Feasibility of compensation for man-induced shore erosion

[From the U.S. Government Printing Office, www.gpo.gov]

FEASIBILITY OF COMPENSATION
FOR MAN-INDUCED SHORE EROSION

COASTAL ZONE

INFORMATION CENTER

Part I:

Summary Report

August 1978

TC
223.3
.F43
1978
Pt.1 WISCONSIN

COASTAL MANAGEMENT

FEASIIBILITY OF COMPENSATION FOR MAN-INDUCED SHORE EROSION:

SUMMARY REPORT

Kent Butler
Robert DeGroot
Mark Greenwood
David Thomas

August 1978

Financial assistance for this study has been provided through
the Wisconsin Coastal Management Program, by the Coastal
Zone Management Act of 1972 administered by the Federal Office
of Coastal Zone Management, National Oceanic and Atmospheric
Administration. The Wisconsin Coastal Management Program is
administered in the Office of State Planning and Energy,
Wisconsin Department of Administration.

COASTAL ZONE
INFORMATION CENTER

US Department of Commerce
NOAA Coastal Services Center LibrarY
2234 South Hobson Avenue
Charleston, SC 29405-2413

Table of Contents

Page

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I. The General Problem . . . . . . . . . . . . . . . . . . . . . .

II. Issues for Analysis . . . . . . . . . . . . . . . . . . . . . . 2

Legal and Administrative Options for Compensation . . . . . 2

Feasibility of Relating Human Activities to Shore Erosion 9

III. Options for the Individual . . . . . . . . . . . . . . . . . . 14
IV. Options for a State . . . . . . . ... . . . . . . . . . . . . . 17

V. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . 21

References . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Preface

This is the first in a series of three reports that consider the fea-
sibility of compensation for man-induced shore erosion on the Wisconsin
coast of the Great Lakes.

Vol. I: Summary Report
Vol. II: Legal and Administrative Options for Compensation
Vol. III: Relation of Human Activities to Shore Erosion

Investigators for this report series and their responsibilities are as
follows:

Kent Butler, project coordination and editing, University of
Wisconsin-Madison
Robert DeGroot, engineering and geologic analysis, University
of Wisconsin-Madison
Mark Greenwood, legal and administrative analysis, University
of Michigan Law School
David Thomas, project supervisor, Wisconsin Office of State
Planning and Energy

The opinions, conclusions or recommendations expressed in this report
series do not necessarily reflect the views of the Wisconsin Coastal
Management Program.

Feasibility of Compensation for Man-Induced Shore Erosion: Summary Report

I. The General Problem

Millions of dollars in damages from Great Lakes shore erosion occur
during years of high water levels. As a result of these losses, shore
property owners and officials in Wisconsin and other Great Lakes states
are anxious to explore the possibilities of attaining financial relief
and other forms of compensation for erosion-related damages. Although
shoreline erosion is a natural, ongoing phenomenon, certain man-related
activities are known to modify natural coastal processes, thereby
changing the characteristics and rates of erosion. At some point,
governments and individuals must provide compensation for the costs
they impose on others.

Several activities motivated this evaluation of the feasibility of shore
erosion compensation. Administrators of the National Flood Insurance
Program are considering options for providing federally subsidized
insurance to Great Lakes shore property owners in erosion hazard zones.
Property owners adjacent to shore protection structures are concerned
about accelerated erosion attributable to the placement of these
structures. A lawsuit involving the U.S. Army Corps of Engineers and
aggrieved shore property owners was brought before a Federal district
court in Wisconsin to determine the legality of instituting a new Lake
Superior water level regulation plan.1 Congressman Ruppe (R.-Michigan)
has proposed legislation to provide compensation to aggrieved shore
property owners as a result of the new water regulation plan. 2 Finally,
a Wisconsin study of proposed Great Lakes water level regulation plans
recommended that further studies of the feasibility of compensation be
undertaken before the regulation plans are permanently modified.3

The feasibility of obtaining compensation for shore erosion is one
element of a larger set of nonstructural alternatives for either reducing
shore erosion damages or mitigating the financial hardships which
can accompany erosion damages. This report is an attempt to document,
generally, the dimensions of the problem and identify options for the
individual and a state in seeking shore erosion compensation.

11. Issues for Analysis

This report addresses two questions: (1) What are the legal and ad-
ministrative options for compensating property owners for erosion
damages, particularly man-induced erosion damages, and (2) can research
identify and distinguish man-induced causes of Great Lakes shore
erosion? None of the nine options discussed readily provide monetary
relief for shore damages. Research even on very selected sites has
not yet been able to distinguish between natural and man-induced shore
erosion.

The term "compensation" is defined more broadly than the context used in
Federal eminent domain law and the 5th Amendment of the Constitution.
Several avenues that provide some form of relief from further damage or
financial subsidy to the individual shore property owner are considered.
Obtaining compensation for man-induced erosion requires proof that the
activity caused the erosion and that the original activity was illegal.

The individual's options for obtaining compensation for man-induced
damages are privileges *(or at least alternatives) as opposed to rights
guaranteed by a public body. Article VIII of the Boundary Waters Treaty
of 1909 between Canada and the United States authorizes the International
Joint Commission (IJC) to "require that suitable and adequate provision,
approved by the Commission, be made for the protection and indemnity
against injury of any interests on either side of the boundary."

