis. @;V Kathryn Cousins Page 2 July 29, 1977 Next, transportation networks and plans were evaluated relative to the location of existing recreation sites to determine if people from "high need" areas could reach regions With adequate recreation. Questionnaires were distributed both by SCORP and by CZM (see Public Participation Appendix) to help determine the significance of transportation problems. Based on the evaluations and questionnaires, the improvement of transportation to existing public sites was determined to be crucial to improving access and meeting recreation needs in Massachusetts. Policies 21 and 22 were written to establish a procedure under which the CZM program would support the planning and funding of non-automobile transportation alternatives or trails to existing public sites. Under these policies, projects are consistent with CZM objectives when: existing transportation is inadequate; the recreation site is under- utilized because of lack of parking; benefits from improved transportation will stimulate commerce; or the improved transportation will serve many recreation sites. (Summarized from page 205) The CZM Questionnaire also indicated that many existing Massachusetts recreational beaches are used inefficiently or are underutilized. Up- graded maintenance, improvement of related facilities or small expansions would greatly improve use thereby improving the "supply" of beach recreation. Policies 23 and 25 were written to establish criteria for determining where existing sites could be improved to support increased access. Under the procedure, increased access can be achieved through improving maintenance and facilitating multiple use when: -- Opportunities for physical expansion are limited; or The operational aspects of activities do not conflict; e.g., picnicking, and sunbathing; of Improved management and maintenance can control operational conflicts between uses; or The seasonality of the activities facilitates multiple use sequencing; or Recreational use of non-recreational areas can be accommodated on weekends; or Improvements in water quality provide expanded opportunities for water contact sports; and Where there is adequate access for additional uses to benefit from such improvements; and Resources are capable of supporting increased use with degradation. Kathryn Cousins ?age 3 July 29, 1977 If projects meeting the above criteria do not sufficiently in- crease beach supply in order to meet demand, expansion of existing sites or new acquisitions of lateral access will be made. CZM, favors such expansionslacquisitions when the following criteria are met: (Policies 25 and 26) - Undeveloped areas abutting or near existing recreation sites are,suitable for expansion; or - Existing sites are over-utilized aad there is no nearby sub- stitute which might shift demand for the activity; or Other public improvements have been made or are proposed on/near existing recreation sites; for example, where state or federal funding has been used to slow or prevent erosion of beaches; and Access, including transit, roads and parking, is sufficient or will be sufficient subsequent to implementation of transportation improvements under Policy (21). With regard to the protection of public recreation areas, Massachusetts CZH first compiled an inventory of public coastal recreation sites. As would be expected, the locations of these sites coincide with the most significant ecological [email protected] -- barrier beaches, sandy beaches, dune, salt marshes, salt ponds, and shellfish beds. As a result of staff re- search and the findings of sensitivity analyses performed by the University of Massachusetts under subcontract to Rassachusetts C22.1, policies were written to define appropriate/permissibleuses for these areas (Policies I and 2). The policies allow a wide range of recreational uses provided certain conditions are met in constructing and siting associated facilities. Other development activities which could adversely impact ecological or recreational values are prohibited or conditioned as appropriate. Policy 27 was also developed to establish a case by case.review of development activities that could negatively impact existing public recreation sites, in order to ensure that such impacts are minimized through appropriate mitigation steps. Policies 3-6 of the Marine Environment program, as well as 8-12 of the Coastal Hazards program, and 13-16 of the Visual Environment section provide direct and incidental protection to recreation values through management of water quality impacts, dredging and mining [email protected] visual impacts, among other aspects. (2) A definition of the term "beach" and an identification of 2ublic areas that meet that definition. "Beach" is defined in two ways. The first is the physical de- scription to which the 'I.-rine Envirow!,,[email protected] policies apply (CZI-i Plan p. 35). Beaches defined this vay are Goographic Areas of ParticLlar Kathryn Cousins Page 4 July 29, 1977 Concern (see page @5). The second definition relates to ownership and access [email protected] @Iassachusetts beaches except for publicly owned beaches, are private to the mean low water mark. C2X defines public beaches as those which ore publicly owned, possess perpendicular access open to the greater public, with a minimum of 25 parking spaces. Shorelines that meet this public beach definition are listed at the end of the Recreation section (pp. 220-223) and shown on the maps in Volume II. These beaches are of sufficient public concern that Massachusetts CZM will ensure that proposed adjacent developments do not Jeopordize the public benefits provided by the sites (Policy 27), and determine if access can/should be increased as defined!in (1) of this memo. (3) Articulation of state policies pertaining to_shorefront access and/or protection. All Recreation policies and Marine Environment policies relate to. these broad issues. They are listed on pages 204-216 and pages 79-107 of the CZM plan. (4) A method for designation of shorefront areas as areas of particular concern forprotection and/or access urposes, if appropriate. As discussed in (2) above, policies were developed which provide for the protection of the resource areas significant for both ecological and recreational values. These areas are designated as GAPC's on the regional maps contained in Volume II. Protection is ensured for these GAPC's as articulated in the Marine Environment Policies 1-5, Coastal Hazards Policies 8-10, and Recreation Policy 27. Permissible recreation activities for specific categories of CAPC's are described in these policies. Complexes of GAPC's are designated as APR's where the collective ,importance of the GAPC's warrants the highest level of management. Acquisition for limited access to APR's is also a high priority (Policy 26). (5) A mechanism for continuing refinement and implementation of necessary manaaement techniques, if a22ropriate. The Recreation policies establish a priority for management techniques. Transportation improvements, as determined through criteria in Policy 21, are the highest priority (p. 284). The second priority management technique is to expand the physical size of existing sites or purchase new sites in areas with a high need: "CZM's first priority is to improve transportation to and maintenance of existing facilities. Where those policies are not sufficient to improve recreation within areas of high need, CZc'I will provide funds for acquisition of new land." (p. 212) Kathryn Cousiiis Page 5 40 July 29. 1977 As projects are completed or land is acquired, the CZM inventory and SCORP inventory - will be updated. Weeds will be reevaluated, and priorities for [email protected] techniques will be updated relative to new needs. [email protected] Advisory Councils will be helping in the update, establishing new priorities for recreation actions consistent with the policies. Tlie role of the Councils is documented in the Management Chapter (p. 364). Thu-s, the management techniques needed will be dependent upon the need for various projects established through the SCORF.and Citizen Advisory Councils. (6) An identification of funding proarams and other technigues that can be used to meet management needs. Each Recreation policy is followed by a section describing both the overall strategy and specific agencies needed to implement the respective policy (pp. 204-216). Each policy will be.implemented @by funds, programs, or agencies that are best suited to the advocated action. SRS:mc M I C 1A I GAI,' Riparian property owners in Michigan have the right to restrict access to the beach. Thus, for the public to legally use the shore in front of private property, the "one foot in the water" rule tendi to be imposed. The state coastal program does not include measures to obtain easements across private land to the shore because program officials feel that an abundant supply of accessible shorefront exists through the federal, state, county, and city park systems. Michigan Coastal Zone Officials have defined their responsibilities toward shorefront access in terms of helping communities leverage additional funding for acquisition and devel-opment of access sites. Approximately half of the state's CZM funds are cominitted to grants to local communities. Many of these grants go to projects which create, improve, or preserve shorefront access. Wh en a community applies for planning money from the state coastal program it must also identify potential funding sources for development. Once the planning phase is complete, state coastal program officials frequently offer technical assistance for the development funding search. Frequently used sources for acquisition and development are HCRS U-Ind and [email protected] Conservation funds aiid the Upper Great Lakes Regional Commission. CZ11-1 grants are frequently used to finance urban waterfront park planning. In Detroit three small, existing parks will be tied toget- her by a riverfront walkway, part of which extends through an industrial section of the city. Similarly, several small public parcels in Makinaw city have beentied together with a walkway which necessitated MICHIGAN 2 the granting of easements across private property. In St. Ignace, a 3/4-mile long promenade will provide visual access to the shore, but no physical access. Bike path designs have been funded in Detroit, Marquette, Grand Haven and Sault Ste. Marie. State CZM funds have also been granted to seven state parks for the construction of boardwalks which provide access across dunes and wetlands while preserving these environmentally fragile areas. On the Upper Peninsula some property owners who hold shorefront land for forestry and investment purposes allow for public use of their land. While the state coastal program is aware of this, nothing has been done to encourage or coordinate such gestures. Administrators of the Michigan Land Trust Fund use royalties from oil and gas exploration to buy property for public recreational use. Great Lakes shoreline has been established as a priority item in this program. FILE COPY State of Michigan Coastal Management Program Planning Processes Processes Energy Facility Siting Shorefront Access Shoreland Erosion September 1978 20 INTRODUCTION It is widely recognized that the need for public access to Michigan shore- fronts is growing. As the quantity and variety of these demands orows, the need to increase or control access to these areas becomes more critical. Michigan, therefore, submits this "Preservation and Access Planning Pro- cess" for review and approval as an integral part of its state Coastal Management Program, as authorized by the federal Coastal Zone Management Act of 1972 (P.L. 92-583, as amended). The Act charges in Section 305(b)(7) that each state Coastal Management Program include "a planning process for the protection of, and access to, public beaches and other public coastal areas of environmental, recre- ational, historical, aesthetic, ecological, or cultural value." To meet this charge, states must describe how they will consider public shore- front areas for protection and/or increased physical or visual access. More specifically, they are required to develop processes which: 1. Define and identify beaches and other public shorefront areas eligibl.e for protection and/or increased access (page 19); 2. Assess such area's requirements for protection and/or increased access (page 22); 3. Designate certain shorefront areas as coastal areas of particular concern (APCs) for protection and/or access purposes (page 38); 4. Refine and implement needed management techniques (page 39); 5. Articulate state policies pertaining to shorefront public access or protection (page 40); and 6. Identify existing local, state and federal programs to address indicated needs (page 41). All components of the access planning process related to these tasks (i.e. all data, problem statements, policies, review and evaluation pro- cedures, decision-making criteria and action programs) have been well documented in Michigan's Coastal Management Program and Final Environ- mental Impact Statement, June 1978. Publication of that document culmi- nated a three and one-half year program development period which actively involved all levels of public and private interests. Parti- cipation included the development of program concerns, goals, APC nominations, action programs, project proposals and a number of formal program reviews. Since components of the.access planning process, e.g. policies, authorities are included in the HIS program descriptions, this document will elaborate on specific access planning task require- ments, and.will reference the HIS frequentlyto avoid duplication. 21 CKVTER I DEFINE XZ IDENTIFY BEACHES AND'OTHER PUBLIC SHOREFRONT AREAS TO BE INCLUDED IN THE ACCESS PLANNING PROCESS Michiga.n proposes to use the processes outlined in this report to docu- ment and address the needs of its beaches and other shorefront areas for publi c access and/or preservation. Michigan's Coastal Management Program defines the term "beach" as the area on the Great Lakes and their connecting waters extending inland from the Low Water Datum elevation to the ordinary high water mark.* In less technical terms, this means the state-owned bottomlands lying between the lake elevation noted on navigation or federal harbor improve- rnent charts, and the place where there is a marked change in the soil, the soil configuration, or the terrestrial vegetation (Figure 1). This definition allows the Coastal Management Program to address the variety of needs required by Michigan's resources and by the public. Most Michigan residents and travelers might refer to beaches as de- veloped, sandy recreation areas. But they also value experiences associated with rocky areas, wetlands, sheer bedrock cliffs, man-made shorelines and other shorefront environments. Their demands for these experiences must also be addressed in our program. *The ordinary high water mark is established by the Submerged Lands Act, Act No. 247 of the Public Acts of 1955, as amended. The Act defines this mark as "the line between upland and bottomland which persists through successive changes in water levels, and below which the presence and action of the water is so common or recurrent as to mark upon the soil a character, distinct from that which occurs on the upland, as to the soil itself, the configuration of the surface of the soil and vege- tation." The Low Water Chart Datum and the ordinary high water mark for each of the Great Lakes are stated below as elevations above sea level,.interp.ational Great Lakes datum of 1955: Lake Low Water Chart Datum Ordinary High Water Mark Superior 600.0 feet 601.5 feet Michigan-Huron 576.8 feet 579.8 feet St. Clair 571.7 feet 574.7 feet Erie 568.6 feet 571.6 feet Actual on-site location of the ordinary high water mark is confirmed for the Great Lakles and connecting waterways by field survey. Ordinary high water marks for connecting waters which link the Great Lakes are inter- polated from established ordinary high water marks for adjoining lands. The ordinary high water mark of inland waters is determined under-the authority of the Inland Lakes and Streams Act, Act No. 346 of the Public Acts of 1972, as amended. rm rn rn CX) C) C+ -4 zr 4 (1) m rn co r- (A 01 -M z rri ?n rv =5 m (D CL rn cl C+0 rn 0 PO ..... . . . .............. . C3 tu rm rn ICE co t 1=3 ................ .............. ............ ....................................... ........ ......... ...................... LV44 23 This definition is also compatible with the boundary between state-owned bottomlands, public trust interests, and private property interests (Figure 1). The ordinary high water mark is the legal boundary sepa- rating state controlled bottomlands and waters from private property. Riparian private property owners hold fee title to the ordinary high water mark. Michigan manages bot4l.,omlands laketyard of the ordinary high water mark in the public trust under provisions of the Submerged Lands Act, Act No. 247 of the Public Acts of 1955, as amended. Access to the shoreline and rights of use are related to the water's edge. Riparians have exclusive use of exposed state controlled bottomlands to the water's edge--provided that their use is temporary and does not include un- authorized dredging, filling or modification of the bottomlands. The public has the right to fish, hunt, wade, navigate, etc., whether the water's edge lies above or below the oruinary high water mark. Shorefront water levels, soils, soil configurations and vegetation have been identified historically in field surveys made to satisfy Act 247 requirements. As needed, Department staff will use aerial photCography, field inspections and maps such as the coastal boundary maps to augment the surveys in determining the current location and extent of these areas.. Needs associated with these areas involve either increasing public acre- age, or increasing lakeward and landward ingress and egress to acreage now in public ownership (state, local or federal). Though there are very real needs for acquiring additional public properties, the federal Coastal Zone Management Act does not now fund such acquisitions. The term "access", then, is used here to include physical access, visual access or the protection of such access to maintain the value of existing i mW shorefront attractions. Physical access may be pedestrian or vehicular such as parking areas, boat ramps, foot or bicycle paths, boardwalks, ferry service or other transport facilities. Visual access may include scenic viewpoints, setback lines, building height restrictions and light or lighting requirements. Protection provided to maintain the values identified for such areas may include conservation, preservation or re- storation activities, such as buffer areas, increased policing, boating safety, or other access controls. These lists are by no means inclusive; other innovative and creative approaches to providinq access needs will be actively encouraged throughout Coastal Management Program implementation. Z; Shorefront areas eligible for increased access or protection have been listed and described in FEIS Chapter IV as: (1) Areas of Natural Hazard to Development, including areas prone to flooding or erosion; (2) Areas Sensitive to Alteration, including ecologically sensitive areas such as wetlands, natural areas, sand dunes and islands; (3) Areas Fulfilling Recreational or Cultural Needs, including areas managed to recognize recreation, historic, educational, archaeological or other cultural values; (4) Areas of Intensive or Conflicting Use, including coastal lakes, river mouths, bays and urban areas; and (5) Areas of Natural Economic Potential, including water transport facilities, mineral and energy resource areas, prime industrial sites, and prime agricultural areas. A 24 CMPTER II DE`@P A PROCEDURE TO ASSESS SUCH AREAS FOR PROTECTION AND/OR INCREASED ACCESS NEEDS A number of procedures will be used to assess needs for shorefront pro- tection and increased'access. Each procedure evaluates access-related needs in terms of their ecological, environmental, recreational, his- torical, aosthetic or cultural values. These evaluations will emphasize but will not be limited to access proposals made to Michigan's programs for Coastal Management, for the Land and Water Conservation Fund, for the Michigan Recreation Land Trust Fund and for the Michigan Waterways Fund. Evaluations will focus first on questions related to the supply of existing public facilities and area, the anticipated demand for future use of the proposed facilities, and the capability/suitability of the resource to support the proposed action. Coastal Management Program assessments will primarily involve review of areas of particular concern (APCs) to identify local, regional and state- wide needs for access or protection. FEIS Chapter IV describes how legislated (i.e. designated) and nominated forms of APCs are used to document access concerns for Areas of-Natural Hazard to Development, Areas Sensitive to Alteration or Disturbance (including islands); Areas Fulfilling Recreation or Cultural Needs; Areas of Conflicting Use; or Areas of Natural Economic Potential. Appendix D of the Draft Environ- mental Impact Statement (DEIS) shows the current aeographic density and distribution of legislated APCs. To a smaller de6ree, other Coastal Management Program elements such as the statements of concern and action program recommendations documented in FEIS Chapter III also indicates access needs. The Coastal Management Program will also evaluate a significant number of APCs and Coastal Managemient Program project proposals for funding each year. If current trends continue, the majority of these projects will address access-related concerns. Criteria for Coastal t-.'.anagement Program eligibility and evaluation are shown in FEIS Chapters IV and V. The Land and Water Conservation Fund, the Michigan Recreation Land Trust (Kammier) Fund and the Michigan Wateniays Fund are the major access pro- grams now operating in Michigan. As described in FEIS Chapters V and VI, access proposals submitted to these programs are received by the Depart- ment of Natural Resour'ces,(DNR) uhich is the designated administering agency for each fund. Their eligibility requirements and evaluation are quite similar; each relies on state as well as local comprehensive out- door recreation plans to identify and evaluate access and protection needs. With successive updates of these plans the access-related needs for each program increase; each year, applications more than double the amount of funds available. As agencies of the Department of Natural Resources, the coordination of these proposals with Coastal Management Program APCs and Action Programs is assured by the organizatiohal structure detailed in FEIS Chapter V. 25 From DEIS Appendix C, ot.her state incentive and regulatory programs evalu- ate shorefront areas eligible for increased public access or protection. The Coastal Management Program will also use their program inputs (permit applicat-lons, request-s for technical assistance, grant proposals, etc.) as indicators of Michigan's access needs. As above, coordination of these proposals with Coastal Management Program APCs and action programs is assured by the org-anizational structure detailed in HIS Chapter V. Evaluation criteria for each of these programs is included in FEIS Chapter III and also in DEIS Appendix A. Chapter VI of this report lists these programs by name. These decision-making processes use three major sources of technical data. As mentioned, APCs indicate a variety of coastal access-related needs. Detailed supply and demand estimates are also computed in dollars, acres, user-days and other f&ctors by studies done as part of the Land ana Water Conservation and the Waterways programs. These estimates deter- mine the character of recreation throughout Michigan in terms of who parti- cipates and who provides for that participation. Breakdowns are pro- vided by type of recreation experience and geographic distribution. Figures are kept current through annual updates for the Department capitol outlay budgets, as well as development of new surveys, plan documents and strategies. Land and Water studies are based primarily upon exhaustive telephone surveys every three to five years, while Waterways studies are based upon mail surveys of licensed boat owners every. three years. Coastal Management Program staff has contacted these programs to begin extracting coastal data from these statewide figures. As a partial indication of coastal access and preservation needs, the following points are extracted from the 1974 Michigan Outdoor Recreation Plan. Michigan needs an estimated 213,700 acres of local (county, township or municipal) public park facilities-b-y-T980. Some 95,500 acres of such facilities are now operating, leaving a 1980 deficiency of some 118,200 acres. If only a portion of this need were addressed, both local and state access.pro- grams would be severely depleted. Costs estimated for addres- sing only 15/10 of this deficiency (17,700 acres) are $37 million; for 10% of the deficiency (11,700 acres) costs are $25 million. Department of Natural Resources' Parks Division has determined that: There is an urgent need to consolidate lands within state parks known as "inholdings" to assure quality recreation. This need is most critical in southeastern Michigan, due to rapid urban sprawl and related development. Areas possessing undisturbed or unusual unique natural areas, suitable for scientific, educational and aesthetic value, are being con- verted to other uses. The majority of the undisturbed natural areas are located in northern Michigan and are prime targets for residential development companies. More emphasis should be placed on acquiring significant scenic sites and/or areas 26 including waterfall's, Great Lakes shorelands and river front- ages before they are lost to private development. There is a great deficieny in designated motorized recreation vehicle areas resulting in the unlawful use of and damage to the natural features found in existing state parks, other public land, and large tracts of undeveloped private lands. The greatest need for designated vehicle areas is in southern Michigan, near the highest concentration of vehicle users. There is a need for expansion of new areas of state park size and caliber, located where significant natural features are available to serve a variety of future outdoor recreation needs. The integrity of historic sites possessing statewide significance is being threatened by the encroachment of various types of incompatible uses. There is a need for a continuing source of funding which would enable the com- pletion of the facility development in many state parks. The development program is generally spread out over several years and the lack of sufficient funds to complete this de- velopment would mean a significant reduction in recreation opportunities on existing public lands. Department of Natural Resources' Waterways Division has determined that the character of boating in Michigan is in active change and that: The trend toward increased numbers of boa'L,.s on trailers con- tinues, with associated needs for an expanded system of launching sites on all types of waters. Continuing growth of the new Great Lakes sport fishery has created demand for mooring and launching sites on the Great Lakes and the con- necting river mouths which was far beyond previous levels of programming, and which will require years of catch-up effort. Conflicts and problems of recreational use of lakes and streams arise not only from the sheer increase in amount of boating, but also'because of the multiple use of these re- sources for various types of boating and recreation. Lake and stream boating resources are not distributcd over the state in same proportions as the population of the state. This. is advantaaeous in that it offers a wide range of boating environments, from "wilderness" to "urban". But it also means that programs must equitably distribute boating opportunities to all portions of the state; and as the number of facilities increases and operating costs jump, an increasing proportion of available funds must be allocated to operation and main- tenance, leavinq a lesser proportion for purchase and develop- ment of new sites. Concurrently, land costs continue to in- crease strikingly. Also, construction costs are not only in- creasing but many sites must be built to higher standards than once prevailed in order to handle the increasing number of boats, and boats of larger size. Many existing sites need rebuilding to these higher standards. 27 Department of Natural Resources' Fisheries Division has determined that: In southern urban areas, concentrated populations are less accessible to most water resource bases for fishing than are the northern populations. Private land control, de- gradation of wat6*r quality and conflicting uses (such as water skiing, speed boating,.etc.) further limits the re- source base in southern Michigan. Access is becoming a critical problem on lakes and streams even in the northern Lower and Upper Peninsula. If current trends continue, many miles of trout and anadromous streams will be fenced, excluding public use. Acquisition offers only a partial solution since these lands are some of the most expensive in the state. Leasing or other contract agreements may help. Ways must be found to assure private landowners that anglers will not overrun their property or their waterfront. On lakes, the state should limit or zone boating as necessary based on the total use of the lake by landowners and the public; and through Fish and Game Fund revenues finance many Department functions, many of these functions do not produce direct benefits to anglers. The planning, engineering and environmental enforcement required to continue receiving this federal support are reducing funds actually available for fisheries work. For a more detailed description of how such Recreation Plan directions are used in assessing and addressing access needs, the Michigan Land and Water Conservation Fund, -the Michigan Recrea-ii-Jon Land Trust Fund, and Michigan's Waterways Fund are detailed below. Michi2an Land and Water Conservation Fund Program The federal Land and Water Conservation Fund Act (Public Law 88-578) was passed by Congress in 1965. This Act created the Land and Water Con- servation Fund (L&WCF). The purpose of the program is to provide funds to federal and state activities which preserve, develop and assure I to outdoor recreation resources. Fundable activities are plan- access ning and the implementation of acquisition and/or development projects recommended by the plan. Michigan's participation in the program is authori,zed by the Outdoor Recreation Resources Act (Act No. 316 of the Public Acts of 1965). A portion of the fund (up to 60%) is allocated to the states. Michigan's first grant was approved in 1965 for initial planning. Since then, over $64 million have been distributed to Michigan for planning, acquisition and development projects. Because the fund requires that federal dollars be watched by an equal amount of nonfederal contributions, the program has already produced over $125 million of outdoor recreation investments for Michigan. Amendments to the Act passed in 1977 authorize an in- crease in Kiichigan's total annual apportionment from under $6 million to about $18 million by 1980. 28 IJ Michigan's Land and Water Fund is administered by the Office of Budget and Fed-ral Aid of the Department of Natural Resources. The Department's Recreation Services Divi,!ion is responsible for developing and updating the State Outdoor Recreation Plan portion of Michigan's program. Counties, cities and other local governmental uni ts may participate in the annual grant application process by submitting proposals to the Department of Natural Resources. State sponsored projects have been sub- mitted by the Department of Natural Resources divisions of Land Resource Programs (including Coastal Management Program), Mackinac Island State Park, Forestry, Wildlife, Wateniay-, and Fisheries. It has been Michigan's policy to make equal port-ions of its allocation available for locally sponsored and state sponsored projects. As Department staff, it is standard procedure for administrators of the L&WCF and the Coastal Management programs to refer proposals and recom- menda-*-ions to one another. Often proposals are submitted to both pro- grams. Another more structured avenue for this coordination is the Department's Standing Committee for Shorelands and Water, which includes representatives of these and other Department programs. State sponsored projects are selected for funding by the Department's Executive Off-ice in consultation with relevant divisions. The selection is based upon Department policy concerning agency roles, objectives and priorities. The major source of these policies is the State Outdoor Recreation Plan and the local plans developed under its guidelines. Other policy direction is taken from Executive Orders of the Governor, state legislation, and the Department of Natural Resources Policies and Procedures Manual. Local projects are selected for funding by a grants committee comprised of several Department of Natural Resources division chiefs and executives. As eligibility requirements, each local proposal must be sponsored by a local unit of government, must relate to state and local outdoor recre- ation plans, and must have a minimum project cost of $10,000. Under either sponsor, projects may propose to acquire new facilities, ex- pand existing facilities, and/or acquire interest in lands for such uses. Ineligible types of development include indoor recreation structures, historic preservation or restoration, mobile recreation uses, and others. Ineligible acquisitions include historic sites and structures, musueum or archaeological uses, game refuges, fish production areas, indoor facilities use, and others. Grant application forms show a complete list of ineligible and eligible proposals. The main purpose of the L&WCF local v.-ants-in-aid program is to help pro- vide suitable and adequate land and water areas and.facilit-es for public outdoor recreation use. It is recognized that needs for outdoor recre- ation areas and facilities far exceed available funds. Criteria have been established as a guide for selecting projects which best satisfy the purpose of the program. The determination of projects to be funded will be rendered on an objective and equitable a basis as possible. The following criteria are used when determining priorities of eligible pro- jects 29 *conformity to state and local plans. *need for the facility. *Projected use of the facility by all segments of the public. *urgEncy of the project. *appropriateness of financial request. Proposals which the Department determines have the greatest potential are scored and ranked according to quantified criteria shown in Figure 2. A proposal receives the highest number of points in each category that are applicable to that proposal. This scoring system allows an objective evaluation of the merits of each proposal relative to the Departiment's plans and policies, and assists in identifying priority proposals.. In addition, when analyzing the requests of local government agencies for funds to acquire or develop park lands, consideration will be given to the stewardship history of the applicant for: 1. Protecting its existing park, recreation and open space resources, including protection against diversion of lands designated for park, recreation and open space purposes. 2. Operating and maintaining areas to acceptable standards. 3. Making available its recreation facilities on a non- discriminatory basis. 4. Providing for proper staff to plan, develop and maintain the park system. 5. Performance on previous grants under the L&WCF and State Recreation Bond programs. The local plan will be reviewed concurrently with the application and the project will be rated according to the extent it is identified in the plan and satisfies acknowledged needs. Guidelines and technical assistance for developing local.recreation plans and for planning acquisition or development projects are available from the Recreation Services, Division, Department of Natural Resources. Each year the Department follows the following schedule sequence in soli- citing, reviewing and selecting L&WCF proposals for funding: FEBRUARY Land and Water proposal forms available to local units of government. MARCH.15 Preapplication submission deadline, including copies of relevant local recreation plans and for develop- ment projects only, copies of a deed or lease for- the subject property. In addition, A-95 Notice of Intent sent to state and respective regional clearing- houses. FIGURE 2 MICHIGAN LAND AND WATER CONSERVATION FUND CRITERIA FOR LOCAL PROJECT PROPOSALS Criteria Possible Possible Point Value Criteria Point Value DOES THE PROJECT HAVE THESE SPECIFIC ELEMENTS? ACCESSIBILITY Is the project specifically designed to Site can be reached by all types of transporta- 2 serve the recreation needs of (1) seniors, tion modes which are appropriate for that type (2) handicapped, or (3) economically dep- of site. Access is safe, rapid and convenient. ressed individuals? Location is in immediate proximity to expected uer populations. Will this project offer (1) multi-season or (2) multi-activity use? Site can be reached by most, but not all, trans- 1 portation modes which are appropriate for that This project meets two or more of these 2 type of site. Access may be relatively incon- conditions. venient for part of the service area population. User may have to travel some distance to profit. The project meets only one of these 1 conditions. Access to the site is limited and inconvenient 0 for a large part of the service area population. The project meets none of these conditions. 0 AUMENTATION OF DEFICIENCIES/NEEDS POPULATION DENSITY OF APPLICANT Is the project adequately identified in the From the population densities charted for all areas O-2 planning materials and/or documentation as 2 of Michigan in the application form. show the popu- a major deficiency in the community and does lation per square mile and its associated point the community show evidence of the project value (from 0 to 2). in a C.I.P. AVAILABILITY Community Identification of the project as 1 Does the project serve 3 or more age groups?- 2 sign1fcant deficiency is marginal. Does the project serve at least two of the age 1 No documentation to identify project as a 0 groups? deficiency. Does the project serve only one age group? 0 14 years & under 25-39 years 60+ years 15-25 years 40-59 years OF PROJECT (for acquisition proposals only) ABILITY OF THE LOCAL UNIT TO ADEQUATELY MAINTAIN, OPERATE AND PROGRAM THE FACILITY Will this site or resource be lost for 2 recreation use in the immdiate future Local unit has a park and recreation commission, a 2 if not acquired full-time park and recreation director, program and budget for operation and maintenance. Slight possibility for conversion of site 1 or resource in the immediate future to an Local unit has a park and recreation commission, a I undesirable use. part-time director, a program and a budget for maintenance and operation or has a commission, No immediate danger. 