In 1973 the IJC recommended that the governments compensate shore
property owners and other interests harmed by instituting 9 new lake
level regulation plan, but the advice has not been heeded. Indeed,
in 1976 the U.S. Department of Justice contended that those allegedly
suffering damages could seek compensation on a case-by-case basis through
the Tort Claims Act or the Tucker Act.6 The difficulties of obtaining
relief through these laws are addressed below. An individual also cannot
bring suit for compensation from the IJC because the commission has
sovereign immunity. From this perspective the property owner who alleges
that human actions have induced erosion damages confronts the range
of options presented below.7

A. Legal and Administrative Options for Compensation

Nine options are analyzed in this investigation. The first group--flood
insurance, tax deductions and disaster relief--are federal and state
financial assistance programs designed to alleviate the substantial
losses associated with catastrophic events. The second group--certain
Army Corps of Engineers projects, the taking theory*, the ultra vires
suit, and tort actions** against the federal government--are based on
the assumption that the federal government is liable for certain actions
that adversely affect the rights and interests of individuals (in this
case, shore property owners). The last two options--private tort actions
and the Wisconsin Department of Natural Resources permitting procedure

11taking" theory refers to the constitutional rights a property
owner has against the seizure by the government without compensation.
A tort is a wrongful act for which a civil suit may be filed. An
ultra vires suit usually alleges that a government official has
acted unlawfully.

for structures in navigable waters--are concerned with 11spillover"
effects between adjacent property owners when uses of erosion-prone
shorelands conflict.

This is not a legal brief. A particular shore property owner's situ-
ation is more complex than the typical setting contemplated here. If
substantial legal issues and financial consequences are encountered,
the individual should consult with an attorney or an appropriate
governmental agency to determine the proper strategy for seeking
relief.

Option 1: Flood Insurance. Individuals who own shore property within
specifically designated flood hazard zones eventually may qualify for8in-
surance premium subsidies under the National Flood Insurance Program.
Because the 1973 act is ambiguous about the types of shore erosion that
could be insured against, the program does not yet apply to Great Lakes
coastal erosion. The Federal Insurance Administration of the U.S.
Department of Housing and Urban Development and a subcommittee of the
Great Lakes Basin Commission are exploring ways to apply the Congressional
intentions about erosion damage to the Great Lakes. Most Great Lakes
shore erosion can be anticipated and results from causes other than
flooding; thus, applying insurance concepts to the problem is difficult.

The existing Wisconsin Floodplain Management Program applies to riverine
communities inland from the Great Lakes, operating as a cooperative
state-local government effort with State guidelines and support and
local governmental management and administration.9 If federally sub-
sidized insurance for Great Lakes shore erosion damages becomes available,
individuals, local governments, and the State will be affected by new
regulations and responsibilities. Communities bordering the Great Lakes
likely would be required to adopt land use controls such as building
setbacks from the shoreline in "erosion hazard areas". Most of the
baseline data for accurately identifying erosion hazard areas along
Great Lakes shores has.already been collected.10 The specific c iteria
to be established for an insurance program may call for additional or
updated shoreline surveys, more staff support, and more public funds.
Delineating such hazard zones identifies the property owners eligible for
the program, but the Federal government and the Great Lakes states
have not Xet agreed upon or developed a workable insurance program.

For the property owner, subsidized flood insurance would not eliminate
all risks and responsibilities. Each property owner would contract
with the designated insurance company (AETNA, in Wisconsin) and pay
the difference between the actuarial premium and the Federal subsidy.
Owners of property.along rivers can insure only structures and their
contents, up to a maximum amount; similar restrictions probably would
apply to coastal property if the flood insurance becomes available to
Great Lakes shore property owners.

Option 2: Tax Deductions. Income tax deductions are available to shore
property owners to offset losses from shore erosion under Section 165
of the Internal Revenue Codell and to business property owners as a 12
depreciation deduction for the building of shore protection structures.
Section 165 of the Internal Revenue Code pertains to "casualty" losses
caused by sudden, hostile, or unexpected forces such as fire, storm,
theft, or other casualties. Erosion attributable to normal seasonal
variations such as rises in lake levels would not be applicable.
Casualties can, however, be linked to either natural or man-induced
events. The financial losses must be evidenced either by a decline
in the market value of property immediately after the event or by the
costs incurred in repairing the property. Areas that are declared as
"disaster areas" under the Disaster Relief Act of 1974 qualify for
casualty loss deductions (see Option 3). The major difficulty in taking
a casualty loss is that the property owner must document that the loss
is attributable to the casualty. This often entails having an appraisal
of the property before and immediately after the event.

Depreciation deductions for shore protection structures are limited to
property held for the "production of income" or related to a "trade
or business," even though the structure itself is not income-producing.
These deductions can only be applied so as to offset taxable income
derived from other sources. The individual is advised to consult with
the appropriate tax revenue administrators before risking a potentially
illegal claim for deductions. Installing structural erosion control
measures and thereby reducing the amount of sediment entering the Great
Lakes does not qualify as a deduction or depreciable expense. However,
farmers can deduct up to 25% of the costs of certain nonstructural
soil conservation practices, which could include de-watering the bluff,
grading, and planting ground cover.13 Although shore erosion contributes
to Great Lakes sedimentation, Wisconsin pollution control programs
have not identified shore erosion as a major problem warranting state
attention.

Option 3: Disaster Relief. Two potential sources of funds to repair
storm damage along the shore include grants administered by the Federal
Disaster Assistance Administration and loans available through the
Small Business Administration. In these disaster relief programs,
shore erosion and gradual soil erosion are not considered "disasters."
If a "flood, high water," or "wind-driven water" damages public property,
the local government is eligible for grants (up to 100% of the cost)
14
to repair the structure . The President must declare the event to be
a disaster if the local government or private property owner is to
obtain assistance.

Individuals or families may obtain up to $5,000 in disaster relief
assistance to defray expenses related to the disaster. The state must
provide 25% of this grant.15

The SBA is authorized to make or guarantee loans to individuals or
small businesses where a natural disaster occurs. Property owners
may obtain low interest loans (1-3%) to repair damaged property--primarily
the victim's residence. Small businesses may qualify for loans or
loan guarantees for a wide range of purposes related to recovering from

a natural disaster.16 If the shore materials are erodible and erosion
damage is likely to occur in the future, low-interest loans (1-3%) will
not be available. Thus, even if shore erosion occurs during a sudden
event which qualifies as a disaster, SBA will not loan funds to rebuild
structures if the damage is likely to occur again.

Option 4: U.S. Army Corps of Engineers Projects. Shore property owners
can benefit from Corps of Engineers protective works projects under
Section 111 of the 1968 Rivers and Harbors Act and Section 333 U.S.C.A.
426 of the Federal Statutes. Section 111 enables the Corps to investigate,
study, and construct projects for the prevention or mitigation of shore
erosion that is attributable to Federal navigation works. Examples of
navigation works that can accelerate shore erosion on adjacent shorelands
include the construction of jetties, bulkheads, and other harbor
improvements. In such cases, private property owners may appeal directly
to the.Corps for funds to build beach or bluff protection structures.
A maximum allocation of $1 million may be expended on each Section 111
project.

Under Section 33 U.S.C.A. 426, the Corps may undertake beach protection
projects, provided that public benefits are clearly evident and that
state or local governmental units share the costs. The Federal government
will allocate up to 100 percent of the funds for Federal lands, 70
percent for public parks and public recreation areas, and 50 percent
for other lands. The total project cost must be less than $1 million
unless the Congress approves a greater expenditure. A government
agency must initiate the application for a beach protection project.
Projects may be undertaken on private shore property, provided that
public benefits and uses are planned for the area. A common prerequisite
for initiation of a project on private property is the public's free
access across the property.

Option 5: Taking Theory. The right to compensation based on the un-
constitutional taking of private property is guaranteed under the 5th
Amendment of the Constitution. Compensation is pursued in some in-
stances on the basis of an "inverse condemnation suit," which is a
claim seeking remuneration from the Federal government for private
property already taken (or condemned) by Government actions. One
relevant issue related to Great Lakes shore erosion is the regulation
by man of Lake Superior water levels. By regulating outflows at the
Sault Ste. Marie locks and dams, the Corps of Engineers may have denied
shore property owners on Lake Superior a property interest.17 It is
possible that the marginal amount of erosion caused by artificially raising
Lake Superior water levels is a compensable action under the taking
theory.

The applicable law on taking and inverse condemnation is very complex
and often inconsistent. While Federal constitutional law may be used,
the courts often defer to state law because of the longstanding state
determination of rights in private property.

Several steps are involved in undertaking an inverse condemnation suit
against the Federal government. The claimant must establish rightful
ownership of the land at the time of taking and demonstrate that a clear
line of causation exists, linking the Government's activities with
property damage or condemnation. In the lake levels situation, the
claimant would have to show that the regulation scheme raises water levels
and causes damage to the property in question. The claimant would have
to show that the land taken is situated above the normal high-water
mark (prior to raising the water level), and that the Government's activities
clearly represent an "intrusion" above this boundary that is worthy of
compensation. The time of taking also would have to be established to
assure that the lapsed time since the taking does not exceed the statute
of limitations. There are many examples of successful inverse condemnation
suits on shore property, but most of them pertain to flooding of the land
by the Government and obvious measures of damage or condemnation.

Claimants who seek compensation for man@induced erosion or inundation
under the taking theory should be aware of several physical and technical
complications. The delineation of a pre-action high-water mark can
be exceedingly complex, both in terms of determining "natural" water level
regimes prior to regulation and in following established procedures for
delineating the high-water mark on the ground.18 The quantification
of erosion attributable to the regulated water level is also made
exceedingly difficult by the lack of data for relating high water to
bluff erosion damage on a site specific basis.

Legal and institutional obstacles to the taking theory are also critical.
Under the doctrine of "navigational servitude*," the Federal government
holds considerable power and latitude in pursuing navigational impr Y4 ements
on the Great Lakes and other navigable waters of the United States.
Water level regulation by the Corps of Engineers could be considered as
a reasonable exercise under this doctrine because it is partially for
the benefit of navigation. Consequential damages to shore property
owners as a result of such Federal policies generally are not compensable,
especially when the activity is confined to waters and lands at or
below the high-water mark. Furthermore, the courts have stated that
shore property owners must bear the risks of erosion because they 26so
are entitled to the benefits of natural accretion of the property.

In the instance of the IJC authorizing the raising of Lake Superior
water levels, the U.S. Department of Justice recommended that aggrieved
property owners might pursue an inverse condemnation suit as authorized
by the Tucker Act. This law and its revisions enable the U.S. District
Courts and the Court of Claims to rule on claims that Federal actions have
"taken" property. The Tucker Act and its revisions are often used to
recover damages inc rred when navigation is enhanced, but claims are
limited to $10,00O.H

Navigational servitude is the dominant or superior authority of the
Federal government over the activities of state or local governments
or private parties in or on navigable waters of the United States,
based on the Commerce and Property clauses of the U.S. Constitution.

Option 6: Ultra Vires Suit. An action of a government employe or
corporation that is beyond the scope or in excess of granted legal
authority is considered "ultra vires." The ultra vires suit is a dif-
ferent type of erosion compensation option, because the remedy is usually
an injunction of the activity rather than financial compensation.
Application of this theory in relation to shore erosion and lake level
regulation w@uld postulate that officers of the Corps of Engineers at
Sault Ste. Marie have duties prescribed and limited by statute, and
that the activities required by new water level regulation plans are
beyond the scope of their authority. Although this approach is use52
in the recent case of Soucheray et al. v. Corps of Engineers et al
a recent decision in Edison Sault Electric Co. v. United States held that
the Corps of Engineers, in administering the Lake Superior regulation
plans of the IJC, was protected from liability because the IJC has
sovereign immunity.23 Because treaties can affect private property
and the United States cannot do by treaty what the Constitution forbids,
the IJC's authority to recommend that the governments consider compensation
offers some protection for the rights of private property owners.