0 a budget and utilizes another department for main- tenance and operation. REASONABLENESS OF LAND AND WATER PORTION OF No evidence of budget for parks and recreation or 0 commission. Per capita cost is $2.00 or less. 2 RECORD OF PERFORMANCE ON PREVIOUS GRANTS* Per capita cost is more than $2.00 but 1 less than $3.25, Projects final billed G.I.A. within two years of 2 project agreement (L & W) or otherwide handled Per capita cost is $3.25 or more. 0 grants in an exceptional manner or if local unit has not receive grants from Department for L & W Per capita cost Is determined by dividing score a 2. the land and water amount requested by the applicant's 1970 population. Projects final billed and completed within three ARE OF LAND AND WATER CONSERVATION FUND years of project agreement. PREVIOUSLY ALLOCATED TO THE UNIT OVER PREVIOUS Active project approved prior to 12/73 (L & W) or YEARS SINCE PROGRAM BEGAN otherwise exhibited unsatisfactory progress on L & W or Bond projects. LocaI unit has received no land and water 2 funds. *For local units with more than one project. calculate average. local unit has received less than state's 1 per capita. Local unit has received more than state's 0 per capita. MAY & JUNE Department of katural Resources staff: -visits project site with the local project repre- sentative. -seeks additional information on the proposed acti- vity. Coastal Management Program assistance to staff is available and encouraged; project review and cwiment through standard Department operating procedure. -where appropriate, explores possibilities of co- ordinated funding with other Department programs, and obtains formal resolutions of intent from local units governing body. -tentatively scores and ranks proposed based upon quantified criteria. JULY 1 Department formalizes, scores and prioritizes list. This list establishes which applications will be sent to the Heritage Conservation and Recreation Service of the U.S. Department of the Interior (HCRS). The local units with the highest-ranking projects will be requested to submit A full application to the Department of Natural Resources. Upon receipt from the local unit, the full application is submitted by the ,,Department of Natural Resources to HCRS. At this point, project approval is dependent upon federal action. If the application is approved by HCRS, funds will be obligated to the project. A project the desired amount oi agreement will be executed between the HCRS.and State of Michigan, and a similar agreement will be executed between the state and the local unit. This agreement will be the binding contract authorizing expenditures of public funds. Monies released to Michigan upon individual approval of these project applications must then be matched with an equal or greater amount of nonfederal contribution. When these funds are obligated, actual implementation may begin. Michigan Recreation Land Trust Fund Program (commonly known as the Kammer Fund Program) The Kammer Recreational Land Trust Fund Act of 1976 CPublic Act 204) was passed by the Michigan Legislature and signed by the Governor on July 23, 1976. This Act created the Michigan Land Trust'Fund. The purpose of the program is to provide a Pew source of funds for public.acquisition of recreational lands. Funds are accrued from the sale of oil, gas and mineral leases and royalties from oil, gas, and mineral extractions on state lands. The Trust Fund will accumulate revenue on a continuous basis until the Fund contains the sum of $100 million, excluding interest. At least 2/3 of the revenues credited to the Trust Fund in any fiscal year will be held to be carried forward in the Trust Fund year to year. Up to 1/3, 32 but not more than $2..5 million, of the revenues credited to the Trust Fund in any fiscal year may be used for land acquisition. All interest and earnings of the Trust- Fund may also be used for acquisition. The Michigan Land Trust Fund is administered by a Board of Trustees com- posed of five members: They are: the Chairman of the Natural Resources Commission, the Director of the Department of Natural Resources, and three citizen members appointed by the Governor. One of the citizen [email protected] is to be from a group representative of sportsmen's associations or interests. The Board meets at least bi-monthly. All meetings are open to the public. The Office of Budget and Federal Aid of the Depart- ment of Natural Resources has been designated as staff to the Board. Any individual, group or organization may submit a land acquisition pro- posal. The Board reviews the proposals for conl-'ormance to its goals, and for the significance and availability of the land. Nominations submitted are considered by the Board for acquisition and management by the state. Also, the Board will consider funding local land acquisitions when manage- ment of the land is more appropriate at th-.2 local level, the proposal presents an outstanding recreational opportunity, and public ownership of the land is imperative. It is standard procedure for staff of the Kammer and Coastal Management programis to refer proposals and recommendations to one another. In this way, proposals may have an increased opportunity for funding and a greater exposure for management attention. Typically, this is accomplished through Michigan's Shorelands and Water Advisory Committee, which includes representatives of these and other Department of Natural Resources programs. Overall, the program's expressed goal is to give Michigan citizens direct participation in process which uses an innovative, long-ranqee recre- ational land acquisition effort to meet today's needs, while responding to needs of the future. The Board has also adopted more specific goals to recognize certain social and environmental opportunities as well as problems. 4 Each of these specific goal statements is directly reflected in the Board's eligiblity requirements. The Board has stated it will con- sider only those acquisition proposals which meet at least one of the eligibility requirements below. *-r the land is within 50 miles of an urbanized area of a Standard Metropolitan Statistical Area. *The land provides potential for preserving or enhancing rare or scenic areas or resources which are of at least regional significance. *The land provides access to and use of Great Lakes and connecting waters shoreline. *The land provides potential for presp-rving or enhancing fragile areas or resources that are sensitive and vuln- erable to exterior forces. 33 *The land provides access to and use oil inland lake, river or stream frontage of recreational value, or is within a floodplain offering recreational oppor4unities. *The land has potential for presenting innovative and/or educational recreational opportunities. *Th-e land has potential for preserving essential habitat or offering protection for endangered and threatened species of fish, wildlife or plant life. *The land provides potential for hunting and/or fishing opportunities. *The land is within the Pigeon River Country State Forest. The Department of Natural Resources' Office of Budget and Federal Aid, as the Board's staff, reviews the proposals for eligibility and signi- ficance. Proposals which the Board determines have greatest potential are scored and ranked according to the quantified criteria shown in Figure 3. A proposal receives the highest number of points in each category that are applicable to that proposal. This scoring system allows an objective evaluation of the merits of each proposal relative to the Board's goals, and assists in identifying priority proposals. The score of a proposal based on the quantified criteria, however, is not the sole factor the Board considers in making final funding recommenda- tions. Other factors include project cost and feasibility, agency in- terest in administering the land, availability of land, public input, etc. Proposals which have been designated as areas of particular concern in Michigan's Coastal Management Program also receive this consideration. When analyzing funding requests for local government acquisitions, con- sideration is also given to applicant's stewardship history for: 1. Protecting its existing park, recreation and open space resources, including protection against diversion of .lands designated for park, recreation and open space purposes. IC 2. Operating and maintaining areas to acceptable standards. 3. Making available its recreation facilities on a non.- discrimination basis. 4. Providing for proper staff to plan, develop and maintain the park system. 5. Having an adequate local recreation plan. (The local plan will be reviewed concurrently with the application. The project will be evaluated by the extent it is identified in the plan and 34 FIGURE 3 MICHIGAN LAND TRUST FUNO AMISITION CRITERIA Criteria Possible Criteria Possible Point Value SCENIC AREA OR R .ESOUPCE Point Valtic... AN UIWAN AREA: The s I te is in an urbanized area of a SMSA 10 The proposal allows Public access to pleasing 10 or in an area exhibiting characteristics distant views and panoramas or to natural fea- of sticii an urbanized area tures that are picturesque and scenic in their own right. These views or features shall be The site is in a SM-A 7 of at least statewide significance and interest. The site is within a SO-mile radius of 5 As above. except that these views or features 5 a SM&,@ urbanized area shall be of at least regional significance and interest. The site is outside a 50-mile radius 0 of & SMSA urbanized area FRAGILE AREA OR RESOURCE: @'f,j [email protected] USE OF GREAT LAKES: The proposal acquires a fragile area or resource 10 where the loss would have far-reaching Implica- The proposal will provide access to and 10 tions beyond the site use of Great Lakes and connecting waters shoreline in an area lacking such access The proposal acquires a fragile area or resource. 7 and there is documentLd ne2d for such use and access RARE AM OR RESOURCE: The proposal will provide access to and 8 The features of the area or resources are rare for 10 use of Great Lakes and connecting waters the state and of statewide significance shoreline in an area where Such access exists, but there is documented need The features of the area or resources have a low 7 for such use and access level of occurrence throughout the state FRONTAGE OR FLOODPLAIN: The features of the area or resources have a low 5 The site provides for access to and use of 10 level of occurrence throughout the region inland lake, river or stream frontage of The features of the area or resources are not 0 recreational value. The site possesses unusual for the state or region special features of a floodplain worthy of preserving in their natural state and offering recreational opportunities OTY OF SIMILAR FACILITIES: RECREATION SUITABILITY OF THE SITE: The proposal offers recreation opportunities 10 The site is suitable for the Intended uses or 10 not readily available to the target popula- proposed develoVirent offering capacity for full tion and there is documented need for the public use proposal The s1te Is not suitable for the intended uses 0 The proposal offers recreation opportunities 7 or has limitations for the proposed development that are readily available to the target popu- which would hinder full publit use lation but there is documented need for the proposal RECREATION USE POTENTIAL: OF THE RESOURCE: The proposal has potential for providing year- 10 around or multi-activity recreation opportunities The proposal saves a resource from altera- 10' tion or destruction by conflicting or in- The proposal has potential for recreation that is 3 ccxr,patible uses whe.-e such uses are Imminent single season or single activity and the resource it irretrievable INNOVATIVE RECREATION OPPORTUNITY: The proposal saves a resource from altera- 8 tion or destruction by conflicting.or in- The proposal Promotes and demonstrates new ideas 10 compatible uses wnerc Such uses are imminent in recreation or natural resource management that can have broad and long-term benefits to society The proposal acquires a resource, the loss 6 of which would be considered irretrievable EDUCATIONAL RECkEATION OPPORTUNITY: The proposal acquires a resource where there 0 The proposal offers educational experiences which Is no imminent threat of loss develop a greater public awareness and recognition of the important recreation and natural resource @31CTION FOR ENDANGERED AND THREATENED SPECIES. management hold for society The proposal will protect essential habitat 10 The plans for the educational program evidence a 10 for endangered or threatened species where realistic commitment by the interested acency; such protection [email protected] the mutual qo4)ls of there is demonstrated capability; ani the educa- the Michigan Land Trust Fund and the Enr,[email protected] tional features are a significant element in the and Threatened Species Program and where public overall use scheme recreational benefits will be derived while 0 ting no threats to preserving the essen- HUNTING ANDIORFISHING: habitat The proposal Provid" access to and use of lands 10 [email protected] R1VFq' COUNTRY STA7,1 FOREST: and/or waters ,@,ich offer quality hunting andior fishing opportunities The proposal involves acquisition of land or 10 C&PILal Improvements for Lhe PiScon River !'@witry St,jtp F-rst 35 satisfies acknowledged needs. Guidelines and technical assistance for developing local recreation plans and for planning acquisition or de- velopment projects are available upon request from the Recreation Services Division, Department of Natural Resources.) The following schedule has been adopted by the Board for the 1978 pro- gram. Future years will follow generally the same pattern although specific.dates may vary somewhat. APRIL 1 Land acquisition proposal forms available to the public. JUNE I Land acquisition proposal submission deadline. JUNE Board staff evaluates proposals for eligibility and conformance to goals, and determine which agencies (Department of Natural Resources or a local unit of government) have an interest in owning and managing the lands for public recreation purposes. JULY Board meeting. The Board reviews staff evaluations and, as appropriate, seeks additional information or documentation on proposals to be given further con- sideration. Coastal Management Program staff avail- able to provide area of particular concern and other information at Board's request. JULY-AUGUST The staff: seeks additional information on the proposed acquisition of land and arranges site inspec- tions as requested by the Board. Coastal Management Program assistance to staff is avail- able and encouraged; program review and comment through standard Department operating procedure. explores possibility of full or partial'donations. where appropriate, explores possibility of fund contributions by local units and obtains formal resolutions of coamitment from local unit's governing body. scores and establishes tentative priorities based on quantified criteria.- SEPTEMBER Board meeting. Board reviews the staff's score plus information regarding proposal priority and feasi- bility. The Board selects highest priority projects for further consideration and a preliminary estimate of value. OCTOBER Staff obtains value estimates and other pertinent information the Board will need to make acquisition recommendations. 36 NOVEMBER Board meeting. The Board considers all value esti- mates and other new information that may affect funding decisions. Board makes tentative list of recoirrnended lands, and asks for further evaluation, including input from other Department programs such as Coastal Management Program. JANUARY Board meeting. Board considers any new information and confirms final list of recommended land acquisi- tions. This list and the Board's Annual Report is submitted to the State Legislature. In January of each year the Board is required to submit to the Legislature a priority list of lands recemmended for acquisition with Trust Fund monies. ThiS submittal must include a description of the process and rationale for developing their recommendations. The Legislature must approve the list and appropriate funds. The Departinent of Natural Resources' Lands Division must approve the appraisal for the lands prior to any actual purchase. It is expected,that land acquisition will not occur before the summer following submission of the list of lands to the Legi sl ature. Michigan Waterways Fund The Michigan Waterways Fund was established in the state Waterways Com- mission Act (Act No. 320 of the Public Acts of '19.4'11). This legislation authorized Michigan and its Waterways Commission to participate in the federal harbors of refuge program promulgated in the national Rivers and Harbors Act of 1945 (Public Law 79-14). The purpose of these programs is to provide funds to state and local agencies which construct or de- velop facilities for public access to Michigan's waters. Fundable acti- vities are planning, acquisition and development of public access sites (such as boat launch facilities), harbors of refuge and harbor or dock improvements. Nearly 1,000 public access sites have been built and equipped for Michigan boaters. Most of these sites are operated by the Department of Natural Resources. Others, owned and operated by local communities, were built under a grant-in-aid agreement where the state's Waterways Fund provided between 50 to 90 percent of development costs. Harbors of refuge and harbor or dock improvements are constructed with equal amounts of state and federal Waterways Funds. Local agencies must agree to contribute a nominal cash contribution for construction and also to operate the facility. Sixty-five protective harbors have been developed since program initiation. Together these three programs--access sites, harbors of refuge and harbor or dock improvements--mke $2-2.5 million in state Waterways Fund annually available to match federal and local contributions to water access projects. Federal contributions have occasionally equalled but never exceeded the amount of their state match. Federal funding levels are decreasing. 37 Michigan's Waterways Fund is administered by the Department of Natural Resources' Waterways Division. Major duties include grant administration and the resulting construction, operation and development of water access facilities. The six-member Waterways Comission advises the Division in these duties; Commission members are citizen appointed by the Governor. Counties, townships and municipal governments may participate in the annual grant application process by contactin the Waterways Division or the Waterways Commission. State projects ?i.e. most boating access sites) have been generated by the Department of Natural Resources divi- sions of Land Resource Vrograms (includes Coastal Management Program), Waterways, Forestry, Fisheries, Recreation Services, Parks, Wildlife, as well as the Department's Office of Budget and Federal Aid. As Department staff, it is standard procedure for the Waterways Division and the Coastal IhIlanagement Program to refer proposals and recommendations to one another. Several projects have been submitted to both programs. Another more structured method for this coordination is the Department's Standing Committee) for Shorelands and Water, which includes representa- tives of these and other Department programs. State operated projects are selected for funding by the Department's Executive Office in normal budget reviews in consultation with its re- levant divisions and its Waterways Commission. The selection is based upon Department policy concerning agency roles, objectives and priorities. The primary source of these policies is the Natural Resources Commission as advised in waterviays matters by the Waterways Commission. Other policy direction is taken from Executive Orders of the Governor, state legisla- tion, Department Policies and Procedures Manual, and the State Outdoor Recreation Plan. Local projects are selected for funding by Waterways Division staff in consultation with the Waterways Commission. As eligibility requirements, each local proposal must be sponsored by a local unit of government by furnishing needed land and land rights, contributing to first costs of construction; and agree-Ing to own, operate and maintain facilities in the public interest and on a nonprofit basis. Projects may propose to construct new facilities or to expand or upgrade existing, facilities. Related engineering and economic studies are also fundable. Though most activities are eligible for funding, property acquisitions are ineligible for funding in local project proposals. The program's overall goal is t-o provide a safe marine highway for small craft along the entire Michigan shoreline of the Great Lakes. From the Outdoor Recreation Plan, management objectives within this goal are to: *respond to growth in the recreational fleet with adequate facilities. ,*minimize exposure of recreation craft to storms and other weather hazards by providing adequate facilities at optimum locations. 38 *preserve and protect the public interest in waters of the state and access thereto. *develop increased quality and variety of boating experiences. Outdoor Recreation Plans and a survey of licensed boat owners document that needs for these programs far exceed available funds. The following criteria'are used to help determine which projects should be funded each year: *need for continued funding from a previous Waterways grant. *engineering and economic feasibility. *conformity to state and local plans. *proximity to other facilities. *proximity to boating populations. *proximity to public roads. *proximity to critical fish habitats or important recreation fisheries. *influences of nearby islands, lakes, river mouths and bays. There are no point values or other priorities associated with these criteria. Proposals which the Department determines have the greatest potential are chosen according to an objective evaluation of all proposals submitted each year. StUdies of each.project's engineering and economic feasibility are reviewed concurrently with supply and demand studies conducted by the Department. Guidelines afid technical assistance for developing locally sponsored project proposals within these guidelines is available from the Watemiays Division field and administrative staffs. Each year the Department follows the following schedule in soliciting, reviewing and selecting proposals for funding: MARCH 1 Deadline for new project proposals to be funded this fiscal year. Submittal includes formal re- quest for consideration and proof that eligibility criteria can be met. 6 MARCH Department's Waterways Division staff completes preliminary engineering and economic feasibility studies for each proposal. Projects the staff determines infeasible will not receive priority attention in further reviews this year. APRIL For all remaining projects, the Department of Natural Resources staff: visits project site with local representatives. seeks additional information on the proposed activity. Coastal Management Program assistance to staff is available and encouraged; project review and coment through standard Department operating procedure. 39 - where appropriate, explores possibilities of coordinated funding with other Department programs and obtains formal resolutions from local government sponsors. - tentatively ranks state proposals and local proposals in each program for Waterways Commission review. JUNE Department fomalizes and prioritizes lists of state and local grants for each program. This list reflects concensus of all relevant field staff, administrators and commissions. At this point, project funding approval is dependent upon legislative approval. When the State Legislature approves the annual Department budget, project agreements are executed. State projects require only bUdetary documents, but local projects involve a number of contracts fordesigns, construction and continued operations. Execution of these agreements usually takes place in the same year the application is made; this obligates the expenditures. In most cases., however, actual work begins in the new fiscal year, which begins on October 1. Policy and Procedural Direction to Assess Protection and Access Needs As stated, a primary policy and decision-making tool in each of these programs is the State Comprehensive Outdoor RecreBtion Plan (SCORP). The plan is developed by Department of Natural Resources programs, re- viewed Department-wide, approved by the Department of Natural Resources' Director, adopted by the Natural Resources Commission, and endorsed by the Governor. Technical details are kept current by periodic updates. The Coastal Management Program has recently participated and will con- tinue to be involved in the SCORP development. To reemphasize the above recreation program descriptions, the plan's policy guidelines, procedures for allocating points to project pro- posals and the data showm in various portions of the plan each indicate that the Great Lakes provide Michigan's major opportunity to increase public recreation access. More specifically, recreation/access surveys and water resources indices reaffirm the prominance of the Great Lakes for recreation use. Comparing shoreline regions, the plan shows that most publicly owned lands are located in the Upper Peninsula or northern Lower Peninsula away from population centers. Those population centers are also the areas of highest access demands. Nevertheless, the more population regions in the southern Lower Peninsula can now attract extremely small per capita recreation use and only a small fraction of federal-state recreation budgets. The plan concludes that in higher populated regions it is espectally critical that water resources, water use.and related impacts must be managed as effectively as possible. Water related resources must, therefore, be made more accessible, maintained better and more aggressively protected against overuse or misuse. Past damage must be 39 A repaired wherever practical to do so. Public access and support facili- ties must be provided to assure pponla can use the resources available; if use is excessive, controls will be necessary. Accordingly, current acquisition and development programs must place greater emphasis in those resources and geographic areas. The Great Lakes and their shorelines offer the greatest opportunity to help address these ever-increasing needs. In these points, the 1979 SCORP (to be released this January after formal Natural Resources Connission adoption) is essentially a refinement of the data, issues and policy direction of the 1974 plan. The follo,,..,ing table and related maps were developed from the current SCORP Sun-nary and the Coastal Managcnient Program Draft Environmental Impact Statement to illustrate the accens-impact of these and other access related programs. Figure 2 tabulates the location and type of coastal public recreation la;ds which have been purchased, planned, developed or maintained to a large degree by these funds. Figures 3 through 5 show the distribution and density of those parks, galne areas and access sites along Michigan's shores; these areas help satisfy various needs for increased coastal access. Figures 6 through 8 show the current distribution and density of designated erosion, environmental and flood areas,under the state Shorelands Protection and Management Act; these designations address the needs for protection of valuable coastal environ,ments. These illustrations may be used together as an inventory of Michigan's coastal access and protection areas. tA M 20 -4 C> )I- > m (") @ m [email protected] n = [email protected] mmm m el% m 73 [email protected] Mn re -4 'A m 0 1102 m 0 m 0 2 m 02 m 0 2 m 0 2 m 0 2 m 0 2 m 0 2 ,a rn 'o . @-D N a [email protected] 'a. 0 'a @n 'a. 2 a., R 0 0 a m :3 z to co z!L 4 -4 -Z -04 cl cl ell 0 0 0 0 0 0 c c c M m m m m 10 0 11 m [email protected] (7, C, C, CD C, (D ZA m m C, pp . . . . r . r:@ :,J:4 1 1 0 m - = co @ n - qA [email protected] 10 10 cm 0110 co LA L" 0% a C> (D a U. OD (71 0 [email protected] a, co 10 CO U, co co W w I I I I I I a I I I w [email protected] @ CD co w Co CD rn ca CIO co 22 co co L. Ln C: L" ww %0 C6 8 P7 co %n 'D ch [email protected] m w 0 ;13 1010 co 00 cy. Cm 4.n CO :.4:.j rl) C, C-1 44 bq 64 b4 b4 wq b4 D4 wt bt 0 &Q &A wk vq wk 04 0) C) cn CA w w cn 0 C) m m -0 cn 0 LA V) r. %0 In co 10 co a ca co w 9 (30 cc rb S, tn Ln w ro 0. 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ON Ln [email protected] C" CD 47, w Ln @ :@ :1. :1 @, fs (D w C, ON Ch 109 @D @b CD L" 10 @P- CD m 'a Ln a, C-n "Cl %@Q mw 8) C8 C-) R t- C> a, 0 OW Ln W 14 &4 &q 44 44 64 44.4 94 Irt %-q oq &4 bQ 04 .4 V, C) 00 co [email protected] r1i @j 2,0 0 C) cry w 10 ma 8 @; o- r . . r:A co C, ol [email protected] C3 C) CO co CA 4p w [email protected] [email protected] 'OD S rv C) m 0 C2 cc Ch a) 00 C) A. ri rlj Q 9 6E Figure 3 39 C STATE [email protected] AREAS OF PARTICULJ,@,R CONCERN COASTAL STATE PARKS 4 CUAI 2 cwj"w& r-- -L7- Al6-- lAACXM" L "LTA rI DID D 2 1 V90". 1 17 93 1 i p 21 15 13 QAAMO mm Tnavuru 4 20 MAMtM& 32 18 MAIO" IAT * 12 22 [email protected] 33 0"WAW 31 30 28 29 T.iW--j 26 36 37 35' riguT,u STATE LEGISLATED AREAS OF PARTICULAR CONCERN .39 D COASTAL STATE GAME AND WILDLIFE AREAS* wouawnft owroft"-M t"Mcurm A;=Q i IG01*MCPAPT J MLTA -4 r cKabowl" Akk2ftA 2 14 5 10 18 17 W -7 uao" A 13 4 *Under the Protection and Preservation of Wildlife Act (Act 230, Public Acts of 1925),, 0 tection of Game and Regulation of Take and Possession (Act 275, Public Acts of 1), Game Law (Act 286, Public Acts of 1929), Wildlife Sanctuaries Law (Act 184, .olic Acts of 1929), etc. 39 E STATE L.EGISLATED AREAS OF PARTICULAR CONCERN COASTAL RECREATIONAL HARBORS AND LAUNCHING SITES* 5 6 7 2 10 14 0 21 22 23 @AU111- 19 2 ?A 151 24 7 28 A ALQ6M CHOW Moft 6 0 31 UL7 L"[email protected] TA 35 4 32 r: -14 1 4 78 a 7 2 36 3 4 4 73 85 46 6 zo. M-Soul ICU J 6 AMIP" 47 6 L [email protected] 65 GA.. 87 64 i "A111 88 63. 105CCI 89 62 61 0 I Qjral 02 10 [email protected]" so A 03 9.30 1A1 9 9 4 58 04 w 105 57 06 56 611 107 KEY 5' .L 10 54 -ICZ.-w, 103 0 harbors 53 r i113 1 110 114 2 _q 7- Z;, 0 launching sites VAN 115 51 1 116 50 111 49 118 48 i120 19 i2l Under the Recreational Docking Facilities Act (Act 320, Public Acts of 194-7), the Commercial Docking Facilities Act (Act 125, Public Acts of 1955) and the Cheboygan Lock and Dam Complex Act (Act 187, Public Acts'of 1964)'. 39 F Figure 6 STATE LEGISLATED AREAS OF PARTICULAR CONCERN COASTAL HIGH RISK EROSION AREAS* Va r F L Under the Shorelands Protection and Management Act (Act 245, Public Acts of 1970). Figure 7 [email protected] G STATE LEGISLATED AREAS OF PARTICULAR CONCERN COASTAL ENVIRONMENTAL AREAS* Loct AM VAR t"ZKV" MLYA p9quout M" AWW" KAULASKA ALCO" J caw r 6A, W40"w 16- - IWT also Under the Shorelands Protection and Management Act (Act 245, Public Acts of ..,1970). rigure u 39 H STATE LEGISLATED AREAS OF PARTICULAR CONCERN COASTAL FLOOD HAZARD AREAS* 042XYfC.AM "ISWI MA ;7M MANIAU ALCONA KAL%A"h -CA4.0 TRAW031 "Ay rJ 47. Under the Shorelands Protection and Management Act (Act 245, Public Acts of..1970). 40 CHAPTER III DESCRIBE A METHODITO DESIGNATE APPROPRIATE SHOREFRONT AREAS AS AREAS OF-PARTICUILAR CONCERN FOR PROTECTION AND/OR ACCESS PURPOSES The methbd used to identify shorefront areas as areas of particular con- cern (A,DCs) for preservation or restoration purposes is fully described in FEIS Chapter IV. This process is an ongoing element of M*[email protected]'s Coastal Management Program. As such, it will provide a continuous oppor- tunity for any individual, interest group or unit of government to recom- mend that specific shorefront sites receive specific management attention for access-related needs in the operation of Michigan's Coastal Management Prog ram. Thi,s process includes the nomination, review, prioritizing and opportunity for implementation of APCs nominated by the public for a variety of pur- poses. As one example, the City of St. Ignace nominated its waterfront for restoration and a promenade redevelopment. It might be noted that as described in Chapter IV, the acronym APR (areas of preservation or restoration) is used to indicate the highest priority for implementation of all APCs. As used there, it signifies the most critical and immediate management priority, and specifies the appropriate generic management technique. In addition, Michigan's APC process also provides a more commital form of APC which is legislated by state statute. These legislated (i.e. desig- nated) APCs have legal assurance that a specific site or class of sites will be managed for a specific purpose. Unlike nominated APCs, their management and resultant use priorities are certain and enforceable by state statute. Examples of thosa areas which are owned or operated by the Department of Natural Resources include state parks, game and wildlife areas, and wilderness areas, wild areas or natural areas. Others are regulated by the Department or other state agencies. They include high risk erosion areas, flood risk areas, environmental areas, Great Lakes sand dunes, port districts, harbors of refuge, public access sites for boating and fishing, natural river areas and historic districts--all of which are regulated for increased access, state/local access controls and/or preservation. Coordination and environmental review requirements shown in FEIS Chapter VI assure that all APCs to be implemented will be compatible with one another and with other plans, policies and ongoing projects. 41 CKAPTER IV k,-*' DESCRIBE A MECI-XIISM FOR CONTUCED REFINEIAENT AND IMPLEIOEWATION OF NEEDED MANAGRINT TEHNIQUES The Coastal Management Program is committed to an annual review and evalu- ation of its overall effectiveness. Management techniques related to individual sites or classes of sites will be refined. These mechanisms are described in HIS Chapters IV and V * Each process has emphasized access issues throughout program development. The program's implemen- tation phase will accordingly emphasize action on preliminary site designs, nature trails, lighthouse restoration and other access related needs. Additional state coordination and refinement of these techniques is also shown -in Chapter V. Mechanisms include the internal organization of the MDNR and its various commissions and advisory committees; the role of the Department and the Division of Land Resource Programs in controlling activities having a direct and significant impact on Michigan's coast;, state consideration of uses of regional benefit.; rule making and appeals processes required in the Administrative Procedures Act (Act No. 306 of the Public Acts of 1969); activities of the Standing Committee on-Shore- lands and Water; activities of the Citizens Shorelands Advisory Council; environmental reviews required by the Michigan Environmental Protection Act (Act No. 127 of the Public Acts of 1970), by the Governor's Executive Order 1974-4 which establishes the Michigan 'Environmental Review Board and the Inter-Depart-riiental Environmental Review Committee; activities of the Governor's Cabinet Committee on Environment and Land Use; and -the overall conduct of Michigan's Coastal Management Program involving the various levels of coastal interests. Additional federal coordination and refinement of these techniques shown in Chapter VI includes participation of federal programs in the develop- ment and implementation of Michigan's Coastal Management Program; state- federal tnteragency agreements; state administration of federal programs; state consideration of the national interest; Coastal Management Program participation in various federal, multistate and international resource management groups; requirements of the federal Fish and Wildlife Coordi- nation Act of 1934; environmental impact statement reviews required by the National Environmental Policy Act of 1969; A-95 review requirements of the federal Intergovernmental Cooperation Act of 1968; and federal con- sistency provisions of the federal Coastal Zone Management Act of 1972. Beyond these procedural mechanisms, Michigan's Coastal Management Program also intends to propose policies and procedures to address coastal access concerns where such direction does not now exist. Examples of this effort include specific policy guidelincs for Great Lakes islands, procedures for evaluating federal consistency, and computerized data storage and retrieval to streamline permit reviews. 