Option 7: Tort Actions Against the Government. Torts are a broad
category of "civil wrongs" that reflects the judicial attitudes about
proper relationships between members of society. The two tort actions
that are relevant to shore erosion compensation are trespass and nui-
sance. Trespass occurs when one party wrongfully crosses the vertical
boundary surrounding a piece of real property possessed by another
party. Nuisance actions customarily are defined as conflicts between
uses of adjacent properties and are represented by interferences with
the use and enjoyment of land. In the case of shore erosion, tort
actions against the government would pertain to the activities of
Federal officials in regulating lake levels.

Although the U.S. Department of Justice recommended tort actions as a
means of seeking compensation for damages caused by lake level regulation,
there is little chance of success. The Federal Tort Claims Act places
significant restrictions on the right sue the Federal government and
the manner in which suits are handled. The doctrine of navigational
servitude largely protects from suits Federal activities occurring at or
below the ordinary high-water mark. The problems of showing trespass
are similar to those involved in establishing that a taking of property
has occurred.

The nuisance theory does not bear the same burden as trespass in showing
that an intrusion has occurred, but the government is nevertheless
entitled to a reasonable use of its own "property" just as is the shoreland
owner. The flowage of water below the high-water mark would usually be
considered reasonable. Above the high-water mark it might be an unreason-
able nuisance, but in such cases taking and trespass doctrines would
also be available remedies.

Option 8: Tort Actions Against Individuals. An adjacent property
ownerls actions may damage a neighbor's shorefront property. For
example, the construction of a shore protection structure might in-
terrupt the littoral drift of sand* and alter the nearshore current
patterns. Such an action might deny the natural beach accretion to
neighboring shore property and also accelerate erosion processes.
Altering surface water runoff on adjacent property may initiate severe
gullying or other types of erosion and thereby be grounds for a tort
action against an individual. Both nuisance-and trespass actions are
feasible torts against individuals for man-induced shore erosion.

Wisconsin courts have not dealt directly with complaints of downdrift
erosion* caused by shore protection structures. The most likely ap-
plicable criteria probably is found in the "reasonable use" doctrine of
riparian rights which is recognized in Wisconsin. Under this doctrine, a
shore property owner on a navigable water body in Wisconsin may not
change or obstruct a watercourse so as to cause damage to the rights of
others o25 that watercourse, including the rights to natural accretions
of sand.

Erosion attributable to the diversion of surface water runoff is po-
tentially a cause for a tort action, especially as a resul hof the
recent Wisconsin Supreme Court decision in State v. Deetz. in this
case, the court overruled the longstanding "common enemy" doctrine with
respect to excess surface water and adopted the "reasonable use" doctrine.
Under the new interpretation, a property owner may not dispose of
surface water if its "invasion" of adjacent property is unreasonable,
negligent, reckless or constituting an "abnormally dangerous condition."27

Tort actions against individuals would have to be substantiated by a
clear line of causation between the acts of the defendant and injury to
the claimant's property. Proof of causation can be a serious problem,
depending on the specific setting of the controversy, the magnitude of
the claim and the need for detailed quantitative evidence. There is
very little law on the necessary proof of causation in Wisconsin; many
conflicts are averted by the State's regulation of structures placed in
navigable waters (see Option 9).

Option 9: Departm nt of Natural Resources Permitting Procedure.
Activities of an adjacent shore property owner, which may be the cause
of damage to a claimant's property, may require authorization from the
Wisconsin Department of Natural Resources (DNR). Under Chapter 30 of
the Wisconsin Statutes, the DNR evaluates proposed shore protection
structures and issues permits for their placement on lake or stream
beds. A claimant can intervene at several times in the DNR regulatory
procedure and essentially pursue a nuisance action against a neighbor.
The DNR is obligated to investigate the circumstances when a claimant
alleges that a structure has been built without a permit or that an
existing permit should be revoked.

Littoral drift is the sedimentary material, or the movement of the
material, in the littoral (nearshore) zone under the influences of
waves and currents.
Downdrift is the direction of predominant movement of littoral materials.

Three possible situations for claiming relief through the DNR regulatory
program may arise: (1) an offending action may be present without the
issuance of a permit, (2) a proposed action may be under review for a
permit, or (3) a claimant may seek the revocation of an existing permit.
Possible results of the claimant's initiative and the DNR investigation
include: (1) the DNR may order the structure to be removed or deny a
permit for new construction with the alternative of civil and criminal
sanctions, (2) a public hearing may be called to present the sides of
competing claims and hopefully resolve the matter, or (3) the permit may
be issued or reconfirmed, depending on the factual situation and the
attitudes of involved parties.

The DNR personnel work within a broad framework of statutory and con-
stitutional constraints that allows them much flexibility and discretion
in protecting the public trust in navigable waters. The option of
seeking relief from man-induced erosion damage through the DNR per-
mitting procedure would be inexpensive and versatile because no outside
legal assistance would be required and there would be no strict rules of
evidence governing the use of certain kinds of information. The DNR
personnel encourage compensatory agreements solely between the two
parties, because the role of the DNR is confined strictly to public
trust protection rather than private nuisance settlements.

B. Feasibility of Relating Human Activities to Shore Erosion

Distinguishing natural versus man-induced shore erosion damages is
primarily an exercise in description as opposed to measurement. Activities
affecting erosion processes and the nature of their impacts are easy to
see, but the amount of erosion attributable to specific activities is
very difficult to assess. Although the first three options for erosion
compensation that were discussed above--insurance, tax deductions and
disaster relief--probably do not require a clear distinction between
natural and man-induced erosion, the other six options rely on such
distinctions in varying degrees.

A survey of research on shore erosion indicates that the proportions of
man-induced and natural erosion can not yet be distinguished because
several erosion mechanisms operate simultaneously. For example, the
wave energy that reaches the base of a bluff is increased during high
naturally occurring water regimes and may also be partially related to
water level regulation. Normal erosion processes within a bluff such as
slumping*, sliding** and earth flows are not only dependent on internal
soil properties but also on blufftop loading***, groundwater depths,
seepage+, and ice action which can be influenced by human activities.

Slumping is a type of landslide involving the downward slipping of
a mass of material, moving as a unit, usually with backward rotation
with respect to the slope over which movement takes place.
Sliding is the downward movement of soil which takes place along a
definable, relatively plane surface.
Bluff loading is the addition of material to either the blufftop or
bluff-face, which decreases the stability of the bluff.
+ Seepage is the slow movement of water through small pores, cracks,
or interstices of material out of a groundwater body, often onto
the face of a bluff.

Surface water runoff can be diverted and channeled as a result of
various cultural activities, thereby accelerating the natural rates of
gully erosion. The four major categories of human activities that can
affect shore erosion are 1) lake level regulation, 2) placement of shore
protection structures, 3) upland management practices and 4) winter lake
navigation), Each of these activities are discussed in the following
sections."

Lake Level Regulation. At least four of the options for receiving
erosion compensation are dependent on the ability to demonstrate that
additional erosion occurs when Lake Superior water levels are raised as
a result of the regulation plan. Two questions must be answered in
assessing the erosive effects of lake level regulation: (1) To what
extent have the new regulation plans altered the preexisting lake level
regime, and (2)' what damages would be associated with a known change in
lake level?

The lake level regulation plan, Plan SO-901, which the Lake Superior
Board of Control now uses as a guide,is estimated to raise the extremely
low water lelgls of Lake Superior and also increase the frequency of
high levels. Critics of the Levels Board's analysis have contended
that the data base for this simulation (1900-1973) did not adequately
represent the long-term frequencies of extremely high and low water
levels. They noted that a major portion of the data base, approximately
1920-1950, was characterized by relatively mild, constant weather
patterns which did not represes the climatic variability of the period
1860-1920 and post-1950 years. Using a different period of record
would yield other estimates of how much the new regulation plan would
affect the lake levels. Despite such problems, simulating lake levels
and the effects of regulation is a much more 'exact science' than
estimating how much erosion damage is attributable solely to lake level
changes.
Methods for assessing dimages attributable to changes in water levels
are largely inadequate. 0 Most compensatory measures would require a
site specific evaluation of erosion damage associated with lake level
regulation. As emphasized by the International Great Lakes Levels
Board, the methods developed to compare alternative regulation plans can
not be used on a site specific basis to estimate the amount of damage
attributable to a rise in lake levels. The damage assessment methods
developed by the Canadian and United States sections of the Levels Board
did not distinguis @l between the effects of higher lake levels and other
causes of erosion.

Shore Protection Structures. The principal causes of erosion resulting
from shore protection structures are interference with the littoral
drift of sand and magnification of wave energy close to shore. The
amount of erosion caused by protective structures depends on the rates
of littoral drift and alongshore currents, type of structure, capacity
of the structure to block sediments in the alongshore direction, and

capacity of the structure to magnify or retard wave energy reaching the
shore. Perpendicular structures and offshore breakwaters intercept the
littoral drift of sand, creating a protective beach on the updrift side
and starving the beach on the downdrift side. Parallel shore structures
protect lands immediately behind the structures at the possible cost of
accelerated erosion in front of the structure and on adjacent land.

Various methods can be used to evaluate erosion from large and small
structures. A prerequisite for an analysis is adequate pre-construction
information on the shore conditions, patterns of the littoral drift,
location of the structure, and natural rates of erosion. Unfortunately,
significant variations in storm activity and wave energies often occur
in pre- and post-construction periods. Comparisons of areas with pro-
tective structures to comparable areas without structures are compli-
cated by significant morphological differences in shore features that
occur in very short intervals. Only qualitative evaluations of erosion
due to structures are now possible.

Upland Management Practices. Erosion from upland management activities
has been examined extensively along streams and watersheds. The same
activities that accelerate erosion and sedimentation in inland regions
also affect lakeshore erosion. Four of the most significant upland
practices include bluff loading, alteration of groundwater flow, di-
version of surface water runoff, and removal of vegetation. Determining
the amount of erosion directly attributable to these practices is often
very difficult. As in the other human activities discussed above, the
interaction of several agents of erosion complicates the task of separating
the effects of individual human activities.

Bluff loading occurs when additional material on the bluff top or face
significantly increases the weight that the bluff must support. The
construction of large buildings or placement of excessive material on or
above the bluff can initiate slope failure or accelerate erosional
processes. Although slumping and sliding are known to result from
excessive loading, bluff slope failure is a threshold phenomenon. It is
impossible to distinguish the relative contribution of loading to such
erosion, even with a detailed on-site engineering investigation.
Fortunately, erosion resulting from bluff loading will likely be con-
fined to a very narrow reach along the shore.