42 CHAPTER V ARTICULATE STATE POLICIES PERTAINING TO ACCES S AND/OR PROTECTION General State Policy The state policies below document the general state authority to acquire and imanage property and property rights. These policies, when coupled with more site-specific policies, demonstrate Department of Natural Resources and Coastal Man3gement Program commitment to provide coastal access. It is the pci.icy of the State of Michigan that the Legislature has super- visory jurisdiction over all state-owned lands used as forest preserves, game areas and recreation areas, has power to provide for their sale or other dispersion by law; has power to designate such lands or a state land reserve (Article IV and Article X of the State Constitution). It is the policy of the State of Michigan that when private property must be taken for public use, it might -,'irst be secured.in a manner prescribed by law and must be taken only after just compensation has been determined in proceedings in a court of record (Article X of the State Constitution). It is the policy of the State of Michigan that the state, as well as counties, townships, cities, villages and certain,boards and commissions all have power to acquire land for the use and benefit of the public, including power to condemn if necessary. Condemnation must, however, follow prescribed condemnation proceedings to establish the necessity, and propriety of each taking action as well as the amount of compensa- tion to be paid (Act No. 149 of the Public Acts of 1911). Significant acquisitions involving federal aid must complete environmental reviews required by the A-95 process and the National Environmental Policy Act. Department of Natural Resources acquisitions must complete environmental reviews by the Michigan Environmental Review Board required in Executive Order of the Governor 1974-4. It is the policy of the State of Michigan that the Department of Natural Resources buy, sell, lease, exchange or condemn as well as accept gifts or grants of land and other property (Act No. 17 of the Public Acts of 1921). General Pro_qram Policy Within these guidelines, FEIS Chapter III links problems, concerns and more specific policies to coastal action programs. Each of the five resource groups used to describe Michigan's coastal area include at least one such link between access-related problems and Coastal Manage- ment Program actions. In areas of recreation value, for example: It is policy of the State of Michigan to improve the accessibility of state land and water resources to the widest possible range of socio- 43 economic classes con sistent with environmental protection and public safety needs; to respond to changing trends in demand for recreational pursuits while minimizing conflicting use through management policies consistent with carrying capacity principles; to acquire, manage and regulate recreational and cultural areas for preservation of natural beauty; to provide management incentives and regulatory controls for land and water resources of the state to ensure continued recreational use as-Well as the survival of fish and wildlife populations; to de- velop protective measures for sites and objects having aesthetic, geologic, archaeologic, natural or scientific values through various state controls; and to increase recreational opportunities through an extension of state programs (1974 Michigan Recreation Plan). It is policy of the State of Michigan to provide and develop facilities for outdoor recreation (Act No. 17 of the Public Acts of 1921); to pro- tect and preserve public right-of-way which lead to frontage on lakes, streams, or the Great Lakes (Natural Resources Commission Policy No. 3201); that state-owned lands other than state parks and recreation areas shall be managed for purposes for which they are best suited and in a manner which will benefit the gerpr:11 public in the most prudent and accommodating manner (Natural Resources Commnission Policy No. 2604); that state parks and recreation areas shall be managed to afford optimum opportunities to enjoy a variety of recreational pursuits by the general public (Natural Resources Coamission Policy No. 2605); to serve the public interest for recreational trails by expanding, as possible, facilities on state lands and by providing the leadership in planning and coordinating statewide trails systems for eac 'h of the major trails sports (Natural Resources Commission Policy No. 2504); that wildlife managerp,--nt, habitat improvement and public hunting be carried on in all parts of the recreation areas where such operations do not conflict with intensive use areas (Natural Resources Commission Policy No. 2108); and to provide interpretive services in state parks (Natural Resources Commission Policy No. 2403). It is policy of the Natural Resources COmmission that the Department of Natural Resources shall establish priorities for fisheries management on waters of the state primarily on the basis of need, expected public benefits, and the desire for a balanced program. Riparian ownership and the level of public access of any particular water should have a bearing on the management priority decision, but should not transcend the first consideration (Natural Resources ConTnission Policy No. 3110). Likewise, for areas of cultural value: It is policy of the State of Michigan to encourage the establishment of historic districts; to provide for the acquisition of land and structures for historic purposes; to provide for preservation of historic sites and structures; to provide for the creation of historic district com- missions; and to provide for the maintenance of publicly owned historic sites and structures by local units (Act No. 169 of the Public Acts of 1970). It is state policy to maintain a state register of historic sites which may involve state agencies in environmental review proceedings (Act No. 10 of the Public Acts of 1955 and Executive Order 1974-4); to designate natural rivers for the purpose of preserving and enhancing its values for water conservation, its free flowing condition and its fish, wildlife, boating, scenic, aesthetic, flood plain, ecolcgic, historic and recreat-ional values and uses (Act No. 231 of the Public Acts of 19/70); to provide for the preservation of farmland, historic or open spaces through agreements or ease- ments with the state or with local governing bodies in which the two parties jointly hold the property either in a term of years or in perpetuity (Act No. 116 Qf the Public Acts of 19174); and to participate in the inventory and registration of historic places on the National Register through the director of the Michigan History Division, Department of State, as state historic preservation officer, authorized under the National Preservation Act of 1966 (Public Law 89-6651). It is state policy that envirorariental impact statements be prepared for major state activities which may result in the alteration or destruction of a significant element of the human, natural, amenity or historic resources of the state (Executive Order 1974-4). Major Regulatory Policies Though FEIS Chapter III commits Michigan's Coastal Management Program to cer- tain pronram actions, it cites both regulatory and incentive policies ex- tracted from Executive Orders of the Governor, formal statements of the Natural Resources Commission, and from state and federal regulations. More site-specific, enforceable policies are elaborated in DEIS Appendix D to des- cribe several regulatory programs which provide protection of access areas. The most significant of these regulations are: [email protected] Shorelands Protection and Management Act (Act No. 245 of the Public Acts of 1970); the Great Lakes Sand Dunes Protection and Management Act (Act No. 222 of the Public Acts of 1976); the Submerged Lands Act (Act No. 247 of the Public Acts of 1955); Inland Lakes and Streams Act (Act No. 346 of the Public Acts of 1972); the Soil Erosion and Sedimentation Control Act (Act No. 347 of the Public Acts of 1970); the Natural Rivers Act (Act No. 231 of the Publi 'c Acts of 1970); the Floodway Encroachment Act (Act No. 167 of the Public Acts of 1969); and finally the County Zoning Approval Act (Act Ne. 183 of the Public Acts Df 1943). Major Direct Assistance Policies To provide direct funding, technical assistance to state and local entities for access and protection purposes the following policies apply: It is the policy of Michigan's Department of Natural Resources to acquire and preserve frontage on the Great Lakes for public use, including specifi- cally, a generous acreage of all types of the unique coastal sand dune for- mations, represented in Michigan (Policy of the Michigan Department of Natural Resources' Natural Resources Commission, adopted unanimously on March 24, 1924 as proposed by Superintendent of Michigan's State Park system, Mr. P. J. Hoffmaster). It is policy of the State of Michigan to authorize participation by the state and @;ts subdivisions in programs of federal assistance relating to.the plan- ning and development of outdoor recreation resources and facilities; that the Department of Natural Resources be authorized to prepare and maintain, and keep up-to-date a comprehensive plan for the development of the outdoor recreation resources of the state in conjunction with the federal Land and 45 Water Conservation Program (Act No. 316 of the Public Acts of 1965). As stated, the SCORP documents are formally adopted by the Department of Natural Resources Director, the Natural Resources Commission and the Governor, As such, SCORP ,.-Wrovides the Department of Natural Resources policy corinitments and pro- cedural guidelines which specifically address access and protection needs. It is state policy to create a state recreational land acquisition trust fund to be funded by the sale of oil, gas and mineral leases in the Pigeon River State Forest and in certain other land and from the royalties accruing from the oil, gas and mineral leases sold in the Pigeon River Country state Forest and in certain otther land; to create the state recreational land acqui- sition trust fund board; and to provide for the administration and uses of the fund (Act No. 204 of the Public Acts of 1976). It is state policy that the Michigan Waterways Commission provide for the acquisition, constructicn, and maintenance of harbors and channels; to pro- vide for the regulation and control of boating within the boundaries of this state; and to provide for state participation in certain federal programs (Act No. 320 of the Public Acts of 1947). It is state policy to protect and preserve public rights-of-way which lead to frontage on lakes, streams or the Great Lakes (Natural Resources Commis- sion Policy No. 2301). Operational Policies Where existing policies may not address day-to-day-issues, lChe Department of Natural Resources will aggressively help develop appropriate solutions and operational policy commiWents. Such access-related issues currently in- volve various Department and local interests in coastal zoning, permit and environmental revieqs, as well as in realty transactions. In reviewing (1) zoning ordinances, (2) plat, building or subdivision permit applications or (3) Farmland and Open Space agreements, it is the cooperational policy of the Department and the Coastal Management Program to help local com- munities negotiate for needed public access. The State Supreme Court and State Attorney General, however, have ruled that access deeds or donations cannot be made a condition of Department approvals. Yet, when reviewing environmental impact statements and related management plans for major projects, the Depart- ment frequently finds that proposed act1vities may threaten, restrict or destroy public access opportunities. In these cases, the Department.'s opera- tional policy is to require appropriate mitigation or compensation as part of the environmental review process. Where.the Department itself is,a coastal landholder, the operational policy is not to sell, exchange or relinquish its title or its associated access rights. This-policy holds for Great Lakes shorelands as well as other riparian lands. As these and other issues produce new policy through Exeuctive Order of the President or the Governor, federal or state legislative bodies, or the Depart- ment of Natural Resources' Natural Resources Commission, they will also be recognized in Coastal Management Program implementati on. The State Comprehen- s1ve Outdoor Recreation Plan is the most current, detailed and often-used articulation of these access policies. The Coastal Management Program will continue its active [email protected] to the development and implementation of these policies. 46 CHAPTER VI IDENTIFY EXISTING LOCALj STATE AND FEDERAL PROGRAMS TO ADDRESS IMOICATED NEEDS DEIS appendices show the local plans and ordinances (Appendix B) and the incentive and regulatory programs of state (Appendix C) and federal agencies (Appendix A) involved in Michigan's coast. Though most of these programs may address some type of access and/or protection needs, the following state and federal programs furnish the majority of coastal access-related project proposals and funds. Many of these programs re- quire local interface by requiring: (1) local project sponsors, (2) consistency with local plans or laws, and (3) local commitment to operate and maintain the facility. In coastal are-as, the Coastal Manage- ment Program will augment local and federal coordination through mechanisms described in Chapters II - IIV herein. State programs providing the majority of access funds are: (1) the Michigan Recreation'Bond, and other funds for Land and Water Conservation Fund at $5 million per year; (2) the Michigan Recreation Land Trust (Kammer) Fund at $2.5 million; (3) the Michigan Waterways Fund for public boating access sites, harbor or dock improvements and harbors of refuge at $3.3 million; and (4) the Michigan Historic Preservation C-rant Program at $1 million. Of these, the Kanmer Fund is unique to Michigan in that it uses resources from oil and gas leases on state'lands to finance new recreational acqui- sitions; all others are directly linked to both local and federal funding sources for accomplishing access proposals. All but the Historic Pre- servation Grants Program are administered with-in the Department of Natural Resources. Su:-nmary descriptions of programs 1-3 are included in Chapter II of this report. Major state programs providing regulatory and incen- tive techniques to addrzass access concerns include: (1) Great Lakes high risk erosion, flood risk and environmental areas programs provide access controls in critical environmental areas and in areas hazardous to develop- ment; (2) th2 state game and wildlife areas program provides habitats for hunting, research and other purposes; (3) the state parks program provides recreation, education and other 'access; (4) harbors of refuge and mooring facilities program enhances lChe quality and quantity of boating access at such siteL; (5) the port districts program provides access for commercial navigation; (.6) the state historic districts program protects significant historic structures; (7) the wilderness areas, wild areas and natural areas pro.-ram preserves unique or archetypical areas by state acquisition; and (8) the natural rivers program provides access controls to preserve and enhance values identified for such areas. Each is outlined in FEIS Chapter IV and detailed in DEIS Appendix C. Major federal access-related programs taken from FEIS ChaDter VI and DEIS Appendix A include: (1) the federal Land and Water Conservation Fund at $10.2 million; (2) the federal Rivers and Harbors Fund at $3.2 million; and C3) the federal Historic Preservation Grant Program at $1 million. Though these sources offer the most potential for increased coastal access monies, other federal programs provide a great deal of Michigan's existing coastal 47 access sites. The most significant of these programs in acreage terrs includes: Department of Interior programs for national parks, national lakeshores, national trails systems, surplus federal lands, inventory of federally owned islands; inventory of wetlands; and registers of historic sites and endangered species; and Department of Agriculture's national forest programs. Since inception of Michigan's Coastal Management Program, participants have identified concerns which will require increasing attention to site specific and statewide access or protection needs. During program de- velopment, the program participated in an Office of Coastal Zone Manage- ment study to assess the feasibility of state acquisition of less than fee simple interests in property; published a property owners manual to .guide residential construction in sensitive sand dune and wetland areas; and conducted a continuing demonstration project to evaluate low cost measures to control shore erosion. During fiscal year 1977-78, the program continued to address such needs, but also began to phase in site-specific actions. Ongoing fiscal year 1977-78 activities included maintenance of the APC process and technical assistance to local governments for access controls such as zoning for hazardous or sensitive areas. Coastal Management Pro- gram also partially financed the administration of the Great Lakes Sand Dunes Protection and Management Act (Act No. 222 of the Public Acts of 1976). During the period, the Department conducted inventories, techni- c.al studies and analyses required to begin implementing the Act. The first seven Great Lakes sand dune areas were also designated for pro- tection against indiscriminate mining and reclamation. Fiscal year 1977-78 site specific projects met a number of significant and long-standing access-related needs. As an example, an inventory of poten- tial sites for new recreational marins and boat launching sites was con- ducted, and included development of feasibility criteria which were not previously available, enhanced implementation potential for Upper Peninsula sites where APCs indicated a critical need, and linked marina development with inventories of fish spawning sites and other environmental areas of potential impact. In aedition, a field inspection of the St. Clair Flats area, an APC, accelerated DNR management and acquisition efforts in this area. A study of offshore sources of sand investigated potentials for beach nourishment and also provided a portion of the economic alternatives to mining sand dunes which are required under Act 222 of the Public Acts of 1976. Measures were evaluated and recommended to stabilize the eroding sand dunes in a number of our state parks. In conjunction with.DNR's $10 million metro fishing program, conceptual design criteria and plans were developed for roads, parking, handicapped use, piers and ponds. A harbor line established for Kalamazoo Lake will be used to regulate new structural development for the coastal lake and its marshes. An appraisal of the Luther-Uhl Dune, an APC, expedited purchase and preservation of this unique natural areaby the Kammer Program. Several Upper Peninsula localities now have recreation plans for developing proposals to other funding programs. And finally, waterfront revitalizing and development 48 prollects with the cities of Marquette, St. Ignace, Grindstone City and Detroit initiated planning and site design on APCs respectively for re- development of an obsolete coal dock as a park/marina, a seawall and promenade, a historic preservation "charette", and an acceleration of a linked waterfront metropark complex. From this experience, Michigan also proposed that its Coastal Management Program.demonstrate coastal needs for the fu-nding of low cost construction projects. With approval from the federal Office of Coastal Zone Manage- ment, Michigan and a number of local interests will complete this demon- stration program in fiscal year 1978-79. As a result, an additional number of cr.-ative and innovative access proijects will be completed along Michigan's shorefront in the upcoming year, including several nature trails and interpretive centers for coastal state parks, and three historic site restoration projects. In line with Department priorities for recreational development in south- east metropolitan Michigan, the heavily urbanized "dcwnriver" portion of Detroit will develop a coastal recreation inventory strategy, which is similar to a local recreation plan. Preliminary designs for a five parcel linked park project, an APCI, between D2troit's central business district and Belle Isle will accelerate developmEnt scheduled under Land and Water funds. Detroit's Engle-Reid riverfront recreation park, an APC, will be redesigned in light of recent new acquisitions. Detroit's Fort Wayne complex, a 96-acre APC on the National Historic Register, will be land- scaped, lighted and partially furnished as part of a historic and scenic restoration program conducted by the Michigan History Division, National Park Service and others. In other areas, the City of Grand Haven will accelerate its Adams Street Park development with new plans and designs. The City of Norton Shores will acquire the Swett property sand dunes for use as a public natural and education site with coastal funds providing a site plan and designs. Local groups wili rennovate the historic School- craft House in Sault Ste. Marie and open it to the public. Several additional Upper Peninsula connunities will complete local recreation plans. The state will design the idle Mill Creek site for a recreation and historic development to compliment the Mackinaw Island State Park. Eight state parks along Michigan's coast will develop new nature trails and inteipretive centers for wetlands and sand durnes. The state will devise a fee schedule for leasing its state-owned bottomlands for marina use, eliminating time delays and lost revenues. And finally, the pro- gram will actively encourage Kammer Program acquisition of development rights easements in the Salt River Marsh adjacent to Lake St. Clair. A number of APCs have already.received administrative review and funding from other access-related programs. Over 20 APCs have been referred to the Kar7ner Program for fiscal year 1978-79 funding. Two of these have already been approved, the St. Johns Marsh and the Luther-Uhl Dunes pro- jects. Another dozen APCs were referred for Land and Water, Waterways or Historic Preservation grants in fiscal year 1978-79, but were not funded. More than 130 applications (100 from local units and 30 from state agencies) were considered for fiscal year 1978-79 coastal funding, totalling*over $5.6 million. Others were received after review deadlines or were referred 49 from other programs. Staff consulted on a small number of still other projects which were not submitted. From that number, several viable pro- jects are now being developed. Preliminary examination of future.funding requirements shows that these projects, APCs and a few projects resub- mitted for subsequent funding will be considered for the fiscal year 1979- 80 grant. From these trends, the Coastal Management Prograin will soon experience shortfalls corrimon to other state access and protection programs. Michigan Coastal Management Program definitely intends to respond by con- tinuing and expanding its emphasis on access and protection [email protected], To help fill data gaps to address thes-e i.ssues, program staff has begun assembling coastal breakdowns of data reported in the State.Comprehensive Outdoor Recreation Plan for future evaluation of project proposals. A complete set of the Bureau of Land Management's inventory/resource analysis of federally-owned Great Lakes islands has also been obtained. This in- formation is needed to develop policy guidance for acquisitions and other Department actions related to islands. Program staff has also-begun to explore -,aith the Heritage Conservation and Recreation Service pos-sibilities for publication of an inventory/users manual for federal recreation re..!. lateA programs in Michigan. Such future data requirements, wi-11 Mely, be'minimal however. 50 CONCLUSION In conclusion, our experience in Michigan shows that coastal access is a long-standing issue. Its impact is growing. The quantity and variety of access/protection needs along Michigan's shorefronts exceeds capabilities of currently available sites. It is Michigan's goal to address these needs through effective utiliza- tion of ongoing processes already used in its Coastal Management Program. The federal Coastal Zone Management Act requires that coastal programs: (1) define and idantify eligible areas; (2) describe evaluation pro- cedures; (3) apply APC processes; (4) refine management techniques; (5) articulate state policies;.and (6) identify programs for implementation. Lxcept for federal consistency determinations, Michigan now uses each of these access and protection processes. They are the standard procedures already used to moke coastal and other resource management decisions. In their prior reviews and current actions, the participation of local, state and -federal interests is well established. Through the Coastal Management Program, Michigan intends to focus these processes on coastal access and protection matters. Coastal Management Program inputs will be fiscal and technical. This review, approval and implementation process allows Michigan to: (1) put new financial and technical emphasis on identified coastal access requirements; (2) for- mally commit the Coast-al Management Program's participation in these processes in concer,,'.- with other local, state and federal interests; and 0) support appropriation of additional federal funds to Michigan for addressing coastal access needs. It is important to note that, at this writing, access portions of the federal Coastal Zone Management Act, Section 315(2), have been authori- zed but,not yet appropriated by Congress. Without specific access funding, the Coastal Management Program must depend on other programs to implement the majority of needs it has documented. With these funds, it can meet a number of these needs directly. Michigan strongly urges that adequate federal funds be appropriated to specifically increase the access and protection effectiveness of its Coastal Management Program and other programs as well. ne State is working with the Army Corps ojF, ngineers, in coordination t ONR high-risk erosion program, to use noll-pAluted (by EPA standards) he 10 ils for beach nourishment projects. Tb.;k\i fflorts have been sucessful SPO tied into Corps harbor mitigation and maintenance dredging when 6 Amendments to existing zoning enabling legislation have increased ,,,potential for local responsibility for zoning, planning, and resource 614 otection. The ONR is increasing its activities in informing local Pr pyernments of the changes in the zoning enabling laws and in providing technical assistance in ordinance and plan development. New authorities available to local units include establishment of performance standards and special "partial zoning" overlay districts to protect natural resources, keep development out of hazardous areas, and site facilities. Other changes in the statutes include safeguards against exclusionary zoning ordinances ard an update in the purposes of zoning. C. In the area of INCREASED COASTAL RECREATIONAL ACCESS AND PROTECTION OF CULTURAL, HISTORIC, AND AESTHETIC RESOURCEES, the following results have been accompl i shed: 1) The Detroit City-wide Task Forc_-, in developing a master plan for the provision of public services, has given first priority to the Riverfront planning element. MCMP funding accelerated the planning phase, providing incentives for the City to move more quickly toward implementation of public Access plans. The high quality of the conceptual reinderings for riverfront lerevitalization and access improve:rent have been an aid to the City in obtaining funds to implement the plan and to broaden the planning base. For example, the Engel-Reid Riverfront development project was so well received that it attracted nearly $100,000 in additional planning funds frcm local industry, such as Oetrait Edison, to expand the plan to include a greater area of the rivey-front. One of the linked riverfront parks which was designed through MCM? funding is authorized for construction next year by a Land and Water Conservation grant. 2) Many local projects related to recreational resources are underoay. Park plans are being developed in the cities,of Marysville, Mackinaw, Mencminee, Norton Shores, Ludington, Oetrait, and Grand Haven, in Harrison and Peninsula Townships, and in Wayne and Marquette Counties. Waterfront development plans which include enhancc-.nent of recreational resources are being developed for several cities including Detroit, Monroe, and Benton Harbor-St. Joseph. 3).Seven State parks '-have received funds to increase public access to the shoreline and at the same time protect or restore fragile natural areas. In most cases these projects include constructing boardwalks and stairs over wetlands and sand dunes to control public use in the area. By guiding where e7 0 people go, by making it easier for park users to reach the shorefront, fragile areas, sensitive to passage, are protected against damage from over use. Dune stabilization projects are being carried out as an adjunct to the installation of stairs and boardwalks in a two-pronged erosion control-user access effort. Other park improvements such as interpretive signs, markers, and dioramas are increasing user awareness and appreciation of these coastal ecosystems. 4) Low-cost construction activities to address coastal preservation or restoration needs included five historic restoration projects. In Detroit restoration of the Fort Wayne Riverfront Parade Ground and shoreline will include adaptation of its use to include outdoor activities and historical re-enactments which will increase its potential as a tourist attraction. Restoration of the exterior of the Schoolcraft House on the St. Marys River in Sault Ste. Marie was designated by the City as their highest priority restoration project. Historic markers to be placed in Whitefish Township will increase appreciation of the State's history. Restoration of the Beaver Island Lighthouse will all.ow the building to be used as an environ- mental learning center. Relocation of the Grosse Ile Custom House on an island In the Detroit River will be completed in June, 1979. 5) A harbor development study underway on the St. Joseph River Harbor will be used to determine objectively whether or not development of a commercial harbor there is feasible. If an economic advantage to utilizing the port can be demonstrated, a comprehensive development strategy to facilitate a public and private partnership for the development of a multi-modal trans- portation system will be initiated. In addition to preliminary site engineering, the following problems are to be addressed: relocation of non-water dependent industries, dredging depths and dredge spoil disposal, facility siting, administrative alternatives for managing the twin city port authority, and accommodation of both commercial and recreational users. 6) The City of Sault Ste. Marie is studying the possibilities for economically beneficial uses of industrial sites an the St. Marys River. A conceptual plan containing a recommended implementation strategy for the waterfront industrial area will be prepared. 7) Alternative sites for the Muskegon end of a Sea Bridge, a system of transporting up to 1000 semi-truck trailers daily by barge across Lake Superior from Milwaukee, have been identified and evaluated. Site specific designs will be produced this summer for the top three sites. The Muskegon- Milwaukee Sea Bridge will provide a vital component in the revitalization plans for Muskegon coastal resources. 8) The Muskegon central business district lakefront redevelopment concept- ual plan has taken a comprehensive approach to analyzing the "sources avail- able in the city. The plan includes a strategy to maximize the benefits of developments and to encourage private interests to provide a majority of thm nyitalization effort. MCMP funds are being used to "leverage" funds from a E. ,or.0ther agencies and the private sector. 9 The MCMIP has been very successful in coordinating with the Land and Water Conservation Fund for construction of projects being,designed under MCIMP grants. The coordination for most projects with the application for the project to the MCMP and feasibility of ob-taining construction funding is one of the primary criteria far approval of design and feasibilty projects. D. In the area of IMPROVING PUBLIC DECISION MAKING AND INTERGOVERNMENTAL COORDINATION AND COOPERATION, the following have occurred: 1) The State has been working with the Army Corps of Engineers to eliminate delays in the'joint state-federaT processing of dredge and fill permits. In the past year the processing time has decreased from about 60 days to 20 days for the vast majority of permits processed. Before the joint processing procedure was established the average processing time for a routine perm-it was between 120 to 150 days. Every six months the Corps and the DNR have an enforcement conference to resolve problems that.have arisen regarding their joint responsibilities. This approach has proven to be very effective. Difficulties steming from differenCes in information requirements have been addressed, and now the main task is to reduce the joint perinit processing time down to 17 days for routine permits. 2) Review of federal actions for consistency with the MC'AP has been han(fled efficiently and expedicusly. On November 1, 1979, a meeting was held with representatives of all interested federal agencies to distuss federal consistency requirements and procedures. Minor problems have arisen since,that meeting, but for the most part the process has moved very smoothly. The State has reviewed 74 direct federal activities, two grants, and three "201" fact sheets for consistency wi-th the MC.MP Only one project was finally declared inconsistent, an Army Corps of E;gineers fill and bulkhead project that would have caused adverse impacts to an aquatic habitat. Federal agencies and the State agree that the review priocess has been carried'out with great cooperation on both sides. 3) A Memorandum of Understanding.between the ONR and the Michigan Department of Labor (which has statewide authority regarding local enforcement responsibilities for building codes) provides for coordinate-d permit review. The interagency agreement.provides that local building code enforcement officen will not issue building permits in the 100 year flood plains or high-risk erosion areas unless the applicant has obtained the neccessary approval of the UNR. NEW JERSEY Shorefront access is a major priority in the New Jersey coastal policy. Recognizing that increased development pressures have left few beach areas available to the public and that the remaining beaches are difficult for most New Jersey residents to get to without an auto- mobile, the state has embarked on a four part program to increase shorefront access. The elements of this program are: regulation of new development; conditioning the allocation of shorefront protection funds; utilization of incentive grants-in-aid; provision of public transportation to beach areas. 1. Regulation of New Development.. While coastal zone officials within the Department of Environmental Protection do not feel that they have legal authority over existing development, they do exercise control over proposed develop- ment. Coastal developments of twenty-five units or more must be reviewed at the state level. The Department of Protection enforces the state coastal policy that "maximum practical access" be provided to the waterfront by making this access a requirement for development permit approval. 2. Conditioning the Allocation of Shorefront Protection Funds. In order for a muni ci pal i ty to recei ve shoref ront pro- tection money from the state coastal agency, it must provide public access to the area being funded. 3. Incentive Grants-in-Aid. Provision of waterfront access is an eligible activity encouraged by CZM grants to local governments. Grants of this type are being used for such projects as developing urban waterfront parks. _.,[email protected]@[email protected] COASTAL MANAGEMENT PROGRAM BAY AND OCEAN SHORE SEGMENT AND FINAL ENVIRONMENTAL IMPACT STATEMENT August 1978 Prepared by: State of New Jersey U.S. Department of Coiiunerce Department of Environmental Protection National Oceanic and Atmospheric Division of Marine Services Administration Office of Coastal Zone Management Office of Coastal Zone Management P. 0. Box 1889 3300 Whitehaven Street, N.W. Trentont New Jersey 08625 Washington, D.C. 20235 DEPARTMENT OF ENVIRONMENTAL PROTECTION Ir dan Byrne Daniel J. O'Hern . V sovernor Commissioner 5.11 Public Services 5.1.1.1 Definition Public services include a variety of essential facilities provided by either public or private institutions. Realth, education, welfare, fire, police and community facilities are principal examples. Others such as child care and home services for the elderly may be important for certain develop- ments. 5.11.2 Policy Coastal development shall insure, to the maximum extent prac- ticable, that adequate levels of public services will be provided to meet the additional demands for public services likely to be generated by the proposed development. 5.11.3 Rationale New development places additional demands on public services. Unless the existing supply can satisfy these demands or exten- sions to the supply can be available when development is complete, the deficiencies may adversely affect, the health, safety, or welfare of the proposed new users. In coastal areas there are special problems associated with @_-he high seasonal population fluctuation and the relacively high percentage of senior citizens who typically make greater demands on health services. These coastal issues make the demonstration of adequate service supply during peak demand periods an especially critical issue. @5.12 ][email protected]@ess [email protected]@[email protected]@[email protected]'[email protected]@-nt----, 5.12.1 Policy Coastal development adjacent to coastal waters shall provide maximum practicable public access to the shorefront, including both beach and built-up waterfront areas and both visual an-1 physical access. Shorefront development that limits pub 4 C access and the diversity of shorefront experiences is discour- aged. 5.12.2 Rationale New Jersey's coastal waters and adjacent shorelands are valu- able public resources which are limited in area. They arc, protected by New Jersey's Shore Protection and Waterway Main- tenance Program and patrolled by the New Jersey Marine Police which are both financed by all state residents. 154 PasL developinents have n'ten blocked the waters from public view and/or made physical access to the waterfront difficult or impossible. In addition, some municipalities which own land immediately inland of the state-owned riparian land have enacted laws or regulations making waterfront access incon- venient, expehs ive or impossible for non-residents. 7-hese policies have served to limit the opportunity of inland resi- dents for waterfront recreational activities. Projects such as the experimental Beach Shuttle operated by DEP in the summer of 1977 to Island Beach State Park from Toms River serve to carry out the policy of providing maximum practical public access to the shorefront. The basis for the Shorefront Access policy came in part from the research in the report entitled Public Access to the Oceanfront Beaches: A Report to the Governor and the Le?is- lature of New Jersey. April 1977, prepared in part by DEP-OCZM. 5.13 Scenic Resources and Design 5.13.1 Policy New coastal development that is visually compatible, in ter-ml of scale, height, materials, color, texture, and geometry of building and site design, with' surrounding development and coastal resources, to the maximum extent practicable, is encouraged. Coastal development that is significantly dif- ferent in design and visual impact than existing development is discouraged, unless the new development upgrades the scenic and aesthetic attributes of a site and its region. 5.13.2 Rationale Inappropriate design that ignores the coastal landscape and existing patterns and scale of development can degrade the visual environment and appearance of communities. New Jersey's coastal regions have strong architectural traditions which should be encouraged. 5.14 Secondary Impacts 5.14.1 Policy Coastal development that induces further development shall demonstrate, to the maximum extent practicable, that t-he secondary impacts of the development will satisfy the Coastal Resource and Development Policies. The level of detail and areas of emphasis of the secondary impact analysis are expected to vary depending upon the type of development. Minor projects may not even require such an anaylsis. Transportation and wastewater treatment systems are the principal types of devel- opment that require a secondary impact analysis, but major industrial, energy, commercial, residential, and other projects may also require a rigorous secondary impact analysis. 155 UNITED STATES DEPPARTMEWT OF COMMERCE National Oceanic and Atmospheric Administratioi Rockville, Md. 20652 'PA'cs 0 EVALUATION FINDINGS NEW JERSEY COASTAL MANAGEMENT PROGRAM: BAY AND OCEAN SHORE SEGMENT BACKGROUND Section 312 of the National Coastal Zone Management Act (CZMA) requires a continuing review of states with federally approved coastal management programs. The purpose of the review is to evaluate state performance with respect to coastal management and adherence to approved management programs. New Jersey is preparing its coastal management program in two phases. The first phase of the program includes 1,382 square miles of land and related coastal waters.in a region extending from the Raritan Bay along the Atlantic oceanfront to the Delaware Memorial Bridge. On September 29, 1978, this segment of the program, referred to as the Bay and Ocean Shore Segment (BOSS), was approved and a grant for $800,000 was awarded under Section 306 of the CZMA, matched by $200,000 from the State. The second phase of the program is anticipated to include the entire state under one program including the BOSS and the coastal areas in the northeastern part of the State along the Hudson River and related waters, in the Hackensack Meadowlands, and in the southwestern part of the State along the Delaware River and its tributaries. A Draft Environmental Impact Statement/Program document on this second phase is scheduled for release in the fall of 1979. As part of the Office of Coastal Zone Management (OCZM) evaluation responsibilities, a review of the BOSS was conducted in Trenton, New Jersey on June 28-29, 1979, by Zoraida J. Carballeira, Policy and Evaluation Staff and Nancy Carter, State Programs Staff. At that time State officials and members of public interest groups were interviewed. A lists of persons contacted is attached as an appendix. Most of the statistical information included in these findinas has been obtained from a report submitted by the New Jersey Department of Environmental Protection (DEP) in response to a request by the OCZM evaluation team. SUMMARY OF FINDINGS New Jersey is making good progress toward achieving the goals of it.s coastal management program and accomplishments have been identified in a number of areas. 8 and repairs to existing seawalls and bulkheads for a total of $800,000 in State funds. An additional $360,000 have been made available to Ocean City [email protected]'il--l---o-perat-i-ons..--.According to DEP, municipalities are required to adopt dune protection ordinances--l-n'-o-rd-er-to-qu-&:Hf%,r for stat-e-ff [email protected]@hore [email protected]@W III. Coastal Access. Findings in this area include the following: o No quantified information was available on the extent of access (acres or miles of shoreline) protected by the permit programs during the six months period covered by this report; but the review team was provided with the permit for the Brigantine Townhouses which, according to the DEP exemplifies how access is addressed by permit conditions. This permit requires that the developer submit a plan for the development of a pedestrian pathway across the dune field and the development of a public accessway as a pre-condition for approval. .o This was the third year of operation for the beach shuttle project. This project was initiated through an OCZM demonstration grant in the summer of 1977 to provide transportation between Toms River and the Island Beach State Park in Ocean County. The "New Jersey 1977 Beach Shuttle Experiment" report issued by DEP in January 1979 shows that 7,594 riders took the shuttle during the 20 days it was in operation during one summer. This project contributes to the maximization of access to the largest State-owned beach in New Jersey, reduces overcrowded conditions in beach parking lots, and can be used as a model for similar projects in other parts of the State. The beach shuttle is considered a very successful project. The evaluation report also refers to a shuttle service between Atlantic County's mainland and Atlantic City in Ocean County; this service, however, is still in the planning stages. o The proposed Dune, Beach, and Shorefront Protection legislative options do not specifically address "access." However, they will have an unavoidable impact on access since one of the regulated activities will be. the development of pedestrian paths and walkways. One legislative option prohibits the construction of temporary, mobile, or permanent residential structures in coastal beach and dune area; the other option extends this prohibition to shorefront areas. IV. Improved Public Decision-Making. Findings in this area. in o At the core of coastal decisions in New-Je - y is CLAM, consisting of a three-stage screening process cont-ain-th'fa multiplicity of variables on environmental, socio-economic,,--a-md-developmental characteristics. The system, in manual form, is-noW-being used in the permitting process. Although CLAM is based--6h--a highly specific set of policies, its application is not a purely--me-c-hanical one and many judgment factors may still enter into a daec s-f-on- However, everyone interviewed acknowledged the berefits o f C pec insofar as its objective policies and s ificity contribute to in this area the--predictibility of the decision-wQking process. The nature of the ),je T n0f North Carolina The increasing volume of day visitors who desire to use the re- sources of the North Carolina coast had raised concerns about shore- front access prior to the passage of the 1976 amendment to the federal coastal zone program. Few incentives or tools had been developed to help the coastal communities deal with these needs, however. The im- plementation of the North Carolina Coastal Access Management Act (CAPIA) has recently provided the incentive to seek the tools necessary to open up better public access to North Carolina beaches. In keeping with the style of the rest of North Carolina's coastal management program, the state's Coastal Resources Coiaiiission has del- egated shorefront access responsibilities to the local level. Coastal communities have developed their own land use plans to meet CAMA re- quirements. Revisions to the Priginal'plans are due to be submitted for state review during the fall of 1980 and 1981. One element which the state @has mandated these revised plans to address is shorefront access. Issues to be clarified in each plan include: definition of access; identification of existing and potential access points, identification of methods for improving access, and provision of adeqaute parking to meet access needs. State officials are waiting to evaluate these local plans before making any specific decisions about whether or not additional measures will need to be taken to improve shorefront access. State officials have imposed the provision of shorefront access as a condition on some major CAMA permits. Large oceanfront projects such North Carolina Page 2 as hotels and condominiuiii developments have been encouraged to provide such amenities as public walkways and parking lots, but the permit re- view officials are unsure of their legal authority and have therefore been somewhat inconsistent in exercising this option. An access provision technique which has been used by some coastal communities is the mandatory dedication of the ends of streets which are located perpendicular to the beach as public accessways. A local ordinance may require the developer to dedicate these accessways to the municipality. If the city or town does not accept or maintain these accessways, the right to the land reverts back to the developer. Approximately $100,000 of 306 funds have been granted to local communities to assist in shorefront access planning. Twelve municipalities have been granted funds to either develop beach access plans or design waterfront parks which will increase public access opportunities. In Edenton a peninsula which juts into Queen Anne Bay will be developed as a park; a bulkhead will be installed to stem erosion, an icehouse will be restored for use by the public, and a parking lot will be de- veloped. Wilmington is planning a six block long riverfront park. Cape Carteret, a non-beach community, is studying the feasibility of acquiring land for a parking lot at Emerald Isle to allow Cape Carteret residents access to beach areas. Holden Beach, Kill Devil Hills, Nags Head, Surf City, and Carteret County are among the localities which have conducted studies to identify potential and existing access points and tools for developing more. North Carolina Page 3 During the summer of 1979 the North Carolina Department of Natural Resources and Coinnunity Development's Office of Coastal Management and Wrightsville Beach jointly funded a shuttle bus to bring people from a feeder parking lot in Wilmington to Wrightsville Beach. By all accounts, the experiment was a failure; ridership was extremely low and the project lost money. Some reasons cited for the failure include in- adequate advertising and locating the feeder lot too close to the beach (i.e. people who had driven as far as the feeder lot decided that they might as well drive the remaining distance to the beach). There are. no plans to fund a revised attempt at providing mass-transportation for beach access. 0 Draft Environmental Impact Statement Prepared on Amendments to the North Carolina Coastal Management Program Washington, D.C. January 1979 U.S. DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Office of Coastal Zone Management 13 A. SHOREFRONT ACCESS AND PROTECTION PLANNING Introduction North Carolina has developed the following planning process which identifies public shorefront areas appropriate for access or protection to fulfill the requirements of Section 305(b)(7) of the Costal Zone Manage- ment Act of 1972, as amended. "(a) 923.25 Shorefront access and protection planning "(1) A procedure for assessing public areas requiring access or protection; "(2) A definition of the term 'beach' and an identification of public areas meeting that definition; "(3) Articulation of enforceable State policies pertaining to shorefront access and protection; "(4) A method for desi gnating shorefront areas (either as a class or site specifically) as areas of particular concern or areas for preservation or restoration, if appropriate; and "(5) An identification of legal authorities, funding programs and other techniques that can be used to meet management needs. 10 "(b) Comment. Statutory Citation, Subsection 305(b)(7): The management program for each coastal State shall include (7) A definition of the term 'beach' and a planning process for the protection of, and access to, public beaches and other public coastal areas of environmental, recreational, historical, esthetic, ecological or cultural value. "(1) The basic purpose in focusing special planning attention on shorefront access and protection is to express more than local concern with respect to additional access or protection needs for public beaches and other public coastal areas of environmental, recreational, historic, esthetic, ecological or cultural value and to include these areas for special management attention within the purview of the State's management program. If appropriate, this special management attention may be achieved by designation of public shore- front areas requiring additional access or protection as 14 areas of particular concern or areas for preservation or restoration. Since the specific planning requirements called for in this section are closely related to the broader requirements for areas of particular concern and areas for preservation and restoration, many of the require- ments called for in paragraph (a) above can be met by completing the work called for in 923.21 (Areas of Particular Concern) and 923.24 (Areas for Preservation or Restoration)." North Carolina fulfilled the requirement of 923.21 and 923.24 in obtaining program approval (see the North Carolina Coastal Management Environmental Impact Statement under Areas of Environmental Concern Chapters 1 and 5). The State's authority to designate beach areas as AEC's and to regulate development within then, @qas given to the Coastal Resources Commission (CRC) through the Coastal Area Management Act (CAMA). The legislature's action of passing tile CAMA, the CRC's action of designating beach areas as Areas of Environmental Concern and the action of the Department of Natural Resources and Community Development in implementing the regulatory program, established that beach areas are of statewide significance. 923.25(a)(2) A definition of the term "beach" and an identification of public areas meeting that definition has been partially satisfied through the AEC designation. The AEC guidelines de 'scribe beaches as, "lands consisting of unconsolidated soil materials that extend from the mean low water line landward to a point where either (a) the growth of vegetation occurs, or (b) a distinct change in the slope or elevation of the unconsolidated sands alters the configuration of the land form." While this definition has significance for regulatory purposes by providing a physical description of beaches it lacks a clear statement of public rights in beach areas and it does not apply to estuarine beaches. To fully comply with the requirements of Section 9213.25(a)(2) the following definition has.been adopted by.the Coastal- Resources Commission (pending public hearing) as that which shall be used in all policy decisions pertaining to public rights in beach areas. This defin- ition also applies to both ocean and estuarine shorelines. Beach - land areas extending from the mean low to the mean high water line and beyond this line to where either (a) the growth of vegetation occurs, or (b) a distinct change in slope or elevation occurs, or (c) riparian owners have specifically restricted access above the mean high water line. In all cases, the beach extends at least to the mean high water line. A legal analysis of the public's rights in beach areas is contained in. Appendix I of this document and is taken from a Sea Grant publication written by David Brower.entitled, "Access to the Nation's Beaches: Legal and Planning Perspectives." 15 In summary, the definition of the term "beach" used in the Guidelines for Areas of Environmental Concern and contained in the Appendix of the North Carolina Coastal Management Plan represents a component of the Ocean Hazard Area that is identified in order to give special regulatory protection to ocean beaches. This protection is givon by precludi,ng all development in beach areas and by stating that the land use priority in ocean hazard areas is recreation oriented development, i.e., providing beach access. The second definition of the term "beach" applies to both developed and un- developed areas and states that the beach areas are not exclusive and the public does have rights in the areas described. However, this does not in any way require private property owners to provide public access. This responsibility is clearly stated in the policy section of this document as that of govern- nient and commercial interests. 923.25(a)91) A procedure for assessing public areas requiring access or protection. 923.25(c) Commen't.. In meeting the requirements of 923.25(a)(1) states should take the following into account: (1) States should make use of the analyses and considerations of statewide concern developed to meet tile requirements of 923.21 dealing with areas of particular concern. It also is recommended that information contained in State Outdoor Comprehensive Recreation Plans be considered. Tile analyses and consideration of stateviide concern for beach areas is addressed in the approved North Carolina Coastal Program. In addition, two current State documents, the N. C. State Comprehensive Outdoor Recreation plan and the N. C. Water Resources Framework Study, also speak to the pro- tection and public access needs to beach areas (Appendix 2). The SCORP identifies beach access as a major recreation issue, stating the immediacy of the problem and outlining a course of action to address these needs. This approach describes the process through which North Carolina will provide adequate public beach access and represents a joint effort between the Division of Parks and Recreation and the Office of Coastal Vanagement. This process will be more fully discussed in Part 3 of this section. The Water Resources Framework Study was initially developed independently of the coastal program because the coastal program was in the early stages of development. Currently, tile two offices are working closely to refine State policies. 16 (2) If islands-are not considered areas of particular concern, in the context provided by 923.21, then the protection needs should oe addressed through this planning process. Analysis of the need and priority for protection will be useful in establishing eligibility for such funds as may be available for islands acquisition pursuant to subsection 315(2) of the Act. Islands were not designated as Areas of Environmental Concern by the Coastal Resources Commission. However, consideration was given to the idea of designating the Barrier Islands. This action was not taken because it was felt by the CRC that the intent of.legislature was to make designations by component parts of the coastal area rather than by broad categories such as islands. Under the current set of regulations, islands do receive pro- tection through the systems concept used in designating the AEC's. For example, the ocean hazard areas are described and the regulations (Appendix B of the Coastal Management Plan) are based on the precepts of island migration and overwash and beach dynamics. Also, the estuarine categories are described as a unit, i.e., the Estuarine System and the regulations acknowledge the interdependences of these parts by allowing consideration of secondary impacts in regulatory decisions. In most cases, the regulations would not prohibit development but would clearly insure that it would proceed with regard for the affected biological and physical systems. The Fragile Coastal Natural Resources Areas, another group of AEC cate- gories, is an additional means by which protection can be given to islands. Under this procedure, a particular island or group of islands could be nominated to the Commission for designation as AEC's and a set of regulatory standards tailored to the specific protection needs of the island would be developed and enforced. Establishing prioriti-es for the protection of islands through acquisition is a consideration of the North Carolina Natural Heritage Program. The Heritage Program is charged with inventorying the unique and rare natural resources of the state and assessing the priorities for their protection. In order to keep the objectives of the coastal program in perspective with those of the State, the protection of natural areas, including islands, must reflect State priorities as set byithe Heritage Program. (3) In developing a procedure for identifying access and protection needs, States should analyze (a) the supply of existing public facilities and areas, (b) the anticipated demand for future use of these facilities, and (c) the capability and suitability of existing areas to support increased access. Based on these and other considerations, as appropriate, the State planning process shall include a description of appropriate types of access and protection, taking into account governmental and public preferences, resource capabilities and priorities-. 17 The procedure for- identifying access arid protection needs closely follows the suggested format contained in 923.25(c)(3) above. The identi- fication of access needs was accomplished through an extensive inventory process that is included along with an introduction and analysis of data in Appendix 3 of this document. The only information that was not fully incor- porated in this study was that for private estuarine beaches and public boat ramps which is currently being gathered. However, two statements can safely be made at this point: that private beaches in estuarine areas are increasing in number and popularity; and that additional public boat ramps are needed particularly in the central coastal area including Carteret, Craven, and Pamlico and Beaufort counties. The protection needs are fully met through the regulatory program and all of the considerations suggested in 923.25(c)(5) were incorporated in the Commission's designation process. (See. the N.C. Coastal Management Plan tinder Designation of Areas of Environmental Concern). (4) In determining access requirements, States should consider both physical and visual access. The emphasis, however, should be on the provision of increased physical access. Special attention should be given to recreational needs of urban residents for increased shorefront access. Physical access may include, but need not- be limited to, footpaths, bikepath boardwalks, jitneys, rickshaws, parking facilities, ferry services and other public transport. Visual access may involve, but need not be limited to, viewpoints, setback lines, building height restrictions, and light requirements. Visual access needs have been left to the discretion of local governments to be expressed through policy statements contained in the local land use plans. While the Coastal Area Management Act clearly addresses esthetics in the purposes section 113A-102, it is the decision of the CRC that this is a local concerti to be expressed through the land use plans and not be a consideration of the regulatory process, except in those cases where local governments have adopted clear policies that render a project inconsistent with the local plans. Physical access requirements will be determined by local governments through the land use planning process, by the CRC through the development of the planning guidelines, and local plans approval and by the Division of larks and Recreation through grants for acquiring public access rights and site facilities. Local governments will determine their public access needs in the context of the land use plan based on the guidelines developed, by the CRC. The CRC will, in turn, review the plans individually and as a region to insure that the public demand for access is met. This review 18 will focus particularly on the needs of seasonal/day visitors from nearby urban areas and balance these needs with the availability of local resources. Finally, the Division of Parks and Recreation in cooperation with CRC efforts will award access funds. 91-13.25(c)(3) Articulation of enforceable State policies pertaining to shorefront access and protection. At the present tfine, there are three sets of enforceable State policies including the protection policies as expressed through t--he AEC regulatory guidelines arid the access policies expressed in the N.C. SCORP and in the N.C. Water Resources Framework Study. Each of these policy sets have clear lines of enforceability.* An additional set of State policies developed by a subcommittee of the Coastal Resources Commission, is currently being considered by the ConTlission for adoption and will be enforced through the Governor's Executive Order as part of the (to be) approved State Coastal Management Program. This statement of policy reads as follows: SHOREFRONT ACCESS POLICIES Decl arat ion: . It is hereby declared to be the policy of the State of North Carolina to foster, protect, improve and ensure optimum access to recreational opportunities at beach areas consistent with public rights, rights of private jxoperty owners and the need to protect natural resources froin overuse. These policies reflect the position that in areas other than State parks, the responsibility of providing adequate beach access rests primarily with local units of government. Thus, the following policies are intended to supplement and strengthen any local efforts. Definition: The term "beach" as used in these policies is defined as areas extending from the mean low to the irlean high water line and beyond this line to where e,ither (a) the growth of vegetation occurs, or (b) a distinct change in slope or elevation occurs, or (c) riparian oviners have specifically and legally restricted access above the mean high water line. -f--Th-j N.C. Water Resou rces Framework Study references the authorities contained in the SCORP and the State's authority of eminent domain in establishing its enforceability. 19 This definition is intended to descr-,L)t those shorefront areas historically used by the public. Whether or not the public has rights in the derined 0 areas above the MHW nark can only he answered by the courts. The public does have cl'ear rights below the MHW riark. The following policies recognize public use rights in the beach areas as Oefined but do not in any way require private property owners to provide public access to the beach. IT IS STATE POLICY THAT: 1. Developrkent shall not interfere with the public's right of access to the shorefront. where acquired through public acquisition, dedication, or customary use as established by the courts. 2. The responsibility of insuring that the public can obtain adequate access to pu5lic trust resources or the ocean, sounds, rivers and tributaries is primarily that of local novernments to be shared and assisted by State and Federal [email protected] 3. Public beach area projects funded by the State and Federal Government will not receive initial or additional funds unless provisions are made for adequate public access. This must include access rights, adequate identification and adequate parking. 4. Policies regarding State and Federal properties with shorefront areas intended to he i-,sed by the public must encouraSe, permit and provide public access and adequate parking so as to achieve maximum public use and benefit of these areas consistent with establishing legislation. 0. State and Federal funds for beach access will be provided only to local- ities that also provide protection of the frontal dunes. 6. The'State should continue in its efforts to supplement and improve highway, bridge and ferry access to and within the twenty county coastal area consistent with the approved local land use plans. Further, the State should, wlierever practical, [email protected] to add public fishing catwalks to appropriate highway bridges and should incorporate catwalks in all plans for new construction and for remodeling of bridges. It is the policy of the State to seek repeal ordinances preventing fishing from bridges except where public s,3fpty would be compromised. In order to avoid wpakening the protective nature of frontal dunes, no (level opricint. will be pprmittpd which would involve the removal or relocation of frontal dune sand or frontal dUne vegetation. 7 NCAC .0306 (c). The sands held in the frontal dunp are recognized as vital for the nourishment and protection of ocean beaches. All land use plans and State actions to provide adiitional shorefront access riust reco(@nize the need of providing access to all socioeconomic groups. C. Recreational Access and Protection of Cultural, Historic, and Aesthetic Resources Through the promulgation of policies and revisions to AEC standards, the NCCP has begun to address a commitment to promote and encourage recreational access and preserve unique cultural resources. In htis area the following has been accomplished: -The CRC has adopted revised AEC standards for estuarine systems that prohibit uses which interfer with public rights of access. -The CRC has adopted revised standards for Ocean Hazard Areas that prohibit development that unduly interfers woth legal access to or use of beaches and specifies potential damage to historic and archeoligical resources as criteria for permit denial. -The CRC has revised the Fragile Coastal Natural Resources Areas AEC to include cultural resources (historic, archeological, and architechural resources) of more than local significance in order to protect and preserve these resources. -The CRC has adpoted shoreline access policies that affirm the public's right of access to the shorefront where acquired through acquisition, dedication, or customary use. OREGON Public access to the beach has a long and healthy tradition in Oregon. Long ago, the beach served as the major north-south high- way. Throughout the years major shorefront areas have been kept open to the public; approximately 70% of the Oregon coast is currently in public ownership and the Oregon Beach Law grants the public the right to use the entire beach below the non-aquatic vegetation line. Thirty state parks have been established along the state's coastline. Public access points exist at least every two to three miles. Since beach access in Oregon is adequate, state officials are con- centrating on improving access to estuarine areas. Local governments are presently in the process of completing comprehensive plans (due for State Land Conservation and Development Commission review in July 1980) which are required to address the issue of public access to these river, bay, and wetland areas. Based on information gathered from these plans, the Oregon coastal management program administrators will design a program of technical assistance to help strengthen and/ or implement these plans. Department of Land Conservation and Development OBERT W. STRAU& 1175 COURT STREET N.E., SALEM, OREGON 97310 PHONE (503) 378-4926 September 26, 1978 Robert Knecht, Administrator Office of Coastal Zone Management, NOAA Page Building #1 3300 Whitehaven St. NW Washington, DC 20006 Dear Mr. Knecht: As the Director of the Department of Land Conservation and Development, the State of Oregon's lead agency ''For coastal management designated by the Governor pursuant to Section 306(c)(5) of the CZIM Act, I am submitting three amendments to the approved Oregon Coastal Management Program. I am also requesting, pursuant to CFR 923.81(c), your review and approval of the amendments. This submittal, pursuant to CFR 923.81(g), is by definition an "amendment" to Oregon's Coastal Management Program. These amendments (Attachment 1) are designed to meat the new requirements of the Act to have state's describe planning processes for: -Energy Facility Siting, 305(b)(3) and CFR 923.14; -Shorefront Access and Protection, 305(b)(7) and CFR 923.23; and, -Shoreline Erosion and Mitigation, 305(b)(9) and CFR 923.26. The new requirements represent a decision by Congress to give specific emphasis and support to energy facility siting, shorefront access and shoreline erosion planning processes. Although all three topics were implicit in the federal act of 1972, Congress felt that additional state emphasis was necessary. Oregon's approved Coastal Management Program implicitly considers and provides for the three planning processes called for in the new requirements. However, to be responsive to Congressional intent, the Commission has supplemented the C(IMP with brief descriptions of existing processes and policies focusing on these special topics. The attached amendments were adopted by the Land Conservation and Development Commission on September 15, 1978. SHOREFRONT ACCESS AND PROTECTION Concern for shorefront access and protection in Oregon goes back to the nineteenth century. In 1893, the beaches of Clatsop County were declared to be public highway. This was followed in 1913 by the Oswald West Act, which declared all wet sand beaches to be public highway. In 1967, the Legi3- lative Assembly, prompted by the threatened loss of public use of and access to Oregon's beaches and enacted the "Beach Bill." This provides for public use of the ocean shore in perpetuity.. Since the passage of the 1967 Beach Law, it has been general state policy to provide with the cooperation of other agencies, beach access at intervals between [email protected] to 3 miles or to major beach areas inaccessible from other access points because of intervening promontories or other barriers. The need for access varies by locdtion, resource type, and mix of public and private lands. Concern for access to public beaches and other public coastal areas is demonstrated by the fact'that two-thirds of the state's parks and waysides are in the coastal zone. In addition, thirty-eight percent (381) of the land'of the Oregon coast is held in public ownership by the federal government. DEFINITION OF BEACH Beach .To correctly identify access and protection programs affecting Oregon's public beaches it is necessary to define and describe the area considered to be public beaches. Beach is defined in Oregon's Coastal IManagement Program as follows: 11gently sloping areas of loose material (e.g. sand, gravel and cobbles) that extend landward from the low- water line to a point where there is a definite change in material type or landform, or to the line of vegetation" Public beaches are those areas meeting the above definition held in public ownership or with a public right of access. Public beaches include the "Ocean Shore." This is the land lying between extreme low tide of the Pacific Ocean and the line of vegetation as established and described by Oregon Revised Statute 390.770. Although only approximately half of the Ocean Shore area is in public ownership, all of it is open to public access by statute (ORS 390). The Ocean Shore area is completely mapped with the eastern most zone line approximating the vegetation and 16-foot elevation line. -2- The extent of public ownership of the Ocean Shore is shown on Deoartment of Transporttation maps. A diagram of the public beach area as defined is shown in Appendix B. Other Public Areas Other public areas are defined as areas held in public ownership or those th-lat are held with a public right of physical or visual access. These areas include but rray not be limited to islands, coastal shorelands, headlahds, coastal waters and wetlands, forest lands and other natural resource lands in the coastal zone. Attention to access and protection needs occurs through both the coordinated coiniorehensive land use planning process (ORS 197) and special-purpose statewide statutes. It applies to public coastal a.reas of value as well as to public [email protected]@aches. Overall state policy direction for access and protection needs is contained iii the Statewide Planning Goals developed by LCDC. This overall policy is supplemented by special purpose statewide statutes and programs. Various statutes define the public "ocean shore" beach-area, and provide for the State's Beach Access and Parks acquisition programs, the Department of Fish and Wildlife's Angler Access Prograr..; and, the State.Marine Board Facility Grant Program. The Statewide Comprehensive Outdoor Recreation Plan (SCORP) also provides supply and demand information and polic ies on access. Thc-se policies and programs must conform with the policy direction set by the Statewide Planning Goals. Together the planning process and the statutes assure adequate protection of access to public beaches and other coastal public areas of environmental, recreational, historic, aesthetic, e-cological or cultural value. Geographic Areas of Particular Concern designated in Oregon's approved Coastal Management Program include coastal agricultural lands, beaches and dunes and estuaries. Need for both access and protection in such areas was reflected in public, resource agency and legislative concerns over the use of and problems associated with shorefront access in these areas. As a result of the threat to and need for snecial state management regulations for these areas which are more specific than for the more general Goal subjects. More specific state designations are not needed at this time because the Statewide Planning Goals reauire that local comprehensive plans designate areas for access and protection as well as preservation and restoration in certain cases. -3- Statewide Plannincy Goals Several of the Statewide Planning Goals establish standards for shorefront access and protection. Specifically Goal 8 Recreational Needs requires that agencies with responsibility for recreation areas, facilities and opportunities plan to meet "the recreational needs of the citizens of the state and visitors." Goal 5 2pen @@[email protected], Scenic and Historic Areas, and Natural Resources requires the provision of programs that 'will "(1) insure open space; and, (2) protect scenic and historic areas ana natural resources for future generations..." Additional requirements for protection of coastal resources are included in Goal 16, Estuarine Resources, and Goal 17, Coastal Shorelands. Goal 18 Beaches and Dunes allows permits for beach-front protective structures to be issued only where development existed on January 1,.1977. The Goal. further directs that the Oregon Department of Transportation develop criteria for is.suing permits which provide that "necessary access to beach is maintained" and "visual impacts are minimized." (see Table 2,.page 4.) Another goal requirement is that comprehensive plans and implementing actions "provide for diverse and appropriate use of beach and dune areas consistent with their natural limitations." Other goals add to the state's policy regarding public access and resource protection. Goal 4 Forest Lands requires identification of "forested lands needed recreation" and Goal 12 Transportation requires planning for a transportation system that is based on icentified need and consideration of all modes including bicycle and pedestrian. Such a system will provide visual and physical access facilities to coastal shorefront areas. The Statewide Planning Goals for the protection of, and access to, public beaches and other public coastal areas of value are listed in Table I Summary of Statewide Planning Goal RequireLments for Shorefront Access and Protection Management. References to Guidelines for shorefront access accompanying the Statewide Planning Coals are also provided in Table 1. Guidelines provide state policy guidance to cities and counties in preparzation, adoption and implementation of comprehensive plans, and to state agencies and special districts in the preparation of plans, programs and regulations for compliance with the Goals. These selected references have been included because the Goals, in most cases, fOCUS -4- on resource types and call for generic land use designations, facilities an",`/or activities. Visual and/or physical access 's regarded as an explicit aspect of considering use designa- tions for resource lands. [email protected] Plan Development and Coordination Cities and counties are responsible for preparing compre- hensive plans that comply with the Statewide Planning Goals and conform with the needs of other agencies. Identifying and providing for public shorefront access needs and adopting appropriate ccntrols is an important part of the planning process. The following describes how the basic steps of the comprehensive planning procc-ss meets the.requirements of the Coastal Zone Managcment Program Approval Regulations CFR 923.25: -Identification of Problems and Needs Local governments, citizens and state and federal- agenci-es will ident-'fj- access problems ard needs related both to existing public beaches and other coastal public areas. This identification process addresses where access is currently provided and where access is not now provided to coastal waters, public beaches and other public areas of value. Local governments will assess shorefront access and protection problems and needs to determine possible management techniques. State and federal agencies will provide assistance and identify problems and needs that are other than local in nature. -Collection of Inventories Local governments and state and federal agencies will identify existing facilities, anticipated demand, and capabilities for increased shorefront access and protection. State and federal agencies will ident-ify how and where access is provideJ on public lands under their jurisidiction. -Evaluation of Alternatives State and federal agencies will assist local governments in developing and [email protected],.ting alternative, policies for management, protection and provision of access to public beaches and other public areas to assure that access-'is considered where problems or demonstrated. .needs exist. -Plan Adoption Based on the alternatives and input of state and federal agencies and the public, local governments will adopt plans, policies and ordinances for shorefront access and protection. Plans will establish access and protection requirements. They will also describe appropriate types of access and protection techniques in conformance with Statewide Planning Goals, special purpose statutes and programs. -Plan Imnlementation In their review of specific development proposals that may contribute to and/or affect the protection of, and access to public shorefront areas, local governments must apply the policies and management requirements in their plans and ordinances. Cities and counties ar.e responsible for developing agreements with special districts defining how special districts will carry out their responsibilities in conformance with the Goals and in compliance with acknowledged comprehensive plans. Cities and cc-.,-,ties are also expected to take into account state and national needs. Stat-e and federal agencies are expected to make their needs known during the preparation and revision of city and county comprehensive plans. State agencies have described how they will assure that their activities conform to acknowledged comprehensive plans through their State Agency Coordination Programs approved by LCOC. State Agency_ Authorities Several state agencies administer programs designed to plan for the protection of and access [email protected] public beaches and other public coastal areas.of environmental, recreational, historical, aesthetic, ecological or cultural value. The Department of Transportation (ODOT) administers federal Land and Water Conservation Funds, and issues permits for beach-front protective structures. The Division of State Lands also issues permits for the deisgn and placement of structures and fill along navigable waterways. The State Marine Board has the authority to reg'ulate boating acitivites on state coastal waters and administers the State Marine Facility Grant Program. There are several other state agency policies and -financial assistance programs that assist in the management of shorefront access. These state policies and financial assistance programs are sunmarized in Table 2 Summary of State Agency Authorities and Policies for Shorefront Access and Protection. State agency programs are funded in part, by permit applications, available federal funds, and legislative appropriation. TABLE 1: SUMARY OF STATMqIDE PLANNING COAL REQUIREMENTS FOR SHOREFRONT ACCESS AND PROTECTION MANAGEMENT Fe(leral Requirements Goal Addressed-CFR 923:25 Goal Requirement 5. Open Spaces, Scenic (1) (2) (3) (5) Requires that "programs shall be provided that arid Historic Areas will (1) insure open space (2) protect scenic and Natural Resources and historic areas and natural resources for future generations." Requires the location, quality and quantity of resources be inven- toried, and where no conflicting uses have been identified, managed to preserve their original character, Where conflicting uses have been identified, conflicting uses shall be determined and programs developed to achieve the goal. Open space consists of "any land area that would, if preserved and continued in its present use" promote conservation of beaches. See also Guidelines A. 1,5 B. 8 in Appendix 4, OCIMI 8. Recreation (1) (2) Requires government agencies having responsibility for recreation areas, facilities and opportunities plan to meet "the recreational needs of the state and visitors. See also Guidelines 1-5, 7 a d 10 in Appendix 4, OCMP. n 16. Estuarine Resources (1) (2) (3) (4) Comprehensive plans for each estuary are to pro- vide for appropriate uses "with as much diversity as is consistent with the. . biological, economic, recreational, and aesthetic benefits of the estuary." See also Guidelines A. 2(d), A. 3 (e) and (f), B and E in Appendix 4, MIP. 17. Coastal Shorelands (1) (2) (3) (5) "to conserve, protect, where appropriate develop and where appropriate restore the resources and benefits of all coastal shorelands, recog- nizing their value for protection and maintenance of water quality, fish and wildlife habitat, water dependent uses, economic resources and recreation and aestlietics." Federal Requirements Goal Addressed-CFR 923:25 Goal Requirement (inventory Requirement) (1) (2) (3) (5) Inventories shall be conducted to provide informa tion necessary for identifying coastal shorelands and designating uses and policies. These inventories shall provide information on the nature, location, and extent of geologic and hydrologic hazards and shoreland values, includ- ing fish and wildlife habitat, water dependent uses, economic resources, recreational uses, and aesthetics in sufficient detail to establish a sound basis for land and water uses management. See also Guidelines A. 3,5,8-10,C,E in Appendix 4 OCYLP. 