Alteration of groundwater flow can adversely influence the stability of
lakeshore bluffs. Excessive water can fill the pore spaces between soil
particles, thereby adding weight to the soil mass and exerting forces
against the soil particles which decrease the cohesive strength of
particle-to-particle contact. Large scale-examples of bluff slumping
near Whitefish Bay on Lake Michigan have been linked to cultural mod-
ifications of the natural rate of groundwater flow.32 Drains and pumps
often are used to reduce the amount of moisture in the bluff face.

Surface water runoff has a remarkable capacity to transport material and
erode coastal landforms. Man can accelerate shore erosion by: (1)
diverting excessive surface water into channels, gullies or drainage
areas that are undersized for the additional flows, (2) modifying
channel characteristics which restrict the capacity for storm water
runoff, and (3) using construction practices that increase local surface
runoff or divert the runoff onto lands not suited for overland flow.
Investigators at the University of Western Ontario determined that
gullying accounted for almost one-fourth of all the material eroded from
lakeshore bluffs.33 Examples of severe gully erosion on Lake Superior
bluffs that are attributable to surface water diversions from roadside
ditches are found on Bark Point in Bayfield County and Madigan Beach in
Ashland County.34 As in other cases of human activities, it would be
extremely difficult to distinguish and quantify the net amount of
property loss resulting from surface water runoff. The activities and
their general impacts, however, are easily seen.

Retention of native vegetation in the midst of shoreland development is
an exception rather than the rule. Shorelands are cleared for home-
sites, agriculture, roads, parking lots, and many other facilities.
Slopes and uplands that are devoid of vegetation may begin to erode
actively and irreversibly. Plants mitigate shore erosion by inter-
cepting precipitation, retarding surface water runoff, reinforcing soil
strength with root systems, and depleting soil moisture. Recognition of
these benefits is codified in the mandatory shoreland zoning law in
Wisco3gin, which restricts the amount of clearing on shorefront prop-
erty. Measurements of the amount of erosion attributable to vege-
tation removal, however, have not been completed.

Winter Lake Navigation. Shore property damages could be accelerated by
winter navigation ti;r--ough 'wave and ice action against the shore. The
U.S. Army Cold Regions Engineering Research Laboratory and other federal
agencies are studying the effects of extending the winter navigation
season.36

A reduction in the ice accumulation in the connecting channels of Lakes
Superior and Michigan-Huron would have inconsequential effects on
upstream lake levels. However, ice reduction on the St. Claire River
for navigation purposes conceivably could lower Lakes Michi an-Huron by
as much as 12 centimeters, thereby reducing shore erosion.3@

Generally, ice serves asa protective agent for the shore through the
formation of nearshore ice ridges, or icefoots*', that shield the shore
from damaging wave action. However, damage to structures and shorelines
when ice is forced onshore by wind and wave action can be very severe.
Structural damage to wharves, pilings and other facilities as a result
of free and heaving ice in harbors is probably impossible to predict.
However, such impacts presently are being investigated. Icebreaking in
narrow channels, such as the St. Mary's River, can affect shore erosion.

Icefoots are long, narrow ridges of grounded ice that parallel
much of the shoreline of the Great Lakes in winter. They are
created by storm waves, overwash, and spray.

If a serious claim from a property owner is submitted, the U.S. Coast
Guard will investigate the local ice conditions, path and speed of the
vessel, and whether the construction of the damaged structures had been
authorized by the Corps of Engineers. Structures 3hhat are not authorized
by the Corps cannot be considered in such claims.

Catastrophic Versus Continual.Erosion. Obtaining compensation through
tax deductions, disaster relief, and probably insurance, require docu-
mentation of a single catastrophic erosional event. Although property
loss after a major storm or landslide often can be measured, there are
usually a variety of antecedent environmental factors that encouraged
the event. Furthermore, the total impact that a single erosional event
has on bluff slope stability in subsequent years or on adjacent bluff
areas might not be seen for some period of time. It is the complex
interaction of antecedent bluff conditions, multiple agents of erosion,
and time lags in the erosion process that creates the continual nature
of shoreline erosion. The feasibility of relating human activities
to shore erosion damages is limited 2rimarily by this problem.

III. Options for the Individual

Legal, administrative and physical considerations in documenting erosion
damages and seeking compensation cannot be reduced to a reference manual
for the affected shore property owner. An individual shoreowner's
situation probably will be more complex than the "typical" setting
contemplated here. A statement that one option is or is not "feasible"
for an individual requires certain assumptions about the dynamics of
legal institutions and engineering states"of-the-art. The nine options
presented in this report series are subject to considerable change.
Some of the options for the State of Wisconsin discussed below suggest
possible avenues for directing this change.

Subsidies under the National Flood Insurance Program are not yet pos-
sible. If and when flood-related shore erosion becomes an insurable
loss along the Great Lakes, the individual will be able to get coverage
through participating insurance companies. The Wisconsin DNR is the
most fully informed state agency as to the status of the program. The
Great Lakes states presently are pursuing alternatives for erosion
coverage with administrators in the Federal Flood Insurance Administration'.

Income tax deductions are presently a feasible option for certain shore
property owners and certain types of losses. Since the deductions
cannot be considered a rebate, their value depends on the nature of the
individual's income and accounting scheme. The feasibility of claiming
deductions for "casualty" losses will depend on the ability to document
clearly the differences between antecedent and subsequent conditions
resulting from a sudden, catastrophic event. Periodic assessments of
shore conditions and property value become necessary to document one's
claim. The individual is advised to contact the local Internal Revenue
Service office to determine whether the damages constitute a casualty
loss.