18. Beaches and Dunes (1) (3) (4) (5) Coastal comprehensive plans and implementing actions shall provide for diverse and appropriate use of beach and dune areas consistent with their ecological, recreational, aesthetic, water resource, and economic values, and consistent with the natural limitations of beaches, dunes and dune vegetation for development. (Inventory Requirements) (1) (2) (3) Inventories shall be conducted to provide information necessary for identifying and designating beach and dune uses and policies. Inventories shall describe the stability, move- ment, groundwater resource, hazards and values of the beach and dune areas in sufficient detail to establish a sound basis for planning and management. For beach and dune areas adjacent to coastal waters, inventories shall also address the inventory requirements of the Coastal Shorelands Goal. 0-4- Federal Requirements GCal Addresscd-CFR 923:25 Goal Requirement (Implementation Require- (1) (5) permits for beach front protective structures ment 5) shall be issued under ORS 390.605 .. 390.770, only where development existed on January 1, 1977. The-Oregon Department of Transportation, cooperating with local, state and federal agencies shall develop criteria to supplement the Oregon Beach Law (ORS 390.605 .. 390.77) for construction of beach front protective structures. The criteria shall provide that: (1) visual impacts are minimized; (2) necessary access to the beach is maintained; (3) negative impacts on adjacent property, are minimized; and (4) long-term or recurring costs to the public are avoided. See also Guidelines E in Appendix 4, OCMP. Federal Requirements Coal Addressed-CFR 923:25 Coal Requirement (Comprehensive Plan (1) (2). (3) Based upon the inventory, comprehensive plans requirements) for coastal areas shall: (1) identify beach and dune areas; and (2) establish policies and uses for these areas consistent with the provisions of this goal. (Implementation Require- (1) (3) Local governments and state and federal ment 1) agencies shall base decisions on plans, ordinances and land use actions in beach and dune areas, other than older stabilized dunes, on specific findings that shall include at least: (1) the type of use proposed and the adverse effects it might have on the site and adjacent areas; (2) temporary and permanent stabilization programs and the planned maintenance of new vegetation; (3). methods for protecting surrounding area from any adverse effects of the develop- ment; and (4) hazards to life, public and private [email protected] and the natural environment which may be caused by the proposed use. (Implementation Require- (1) (5) Local governments and state and federal agencies ment 3) shall regulate actions in beach and dune areas to minimize the resulting erosion. Such actions include, but are not limited to the destruction of desirable vegetation (including inadvertent destruction by moisture loss or root damange), the exposure of stable and conditionally stable areas to erosion, and construction-of shore structures which modify current or wave patterns leading to beach erosion. J TABLE 2: STATE AGENCY AUTHORITIES AND POLICIES FOR SHOREFRONT ACCESS AND PROTECTIO1,11 Federal Requirements Agency Statute Addressed-CFR 923.25 Authority - Policy Department of oRS 390.610-755 (1) (2) (3) (5) Gives the State Transportation Com- Transportation ocean Shores Statutes mission the authority to police, prot, and maintain the beaches and stipulat, any improvements or alterations to the ocean shore seaward from"the 16 foot elevation line require a permit from the State Highway Division. Establishes the right of public acces and a commitment to public.protection of all beaches, regardless of prior ownership. State Parks ORS 390.605 12) (3) (5) Defines "ocean shore" and State Beach Access Program ocean Shore Definition Recreation area. ORS 390.615 (2) (5) Ownership of Pacific Shore, declarati, State Ownership of Beach as state recreation area. Right of Public Assess ORS 390.630 (5) Acquisition along ocean shore for Acquisition state recreation areas or access. ORS 390.640-658 (1) (3) (5) Permits required for improvements on Improvement Permits ocean shore; exceptions, procedures and standards; judicial review of permit. DOT evaluates the following concerns in its review of Beach Improvement Permit Applications: @t Need-There must be a critici Nee6 or adequate justification for i project to come seaward of the beacl zone line and alter the ocean shore area. Federal Requirements Agency Statute Addressed-CrR 923.25 Authority - Policy - Project Mndifications-There are no reasonable project modifications thal would better serve public rights reduce or eliminate problems or avoi( long term cost to the public. - Public Costs-There are no reasonable special measures which might reduce or eliminate significant public cost! Alternatives such as nonstructural solutions provision for ultimat:e re- moval responsibility for structures when no longer needed, reclamation [email protected] excavation pits, mitigatio;i of [email protected] damages to public interests, or a tir limit on project life -.o allow for changes in public interest have been considered. - Structural Safety-The project should not be a safety hazard to the public due to inadequate structural founda- tions, lack of bank stability, or thi use of weak materials subject to rap-' ocean damage. Implementation Requirement 5 of the Beaches and Dunes Goal establishes [email protected] tional criteria that DOT must apply in considering beach improvement permits. ORS 390.690 (3) (5) Title and rights of the state unim- State Authority paired. Over Ocean Shore ORS 390.705 (3) (5) Prohibition against placing certain Prohibits Certain conduits across recreation areas and Kinds of Development against removal of natural products. 3- Federal Requirements .Agency Statute Addressed-CFR 923.25 Authority - Policy ORS 390.715 (3) (5) Permits for pipcs, cable or conduit Pipe Permits across ocean shore and submerged lands. ORS 390.725 (3) (5) Permits for removal of products along Removal Permits @,c`ean shore. Administrative Policy General policy to provide, with of ODOT on Implementation cooperation of other agencies, a of Beach Access Program public access site at intervals betweei [email protected] to 3 m 'iles, or to major beach areas inaccessible from other access points because of intervening promontories or other barriers. ORS 390.725 (1) (3) (5) Beach Log Removal Policy adopted Beach Log Removal March 30, 1976. The program prohibits logging of the beach unless such removal can be shown to provide a significant public benefit, e.g., to enhance physical or visual access. Restricted use of motor vehicles and aircraft on the Oregon beaches by time and location. Specific trans- portation corinnission resolutions define the limitations by county. ORS 390.310 (3) (5) Authority to "acquire by purchase, ORS 390.150 agreement, donation, or by exercise of power of eminent domain, real property or any right or interest" for access and protection of public beaches and state parks. Federal Requirements Agency Statute Addressed-CPR 923.25 Authority - Policy ODOT ORS 390.950--390.989 (1) (3) (4) (5) Institute a system of recreation trails Recreational Trails and prescribes methods of which, and standards according to which, additional trails may be added. The Program objective is a network of trails to any major recreation attraction with- out mot or vehicles. Highest priority is the Oregon Coast Trail. bong-range plan has been approved for a continuous Oregon Coast Bicycle Route (1972). Grant-in-Aid Program (1) ([email protected] State Parks and Recreation Branch (SB 5537) administers the Federal Land and Water Conservation Fund. Substantial portion of the fl!nd is distributed to local governme!wts. Coordination is accomp- lished, in part, through the comprehensiv planning procesf.. ORS 390.110 (1) (3) (5) Authority "to develop, construct, improve Development and operate and maintain" acquired Rehabilitation Program recreational areas. ORS 390.010 (1),(3) (4).(5) Recognizes the public interest in Historic Preservation increasing recreational opportunities related to "preservation and restoration" of structures, objects, facilities and resources of Oregon history, archaeology and natural science. ORS 358.475 (1) (5) Authority to provide special tax benefits Special Tax Assessment to properties on the t4ational Register for Historic Properties with the provision of public access to the property. 5- Federal Requirements Agency Statute Addressed-CFR 923.25 Authority -_Policy State Parks ORS 390.815-855 (1) (3) (4) (5) Establishes a State Scenic Waterways Scenic Waterways Program System "to preserve for the benefit of the public selected parts of the state's free-flowing rivers" and "to protect natural values and recreational opportunities along designated free- flowing rivers." Criteria established by statute. (Two coastal rivers, the Rogue and Illinois, have parts designated as scenic waterways. Six others, the Nehalem, Nestucca, Siletz, Trask, Alsea and Chetco, are identified as potential scenic waterways.) State Marine Board ORS 4B8.875 (1) Provides for grants to cities, counties, Grant-in-Aid port districts, parks and recreation d-istricts for the construction and maintenance of boating facilities. Authorized to acquire property. ORS 488.860(6) Requires the preparation of a marine marine Facilities Plan Facilities Plan. ORS 48B.600(3) (1) (3) (5) Authorizes the Marine Board to regulate SSW Permits boating on State Scenic Waterways by a permit system. South Slough Estuarine ORS 496 (1) (3) (4) (5) Provides for the management of the Sanctuary Management South Slough Estuarine Sanctuary Commission (1) to maintain integrity of the estuary (2) protect the estuary from uses which may alter or effect the sanctuary and (3) preserve the area for long term scientific and educational use. A statutory policy in the sanctuary shall be open to the public except as necessary to achieve manage- ment [email protected] -6- Federal Requirements Agency Statute Addressed-CFR 923.25 Authority -_Policy Department of Fish ORS 496.012 (1) (3) (4) (5) ORS 496.012 provides for the enhancement and Wildlife 506.201-506.211 and public enjoyment of wildlife. ORS Angler Access Program 506.201-506-211 authorizes the acquisi- t*on and development of property policie! to carry out 496.012 are articulated in the Fish and Wildlife Manarlemtent Plan. Master Plans for Angler Access imple- ment the Plan. Emphasis on streams and lake shorefronts. 501.005-501.045 (1) (3) (4) (5) Sets criteria and establishes authority 506.201-506.211 to acquire wildlife management areas Wildlife Management Areas for recreation facility development boat launches, viewpoints, protection, etc. Acquisition is possible through purchase, lease, agreement, or gift. Division of State Lands ORS 273.562-592 (1) (3) (4) (5) Establishes the Ilatural Areas Reserves Natural Areas Preserves Advisory Committee to identify state lands which due to their unique charac- ter should be preserved for research and development. OAR 141-50-890 pro- vides management criteria for Natural Area Preserves. ORS 541.605-695 (1) (3) (5) Authorizes the Division to issue permits Fill and Removal Law for the design and placement of struc- tures and fill along navigable waterways. OAR 141-85-270 provides criteria for riprap permits. ORS 274.705-274.860 (1) (3) (5) Requires leases for use of state Leasing of Submerged submerged and submersible lands. Au- and Submersible Lands thority to terminate a lease if the use under the lease becomes intolerable. Federal Requirements Agency Statute Addressed-CFR 923.25 Authority Policy State Department of Forestry ORS 530.010-530-490 (1) (3) (5) Authorizes the State Forester to manage, control and protect state owned lands for production of forest crops, recreation and other uses. Management objectives include maximum growth and harvest of forest products consistent with the need to protect recreational opportunities. Recently adopted recreation Policy encourages the development of recreation oppor- tunities, acquisition of access to state forest lands, hiking trails, camps waysides, boat ramps, picnic areas, etc. Department of Economic ORS 777.850-777.890 (5) Establishes the Port Revolving Fund. Development Port Revolving Fund Funds could be used to provide facilities and greater public access to shorefront areas. Deparment of Revenue ORS 307.115 (5) Provides tax exemption on property owned by qualifying nonprofit cor- poration and used exclusively for public park or recreation purposes. ORS 308-740-790 (5) Provides special assessment for open .Special Assessments space lands. ORS 271.710-750 (5) Authorizes public bodies to acquire Acquisition scenic or conservation easements when in the public interest. u%;t:tAajju anu 6.4uFnmgzPvrdr.,.un Office of Coastal Zone Management Washington, D.C. 20235 FINDINGS EVALUATION OF THE OREGON COASTAL,MANAGEMENT PROGR41 COVERING THE GRANT PERIOD JUNE 1978 - JUNE 1979 I.. BACKGROUND Section 312 of the Coastal Zone Management Act (CZMA) requires continuing review of states with federally approved coastal management programs. This review is designed to evaluate performance with respect to coastal management activities and adherence to the approved management program. The Oregon Coastal Management Program (OCMP) was approved in May, 1977. Oregon had its first-year 306 grant extended for one year and was awarded a supplement simltaneously. Thus, the first and second year 306 grants are running concurrently, with work on both to be completed June 30, 1979. FY '77: $1,850,000 (Federal) S 462,500 (State) $2,312,500 (Total) FY '78: $1,500,000 (FederaT) $ 409,636 (State) $1,909,636 (Total) FY '77 & 78: $3,350,000 (Federal) $ 872,136 (State) $4,222,136 (Total) In connection with the Office of Coastal Zone Management's (OCZM) evaluation responsibilities, an on-site review of the OCMP was conducted in Salem and Portland from February 26 to 28, 1979, by Catherine Morrison, Policy and Program Evaluation Staff; Eileen Mulaney, Regional Manager, Pacific Region; Rebecca Barber, Assistant Regional Manager; and John O'Donnell, External Relations Staff. The on-site review included meetings with Department of Land Conservation and Development staff, state and federal agency representatives and repre- sentatives of environmental groups and business and port interests. A public meeting was held the evening of February 27, 1979. A list of individuals attending these meetings is attached (Appendix 1). C. In the Area of,Increased Access to the Coast for Recreation ,- and Protection and Restoration of Historic, Aesthetic ana--CuM-757 Resources : 1. Increased Public Access to the Shorefront Historically, Oregon has had a strong commitment to preservation of public access to the shoreline. In Oregon, the wet sand beaches are owned by the public, and legislative policy assures that there will be extensive access points along Oregon's 350 mile coast. Two public access studies were completed as part of the Shorefront Access Amendnent process, the first documents existing policies, while the second evaluates existing programs' and makes recoim,,-endations. A study is underway of recreational boating activity in the estuaries which should result in a management program for siting futurke boating facilities. THE BEACH BILL Most Oregonians had always believed that all of the beaches seaward of the vegetation line were public. It was a widespread misconception, however, perpetuated by the public's historical and continuous free recreation- al use of the dry sand. Because use of the wet sand strip is dictated by the ebb and flow of the tide, the dry beaches have been the principal recreational playground. Many citizens believed the public had acquired a "claim of right" to all the beaches. The 1913 Os West legislation had further contributed to the misconception. West has always been popularly lauded for saving the beaches. Few persons were aware that his legislation, and subsequent amendments, ap- plied only to the beach seaward of the ordinary high tide line. Most recreationists did not realize that on some beaches they actually were using private land. Consequently, prior to the 1967 Beach Bill, Oregon- ians were secure in their belief. In actuality, however, the state's legal jurisdiction over beaches was unclear because of ambiguities and technicalities in existing laws that confused and complicated the issue. For one thing, some property deeds for beach front land showed ownership to the ordinary high tide line. Those private owners legally held some dry sand areas. Federal court cases involving shore lands disputes had used the ordinary or mean high tide as the landward boundary of state ownership. Some jurisdictions had defined "ordinary high tide" as the average of all high tides over a specific span of years. Others had defined it as the vegetation line. Although Oregon had been given 21 0 ownership of "tidelands" when admitted to the Union, specifically what area that encompassed had not been defined. Regardless of legislative intent, Oregon had not clearly determined the landward limit of the public beach, and indications were that the private owners might be in a better legal position than the state.' Further, the Highway Commission had identified two problems specific to the 1965 beach legislation.2 Although the commission recognized public rights between the vegetation and ordinary high tide lines, through dedication, prescription or grant, the 1965 legis- lation limited the "state recreation area" to below the line of ordinary high tide. Secondly, the legislation had amended the 1947 beach law to read, ". . . no portion of such shore shall be alienated by any of the agencies of the state, except as provided by law." Interpretations varied, but clearly the amendment implied that the legislature could sell part or all of the beach. In July and August of 1966, citizens complained to Tom McCall, then secretary of state, and Glenn Jackson, chairman of the State Highway Commission, concerning the denial of public access to beach property at the Surfsand Motel at Cannon Beach.3 William Hay, owner of the motel, had built a low barricade of logs around a dry sand area adjacent to the motel, for the exclusive use of his guests. Hay put cabanas in the enclosure and posted signs that warned: "Surfsand Guests Only Please." William Nokes, investigator for the Highway 'Forrest Cooper, State Highway Engineer, to Governor Tom McCall, September 2, 1966, Highway Division General Files, Oregon Department of Transportation. 2David Talbot, "State HighNvay Department Statement in Support of HB 1601," cited in Minutes of House Comn-iittee on Highways, May 7, 1967, Oregon Legislative Assembly, 1967 Regular Session. Hereafter cited as House Highway Committee Minutes. 3Richard Byrne to Glenn Jackson, July 14, 1966; William G. Nokes to Files, August 15,1966; and Laurence F. Bitte to Tom McCall, August 25,1966, cited in House Highway Committee Minutes, March 23, 1967. 22 Department, visited the motel in early August, 1966, and confirmed the situation .4 The questions raised by the Surfsand Motel incident were: 1) Does private ownership of beach property legally extend seaward to the ordinary high tide line? 2) Does the private owner of beach property have the right to build seaward of the vegetation line onto the sandy beach, and who issues such building permits? 3) What legally constitutes a beach and can disparate definitions be applied to the term? 4) Is it legal to close a portion of the sandy beach which. has been used by the general public for more than 50 years? The State Parks and Recreation Advisory Conurjit- tee, under the chairmanship of Loran L. "Stub" Stewart,* met in late July, 1966 and discussed the Surfsand Motel incident.5 The committee was particularly concerned about the state's uncertain legal position. The calamitous potential of the issue was illustrated by a Parks Division study which showed that 112 of Oregon's 262 miles of sandy beach were in private ownership which extended to the ordinary high tide line.' The committee knew the state might have to spend millions to purchase the private land. The Parks Advisory Conurtittee recomr-nended to the State Highway Commission that a legislative remedy be explored immediately to clarify the state's legal position and avoid another Surfsand Motel incident. George Rohde, then chief counsel for the Highway Conu-nission, his assistant Frank McKinney* and Jim Kuhn, title attorney, took on the task. 4 ]bid. *Other State Parks Advisory Committee members were Eric W. Allen, Jr. (Medford), Alfred D. Collier (Marnath Falls), E. R. Fatlarld (Condon), Donald G. McGregor (Grants Pass), George D. Ruby (Portland), Lestle J. Sparks (Salem), and P- M. Stephenson (Salem). Warren A. McMinimee ('nllarnook) was appointed to the committee April, 1967. 'Parks Advisory Committee Minutes, July 29, 1966. 'State Parks and Recreation Division, Oregon @ Coastal Beaches, June, [email protected] ,McKinney was also the lead trial counsel in the subseqeunt Fultz and Hay beach property litigations. 23 Highway legal counsel concluded that a law or laws could be adopted to preserve public beach rights. Counsel was well aware of the "fee title" problem. Any law establishing public rights on the dry sand beaches would be tested in court. Private owners were likely to charge that their land was being confiscated, or claim compensa- tion for its public use. But, counsel was sure Oregon could legally establish public recreational easement rights on dry sands in private ownership without having 7 to purchase or conderrm property. In part, counsel based the conclusion on a precedent- setting Texas court case. In 1964 the Texas Supreme Court upheld the 1959 Texas Open Beaches Act on the theory of implied dedication, a common law acceptable in Oregon.8 Since Oregon's beach use had been similarly open and widely known, counsel believed the theory of implied dedication was sound. It could be proven that private owners, excepting Hay, had never tried to disrupt public use of the beaches. 9 The first beach legislation was written by the three lawyers at the recommendation of the Parks Advisory Committee. HB 1601 was modeled after the Texas Open Beaches Act, and became popularly known as the "Beach Bill." The Beach Bill was brief. It recognized public rights to easements on the beach through prescription, dedication and grant, between the vegetation and ordi- nary high tide lines. It authorized the Highway Commis- sion to protect, administer and supervise such public rights. It amended the wording of the 1965 beach legislation to read that ". . . no portion of such shore or rights in land along such shore shall be alienated by any of the agencies of the state except as provided by special 71nterview with Frank McKinney, July 3, 1975. 'Seaway Co. vs. Attv's Gen., 375 SAV. 2d 923 (Tex. Civ. App. 1964). 9McKinney Interview. *A companion bill, HB 1600, stated that all future seaward accretions on the beach would belong to the state rather than upland owners. Since the beach controversy was over BB 1601, this discussion %%U concern the latter only. 24 law." This would protect the beaches from future sale. The bill maintained the status quo by allowing citizens to continue to use dry sand beaches for recreational pur- poses. It did not deprive private owners of their property or their rights since they could still use their property, subject only to the public's recreational easement. The Beach Bill was presented to the Parks Advisory Committee for final review and approval on February 16, 1967. The committee formally chose to support HB 1601 because ". . . it reaffirms, delineates and makes more specific, Oregon's historic attitude toward public rights on the ocean beaches."10 Glenn Jackson and the Highway Commission* also endorsed the measure. It was introduced in the legisla- tive session on February 22, 1967, by Representatives Sidney Bazett (R-Grants Pass) and Stanley Ouderkirk (R-Newport), and Senator Anthony Yturri (R-Ontario) at the request of the State Highway Conunission. The bill was sent to Representative Bazett's House Committee on Highways" and the first hearings on the Beach Bill were held March 7 and March 23. Among the Beach Bill's chief supporters, at first, were the Highway Commission, the Parks Division and Parks Advisory Committee. David Talbot, State Parks superintendent, testified on March 7. He emphasized that both the Highway Conunission and the Parks Advisory Committee had given long and detailed atten- tion to the beach problem, and that ". . . the assumption of ... expanded responsibilities will by no means be easy or inexpensive." Further, Talbot said: IThe Highway Commission has managed the coastal 1OParks Advisory Committee Minutes, February 16, 1967. *Other Conunissioners were Kenneth N. Fridley (Wasco) and David B. Simpson (Portland). Fridley was replaced by Fred W. Hill (Helix/Pendleton) in April, 1967. *'Hereafter referred to as House Highway Committee. Other conunittee members were Representatives Howard (D-Portland), Anunsen (R-Salem), Elder (R-Eugene), Hanneman (R-Cloverdale), McKenzie (R-Sixes), Meek (R-Portland), Holmstrom (D-Gearhart), Smith (R-Burns), Turner (D-St. Helens), and Leiken (D-Roseburg). 25 beaches for many years and has always sought to carry out the intent of the beach laws enacted by the various legislative assemblies which gave limited jurisdiction to the Highway Conu-nission. We believe that HB 1601 is necessary at this time to enable the Highway Commission to adequately protect and manage the beaches for perma- nent public enjoyment ... 11 Chairman Stewart and the Parks Advisory Commit- tee deserve much of the credit that the beach legislation was ever introduced. The committee, determined to pursue the legislation, gave continual support to the Beach Bill during the entire legislative process. Chair- man Stewart testified before the House Highway Com- mittee on March 23. He affirmed the Highway Conunis- sion's legislative responsibility to provide outdoor recrea- tion opportunities for Oregonians and visitors. Stewart added: The Parks and Recreation Advisory Committee was given the question of what to do about the beach problem and what policy should be taken by the Commission. The bill before you gentlemen is their answer ... House Bill 1601 is not a land grab. We have the finest beach recreation areas in the nation; and the Highway Commission, through this bill, wants to keep it that way for the public.12 Even in early 1967 few Oregonians were aware they might lose free access to and use of Oregon's beaches. Nor were they aware of the proposed legislation to prevent that loss. Throughout March and April the House Highway Conunittee received testimony from coastal real estate finns, private property owners and others who opposed the Beach Bill. The opposition initially focused on a technicality in the first draft of the Beach.Bill. The line of vegetation was not specifically defined other than to say it e3dsted. The Highway counsel believed that in beach areas where "Talbot, "Highway Department Statement," p. 3. "Loran L. Stewart, "restimony of FIB 1601," cited in House Highway Committee Minutes, March 23, 1967, pp. 3, 5. 26 there was no vegetation, a line could be established by connecting adjacent vegetated areas.13 This technical point was soon overshadowed by a larger controversy involving whether the vegetation line should be used at all. There was other opposition to the bill. Private builders believed the Beach Bill was inadequate unless it provided for certain kinds of non-adverse building sea- ward from the vegetation line, such as buried sewers, cable lines and stairways from private land down to the beach. The advocacy role of the State Highway Commis- sion in protecting public rights was questioned. Some opponents believed the bill would threaten all private property rights on the coast. Others said the real issue was a proposed prescriptive right and that beach front owners should be compensated if the state were to establish public easements to dry sand areas. Opponents claimed the Beach Bill violated both the Fifth and Fourteenth amendments to the U.S. Constitution with regard to private property rights. Others claimed the bill was inadequate in protecting Oregon's beaches because under existing law the state could acquire land only through purchase, grant or condemnation. Still others said public rights to ease- ments and prescriptions were a matter to be determined in a court of law, not by the legislature. Neither Beach Bill supporters nor the opposition, it seemed, were making much headway with the House Highway Committee. The Beach Bill was foundering amid heated committee debate on a proper course of action. On April 6 the committee amended the Beach Bill so that it became a statement of policy, which recognized public rights on the beaches and gave the Highway Commission authority to protect those rights. 14 On April 18 a motion to table the bill and put it into a post legislative interim study committee failed, as did "McKinney Interview. 14 House Highway Committee Minutes, April 6, 1967. 27 another to send the amended bill to the floor with a "do pass" recommendation.15 The House Highway Commit- tee was stalemated. On May 1 Chairman Bazett, a staunch ally of the Beach Bill, warned that without strong public support the bill would die in his cornrrAttee. At the same time, Matt Kramer of the Associated Press launched a series of newspaper articles which clearly described the beach issue to the public. He warned of the possible loss of the public's right to use the beaches should the bill fail. Subsequently, aroused citizens flooded the House High- way Committee with letters and telegrams. Within a few days the conunittee had heard from more than 10,000 persons, most of whom supported the bill.* Daily television coverage and newspaper headlines trumpeted the controversy: "Battle Lines Drawn Over Beach Issue," "Dry Sands Bill Survives Raid by Opposi- tion," "Another New Ploy in the Beach Battle," '"Ibis Sand is Your Sand, This Sand is My Sand." The Beach Bill had suddenly become the'most explosive issue of the 1967 session. In early May there was constant pressure and hectic efforts to get the Beach Bill out of conunittee. Governor McCall and State Treasurer Robert Straub, strong sup- porters of the bill, called for legislative action. On May 5 McCall, with Straub's endorsement, wrote Chairman Bazett: "We cannot afford to ignore our responsibilities "Ibid., April 18, 1967. *One of Kramer's final articles on the Beach Bill was in recognition of Sidney Bazett's efforts to keep the bill alive. He stated that " . . . the only thing that prevented a quiet burial (of the Beach Bill) was the fact that a genial ... legislator turned uncommonly stubborn about it. In fact, there would be no Beach Bill but for Representative Sidney Bazett." (Grants Pass [email protected], July 6, 1967). The public support for the Beach Bill generated by Matt Kramer's news stories was another important factor in its passage by the legislature. He gained national recognition for contributing to greater public understanding and awareness of natural resource issues. After his death in 1970, the Oregon State Highway Commission erected a memorial plaque in his honor at Oswald West State Park. 28 to the public of this state for protecting the dry sands from the encroachment of crass commercialism. `6 On May 8 House Democrats tried unsuccessfully to remove the Beach Bill from the House Highway Commit- tee. Their motion failed on a roll call vote.17 House Speaker F. F. Montgomery (R-Eugene), Representatives James Redden (D-Medford), Lee Johnson (R-Portland) and Paul Hanneman (R-Cloverdale), and highway legal counsel George Rohde all worked feverishly, drafting amendments to the bill. One news report stated: "Amendments to the Beach Bill littered the legislature like drift wood." Chairman Bazett added: "We've got amendments coming out of our ears."18 The furor continued. A pro-Beach Bill group, Citizens to Save Oregon Beaches, headed by Laurence Bitte of Portland, threatened to begin an initiative petition if the legislature failed to approve the bill. House Speaker Montgomery on May 11 offered Beach Bill amendments (which were essentially a substitute bill).19 Montgomery's amendments recognized property rights of both public andprivate citizens and established as a boundary line 200 feet landward from the ordinary high tide line. His proposals drew fire from both political parties and enmeshed conunittee members in a new dispute. Chairman Bazett charged Montgomery had watered down an already weakened bill. Straub called it tt... the most scandalous giveaway of public rights in this 1320 country. In testimony before the conunittee Straub said the original bill emphasized prescriptive rights which the "Harold Hughes, "McCall Slaps GOP's Tabling of Beach Bill," 7he Oregonian, May 5, 1967, p. 1. 170regon Senate and House Journal, 1967. 18Y7z-- Oregonian, "Legislative Rebellion Expl6des Over Beach Issue," May 13, 1967, p. 1. 1911ouse Highway Conu-nittee Minutes, May 11, 1967. 'Harold Hughes, "Uproar Spurs Public Hearing Over Beaches," 7he Oregonian, May 11, 1967, p. 1. 29 public had acquired through its historic use of the beach. Passage, he said, would prevent a take-over by private interests and give Oregonians time to fortify their legal claim to the beaches.21 From the beginning Governor McCall urged the legislature to pass a substantive bill protecting public rights to dry sand areas. Since much of the controversy was over an acceptable boundary line, McCall asked nine experfsat Oregon State University, including engineers, oceanographers, biologi s*ts and geologists to develop a boundary formula. On May 11 McCall issued a statement announcing that he would personally visit the Oregon beaches to test the scientific formula for beach defi- nition.22 The day before McCall's beach visit, the House Highway Committee met without Chainnan Bazett, despite the chairman's refusal to call a meeting. He feared members would pass a bill out of committee to embarrass the governor, and before McCall had a chance to add technical language to the bill. But, the committee agreed only to draft more compromise amendments, and asked Representatives Redden and Johnson, House Speaker Montgomery and highway legal counsel Rohde to cooperate in the task.13 On May 13 Governor McCall walked along five beaches between Salishan and Neskowin, accompanied by his team of experts, Representative Bazett, and a throng of aides, press and observers. The governor and his team subsequently offered a single rule of elevation to help solve the Beach Bill controversy. Their recom- mendation was a beach line at 16 feet above the sea level markers already established by the U.S. Coast and Geodetic Survey. The 16-foot elevation was written into the compro- 2'House Highway Committee Minutes, ',%lay 11, 1967. "Mecommendation by Governor McCall for Preservation of Oregon's Beaches," Office of the Governor, State Capitol, May 11, 1967. 23House Highway Committee Minutes, May 12, 1967. 30 mise amendments and presented to the House Highway Committee on May 16. But the conunittee balked at McCall's proposal. They said the elevation was too high, and first adopted a 12-foot elevation line instead.' Members argued that in some cases the 16-foot elevation line did not include the entire beach. In other cases, especially around estuaries, it extended beyofid the beach area. After more lengthy debate, on May 18 the committee finally agreed on the 16-foot elevation above sea level and a 5.7-foot elevation plus 300 feet at estuaries .25 The compromise gained the support of Gov- ernor McCall, State Treasurer Straub, House Speaker Montgomery and Representatives Redden and Johnson. The House Highway Committee recommended that the State Highway Commission survey the entire coast to establish a permanent zone line for approval by the next 26 legislative session in 1969. Representative Fred Meek moved to send the Beach Bill to the House floor with a "do pass" recommendation. His motion carried by a vote of 8 to 2. Representatives Paul Hanneman and Rod McKenzie voted against the motion. After ten hearings and thousands of words of testimony, the amended Beach Bill reached the floor of the House of Representatives on May 23, 1967. It passed the House 57 to 3. The bill was then referred to the Senate Judiciary Conunittee.* A number of amendments were adopted, including a re-statement of the policy declarations to clarify legislative intent re- garding the public's recreational right on the beaches. The Beach Bill passed the committee unanimously and was approved by the Senate 27 to 0 on June 6. The House 141bid., May 16, 1967. 251bid., May 18, 1967. 2'House Highway Committee Minutes, "Statement Concerning HB 1601," May 18, 1967. *Committee members were Senators Mahoney, chairman (D-Portland), Yturri, vice chairman (R-Ontario), Boivin (D-Kiamath Falls), Burns (D-Port- land), Cook (D-Gresharn), Eivers (R-Milwaukie), Fadeley (D-Eugene), Hus- band (R-Eugene), Lent (D-Portland), McKay (R-Bend) and Willner (D-Portland). 31 of Representatives, despite substantive Senate amend- ments, passed the bill 36 to 20 on June 7. With this victory the legislature declared a new policy in preserving and maintaining the state's jurisdic- tion over ocean beaches. The bill codified into law already existing public rights to dry sand beaches. It gave the State Highway Commission the authority to police, protect and maintain the property. The law included the stipulation that any improvements or alter- ations to * the ocean shore seaward from the 16-foot elevation line (construction and fill or removal) required a permit from the state highway engineer. The bill provided for hearing procedures, and an appeal process for private property owners or developers. The essence of the Beach Bill, enacted as Chapter 601, Oregon Laws 1967, stated that the legislature: ... recognizes that over the years the public has made frequent and uninterrupted use of the ocean shore ... sufficient to create easements in the public through dedication, prescription, grant or other use . . . the Legislative. Assembly hereby declares that all public rights ... are vested exclusively in the State of Oregon. Governor McCall signed the bill into law on July 6, 1967, stating that ". . . it is one of the most far reaching measures of its kind enacted by any legislative body in the nation.,,27 Immediately after the Beach Bill became law the State Highway Commission, as requested by the 1967 legislature, began a survey of the entire coastline to establish a permanent landward beach zone line. The 27 Th__ [email protected]_egonian, "McCall Hails Beach Bill," July 7, 1967, p. 13. Ironically, within two weeks the Highway Commission publicized plans to re-route a section of the Highway 101 along the Nestucca sandspit (through two parcels of BIM land). The proposed route, supported by Governor McCall, was landward of the 16-foot line. Nevertheless, the plan was opposed by State Treasurer Straub and manv citizens who believed the route would desecrate the beach. In late August, 1967, Secretary of the Interior Stewart L. Udall ordered the Bureau of Land -Management to disapprove the Highway Commis- sion's plan. The issue was re-opened in September, however, bv Governor McCall, and more controversy ensued until late November when a final decision was made to abandon the sandspit route. 32 commission used survey points keyed to the Oregon Coordinate System* and connected the adjacent points with a straight line. The resulting survey line, which approximates the actual vegetation line, has proved to be more practical, than either the vegetation line or the 16-foot elevation line. The survey points were introduced to the 1969 legislature in HB 1045. The bill also included an amend- ment that all beach lands subject to public recreational easement would be exempt from taxation. It was ap- proved without conflict and was signed by Governor McCall on August 22, 1969.11 *Assistant Highway Engineer Lloyd Shaw developed the survey method based on the Oregon Coordinate System, which is part of a nationwide grid system of latitudes and longitudes. The survey points or coordinates are keyed to the grid. When using this survey method, the result is a horizontal control rather than vertical elevations above sea level. In the case of the beach boundary, this method of survey was preferable because the resulting zone line is unaffected by natural changes in the beach terrain. 2480regon Laws, 1969, Chapter 601. 33 PENNSYLVANIA According to Pennsylvania law, the beach belongs to the riparian property owner. Thus, there is no point in establishing access ways across private property to the shore, since the shore is not a public area. Pennsylvania coastal program administrators are concentrating instead on opening up a series of small access points along Lake Erie to the west and the Delaware River to the east. Conventional tools such as fee simple purchase, easements, and leasebacks are being used to acquire public access in rural areas. The encouragement of multiple use areas (public use of private land) through a package of negotiated incentives is being investigated for urban areas. Three hundred five funds are currently being used to fund four feasibility studies investigating the recreational and public access potential at four sites: one at each end of the Lake E rie shoreline and one at each end of Pennsylvania's Delaware River shoreline. State coastal program administrators are currently assessing the legality of negotiating with private owners of undeveloped shore- front property for public access during the undeveloped period in exchange for such development bonuses as tax breaks, increased lot coverage, etc. Three hundred six funds are being used for a program which gives technical assistance to localities to teach them how to re-write ordinances to include sliding scales, waiver procedures, and negotiation bases for effecting these trade-offs. Where possible, pro- gram administrators hope to be able to continue public use after site development through negotiated weekend use of the parking lot and the development of a boat launch ramp. Puerto Rico Puerto Rican law states that "space on the toast-that is bathed by the sea in its ebb and flow" is included in the maritime zone and is therefore in the public domain. There are two notable exceptions to this. First, beaches on the federal military reservations at Roosevelt Road and Vieques are exempt from this provision. Second, Spanish Crown Grants, issued prior to 1886, may authorize some private landowners to exclude the general public from some beach areas, although-the number of such grants and their legal validity is unclear. The provision of perpendicular access to the public beach across private property is the current concern in Puerto Rico. The Puerto Rico Planning Board has adopted the following policy toward shorefront access: "Avoid construction of structures in beach areas and discourage those activities or land subdivisions in neighboring areas which would impede and/or prevent free physical access to these areas." The Puerto Rico Coastal Management Program, adopted in 1978, states two shorefront access policies. First, if any beach which is presently owned by the federal government is declared surplus, it shall be held. for permanent recreational use by the general public unless a more appropriate use is determined to be in the interest of general welfare. Second, shorefront development, whether public or private, shall, if practical, be designed to facilitate rather than obstruct shoreland access by the general public. Since the approval of the Puerto Rico Coastal Management Program, Law #14 (as of 2/7/79) has been passed, requiring that access be Puerto Rico Page 2 provided in new developments adjacent to the beach. The Department of Natural Resources has granted 306 funds to the Puerto Rico Planning Board to prepare a regulation to enforce this law. The final version of the regulation is due to be published in June 1980. SHORELINE ACCESS AND PROTECTION: AN ADDITIONAL ELEMENT OF THE PRCMP INTRODUCTION The accompanying material on shorefront access.and protection is In two parts: 1. A summary of relevant federal requirements and of the ways in which Puerto Rico proposes to respond to them. For convenience in deter- mining compiiance with federal requirements for the shoreline access element, a brief summary describes the requirements and the ways in which Puerto Rico proposes to respond to them. This summary con- stitutes the required Shoreline Access and Protection element of the P110P. 2. A reprint of the section on Beaches, pages 70-89, of the PRCMP. The PRCMP, as originally adopted, contains a long section on beaches. That section describes Puerto Rico's shoreline access problem. The section also establishes policies and proposes ininlementatior measures to cope with those problems. Because this section provides essential- Information on Puerto Rico's shoreline access program, the section Is set forth here for convenience. PART 1: SUMMARY OF FEDERAL REQUIREMENTS ON SHORELINE ACCESS AND PROTECTION AND PROPOSED RESPONSES To meet the requirements of Section 305(b)(7) of the Coastal Zone Management Act, the Coastal Management Program must include a planning process that can identify public shorefront areas appropriate for access or protection. 'This process must include the following five elements: (1) A procedure for assessing public areas requiring access or protection; (2) A definition of the term "b each" and.an identification of public areas meeting that definition; (3) Articulation of enforceable State policies pertaining to shorefront access and protection; (4) A miethod for designating shorefront areas (either as a class or site specifically) as areas of particular concern or areas for preservation or restoration, if appropriate; and (5) An identificat'ion of legal authorities, funding programs and other techniques that can be Used to meet management needs. Assessing Rublic areas requiring access or protection The staff of the PRC'MP has conducted a field Inventory of beach access. This field Inventory considered such factors as shore- line characteristics, means of access, parking and other facili- ties, distan ce from other accessible beaches, recreation poten- tial, ownership, uses of adjacent property, scenic values and visual access, impediments to access, and distance from' urban areas. The asses-Iment of shoreline protection needs has been accomplished through the procedure for Wentifying areas of particular concern (discussed on pages B-7 to 8-8 of the [email protected])*. This procedure in- volved an inventory of natural and man-made coast.al resources and consideration of a number of factors specified In federal regulat;ons. (2) Defining the ierm "beach" and Identifying areas meeting this definition The following definition of the term "beach" appears an page B-5 of the PRCMP: .Beaches are defined as unconsolidated shores of sand or gravet. The nature and origin of the materials that form the beach can be terrige-nous, marine,.or volcanic.- The particle size can range from 0.625 to 128 mim., which in- cludes the size c-lassifications for sand,-pebbles, and cobbles. Beaches are identified on Maps 3 and 11 of the PRCMP. Public'ownership of beaches is di-scussed on pages 71.72 of the PkCMP. .11ith exceptions noted there, beaChes and other coastal areas that are "bathed by the sea in its ebb and flow" are public domain. M.Policies pertaining to shorefront access and protection The objectives and policies element-of the Planning Board's island- wide Land Use Plan establishes the following policy on beach access: To avoid unnecessary loss of options for future use of these resources resulting from the establishment of new activities or from the authorization of new s'ubdivisions, considering among others the fullowing criteria: Avoid the construction of structures in beach areas and discourage those activities or land subdivisions in neighboring areas which would impede/or prevent free physical access to these areas, the free appreciation of panoramic views, and the free access to the sun and its enjoyment bythe citizenry. (Policy 17.04) The PRCMP establishes the following additional policies on shor'e line access: APPROPRIATE ACCESS TO FEDERAL BEACHES HEREAFTER DECLARED SURPLUS. If any beaches now owned by the.Federal government in Puerto Rir-o are hereafter declared surplus to the needs of the Federal government, such beaches shall be held for [email protected] recreational use by the general public unless*more appropriate use is deter- mined to-be In the general welfare by the Government of Puerto RICO. (F-age 73) 3 PUBLIC ACCESS TO BEACHES, Shorefront development, governmental and private, shall, if practical, be designed to fa--ilitate rather than obstruct shoreland access by the general public. 1t is recognized that the general welfare sometimes requires access restriction ([email protected], to protect.critical environmental areas, to protect endangered species or for public safety and for security reasons). Nevertheless, de facto segregation of public beaches, as a result of development patterns that facilitate use by shore- front-landowners while preventing access by the general public, Is rejected in Puerto Rico. (Page 75). In add i t ion, the Law fo-r the Conservat i on and Deve lopment of Cu lebra (Act No. 66 of June 22, 1975, art. 6) bars development on Culebra that "may interfere in any way with the free access of the publ,ic to the sea and beaches...." (Discussed at Page 75 of the PRCMP). (4) Designating shorefront areas of particular concern The PRCYP includes a procedure for designating areas of particular concern and areas for preservation or restoration. The PRCM? desig- nates seven specified areas and all mangrove wetlands as Special Planning Areas (areas of particular concern). In addition, 26 areas are recommended for designation as Natural Reserves (areas for preser- vation or restoration); actual designation will be accomplished by future [email protected] or administrative action. -in the future, the Coastal Management Unit may recommend the designation of additional Special Planning Areas or Natural Reserves (discussed at Page 169). Special Planning Areas and Natural Reserves include areas where the provision of shorefront access or protect'lon is an Important consider- ation. For example: Important beach and dune areas are Included In the Isabela, ..and Boca de Cangrejos Special Planning Areas. 14ona and Konito Islands are recomrended Natural Reserves. Vieques (non-federal portions.only) is designated as a Special Plannl.ng Area. 4 Shorefront.access and protection needs will be considered.in pre- paring detailed management plans and policies for Special Planning Areas and.Natural Reserves during the 306 phase of the coastal management program. Identifying lecal' authorities,,fundinq sources A complete discussion of legal authorities to implement policies and management techniques identified in the PRCMP is included in chapter 4 of the PRCMP.- Of particular importance in r egard to access are: a) statutory provisions to assure-compliance with adopted plans (including the PRCMP policies on access); and b) regulations-on Zoning (Reg..No. 4), Community Facilities (Reg. No. 9), and Simple Subdivisions (Reg. No. 11). (See also the discussion of these regul'ations on pages 85, 86 and 77 of the Beaches section of the PRCMP.) The PRCMP rt-commends a number of additional measures --.refinemcnts or wholly new measures which will improve the Commonwealth's ability to implement the access policies.. These are d;scussed on pages 72-86 of the PRCMP. Funding sources for.shorefront access, which are discussed on page 78 of tha PRCMP, include: - section 315(2) of the Coastal Zone Management-Act - Land and Water Conservation Fund (LAWCON) lathile these appear to be the major potential sources for funding purchase of accessways and shorefront areas, the'following additional sources have been identified: the Comm6nity Development Block Grant'Program. Under the Department of Housing and Urban Development's Block Grant Program, land acquisition for preservation and open space Is a fundable activity. In some cases, block grants may be used to provide the local matching shar-e*for other federal aid programs. the Dingell-Johnson and Pittman-Robertson Programs. The U.S. Fish and Wildlife Service administers two programs for fish and-wildlife restoration projects, which provide cost-sharing grants for land acquisition and management. Fish restoration funds, for example, have been used by some states to improve Inadequate access to fishing waters. (FWS also provides funds for acquisition of lands for endangered species conservation.) Highway Research, Planning, and Const,ruction. The Federal Highway Administration provides formula grants to state high- way agencies for highway research, planning, and construction. Land acquisit-ion may be funded an'd, for example, could be applied to bikeways or pede'stri.an walkways. In addit.ion to the above, programs which could provide funds for acqui- sition for protection purposes include: Estuarine Sanciuraries Program. The.Office of Coastal Zone Management [email protected] matching (50".) grants for the acquisition, development, and operation of estuarine sanctuaries., Historic Preservation. The Heritage eonservation and Recreation Service provides grants.to st;-tes for historic preservation, Including acquisition 'of historic properties. At the Commonwealth level, the Recreatioinal-Development Company, which administers Land and Wate'r Conservation (LAWCON) funds in Puerto Rico, has identified a list of land acquisition and development projects.for which these funds will I>e utilized.* (See the 1977-198u SCORP.) The Puerto Rico Conservation Trust, organized as a charitable trust with governmentally-appointed trustees, [email protected] a fund of several million dolla rs (contributed by some of the Island's major petroleum refiners) for acquiring or preserving natural areas. 'The Trust has tcquired a number of key coastal properties In recent years. PART 2: REPRINT OF BEACHES SECTION OF THE PRCMP BEACHES INTRODUCTORY FINDINGS The beaches of Puerto Rico are coastal resources of great importance. These beaches vary from tiny pockets to broad deposits as much as a kilometer in length (e.g. Mediana Beach in Loiza, Levittown beach). Beaches are of incalculable importance to Puerto Rico for recreation and tourism. Some 109 kilometers of the islands 608 kilometers of beaches are naturally suited to be prime recreation beaches. These are shown on Map 11. In addition, beaches are important for the protection of natural resources. For example, beaches on Mona and some other offshore islands are known nesting sites for sea turtles, including some endangered species. (See the section on Wildlife.) Composition of the individual beach systems is dependent on the source of available beach materials. There are three dominant mineral assemblages which characterize Puerto Rico's beaches: Quartz sands with some feldspar; volcanic rock, serpentite, heavy mineral assemblages; and calcium carbonate sands. The isolation of individual beach systems is emphasized by striking differences in composition between many adjacent beaches. 0 Extraction of sand from beaches, long a cause of severe damage, is no longer extensive. In the past,beaches were stripped Of virtually a11 their sand, which was then cold for use in construction. At preseat, however, there are no outstanding Commonwealth. permits for sand extraction from beaches.* There does remain a problem of unauthorized extraction (*as discussion in the section on Dunes);but beaches are no longer a major resource fur the unauthorized extractors, who now prefer river-mouth and other deposits. Erosion and water.pollution affect beaches at well so other parts.of the coast. Erosion has drastically reduced the size of come beaches; responsive measures ate considered in the section on Coastal Erosion. Water pollution interferes with full recreational as* of same beaches, notably in the Condado and Ocean Park sections of San Juan, where the Environmental Quality Board has found it necessary to place pollution-warning signs. Several additional obstacles prevent recreational enjoyment of beaches by the general public A. Legal barriers exclude the public from a few beaches. B. Some beaches, though legally public, are inaccessible because the public cannot cross adjoining land. Obstacles to access may be legal (no right of postage). or practical (a.g. no automobile access or parking area). C. When recreational users teach the beach (or another part of the coast.). they may find that squatters got there first. D. Nearby highrise buildings may ease shadow& or visually dominate the beach. E. the narrow strip of beach available to the public may prove too small for optimum recreational use. F. Inadequate public services--notably beach cleaning--may render the beach less enjoy- able., These obstacles all of which must be overcome to assure optimum present and future use of beach resources, ate discussed below. .A. ASSURING THE PUBLIC'S LEGAL RIGHT TO USE THE BEACHES THEMSELVES FINDINGS Most beaches in Puerto Rica are legally open to use by the general public. The also, Federal law apparently prohibits extraction of sand from submerged leads (below case high tide). Sea discussion above in the section on reefs. 0 space on the coasts ... that is bathed by the sea in its ebb and flow is included 1 2 in the Maritime Zone (rona maritimo-terrestre). The maritime zone is public domain. The principal exceptions are beaches on the Federal military reservations at Roosevelt Road& and in Viecues. A number of additional beaches formerly reserved for recre tional use by military personnel (a.g. "Crashboat" in Aguadqilla, Punta Sardindinas) are now available for public use. Spanish crown grants, issued prior to the Law of Ports of 1886,may authorize some private landowners to exclude the general public from some beach areas. The number of such grants, their legal validity, and the beach areas subject to them are uncle&-.. Some proprietors do assert rights under such grants, however. The absence Or uncertainty of public right to use a few beaches is a problem to be addressed as opportunities present themselves, lot 1. Registration of crown grants More information is needed to determine whether or not crown grants represent a significant potential threat to open beaches in Puerto Rico. To deal with similar uncertainties, the Commonwealth's recently enacted Water Law (Law No. 136 of June 3. 1976) requires regisatration of crown grants to water supplies. There is no comparable IRV, however, to deal with crown grants that may autho ize exclusion of the general public from any portion of the maritime zone. The statute should establish a reasonable registration period, of perhaps one yea-, fter which (1) unregistered grants would be void, and (2) the validity of registered grants would be expeditiously adjudicated in a manner fixed by the statute. The legal status of the Caribe Bilton Hotel site, formerly part of the San -Juan Naval Station and now held by a Commonwealth goverment corporation under a 999-year lease granted by the, Federal government, is unique and unclear. (See opinion of the Attorney Central of Puerto Rico, November 25, 1970. and La Habs vs. Trib de Contribution uciones 76 DPR 923 (1954); a right to exclude the public from a beach on that site has been asserted. The federally owned beachs of Culebra are discussed in the Culebra Segment of the Pueto Rico Coastal Management Program. 72 0 2_Surplus Federal lend NEW POLICY ESTABLISHED. From time to time, the Federal goverment has declared come of its coastal holdings to be surplus. Future declarations,of this type. may present-opportunities. to extend beach access. The following policy- is hereby established to take advantage of any such opportunities that may arise; APPROPRIATE ACCESS To FEDERAL HEREAFTER-DECLARED SURPLUS. If any beaches now owned by the Federal government in Puerto Rico are hereafter declared surplus-to the needs of the Federal goverment, such beaches shall to. the maximum extent- practicable be bold for permanent recreational use, by the general public.unless core appropriate use is determined-to-be.in the general welfare by the, Goverment- of Puerto Rico.. B-. PUBLIC ACCESSS TO THE COAST*- FINDINGS Some beaches, though legally public, art inaccessible because the public cannot cress adjoining land to reach them. In some places. there'is no legal i ght to cross the adjoining land. In others, a right of passag* exists. but there are practical obstacles to access- most often an absence of vehicle access of parking space. Lack of access to the coast has not traditionally ranked high among Puerto Rico's problems. In town* and cities traditional street patterns often provided access. In the country, fishermen and others needing access were often able to cross shorefront property-sometimes with a legal right of passage, sometimes without one. *A planning process for abbrealine accesss is now being developed in accordance with Section 305(b)(7) of the CZMA. 73 0 The access problem has attracted most attention in the northeast part of the Island, where several shorefront proects are concentrated in outlying areas close to the San Juan Metropolitan Area. Unless new shorefront development provides access at least equivalent to that provided in the past, exclusion of the general public from public beaches could becaome a serious problem. As the citizens report Puerto Rico and the Sea put it: " In the past Puerto rico has rarely encountered the beach exclusion problems that plague so many places in the United States and the Caribbean. The Island could wll experience them in the future, however, together with the resentments ands tensions they inevitably create. Steps are needed, and needed now, to assure that they do not arise as a result of development being approved. There are several kinds of opportunities to provide needed access. Requiring access at new shorefront development appears to present the most important of these opportunities. Policy The objective and Policies elements of the Planning Boards land use plan establishes the following the following policy on public access to beaches: "to avoid the unnesessary loss of options for future use of these resources resulting from the establishment of new activites and from authorizing subdivisions. the the following criteria, among others must be condiered: Avoid the construction of buildings in beach areas and discourage activities or land subdivision in neighboring areas which would impede free physical access. 0 to these areas, prohibit the appreciation of panoramic view.and prevent free* access to end enjoyment of the sun by the citisoary." (See Policy 17.D4.) no statute-, however,formally establishes for all of Puerto Rico, an access policy like the one established for Culebra. Thera. a statute bars development which "may interfere in any-way with the free access of the public to the sea 3 and beaches..." NEW POLICY ESTABLISHED.. The following policy in hereby established. PUBLIC ACCESS TO BEACHES. Shorefront development, govermental and private-shall if-practical,be:designed to facilitate rather than obstruct shoreline access by the general public-. It is recognized that the general welfare-sometimes requires access restriction (a-&. to protect critical.environmental arena, to protect endangered species' or for public safety and for security reasons). Nevertheless do-facto segregation-of public,beaches,as a result of development patterns that facilitate use by-shorefront. landowners while preventing access by the general public, is-rejected in,Puerto, Rico. 73 IMPLEMENTING THE P0LICY 1. Need: Beach access plans. To provide guidance in safeguarding and increasing access, there is need for a beach access plan designed to assure maximum feasible coastal access by the general public. The plan should take account of: ..the varied character of the coast from place to place (e.g., the long, continuous beaches in some areas, the tiny beaches and rocky headlands in others). ..the varied ways people enjoy using the coast (e.g., picnicking, sports, birdwatching) and the opportunity to plan access arrangement to restrict come areas for less intentive uses. "There is no need to make all shore- front access equally convenient: Some of the more rugged areas can be effectively reserved for the hardy few."5 ..the varied means by which access can be established. For example, coastal access can be assured by designing new shorefront highways at locations that preclude the construction of buildings between the highway and the coast. Access can also be provided by providing a series of intensive-use facilities (such as Luquillo Beach), with nearby shorelands accessible to those who walk along the shore from those facilities. Other possibilities include permitting pedestrians access from a street near the shore and providing a place to park, or access by biking or boat alone if the firm intent is to preserve the area in its undeveloped form. ..the need for public facilities (including, where appropriate, highways, public beach installation, parking facilities, pedestrian access ways). These must be sufficient to remove physical obstacles that could exclude the general public from the maritime zone. They must also be sufficient to assure that public access does not itself prevent enjoyment of the beach (a.g., where cars are parked on the beach itself). Since it is impractical to provide optimum facilities for all 109 kilometers of potential recreational beach, the plan should establish priorities. 2. Requiring new shorefront projects to provide access The Planning Board has used the development control process, described in Chapter 4, to implement a longstanding policy of requiring public accessqways at shorefront 76 projects. Approval of the Corronar Hotel, for example, was conditioned an the 6 establishment of a public accassway from the hotel parking lot to the beach. Similarly, construction of an access road to the beach was required between the 7 Ric Mor project in Rio Grande, and an adjacent project. In requiring accessways in projects such as these, the Board has apparently relied principally on its discretionary review powers. The only regulation requiring accessways through coastal devolopments in Planning Regulation No. 11, the Simple Subdivision Regulation) which applies only to small subdivisions. Even Regulation No. 11 does not prescribe access requirements in any detail. As a result, specific access arrangements are established on an ad hoc basis for each project, without detailed policy guidance and usually without public awareness or discussion. The resulting arrangements vary from project to project and sometimes provide little access opportunity. Need: Regulation or statute specifying access dedication requirements. A reg- ulation or, preferably, a statutep should establish with certainty the obligation of shorefront developers to provide public accessways and should specify the nature of that obligation in as much detail as possible. The following requirement is recommended: Require Access Through New Developments. New developments shall provide public accessways to the shoreline except in those cases where it is deter- mined that public access is inappropriate, each as where (1) adequate access, exists nearby, (2) the topography makes access dangerous, (3) the proposed development is too small to include an accessway,.(4) the coastal resources are too fragile to accommodate general public use, (5) public safety or military security precludes public use, or (6) the public accessway would adversely 9 affect agricultural uses or natural systems. Any decision that public access is inappropriate shall be consistant with a beach access plan recommended by the Secretary of Natural Resources and adopted by the Puerto Rico Planning Board. 77 The regulation or statute should assure that the accesssway is permanent. The -following is recommended: In private developments, public access shall be ensured (1) either by dedication of fee title or an casement for the reserved accessway to a public agency, or (2) by the recording of a deed restriction, at the owner's option. Dedicated access- ways shall not be required to be opened to public use until a public agency or private association agrees to accept responsibility for maintenance and liability for the accessway. So that the general public may be aware of arrangements made for its access to the coast, the regulation or statute should require public notice and hearing before approval of any shorefront development. 3. Government purchase of accesswave The beach access plan, recommended above, may show that public purchase of land (or rights-of-way) is appropriate to provide access to some portions of the coast. This could be true, for example, in some rural areas where access is blocked and where no shorefront development is planned. Federal financial assistance may be available to assist in the purchase of access- ways: The Federal Land and Water Conservation Fund Act of 1965 enables the Heritage Conservation and Recreation Services to provide funds to Puerto Rico for outdoor recreation areas and facilities. A recent amendment to the U.S. Coastal Zone Management Act (Section 315(2)), authorizes Federal aid for the acquisition of land to provide for access to public beaches and other public coastal areas of particular value. To obtain Federal aid under these programs, however, the Commonwealth must provide matching funds. In the future, competing demands for funds may leave the Common- wealth unable to afford substantial amounts to acquire beach accessways. 78 Need: Plan element evaluatin need for acquistion to provide acess. The beach access plan, already recommended, should evaluate the need for Commonwealth purchase of additional accessways and should identify accessways whose acquisition has high- est priority. A.. Allowing public passage across shorefront property already owned bv the Commonwealth or, public corporations The public is excluded from some beaches by property owned or leased by the Common- wealth or public corporations. It nay be possible to open one or more of these properties without sacrificing resources or other public At needs and without Need: Plan element evaluating feasibility of providing passage. The beach access plan already recommended should (1) identify all shorefront properties. owned by the Commonwealth or public corporations, that could be made accessible to the general public; (2) identify inaccessible beaches that could be made accessible to the general public by allowing passage across those properties; (3) determine the feasibility of pro- viding,passage. consistent with public safety security.and resource protection. 5. Protecting and clarifying existing accessways Law and customary use way have crested important access rights to the coast. Pro-- tecting and clarifying these rights appears to present a limited, but still implor- taut. opportunity to assure adequate access. a. Rights of way from time immemorial. " Where the public boa passed across prop- erty from "time immemorial." a legal right of passage exists. Use must have 10 begun so long ago that "man cannot remember" the some at when it began, and 11 prior to 1989. when the Civil Code want into effect. Need: Identification of immemoriol rights-of-way. The beach access Inventory. -already recommended. should identify longstandind accesways that any have been used since 'time immorial." If affected property is later developed, these accessways should be protected. In a few cases. the passages may be important enough to warrant the bringing of judicial proceedings or other measures to pro- -tact or clarify their status. 79 The burden for proving immemorial usage is heavy, however,so the opportunity to guarantee access by proving immemorial usage seems correspondingly limited. b. Other rights of way. Except for immemorial right-of-way, prolonged public use *rarely results in a legal right of passage scrota private property in Puerto Rico.* Assertion of prescriptive rights accordingly appears to present few opportunities to assure beach access. c. Servidumbre de vigilancia. The Law of Parts of 1886 establishes a servidumbre de vigilanciis ("casement of vigilance"), apparently to facilitate the govern- mental function of patrolling the comets.** The servidumbre adjoins the ari- time zone, extending inland six meters from its landward edge; where the cix- meter strip is impassable, shorefront landowners must permit authorized people 12 to pass at a convenient place nearby. The servidumbre, if still valid, may create a highly beneficial right of access. As citizens' report, Puerto Rico and the Sea noted: Today, as concern about pollution and its consequences (such as fish kills and oil spills) accentustas age-old needs for vigilance over coastal areas. it is essential that the existence of the servidumbre be definitly determined, publicized and enforced,The servidumbre creates. for purposes of coastal vigilance and alto perbaps for the purposes, right of passage along the entire coast of Puerto Rico. To create such a -right new, if it did not 15 already exist, would be enormously burdensome and expensive. The validity and interpretation of the servidumbre are unclear, however. 