Disaster relief loans and grant programs only have a remote chance of
success in the case of predictable Great Lakes shore erosion. There is
a precedent, however, in the $25 million disaster relief program for
Lake Ontario shore property owners after the March, 1973 storm. Several
property owners along Green Bay also obtained loans through the Small
Business Administration to repair damages to shore structures caused by
flooding in 1973. Only major storm events or other casualties are
probable bases for compensation under this program. An individual or
small businessman should contact the local SBA office, Federal Disaster
Assistance.Administration, or the state's Division of Emergency Government
in the Department of Local Affairs and Development.

Army Corps of Engineers projects are a feasible source of non-Ponetary
compensatory relief in the limited number of circumstances where they
apply. To obtain funds for shore protection works through the Corps,
the property owner must work through a local government or the state and
meet the requirement that the benefited property will be available for
public use. This alternative is often thwarted by the unwillingness of
the los41 government or state to assume the 30-50% of the non-Federal
share.

Lawsuits brought under the taking theorX are riddled with problems for
the claimant. In the case of higher water levels due to the new Lake
Superior regulation plan, there are no accepted standards for deter-
mining "natural" versus "artificial" water level regimes. Furthermore,
no agency or previous research effort has attempted to measure erosion
damages caused by lake level regulation on a site specific basis. The
defense of the Federal government would be supported by its dominant
navigational servitude in navigable waters as well as the protection
offered by sovereign immunity in carrying out the orders of the IJC.

An ultra vires suit was brought against.-the Corps of Engineers for
regulating Lake Superior water levels without proper authority. It
seems very improbable, however, that claimants would be successful in such a
case because of a recent Federal Court of Claims decision which recog-
nized the sovereign immunity of officers of the Corps of Engineers in
executing orders of the International Joint Commission.40

Tort actions against the Federal government for damages resulting from
lake level regulation also would have little chance of success. There
are problems in gaining standing to bring suits for government torts.
The longstanding doctrine of Federal navigational servitude also provides
wide latitude for legitimate Government activities which promote public
navigation. Furthermore, the IJC expressly directed that Lake Superior
levels remain below their historical maximum of 602 feet.

Although there is little precedent in Wisconsin for tort actions against
individuals on account of man-induced shoreline erosion, the "reasonable
use" doctrine of riparian rights would seem to support such a claim.*
Erosion caused by adjacent structures or upland management practices
such as diverting surface water runoff possibly could be considered a
nuisance or trespass. Torts against individuals probably would not
require a rigorous quantitative assessment of the amount of erosion
damages, although such information certainly would be supportive.

The DNR permitting procedure is a feasible and relatively inexpensive
avenue for seeking relief from man-induced causes of erosion which are
regulated by State law (such as the placement of shore structures),
provided that a public nuisance results from the activity. Financial

The two relevant tort actions are nuisance and trespass. Applying
the reasonable use doctrine would require each shore property
owner to deal with erosion in a manner that does not unreasonably
injure others.

compensation cannot be awarded to a claimant solely on the basis of an
administrative decision by the DNR because the DNR jurisdiction is
limited to the resolution of public nuisances. Even if the DNR de-
termines that a public nuisance does not exist, the administrative
hearing process can be a useful method of settling disputes between
adjacent property owners. Quantitative evidence of erosion damage
generally is not required for this option.

IV. Options for a State Relating to Man-Induced Erosion Damages

Although most activities affecting shore property are strictly of pri-
vate concern, the Great Lakes are a "common property" resource that
confers economic and aesthetic benefits to the public at large. There
is a need to define the proper relationships between these private and
public interests in this unique water resource. The options described
in this report series are intended for the individual who seeks erosion
compensation and assume no shift in existing law, public policy or priority.
Law and public policy, however, are characterized by constant change.
A conventional private property issue may affect enough individuals that
it becomes a public policy concern. A forward look at the options for
reducing shore erosion caused by human activities reveals that policies
of the State of Wisconsin can have a direct influence on the prospects
for options available to the individual.

Twelve options are briefly outlined below. They are offered only for
public consideration and do not represent the policy of anX State agency.
The first seven options would involve State advocacy for modifications
or innovations in Federal programs such as flood insurance subsidies and
Corps of Engineers activities. The remaining five options would call
for delivery of technical or legal information by State agency rep-
resentatives to affected property owners, innovations in DNR programs,
or revisions in State tax codes.

National Flood Insurance. As emphasized in Option 1 above, federally
subsidized flood insurance-may never become available to Great Lakes
shore property owners. If a flood insurance program applicable to
Great Lakes shore erosion is developed, Wisconsin Shoreland and Floodplain
Management Programs might be used as guides for State standard-setting and
support with local government support and administration. The following
sequence of events probably would occur:
1. Erosion hazard areas would be identified by the State or Federal
government.

2. Property owners in erosion hazard areas would contract with the
insurance company authorized to handle the policies.

3. Concurrently, local governments would have to adopt land use
controls which would limit further development in the hazard zones.
Model ordinances developed by the State may be necessary.

Developing an insurance program that provides coverage against a largely
progressive and predictable phenomenon has proven to be very difficult.
The enabling legislation for the National Flood Insurance Program refers
to damages caused by "abnormally high lake levels" unless the legislation
is amended, most erosion damages probably would not be covered by insurance.
The Great Lakes states are working with federal representatives to
determine how the flood insurance program might be applied to Great
Lakes shore erosion.

.8
_L

Federal Disaster Relief for Erosion. The State could advocate that
erosion damage during periods of unusually high water levels (such as
the period between 1973 and 1975) be included under the Federal Disaster
Relief Act. To minimize the extent to which public funds would re-
imburse property owners for building in hazard zones, high water level
periods probably should be defined according to a level of statistical
probability.