16 Statutory clarification has been suggested. *Only riqhts-of-way that are continuous and apparent may be acquired without title. See Civil Code, Ar.t.475 (31 LPRA 1653). An even prolonged, continuous use has been interpreted as a use tolerated by the owner, who may prohibit it at any time. See Goenage v. O'Neill. 1962,85 DFR 170; Martin v. Correa. 1934, 76 DFR 12; Unet v. Legistrador, 1945, 65 DPR 489; Polanco,v.-Ruiz, 1939, 55 DFR 785. **The came law establishes a servidumbre de salvamiento (easement of salvage and life saving), extending 20 meters inland, apparently for the benefit of ship- wracked sailors and fishermen driven from the sea by storms. Even if this servidumbre remains legally valid, it appears to create no access rights enabling the general. public to get from the highways to the coAsts. And access rights treated appear to run from sea toward land, not the other way around. 50 good, Statute reaffirming legal validity of servidumbra. To remove present legal uncertainties beach.access legislation should include provision rags(- firming the continuing legal validity of the servidumbre do vigiloncia. C. REMOVING SQUATTERS FROM THE COAST FINDINGS Squatters have built structures on public proparty both lands and waters at several coastal locations. The moat widely known of these inversions have occurred at La. Parguara (Lajas), El Combat (Cabo Rojo). and Culebra.* squattering creates problems of exclusion and pollution.Squatters.relatively few in number,exclude the general public from the public space they occupy. They also do- spoil nearby areas, particularly by creating problems of sewage and solid waste disposal. The squatter problem along the coast of Puerto Rico has two origins. 'One. which is, not limited to public lands on the coast, arises from an acute shortage of housing for poor people. The other arises typically, from the desire of well-to-do people to have a second home for use on weekends and vocations. The problem Particularly the removal of established squatters, is exceeding dif- ficult to solve, Even though squatting is illegal. the removal of existing squatter homes presents delicate issues requiring sensitive handling. Some squatttr communities have existed lot many years, and squatters have come to expect that they will continue. Removal becomes even more difficult when,squatters have no other homes.- RESPONDING TO THE FINDINGS 1. Controlling future land invasions The Commonwealth has established a detailed administrative procedure that permits rapid action by the responsible agencies to terminate now land invasions and prevent 2 expansion of old ones. The squatter problem in Culebra as well as the special lawas and programs established to respond to it, are discussed in the Culebra Segment of the Puerto Rico Coastal Management Program. 81 2. Existing invasions by squatters who have no other homes Lav No: 132 of July 1975, enables come squatters to Obtain title to the public land they occupy; titles are available only to squatters who had built a home and live? in it when the law was passed, and who had no other home. 3 beaches however. being public dorain. cannot be privately owned. Therefore, I squatters on beaches (or any other part of the maritime zone) cannot obtain title 4 to the. land they occupy. In Culebra, squatters on public domain land may be removed, but a home must 5 generally be provided for squatters who have no other home. There is no compar- able statutory right to a replacement home. however, for squatterrs removed from public domain lands elswhere in the Commonwealth. Needs: Housing for squatters. To permit removal from public domain in lands of squatters who have no other home, there is need to provide the= with adequate housing elsewhere. 3. Other invasions of coastal lands and voters The Commonwealth's Public Service Commission issued an,adminitrative order in 1970 against the owners of summer homes built in coastal waters at La Parguera. A legal challenge ensued, which was finally resolved in 1976 in favor of the squatters; the Supreme Court of Puerto Rico concluded that the Public Service Commission lacked 6 jurisdiction in the matter. Need: Sensitive regulation of established squatter communitites. Provision of bous- ing for needy squatters, though essential, is not a sufficient governmental response to the problems created by established squatter communities.In dealing with long- standing communities. such as that of La Parguera,the govrnment must somehow take account of squatters' expectations developed during years of occupancy.Yet it must also respond to the problems of exclusion and pollution that squatters create. Regulations responsive to these multiple concerns ate now being prepared by the Department of Natural Resources for application at La Parguara and are expected to be issued in the summer of 1978. These would continue the present prohibition of new squatter homes, would prohibit rebuilding of existing house destroyed by fire -82- er storm and would require squattors to pay a reasonable rent for the public space they occupy for homes piers., The regulation would further require each, home to tap into a newly constructed sewer system or for offshore. house where that is impossible, to provide tertiary treatment of sewage before dicharge. PROTECTING TEACHES AGAINST THE SHADOWS AND VISUAL DOMINATION OF HIGH-RISE BUILDINGS FINDINGS Bighrise buildings on shorefront property cast shadows on some public beaches and dominate them visually. In the Condado and Isle Verde sections of the San Juan Macro- politan Area, tell buildings cast shadows on public beaches favored by sunbathers; during the winter tourist season, large sections of the beach are shaded during much of the day. Moreover, these buildings psychologically dominate the beach, detracting from its appeal as a natural recreation site. (see illustration, next page.) Future development need not cast shadows on public beaches and other coastal areas. At the winter solitice, when northern shadows are longest, the longest shadow between 10:00 a.m. and 4:00 p.m. ( about 2.9 times the height of the structure. If future buildings are not back that distance, they will not cast a shadow on the publicly good Visual donination by buildings can also be avoided. There is a subjective element to determining when buildings dominate beaches. In general, however, structures appeat to confine space when they exceed the upper limit of the normal come of vision of a person looking forward. The cone of vision has a relationship of approxiately 1:2.1. Thus, a building set back 2.5 times its height would not appear to confine or dominate the beach. POLICY The Objectives and Policies element of the Planning Board's Islandwide Land Use Plan establishes, as general policy, the avoidance of "....the construction of buildings in beach arena and discourage activities or land subdivision in neighboring areas which vesid ... prevent free access to and enjoyment of the sun by the citizcory," (See Policy 17.04.) Greater setbacks may be needed in some cases for other purposes, notably for protection of buildings from coastal storm surges. See action of Flooding (including Hurricane Flooding). 3 441 [email protected]@N VZ X-' z' L-A-'TrT'-;C>E 27 77 AFLUZ'[email protected] [email protected] visloN Tom COASTAk- Ic"C @111--. lie Li 9rS'r",CE FACN A Sf Cr TC [email protected]@G TO T^-- MZ A.- CZASTAL --CNE' SH--,RHLt\!L SET5ACK Dom-zca*. Puerto Eco Planning BOOrd, The San Juan City td;eff Troject, Tt hniCal Report. August 19 F6, Pitt t-C IMPLEMENTING THE POLICY Planning Regulation No. 4, the Zoning Regulation, was amanded late in 1975 to require new buildings to be set back from the zone a distance of at least 2.5 times their height. This requirement applies in all zoning districts. Provision is made for exceptions in cases of small pre-existing lots, ports, and other specified cases. 85 E. PROTECTING AND ENLARGING PUBLIC BEACH HOLDINGS FINDINGS The narrow strip of beach accessible to the public is often too small for optimum recreational use. Even at little-used rural beaches, recreational opportunity may be enhanced by assuring public access to shady areas beyond the vegetation line. At intensively used beaches, still more space is needed for parking and other facilities. The narrow beach strips accessible to the public at many locations are insufficient to satisfy these needs. There are opportunities to enlarge the publicly accessible-areas, principally by acquiring shorefront property at the time of development. RESPONDING TO THE FINDINGS Acquiring shorefront land and facilities at coastal developments. Developers have sometimes dedicated shorefront property to the Commonwealth. They have done so, for example, in conjunction with the establishment of coastal roads (e.g., Levittown). The dedication may also be specifically for recreactional use (e.g., Parque Barbosa in Santurce; the recreation spaces in the Vacia Talega project as approved by the Planning Board in 1975). Planning Board Regulation No. 9, the Community Facilities Regulation, obligates developers to furnish sites and facilities for recreation in new developments. The regulation does not, however, establish special requirements for shorefront projects. No provision requires (or even explicitly authorizes) the substitution of coastal recreation space and facilities (e.g., parking lots, bath houses) for the baseball fields and playgrounds normally required. Although the Board authorized such a trajeoff at Vacia Talega, this was done solely as an exercise of discretion. Need: Refinement of Regulation No. 9 for coastal situations. Planning Regulation No. 9 should be amended to make explicit provision for beach recreation space and facilities at shorefront developments. 0 F. PROVIDING SERVICES AND FACILITIES FOR BEACH USERS FINDINGS There are 13 "full service" recreational beaches (balnearios) on'the Island. At these beaches.. indentfied- on Map 11. the Commonwealth's Public Parks and: Recreation Administration (PFRA) provides ons or more services lifeguard first aid., beach cleaning) or facilities parking lots, changing houses,,rain shelters). These beaches occupy 20.85 kilometers of the coast. Most of the Island's recreation beaches,however, including many intensively used urban ones, are largely unserviced. Vast stretches of beach are simply common property accessible to the general public.but without facilities and largely or wholly without services. This is true-not only of relatively out-of-the-way beaches in rural areas, but also of intensivaly used urban ones It to neither feasible nor desirable to provide a full range of recreational services and facilities at all beach areas accesible to the public The-cost of providing full services and facilities would be prohibitive. At the 13 balucarios beach.cleaning costs FPRA about $900.000 a year and occupies a staff of 245. In any event. many people enjoy- or even.prefer a beach experience without fences, lifeguards and rain shelters. It is accordingly essential that the beach access plan establish. as already recommendated, priorities for providing, additional beach facilities and services. Early attenion needs to be given to the problem of beach litter. Beach litter detracts from public enjoyment of way beaches. Although it is a problem even on many little- used beaches., it is acute at those (other than PPRA balnearios) used intensively for recreation. Examples include Boca da Cangrejos and Mar Chiquita. Recreational boating ban brought the. problem even to offshore Islands such as Cayo Icacoa off the cast coast. qiven competing demands for funds, there is little likelihood that optimsm trash pickup can soon be for all 109 kilometers of-potential recreation beaches Nethereless there.are some opportunities to improve. responsees to the litter problem. Extension of facilities and services might In addition to direct costs, subject this Commonwealth to additional liability-and thus costs- for personal injury to beach users. The legal and other aspects of this issue may need to be explored. 47 RESPONDING TO THE FINDINGS 1. Establishing clear responsibility for beach cleaning Divided, unclear responsibility is a principal obstacle to adequate cleaning of the beaches (other than those in custody of PPRA): The Department of Natural Resources has legal custody of all the public coastal areas "left over" after specific assignments of some areas to PPRA, the Ports Authority, and other public entities. Municipalities are responsible for collecting solid waste (including litter) from beaches within their borders, according to a regulation of the Environmental Quality Board.2 The Tourism Development Company, in cooperation with the Right to Work Administration, has a beach brigade which cleans beaches between the Condado and Boca de Cangrejos in the San Juan Metropolitan Area. Legislation proposed in 1973 by the Environmental Quality Board would create a Solid Waste Management Authority which would conduct a beach litter control program. Under bylaws proposed by EQB, the Authority would assume beach cleaning functions.3 Need: DNR assistance in beach cleaning. Unitl a Solid Waste Authority is established*, DNR should assist the municipios in carrying out their beach cleaning responsibilities. Areas of intensive cleaning should be selected by DNR, in cooperation with the municipios concerned, the EQB, and PPRA. 2. Providing adequate funds for beach cleaning manpower and equipment. DNR's 1976 bidget for beach vigilance and cleaning, islandwide, was $525,000. The Department's five regional offices have a combined staff of 120 assigned to beach cleaning and surveillance. These staff members have only rakes and other simple equipment. Trash collected by DNR staff is normally removed in trucks belonging to the municipalities. A Solid Waste Authority was recently created by Commonwealth legislation, however, the law which created the Authority does not provide for beach cleaning. Use of machines can improve beach cleaning at relatively low cost. In 1974, the Puerto Rico Industrial Association donated a beach cleaning machine to the Tourism Development Company (TDC). For the past 3 years, TDC's beach brigade has used this machine 5 days a week to clean beaches in metropolitan San Juan. Experience with the machine ahs been positive; beaches are being cleaned more often, and at a fraction of the cost and time required by manuak labor.4 Need: Additional beach cleaning machines, manpower. Adequate funding should be made available for the purchase of additional beach cleaning machines and the hiring of manpower to operate them. Need: Experimentation with renting beach concessions. Renting beach concessions to private individuals, contigent on their cleaning the beach in the concession area, warrants experimentation in areas where adequate public pickup cannot soon be provided. The granting of such concessions is authorized, subject to numerous safeguards, by Law No. 35 of September 27, 1949 (28 LPRA sec. 18); areas subject to such concessions must be open to the general public.5 Adoption oregulations governing the use of beaches, presumably including concessions, is authorized by section 16(2) of the Planning Board Organic Act. 3. Litter reduction Need: Litter reduction measures. Since trach cannot be picked up frequently from all beach areas, especially those that are remote and those where rocks or vegetation preclude use of beach cleaning machines, litter reduction measures are essential. Such measures should include: Persuasion: There should be a continuing public education campaign. Assistance: Many more trash containers should be placed at the beach sites convenient to the public; and better arrangements for emptying them should be made. Enforcement: The anti-litter Law (Law No. 21 of September 4, 1969) should be enforced. Incentives: The use of returnable bottles and cans should be encouraged. .......... 0 c E A N A T L_ A N T I c 0 -------------- M* N X N 'N 'N N kA bAc- .......... c A MLA VC P-tier, To FRtCO *?-A Olt im _'.4 AREAS EN CONDICIONES SEVERAS IDE ER(Dslc)N AREAS OF SEVERE ,,,,or4 CONDI'riC)N C. lip UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administratior Rockville, Md. 20E352 rot EVALUATION FINDINGS PUERTO RICO COASTAL ZONE MANAGEMENT PROGRAM I. BACKGROUND Section 312 of the Coastal Zone Management Act (CZMA) requires a continuing review of states with Federally approved coastal management programs. The purpose of the review is to evaluate performance of the states with respect to coastal management and adherence to approved management programs. The Puerto Rico Coastal Manaaement Program (PRCMP), administered by the Department of Natural Resources (DNR), was approved on September 18, 1978. Federal program implementation funds in the amount of approximately $1.4 million were awarded at that time.' As part of the Office of Coastal Zone Management's (OCZM) evaluation responsibilities, a review of the PRCMP was conducted in San Juan on June 11 through 15, 1979. Zoraida Carballeira, Policy and Program Evaluation; Jim Murley, Gulf/Islands Regional Manager; and Ann Berger-Blundon, Assistant Gulf/Islands Regional Manager, participated -in the review which included meetings with the staff of several Corn-nonwealth state and federal agencies. a public meeting in San Juan to solicit comments on the overall program, and a public meeting in the Tortuguero Lagoon area where DNR solicited comments on the proposed special management plan (SPA). (See attached Appendix.) C. Coastal Access Access to the shoreline for recreational and other purposes has not traditionally been a problem in Puerto Rico. This year's major achievements in this area are the following: o The Cr",J reviewed seven permit applications where access was an issue and recoanended to ONR that endorsement be denied. DNR transmitted six of the5 recommendations to the PS. 0 Article 17 of Law No. 76 of June 24, 1975, which created the Regulations and Permits Administration, was amended to require that all land development work adjacent to beaches provide public access to the beaches as a conditior prior to approval and authorization by the RPA. o The PB has made progress in the preparation of beach access regulations which have included extensive site visits,-a classification of beaches accordinG to various degrees of accessibility, and-ownership studies. An outline for the proposea regulations addresses the impact of highrise buildings, urbanization, subdivisions, recreation and tourism. tlt'l 0- co, t UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administratioi Rockville. 'Ad. 20S52 EVALUATION FINDINGS PUERTO RICO COASTAL ZONE MAXAGEMENT PROGRAM I. BACKGROUND Section 312 of the Coastal Zone Management Act (CZMA) requires a continuing review of states with Federally approved coastal management programs. The purpose of the review is to evaluate performance of the states with respect to coastal management and adherence to approved management programs. The Puerto Rico Coastal Management Program (PRCM-P), administered by the Department of Natural Resources (DNR), was approved on September 18, 1978. Federal program implementation funds in the amount of approximately $1.4 million were awarded at that time. As part of the Office of Coastal Zone ",anagement's (OCZM) evaluation responsibilities, a review of the PRCMP was conducted in San Juan on June 11 through 15, 1979. Zoraida Carballeira, Policy and Program Evaluation; Jim Murley, Gulf/Islands Regional [email protected]; and Ann Berger-Blundon, Assistant Gulf/Islands Regional Manager, participated in the review which included meetings with the staff of several Commonwealth state and federal agencies, a public meeting in San Juan to solicit comments on the overall program, and a public meeting in the Tortuguero Lagoon area where DNR solicited corn-ents on the proposed special management plan (SPA). (See attached Appendix.) C. Coastal Access Access to the shoreline for recreational and other purposes has not traditionally been a problem in Puerto Rico. This year's major achievements in this area are the following: o The CINU reviewed seven permit applications where access was an issue and recommended to ONR that endorsement be denied. DNR transinitted six of the, recom;-nendations to the PS. I o Article 17 of Law No. 76 of June 24, 1975, which created the Regulations and Permits Administrdtion, was amended to require that all land developmerl, work adjacent to beaches provide public access to the beaches as a condit-io,, prior to approval and authorization by the RPA. o The PB has made progress in the preparation of beach access regulations which have included extensive site visits, a classification of beaches according to various degrees of accessibility, and ownership studies. An outline'for the proposed regulations addresses the impact of highrise buildings, urbanization, subdivisions, recreation and tourism. RHODE ISLAND Rhode Island coastal officials have identified two major beach access problems in their state: lack of lateral access at beaches (i.e. acce ss to both the "wet sand" and "dry sand" portions of the beach) and ill-defined rights-of-way to beaches. CZM funds are being used for two research efforts currently underway to develop recommen- dations for improving both of these situations. The "public" area of Rhode Island beaches is generally defined as the area from the mean high water mark seaward. A study to in- vestigate the potential of broadening this definition of public beach is currently being conducted by the coastal program staff. The con- stitutional, legislative, and judicial principles of beach access are being examined in anticipation of the drafting of future legislation to open up more of the beach to the public. The report is due to be submitted to a legislative committee in March 1980. During the seventeenth century the King Tames Charter provided rights-of-way to the Rhode Island shoreline for fisherman and seaweed collectors. As time has passed, some of these rights-of-way have been built over and others have continued to be used by the public. During the mid-1960's the state sponsored a study which identified as many of these rights-of-way as possible without doing a full scale search of legal documentation. The rights-of-way identified by this study are presently being maintained through a partnership between the Coastal Resources Management Council (which uses CZM money to fund two maintenance workers) and the Rhode Island Marine and Fisheries Division (which uses state funds for four to six maintenance workers). CO, iate c, 'Pon ew Coastal Macnageri-nbent Program and A4, R- 14rcs 0 La Final Envi"rcrnn,..tn,@ I 4vinpact %15-iot ate rMelit U.S. DEPARTIMENT OF COMMERCE National Oceanic and Atmospheric Administration Office of Coastal Zone Management tn,- s M. ;zz, zz 41o PUBLIC ACCESS TO THE SHIORE FINDINGS: @d with public shorefront access opportunities Rliode Island is richly endowe via public parks and beaches, conservation areas, scenic view points and rights-of-way. Howover, efforts to enhance opportunities through nlore effective utilization of existing arc;_)s and identificaLion of additional sites are needed. - The distribution of coastal riqhts-of-way is uneven. - Public rights-of-way along substantial lerigLll-s of shoreline remain unverified. - Public rights in many pro:@sumed rights-of-way are contested. - Rights-of-way must be posted to encourage use and prevent trespass on private property. - Parking space at popular rights-of-way is frequently inadequate. - Vandalism, litterinq and trespass on adjacent private holdings are issues of growing concern. j,The scenic qualities of the Rhode Island coastal region and shoreline are one of the state's greatest natural assets. - Much of the state's shoreline is highly scenic. - Many scenic areas are readily accessible to the public from designated overlooks and scenic highway routes. - Scenic viewing is a major recreational and tourist activity. - Additional scenic OppOrtUnities exist at local, state and federal recreational holdings and fron) both state and municipal highways. These opportun'Jes require careful evaluation if they are to be utilized to their full potential. Scenic viewsites are highly setsitive to the aesthetic impacts of adjoining dcvelopment.. r The state has numerous public and private boat launch ramps. - Ramps are unevenly distributed with deficiencies in upper Narra- gansett Bay where demand is concentrated. - Additional ramps should be sited in or near the major recreationa) boating harbors of the Bay. Acquisition costs can be extremely high in such areas however. - Ramp siting can have major environmental impacts where 'it contri- butes to increased boating activity in sensitive marine areas. - Raff ips can have major social and ae-thetic impacts where service roads are insufficient to handle increased traffic and/or where inadequate par-king is provided. Development of additional rights-of-way, scenic viewpoints and launch ramps will place additional management responsibilities on state person- r. J.0-2 POLICIES AND REGULATIONS: -ight to the use and enjoyment The Council finds that the public has a i c)f the shoreline guaranteed under Article 17 of the State Constitution. Enhancement of public access to coastal waters is consequently a high priority USC of tho coastal region. Applicants for Council pormits for any development or activity contiguous to a posted public right-of-way, boat launch ramp, or public view site shall be called upon to dcnionst rate by a fair preponderance of evidence that such development or activity or any development or activity related thereto will not interfere with or prevent public use and enjoyment. where such intti-ference or prevention is found the Council shall pro- hibit Or require appropriate modificIlLion of the pruposal in question. J4 7 C The Council, working in coordination with the Department of Environmental Management, shall prepare periodic updates of the state rights-of-way, scenic view sites, and public laUllch rawp maps commencing in 1978. It shall insure maximum publicity and distribution of these maps to the general public. D. The Council shall, commencing in 1978, designate all verified public rights-of-way, scenic view sites and launch ramps. 420 PUBLIC BEACHES AND PARKS 420.0-1 FINDINGS: A. Rhode Island's ocean beaches and coastal parks are among the most popular recreational outlets. They are a resource of regional significance. -Substantial amounts of Rhode Island's coastline consist of sandy ocean beaches with high water quality, They provide an ideal environment for swimming and sunbathing and are heavily used by residents and visitors. -Sa I twater bath i ng is by _r the s tate 1 s mos t popu I a.r outdoor recrea- tional activity according to the State Comprehensive Outdoor Recreation Plan. Upwards of 92,000 people may visit public beaches on a good summer day. -Oceanfront facilitie-, especially those operated by the state, are clearly preferred by a majority of the public (some 70% of those sampled in a recent survey). -State beaches attract large numbers of out-of-state visitors each Summer. Some 29% of all activity is attributable to these visitors. Even higher proportions of out-of-state residents visit facilities such as Burlingame State Park's 755 unit camping area and Misquamicut State Beach, both of which are closer to population centers in nearby Connecticut than Lhey are to Rhode Island's Major upper Bay metropolitan areas. Heavy weekend use of state beaches has created localized seasonal traffic congestion in some areas - notably in the towns of Westerly and Narragansett. D. The state's many public beaches,and parks are managed at the state level by the Department of Environmental Management and at the local level by municipal recreation agencies. -Maintenance and management are by-in-large not problems. The majority of facilities are of exceptionally high quality as is clearly evidenced by their continuing popularity. -Enforcement of rules and regulations and prevention of littering, vandalism and simi lar abu5es, however, is a growing problem due to the increased responsibilities of and manpower shortages in the Department of Environmental Management's Enforcement Division. C. Rhode Island is extremely fortunate in that'unlike many coastal states it has an abundance of publicly co--ined beaches (Table 4-1). -Beach use is at levels well below design capacity a health 97 Percent of the time according to the State Comprehensive Outdoor Recreation Plan. -The state's public beaches can comfortably service upwards of 173,000 People on a given day. Design day use (use on a good 147 C The Council, working in coordination with the Department of Environmental Management, shall prepare periodic updates of the state rights-of-way, scenic view sites, and public launch ramp m.-_)ps commencing in 1978. It naximum publicity and distribution of these maps to the shall insure i general public. D. The Council shall, commencing in 1978, designate all verified public rights-of-way, scenic view sites and launch ramps. 420 PUBLIC BEACHES AND PARKS 420.0-1 FINDINGS: A. Rhode Island's ocean beaches and coastal parks are among the most popular recreational outlets. They are a resource of regional significance. Substantial amounts of Rhode Island's coastline consist of-sandy ocean beaches with high water quality. They provide an ideal environment for swimming and sunbathing and are heavily used by residents and visitors. Saltwater bathing is by ',-,r the state's most popular outdoor recrea- tional activity according to the Stct(-.; Comprehensive Outdoor Recreation Plan. Upwards of 92,000 people may visit public beaches on a good summer day. Oceanfront facilitie-, especially those operated by the state, are clearly preferred by a majority of the public (some 70% of those sampled in a recent survey). State beaches attract large numbers of out-of-state visitors each summer. Some 29% of all activity is attributable to these visitors. Even higher proportions of out-of-state residents visit facilities such as Burl ingame State Park's 755 unit camping area and Misquamicut State Beach, both of which are closer to population centers in nearby Connecticut than they are to Rhode Island's major upper Bay metropolitan areas. Heavy weekend use of state beaches has created localized seasonal traffic congestion in some areas - notably in the towns of Westerly and Narragansett. D. The state's many public beaches,at "id parks are managed at th e state level by the Department of Environmental Management and at the local level by municipal recreation agencies. - Maintenance and management are by-in-large not problems. The majority of facilities are of exceptionally high quality as is clearly evidenced by their continuing popularity. - Enforcement of rules and regulations and prevention of littering, vandalism and similar abuses, hoviever, is a growing problem due to the increased responsibilities of and manpower shortages in the Department of Environmental Management's Enforcement Division. C. Rhode Island is extremely fortunate in that-unlike many coastal states it has an abundance of publicly owned beaches (Table 4-1). - Beach use is at levels well below design capacity a health 97 percent of the time according to the State Comprehensive Outdoor Recreation Plan. - The state's public beaches can comfortably servi.ce upwards of 173,000 people on a given day. 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Ln ::r 0 0 X x x X X M 0 rt (D x X X X X X X x July weekend day) only infrequently exceeds 92,000, leaving a margin of nearly 50% to absorb increased demand. Because of this additional capacity few state beachcs approach saturation on any but the very hottest [email protected] weekuiius . Additional public ocean beach acq 'uisition for the above reasons does not appear to be a high priority for Rhode Island. Rhode Island is less fortunate in the distribution of its public beaches. The state' s major metropol i tan concentration at the head of Narragansett Bay is removed considerable distances from the majority of facilities located along the open ocean shore] ine. Beach use is largely income-dependent. It increases dramatically in proportion to increases in family income. In explaining this phenomenon the. State Comprehensive Outdoor Recreation Plan cites high participation costs and lack of open space and other recreational opportunities in low-income urban areas. - Access is further complicated by the relatively low level"of auto- mobi le ownership among low income urbar. farrii I ies , by inadequate or nonexistent public transit service to outlying beach areas, and increasing costs of fuel. - Few opportunities for additional saltwater beach development exist in or near the Upper Bay' s metropol i tan concentrations due to intensive coastal development, water quality limitations, and less desirable coastal topography. The recreational value of parks and beaches depends on a variety of environmental and aesthetic characteristics )I I of whi ch are sensitive to change. It is [email protected] enough to disrupt. just one of these to "0 upset the delicate balance of factors which sustains recreational act v ty. Beaches and parks are sensiti%e to onsite impacts associated with overuse or inappropriate use. They are also highly sensitive to the environmental, aesthetic and other impacts of activities that take place elsewhere. The exter- nal impacts of abutting uses are of particular concern because Ahey can have profound and immediate effects on recreational values, effects which have only been infrequently controlled in the past. The variety of externa.] impacts is great: � Increased traffic may compromise public access opportunities; � Noise, odors or other airborne ''pollutants" may detract from recreational enjoyment; � Water pollutants may preclude water contact sports; � Physical changes may contribute to beach erosion or intro- duce sediments into previously pristine waters; Large structures may compromise the visual attractiveness of adjacent recreational areas. 420.0-2 POLICIES AND REGULATIONS: A. public recreational use and enjoyment of parks and beaches shall be a high priority use of the coastal region. Activities and developments detrimental to such use and enjoyment shal I have low priority. 8. Applicants for Council permits for any development or activity contiguous to a pubi icly owned and/or- operated park or beach shal I be cal led upon to demonstrate by a fair preponderance of evidence that such develO 'Dmen t or activity or any deveiopment or activiLy related thereto will not significantly interfere with or damage the recreational use or value of the affected park or beach. 153 It shall be further demonstrated by reliable and probative evidence that thQ coastal resources are capable of supporting the proposed activity including,the impacts and/or effects upon: 1. Public access and traffic congestion; 2. Noise levels incidental to construction, use or operation of proposed contiguous facilities or developments; 3. Visual and aesthetic impacts on contiguous recreational activi- ties; 4. Natural processes such as sedimentation, runoff, coastal erosion and the like which may adversely affect contiguous recreational areas or uses of those areas; 5. Air or water quality which may [email protected] contiguous recreational activities. Where significant interference with or damage to recreational use or value is found the Council shall prohibit or require appropriate modifica. tion of the proposal in question. C. The Council recognizes the management responsibilities of the Department of Environmental Management and municipal recreation authorities as they relate to public beaches and parks. It shall endeavor to support these responsibilities to the maximum extent consistent with other Council Policies and Regulations. 430 CONSERVATION AND MANAGEMENT 430.0-1 F114DINGS: A. The Rhode Island coastal region is richly endowed with both public and privately held conservation and wildlife management areas. However, the social and environmental amenities these areas provide are so valuable and varied that it would be unwise to satisfy ourselves with what we have.(Listed in Table 4-2.) - Both the Department of Environmental Management and the Federal [email protected], and Wildlife Service are actively investigating additional coastal region purchases. - Acquisition is a particularly,attractive method of protection because it allows for a variety of recreational and nonrecreational uses in addition to the primary conservation function. B. Conservation and management areas are among the state's most important multiple-use recreational resources. A variety of recreational activi- ties are frequently compatible with primary conservation and wildlife management objectives. These include: - Controlled hunting for waterfowl and upland game; - Hiking and cross country skiing; - Wildlife observation and scenic viewing; - Fishing and swimming. C. A number of-socially, economically and environmentally desirable non- recreational activities can often be pursued concurrently with primary conservation and management objectives. - These include many forms of agriculture and forestry. D. Conservation and manaqement areas have broad ranging social, economic and environmental significance. This significance has all too frequently gone unrecognized in the past. - They provide reservoirs of open space and undisturbed natural beauty. Their value in this regard will increase incrementally as the state's population grows. ADDENDUM TO APPENDIX "C", COASTAL MANAGEMENT PROGRAM C.6 SHOREFRONT ACCESS AND PROTECTION 6.1 Federal Requirements: Sec. 923.25 of NOAA regulations published in the March 1, 1978 issue of the Federal Register address the requirements of Sec. 305(b)(7) of the 1976 amendments to the Coastal Zone Management Act. They require the state to develop a procedure for identifying areas requiring access or protection, to define the term "beach" and identify public beaches, to adopt @)olicies on access and protection and to demonstrate the legal authority to enforce these policies. 6.2 Criteria and Procedures-for Identifying Public Access Areas Council Findings and Policies on public access to the shore are contained in Chapter 4 of the Coastal Management Program. The following specific types of access areas are identified and evaluated: Ch. 410 Public access including rights-of-way, scenic view points and launch ramps Ch. 420 Public beaches and parks Ch. 430 Conservation and management areas Ch. 440 Recreational boating and boating facilities Ch. 450 Historic sites Ch. 470 The Bay Islands Park 1 Council Findings include inventories of these areas and and evaluation of present and projected future supply and demand. As noted, there exists a general surplus of recreational facili- ties on a statewide basis, although localized deficiencies exist in the upper Narragansett Bay metropolitan area. These localized deficiencies are created by the uneven distribution of access areas in the coastal region. Policies to address these deficiencies including expansion of substitute inland facilities, especially for swimming and continuation of a bus- sing program from metropolitan areas to state beaches on the. South Shore are presently being implemented by the Department of Environmental Management. It is CRMrC policy to support development of additional access and recreational facilities in the upper bay region in the near and long term, an example of which is the potential for recreational and access facilities in conjunction with the redevelopment of the Port of Providence -and the East Providence waterfront. Findings and Policies on public access areas were developed after careful evaluation of the supply, demand and qualitative assessments contained in the State Comprehensive Outdoor Recrea- tion Plan (SCORP) and after extensive consultation with staff in the Statewide Planning Program and Department of Environmental Management responsibie for producing the SCORP. In order to ensure that Council Findings and Policies remain consistent with the late'st SCORP update (June 1978), this evaluation and' consultation was repeated and uncovered no significant changes in the information on which present Council policies are based. As noted below, considerable progress towards the realization of goals described in the SCORP and endorsed by the Council was found, however. 6.3 Criteria and Procedures for Identifying Coastal Areas Requiring Protection Council Findings and Policies on the protection of coastal natural systems and features are contained in Chapter 1 of the Coastal Management Program. The varying management considerations and protection requirements of the following systems and areas are identified: Ch. 110.1 Block Island and Rhode Island Sounds Ch. 110.2 Estuaries and coastal ponds including those suitable for conservation and low intensity, use multiple recreational use, high intensity recreational use, general and urban uses Ch. 120.2 Barrier beaches and sand dunes Ch. 120.3 Cliffs, ledges, and bluffs Ch. 120.4 Coastal wetlands Findings include inventories and assessments of specific geographical areas as well as data on generic systems. These are based on exhaustive reviews of existing literature on the state's coastal resources, much of it produced at the University of Rhode Island's Graduate School of Oceanography. Litera- ture review was augmented by site visits and surveys undertaken by Council staff and the URI Coastal Resource Center. Additional coastal areas requiring some form or level of protection, are identified and evaluated throughout the Program. These include flood hazard areas (Ch. 130) and erosion prone areas (Ch. 140). The protective requirements of coastal access areas identified in Chapter 4 are also addressed in Council Findings and Policies relative to these areas. 6.4 Designation of Access and Protection Areas as Geographic Areas of Particular Concern As indicated in Ch. 2.4 of Appendix C, GAPC's are designated on the basis of two principal criteria: (1) Existing or proposed uses of the area or con- tiguous areas are inconsistent with resource characteristics, capability or potential. (2) As a result, either or both of the following are likely to result. Loss of a damage to a natural or manmade coastal resource, or inappropriate, wasteful or preemptive use of a coastal resource. On the basis of these criteria as refelected in Council Findings in Ch.'s 120.2, 120.3 and 470 respectively, the following areas have been desig- nated and are managed as GAPC's: -Developed barrier beaches -Erosion prone bluffs -The Bay Islands Park 6.5 Designation of Access and Protection Areas as Areas to be Preserved or Restored: Also as indicated in Appendix C (Ch. 2.5), APR's are Geographical Areas of Particular Concern which have been found to be of significant value for pur- poses of recreation, conservation, or habitat preserva- tion and are subject to pressures inconsistent with preservation of these values. The following coastal access and protection areas have been designated APR's: -Undeveloped barrier beaches(120.2) -Coastal ponds(110.2) -Coastal wetlands(120.4) -Conservation/low intensity use estuaries(110.2) -Sea cliffs(120.3) -Public beaches and parks(420) -Conservation and management areas(430) -Public rights-of-way to the shore(410) -Historic sites(450) 6.6 Definitions of "Beach"; Identification of Public Beaches: Council Findings relative to beaches and barrier beaches (Ch.'s 120.1 and 120.2) define these fea tures in terms of their physical characteristics, their flexibility in response to wave action and their storm mitigation functions. Public beaches are inventoried in Table 4.1 Chapter 420.0 by location, name, ownership and size. 6.7 State Policies Re Access and Protection: Council Policies and Regulations set forth in the above referenced chapters of the Coastal Management Program specify various conditions and limitations on the use of identified coastal access and pro- ection areas. They specify further conditions and limitations on cortiguous uses of particularly sensitive features and areas. The majority of these conditions and limitations are implemented through Council permitting procedures. The Department of Environmental Management is the lead state agency for most forms of recreational access and implements various programs and policies noted in Chapter 4. Responding to the growing demand for beach access, the Department has recently leased and obtained a purchase option on one large private beach adjacent to the state's popular facility at Scarborough and is negotiating for another. The council by legislative amendment to its enabling legislation has assumed responsibility for 0 tures in terms of their physical characteristics, their flexibility in response to wave action and their storm mitigating functions. Public beaches are inventoried in Table 4.1 Chapter 420.0 by location, name, ownership and size. 6.7 State Policies Re Access and Protection Council Policies and Regulations set forth in the above referenced chapters of the Coastal Management Program specify various conditions and limitations on the use of identified coastal access and pro- tection areas. They specify further conditions and limitations on contiguous uses of particularly sensitive features and areas. The majority of these conditions and limitations are implemented through Council permitting procedures. The Department of Environmental Management is the lead state agency for the most forms of recreational access and implements various programs and policies noted in Chapter 4. Responding to the growing demand for beach access, the Department has recently leased and obtained a purchase option on one large private beach adjacent to the state's popular facility at Scarborough and is negotiating for another. The Council by legislative amendment to its enabling legislation has assumed responsibility for 0 identifying and opening public rights of way to the shore. To this end it recently launched a major effort to verify title to the state's many coastal rights-of way. Twelve title attornies are currently involved in this effort which is supported by state and MOAA funds. In addition, the Council in July 1973 adopted policies for legally designating public rights of-way to the shore. These call for consultation with local officials after title verification, field surveys, public hearings in the host community and marketing and management by the Department of Environmental Management after final Council action. 6.8 Implementing Authorities and Funding Sources Council Policies and Regulations pertaining to coastal access and protection are implemented under authorities delegated by Title 4G Chapter 23-6 E and D of the General Laws of Rhode Island. Department of Environmental Management authori- ties regarding the acquisition and management of parks, beaches, launch ramps, and conservation or management areas are set forth under Title 42, Chapter 17 of the General Laws. Principle funding for implementation of manage- ment and acquisition programs is provided by state appropriation, bonds, the Office of Coastal Zone Management and the Land and Water Conservation Fund. 7 0 UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmosperic Administration Rockville, Maryland 20852 SECTION 312 FINDINGS Evaluation of the Rhode Island Coastal Management Program Covering the Grant Period May 1978-February 1979 I. BACKGROUND Section 312 of the Coastal Zone Management Act requires continuing review be made of states with federally approved coastal management programs. This review is designed to evaluate performance with respect to coastal management activities and adherence to the approved management program. The Rhode Island coastal management program was approved in May 1978. The first Section 306 program implementation grant was awarded for a period of 12 months. This evaluation covers the first nine months of the grant period. The $1,000,000 Federal share was matched by $250,000 from Rhode Island. In connection with the Office of Coastal Zone Management's (OCZM) evaluation responsibilities, an on-site review of the Rhode Island Coastal Management Program (RICMP) was conducted by OCZM from February 7 to February 9, 1979. Michael Shapiro and Rosella Suseman of the Policy and Program Evaluation staff, Katherine Cousins and Dick O'Conner of the State Program staff, and John O'Donnel of the External Relations staff, participated in the review. The site visit included meetings with representatives of the Governor's Office )CZM lead agency), the Coastal Resources Management Council (CZMC), the Department of Environmental Management (DEM), the Statewide Planning Program (SPP), the Coastal Resources Center (CRC) of the University of Rhode Island, the Rhode Island League of Cities and Towns, and various Federal agencies involved in the Rhode Island coastal management program. A list of individuals contacted is attached. 0 C. In the area of increased coastal recreational access and protection of cultural, historic, and aesthetic resources, the following results have been acomplished: (1) An accelerated program to identify public ownership of coastal rights-of-way is midway through its two-year work program. Title research on 165 previously identified rights-of-way will be completed this grant year and public hearings on the researched rights-of-way titles have begun. The Council will designate public rights-of-way according to its regulations adopted in July 1978. (2) An on-going maintenance program is improving the safety and accessability of approximately 30 currently used coastal rights-of-way. (3) An in-depth assessment of recreational boating problems and opportunities will be completed in May, 1979. The study has identified areas where State agencies can facilitate recreational boating development without conflicting with conservation goals. RECOMMENDATION: Follow-up action on the boating assessment should be given high priority. Efforts should be made to coordinate RICMP activities with those of the Heritage Conservation and Recreation Service (HCRS) in the development of multiple use marinas. OCZM is available to assist in coordinating between the State and HCRS. SOUTH CAROLINA The South Carol ina coastal management Program encourages public access through regulation and through funding incentives. Permits for construction and alteration at beaches and dunes are conditioned on protection of existing access. Erosion control funds are conditioned on provision of full public access to the area receiving funds for pro- tection. State Of So.uth Cardina Coastal Management 7'-E, S Progravid and Of F A inal Envlronnnen"[email protected],al I gm P a Ct St a t e M e nl U S. DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Office of Coastal Zone Management South C c" r 0 11, n a 119% Council 0, UNITED STATES DEPARTMENT OF COMMERCE FINAL ENVIRONMENTAL IMPACT STATEMENT PROPOSED COASTAL MANAGEMENT PROGRAM FOR THE STATE OF SOUTH CAROLINA Prepared by: Office of Coastal Zone Management National Oceanic and Atmospheric Admi ni st rat ion Department of Commerce 3300 Whitehaven Street, N.W. Washington, D.C. 20235 and South Carolina Coastal Council Summerall Center, Suite 802 19 Hagood Avenue Charleston, South Carolina 29403 chapter IV special management areas 0 D. BEACH AND SHORELINE ACCESS 1. Introduction The South Carolina coastal zone boasts 158 miles of Atlantic Ocean shoreline - this wealth of beaches is an invaluable and irreplacable resource for the State. The General Assembly recognized the increasing demands on all coastal resources in tile passage of the South Carolina Coastal Management Act of 1977, which mandates development of a comprehensive coastal management program. Among the many findings and con- cerns expressed in the State legislation are those of protecting public access and preserving and expanding recreational resources. The following beach and shoreline access policies and existing management authority address these issues. In order to receive Federal approval and thereby continued funding through the Department of Com- merce, the State must also meet Federal requirements for shoreline access in its coastal management program. The rules and regulations from the Office of Coastal Zone Management for program development and ap- proval read as follows: (1) The management program must contain a procedure for assessing public beaches and other public areas, including State owned lands, tidelands and bottom lands, which re- quire access or protection, and a description of appropriate types of access and protec- tion. (2) There must be a definition of the term "beach" that is the broadest definition allowable under state law or constitutional provisions, and an identification of public areas meeting that definition. (3) There must be an identification and description of enforceable policies, legal authorities, funding programs and other techniques that will be used to provide such shorefront access and protection that the State's planning process indicates is necessary. (Section 923.24, Federal Register, Vol. 44, No. 61, March, 1979) 2. Definitions a. Beach The South Carolina Coastal Management Act (Act 123 of the 1977 South Carolina General Assembly) defines "beaches" as "those lands subject to periodic inundation by tidal and wave action so that non-littoral vegetation is established". (Section 3(H). This definition includes that area of sand between mean low and spring high water, in other words, the foreshore and the dry sand beach up to the line of vegetation. Beaches are included in the management program as "critical areas", subject to the Coastal Council's direct permitting authority. b. Public Beach and Public Access According to the Federal Regulations "public beach" must be defined within each management program. In South Carolina it is defined in terms of State ownership or of demonstrated public use sufficient to create public rights in the land. In South Carolina there is no specific statutory right for public use of the beaches. However, the doctrine of the public trust forms the basis for the public's right to use the foreshore or wet-sand beach seaward or below the mean high water mark. Under this doctrine, title to the foreshore (below mean high water) is presumed to be held by the State in trust for her citizens unless title has been expressly granted to an owner out to the lower-water mark. Based on traditional concepts of law, or common law, the public has rights to use the foreshore for naviga- tion and fishing. In recent years, this traditional interpretation has been expanding in other jurisdictions. In South Carolina, statutory expression in State legislation for coastal management and oil spill monitoring and control, and opinions of the S.C. Attorney General reflecting strong public interest in recreation, have to degree broadened the common laws basis to include recreational uses within the public trust. Upland access across to the wet-sand beach below mean high water is another important factor in identify- IV-61 ing public beach access. Unless the property landward of tile wet-sand beach is owned outright by the State through acquisition, express dedication from developers and owners, or through an express trust - assurance of public rights for use of the "dry-sand beach" or shoreline property adjoining the traditional public beacl area below MHW can be made only oil the basis of a case-by-case determination. In South Carolina, CODfirmation through the courts of these so called "acqu; red" public rights for access- ways on shoreline property will probably be based on the legal theories of (1) prescriptive e ,asement and (2) im- plied dedication. A prescriptive casement requires a clear showing of continuous and uninterrupted public use without permission of the owner, for a 20-year period. Implied dedication requires evidence of the land- owner's intent to dedicate the property for public use and of the public's acceptance by using the land. Under either theory, evidence supporting tile extent of public use must be clear and convincing. Litigation involving particular parcels of shoreline property is clearly an exp,-nsive, time-consuming, and cumbersome means for determinint, "Public" versus '@'private" rights in a particular area. But in some in- stances Nv]iQre ownership is in question, it can be the only means for such determination. The S. C. Attorney General has brought several claims on behalf of public rights in the past; however, there is no clear statutory authdrization for this role and no explicit duty for that office to undertake such all action. Tile viability of this course of action depends to a large degree on the ability or willingness of the Attorney General or of some con- cerned private partyto initiate a public claim. c. Existing Public Access (Full and Complete Access) The South Carolina Coastal Council will use the following definition for "existing public access" for 1) determination of those areas eligible for public funds for erosion control and 2) as a basis for every permitting decision requiring consideration of public access. In addition, this ddinition fulfills the federal requirement that a definition of full and complete access be included in the State management plan. The Council will find that a stretch of beach is accessible to tile public if: (1) Reasonable provision is made for transportation facilities, including automobile parking, boat landings, bicycle racks and/or public mass transit. Facilities must be available on a vear-round basis, and fees, if charged, must be nominal and serve only to offset actual costs. (2) Public walk-ways or access-points to the beach and lateral access to the dry-san beach are open and readily apparent. (3) Access to the area is actually sought by members of the general public with reasonable frequency. A "stretch of beach" may be delineated by such factors as physical or geographical boundaries (an inlet or marsh, for example) as well as by jurisdiction borders (municipal limits, for instance). What constitutes "reasonable" for purposes of the preceding definition will be determined in part by the size and population of the surrounding area, the size of the stretch of beach itself, and the availability and nature of upland or marine rights-of-way to the general area of the beach. 3. Policies for Public Shoreline Access a. Process of Policy Development The South Carolina Coastal Council and its staff have worked throughout the period since their creation on July 1, lW7 on"the background and study efforts for development of the shoreline access segment of tile program. Prior to passage of tile legislation which-creatcd the present Council, staff and gubernatorially- appointed Coastal Council members were working-toward writing the various parts of tile program. In 1976, an extensive study financed and coordinated tllr.OLlgll the coastal program and the S. C. Department of Parks, Recreation and Tourism was undertaken 'This study oil beaches and beach access, which formed the basis of tile beach inventory presented at the end of thiz -hapter, is entitled Public Beach Access and Recreation in South Carolina and was conducted by Hartzog, Lader & Richards. A special legal consultaritto the Council has worked closely with tile Staff to fully explore tile possibilitics and problems regarding provision and pro- tection of public beach access. The Management Committee of the Coastal Council is one ineans for improved policy development. This sub-group of the full 18-mernber Council, which represents a wide range of interests and geographic area, received draft material from the staff and gave it careful, in-depth examination and review. A more technical form of input to tile policy fornlUlation process has been a Beach Access Advisory Com- IV-62 ing public beach access. Unless the property landward of the wct-sand beach is owned outright by the State - through acquisition, express dedication frorn developers and o,.vners, or through an express trust - [email protected], of public rights for use of the "dry-sand beach" or shoreline property adjoining thc traditional public beacl area below MHW can be made only oil the basis of a case-by-case determination. In South Carolina, confirmation through the courts of these so called "acquired" public rights for access- wavs on shoreline property will probably be based oil the legal theories of (1) prescriptive casement and (2) im- plied dedication. A prescriptive casement requires a clear showing of continuous and uninterrupted public use without permission of the owner, for a 20-vear period. Implied dedication requires evidence of the land- owner's intent to dedicate the property for public use and of the public's acceptance by using the land. Under either theory, evidence supporting the extent of public use must be clear and convincing. Litigation involving particular parcels of shoreline property is clearly an expensive, time-consuming, and cumbersome means for determining "Public" versus "private" rights in a particular area. But in some in- stan'ces where ownership is in question, it can be the only means for such determination. The S. C. Attorney General has brought several claims on behalf Of PLIblic rights in the past; however, there is no clear statutory auth&ization for this role arid no explicit dutv for that office to undertake such an action. The viability of this course of action depends to a large degree oil the ability or willingness of the ALtorney General or of some con- cerned private party to initiate a public claim. c. Existing Public Access (Full and Complete Access) The South Carolina Coastal Council will use the following definition for "existing public access" for 1) determination of those areas eligible for public funds for erosion control and 2) as a basis for every permitting decision requiring consideration of public access. In addition, this definition fulfills the federal requirement that a definition of full and complete access be included in the State management plan. The Council will find that a stretch of beach is accessible to the public if: (1) Reasonable provision is made for transportation facilities, including automobile parking, boat landings, bicycle racks and/or public mass transit. Facilities must be available on a year-round basis, arid fees, if charged, must be nominal and serve only to offset actual costs. (2) Public walk-ways or access-points to the beach and lateral access to the dry-sail beach are open and readily apparent. (3) Access to the area is actually sought by mernbers of the general public with reasonable frequency. A "stretch of beach" may be delineated by such factors as physical or geographical boundaries (an inlet or marsh, for example) as well as by jurisdiction borders (municipal limits, for instance). What constitutes "reasonable" for purposes of the preceding definition will be determined in part by the size and population of the surrounding area, the size of the stretch of beach itself, and the availability arid nature of upland or marine rights-of-way to the general area of the beach. 3. Policies for Public Shoreline Access a. Process of Policy Development The South Carolina Coastal Council and its staff have worked throughout the period since their creation on July 1, 1977 on the background and study efforts for development of the shoreline access segment of the program. Prior to passage of the legislation which created the present Council, staff and gubernatorially- appointed Coastal Council members were working toward writing the various parts of the program. In 1976, all extensive study financed and coordinated through the coastal prograin and the S. C. Department of Parks, Recreation and Tourism was undertaken. This study oil beaches arid beach access, which formed the basis of the beach inventory prescived at the end of thiz --hapter, is entitled Public Beach Access-and Recreation in Soulli Carolina and was conducted by Hartzog, Lader & Richards. A special legal consultant to the Council has worked closely with the staff to fully explore the possibilitics arid problems regarding provision and pro- tection of public beach access. The Management Committee of the Coastal Council is one incans for improved policy development. This sub-grOLIP of the full 18-nicrnbcr COUllcil, which represents a wide range of intcrests and geographic [email protected] received draft material from the staff arid gave it careful, in-depth exanlination arid review. A more technical form of input to the policy fortilUlation process has been a Beach Access Advisory Corn- I V - 6.) mittee. This working group of experts from the recreation field, local and State government representatives, and citizens who personally encounter or deal with beach access issues, nici several times to assist staff of the Council in drafting this segment of the program. In addition, a group of citizens in each of the eight coastal Counties and one in the inland area met on a ionthly hasis during the latter sta-es of development of the prograin to carefully Skidy draft segments of the docurnent, including beach and shoreline access. Thc input frorn these County Working Groups, which con- sisted of both general and specific, detailed comments, p-oved invaluable in assuring that the real issues and concerns of coastal residents and others in the State have been addressed by the program. b. Findings South Carolina has a unique opportunity at the present time for preserving valuable coastal resources and for realizing great social and economic benefits from these areas. The relative wealth of beaches and other shorelines of the coast are an asset for residents of the coastal zone and the State as well as for the Nation in terms of the many visitors to the area. Provision of sufficient areas for public shoreline access, especially to the beach, which include adequate facilities,and maintenance are important not only to recreational users - day visitors and tourists - but to residents and private property owners as well. The interests of this latter group are also met because pressure for use of or infringement upon private beachfront and the associated trespass or damage is reduced when pro- perly designated public areas exist. The inventory contained at the end of this section demonstrates the extent of existing public access to South Carolina beaches. The significant number of public boat landings and public shellfishing areas, which provide another form of public shoreline access, have also been identified. Roughly 30% of the State's Atlantic Ocean shoreline or beach areas,,including the adjacent dry-sand or upland shorefront, is owned by the State or Federal government. The need to preserve these beach areas in the public domain and.insure their protection both as natural assets and 'Mr recreational opportunities is clear. Many of these beach areas have limited transportation access, often by private boat only with no boat landing facilities. Thus, a primary criteria for acquisition or expansion of new public beach areas is provision of ample iieans for transportation access. An additional criterion is availability of facilities related to beach activities, such as restroonis or changing areas. In occan-front areas with predominantly private ownership of the adjacent uplands, existing lateral public accessways across to the beach below mean high water also need preservation, enhancement and maintenance. In developed beach areas, especially those near urban centers where demand is greatest and is in- creasing, the provision of adequate parking for day-visitors is one concern of coastal management for improv.- ed public access. Efforts to encourage local governments and private developers to consider provision of public access-ways in future development plans, such as subdivision or resort proposals, is another focus of public access planning. Recreational boating in South Carolina's coastal zone is a growing and important economic enterprise as Nvell as a recreational pursuit. While there are currently a number of public boat ramps in the coastal zone, distribution is relatively poor in some areas. The need also exists for provision of new public ramps to meet growing demand; these should be constructed in -,in environmentally acceptable manner and offer improved facilities (lighting, trash receptacles, parking). (Other boat i ng-related activities which provide shoreline access such as marinas and docks and piers are more often private or commercial endeavors rather than public, and are covered by the coastal management pro t grain under the resource policy section for the respective activity. (Section VI A-C of the Resource Policies, (Chapter 111)). Improved public access to riverine or estuarine areas for recreational purposes other than boating, such as swininling, picilicing or carnping,, can help reduce the extreme demand on Atlantic Ocean beaches by offering alternative water-front destinations. Recreational fishing and shellfishing arc also significant pursuits For coastal residents and visitors. The limited public oyster grounds along the coast receive heavy use. (See Table 4 for locations.) Several beaches, both recreational areas and wildlife preserves, have been designated as Geographic Areas PartiCUlar Concern (GAPCs) in the coastal zone. These beaches have been categorized as Areas of Unique ,,@'atural Resom-ce Value, and as designated GAII'Cs, receive special management attention. IV-63 Additional considerations are inade based on the priorities of use of these areas and possible negative im- pacts when decisions are made by the Council on permit applications in the critical areas or review and cer- tification procedures in the coastal zone. C. Policies 1) The S.C. Coastal Council fully endorses and will support, further, and encourage the protection of and, wherever feasible, the expansion of public access to shoreline areas in the coastal zone. 2) The Council's evaluation to determine whether or not permit applications for alterations in the critical areas are approved will,be guided by the policies specified in Sections I and 2 of the S.C. Coastal Management Act of 1977 and: The extent to which the development could affect existing access to tidal and submerged lands, navigable waters and beaches or other recreational coastal resources (Section 15(A) (5) S.C. Coastal Management Act of 1977). 3) The Council's review and certification of permit applications from other State agencies for projects in the coastal zone, including those outside the critical areas will consider: Th ,e extent of impact on the following aspects of quality or quantity of these valuable coastal resources: Public recreational lands-conversion to other uses without adequate replacement, interrup- tion of existing public access, or degradation of environmental quality in these areas (emphasis added). (See Chapter 111, (C) Resource Policies.) 4) Public funds can only be expended for beach or shore ero sion control in areas, communities or on barrier islands to which the public has full and complete access. 5) The highest priority for expenditure of public funds for acquisition of new parks and recreational areas along beaches or shorelines in the coastal zone will be given to areas which offer full and complete access to ihe public. 6) The Council encourages the extension of better access to existing publicly-owned recreation areas, par- ticularly barrier islands, which currently only afford access by private boat and are appropriate for more intensive use. This should include access to the area, via ferry or provision of boat landings and other facilities; and also access across or through the area to the beach-front via paths or walkways. The type and extent of public access must be determined based on the human "carrying capacity" of the area in its natural state in order to protect natural beach features and other environmentalli sensitive areas. 7) Lateral beach access-ways should be walk-over structures or staggered pathways at natural breaks in the dunes, to prevent disruption of sand dunes or vegetation. Although structures of this type are specifically exempted from direct permit authority, Coastal Council staff will be available at any time to assist in their planning and design so as to assure suitability to the environment. 8) The provision of additional parking space in upland areas adjacent to beaches should be a priority for recreational planning by.both local and State-agencies. Alternatives such as remote parking sites con- nected to the beach by public transportation, off-island parking, and authorized weekend and holiday use of private, commercial parking spaces should be explored. As mandated in Section 10 of the Act, Council staff will be available to provide technical assistance whenever needed-. 9) Local governments in the coastal zone, particularly beachfront communities, are urged to incorporate considerations for provision of public access into their local ordinances and comprehensive plans, especially into subdivision regulations which can influence the location and design of new developmen that might affect public access. I V-64 ~ ~p~~~h~l~i~ ~b~~ ~f~~- ~p~~~~w~- ~p~~b~li~ ~r~~~~ ~~~~d !,.,,I ;on of In I ~e~s to ~1 ~i ~C~Of~qo~%~% ~i~f~i~l~l ~D~f~.~, ~S~S~U~r~C ~O~r~l ~!~i~l ~'[email protected]~I~r~l~lcl [email protected]~, ~,~ql~o~qp~qm~c~n~t of ~1) or ~qP~!~k~_~.~U~C~I~t~I~.~,~!~. ~-~-~,~1~qM~,~ent e~nd use are corn- -it ra~n~ip~s and ~qla~nd~qi~ngs ~qi needs of ~r~e~,~-r~ea-~qio~nal on all [email protected]~v ~qbr~,~*[email protected] and ~~!~qN~s Whe~jC D~O~s~s~i~qb~ql~e~. will ~qJng public ~4qg~o~u~n~qds~, ~A~i~c Areas of' ~8qP~nrt~;c~u~'~,~I-r ~.~"~F~Is and piers ~Nvill apply ~.~:~; pertaining to t~qh~e~s~e ac~- `~,~osely with t~qh~e SC~2qORP ~ublic beach recr~ca~qt~i~O~n~. a recreational resource, ~apter V, (D) details the ~outh Carolina's coastal to limit the ~qI~q;~a~qb~q;~qj~q;~qI~V ~,~)u~qblic a~c~c~css to th~e [email protected]~_~,~z~a~c~ql ~i. Department of Parks, ~u~nd ~q(~%vhich may no~v~.~- only ~'~sc of developing land for ~'~nts to provide more high ~.~,[email protected] to serve as fishing piers ~struCtU~r~CS to a county or [email protected]~vay be allow- ~c~n to assure access ~oPpor -low _~6q!~,[email protected][email protected] by th~qe Co~qunc~q;~,' Act. (I ~q'E`~qxis~4ql~qi ~ql~qe ~32qCo~4qi~2qf~2qf~0qf~qe~ql ~q.~q1~q.~q1~q.1 ~q'~4qh~qi~qianc~qe~qs aff~4qe~qc~. ~2q;~q,~q,~q,~qL ~4q4 ~qt~8qh~qe Act. B~q,~q?~qi~qf~q) ~q1:.~4qx,~q,[email protected] ~8qwd~q' 0 10)Private developers in beach areas, in considering the benefits not only for the public but for protec- ting private property interests, are encouraged to include provision of reasonable public beach areas and access-ways in their plans for new developments. 11)Recreational planning by State and local governments should include consideration of alternatives to actual ocean-front areas in order to offer other options for recreation and to relieve growing pressure on aocean-front communities. An example of such an alternative is the acquisition and development of recreational areas along rivers which provide for activities such as fishing, swimming, or picnicing. Estuaries could also be utilized as recreational areas, provided that their development and use are com- patible with the fragile nature of these areas. 12)The Council advocates the provision of joint-use public docks, public boat ramps and landings throughout the coastal zone in environmentally suitable locations, to meet the needs of recreational boating. 13)The Council advocates the provision of pedestrian access and fishing catwalks on all new bridges and roadways in the coastal zone, and recommends their addition to existing structures where possible. 14)The provision of new public oyster grounds, as well as the preservation of existing public grounds will be sought by the Council. (Public shellfish grounds are designated as Geographic Areas of Particualr Concern.) 15)The resource policies for park facilities, as well as marinas, boat ramps, docks and piers will apply where appropriate to shorefront areas with public access. (See Resource Policies pertaining to these ac- tivities.) 16)The Coastal Council will coordinate planning and acquisition efforts very closely with the SCORP Exchange Council, as well as with State and Federal agencies concerned with public beach recreation. 17)The Council recognizes the overriding importance of good water quality as a recreational resource, and will strive to maintain and, where possible, improve existing standards. Chapter V, (D) details the procedure by which the Federal Water Quality Standards are incorporated into South Carolina's coastal planning process. Recommended Practices 1)The Coastal Council recommends that legislation be introduced to limit the liablity of property owners and municipalities in case of injury or accident associated with public access to the beach. 2)The Coastal Council strongly supports the proposal generated by the S.C. Department of Parks, Recreation and Tourism to alter the structure of the State Recreational Land Trust Fund (which may now only be used for State parks) to permit local governments to use the Fund for the purpose of developing land for any recreational purpose. Use of the Fund would enable State and local governments to provide more high quality public access to the beaches. 3)It is recommended that abandoned bridges and railroad trestles be left standing to serve as fishing piers when safety considerations permit. Costs of maintenance may be offset by leasing the structures to a county or local government. It has been suggested in the Resource Policies section that railroad rights-of-way be allow- ed to serve as access points whenever possible. (II(D) of the Resource Policies) 4)In the planning and design of all public access areas, full consideration be given to assure access oppor- tunities to elderly and handicapped visitors. 4. Legal Basis for Management Authority/Legislative Mandate a. Permitting Authority in Critical Areas Three means of protection for access and use of public shoreline areas afforded by Council's per- mitting authorit