Corps of Engineers Beach Protection Projects. The State might assist
the Corps of Engineers in undertaking beach protection projects under
Section 33 U.S.C.A. 426 of the Federal Statutes. State or local funds
could be used to initiate beach protection projects which would have
direct or indirect benefits for shore property owners. Criteria for
defining "public uses" on private lands could be offered by the State in
order to aid both individuals and the Corps in deciding when such beach
protection projects are appropriate.

Corps of Engineers Section 111,Projects. The State could seek an ex-
pansion of the Corps definition of "shore damages attributable to
Federal navigation works" so as to include Lake Superior shore property
that eroded because of lake level regulatory policies. The Corps'Section
111 program, which authorizes the Corps to construct projects for the
mitigation of shore damages, then could be used to provide compensatory
relief to affected Lake Superior residents.

Advocacy for Federal Compensation for Lake Level Regulation. An interim
report on Lake Superior water level regulation published by the IJC in
1973 indicated that some Federal action (possibly legislation) would
like43 be necessary to implement the proposed new regulation plan, SO-
901. The State now could encourage federal agencies, such as the
State Department, the Office of Management and Budget, and the Corps of
Engineers, to include a compensation element in the implementing action.
Preliminary discussion took place in 1976 between the State of Wisconsin,
the State Department, and the Corps of Engineers in order to advocate
for direct involvement by the states in the deliberations on lake level
regulation by the IJC.

A bill proposed by Congressman Ruppe of Michigan and others (H.R. 10015)
would amend the Coastal Zone Management Act to provide grants or loans
to shore property owners for structural or nonstructural beach pro-
tection measures and to local units of government for planning and
adopting land use controls in areas of erosion hazard. The bill also
authorizes an examination of the damages attributable to water level
regulation.

New Water Regulatory Works. The State could advocate for construction
of an additional channel at the outlet of Lake Erie in order to increase
the discharge into the Niagara River during high water periods. The
Corps of Engine*ers is studying the merits of increasing the Chicago
River diversion from Lake Michigan during high water level periods.
Historically, Wisconsin has opposed this diversion because lower levels
are detrimental to navigation. Over the years Canada, New York, and down-
river property owners in Illinois also have opposed increasing the
diversion.

Technical Shore Erosion Assistance. The State could provide technical
assistance to individual shore property owners who seek to build pro-
tection structures or seek compensatory relief from erosion damage. A
more detailed analysis of historical rates of shore erosion in hazardous
areas and specific suggestions for reducing shore erosion damages could
help property owners in making-better development decisions, aid local
units of government in establishing land use controls, and help in
defining the "unanticipated, abnormal" erosion events which might be
compensable under various Federal and State programs. A series of
technical assistance and planning reports on shore erosion and damage
reduction alternati X4 s are being produced by the Wisconsin Coastal
Management Program.

The state could seek to establish a more precise legal and physical
basis for determining the ordinary high-water mark along the coast.
This information would assist shore property owners in the resolution of
the taking issue, in determining whether accreted* or eroded land
affects their property limits, and in determining whether State or
Federal permits are required before building a protection structure
along the shore. Existing and proposed mechanisms for surveying and
mapping this proprietary boundary are detgiled in reports published by
the Wisconsin Coastal Management Program. 5

Additional research could be supported by the State to investigate the
relationships between changing lake levels, bluff stability and pro-
gressive erosion on a site specific basis. Eventually, the detailed
data collected from this research could be used to assess the net con-
tribution of individual agents of erosion (such as lake levels or ground
water pressure) and the respective amounts of property damage. The
University of Wisconsin Sea Grant College Program and the Wisconsin
Coastal Management Program presently are sponsoring detailed research at
selected sites on Lakes Michigan and Superior.

Real Estate Hazards Disclosure. A requirement could be established, by
statute, that a realtor inform a buyer of shore property of the exact
nature of the erosion hazard before the sale. The requisite information

Accretion is the buildup of shoreland either naturally, by the
forces of waves and currents, or artificially, by reason of an act
of man such as a groin or breakwater.

to be disclosed by the realt@or might include published maps indicating
the historical rate of erosion along the particular reach of shore. In
1973, Wisconsin tried to require such a disclosure through Executive
Order 67. Subsequently, however, the Attorney General ruled that only a
statutory ch4nge and not an executive order could mandate such a disclosure
requirement. 6

Revised DNR Permitting Procedures. The procedure for reviewing and
permitting structures placed in navigable waters under Chapter 30 of the
Wisconsin Statutes could be made more restrictive and explicit so as to
protect property owners downdrift. Requirements for giving notice and
rights of appeal to adjacent property owners could be extended to in-
clude all potentially affected parties. This could be achieved by 01
specifying that notice be given to a certain number of adjacent owners
(such as the three property owners immediately downdrift) or by applying
standards based on the size of the structure and the importance of the
longshore drift of sand in that reach of shore.

A more restrictive modification of the DNR permitting procedure would
entail setting standards for placing and constructing protection struc-
tures so as to avoid downdrift effects. The application of such standards
would be somewhat less flexible than the present approach. However, it
would offer more specific information to the permit applicant, give a
more uniform standard of review to DNR district staffs, provide courts
with a baseline for evaluation in trial proceedings, and perhaps minimize
the future impacts of structures on adjacent property.

Ex2anded Inland Lakes Law. The Inland Lakes Rehabilitation and Pro-
tection Law was intended to foster management associations for resolXing
water quality and related problems on the inland lakes in Wisconsin. 7
The program could be expanded to include erosion management districts
along individual reaches of the Great Lakes shore. This would encourage
local collective action to study and resolve coastal erosion in an
integrated, comprehensive fashion. As a related option, the State could
adopt an entirely new program to promote collective action in reducing
erosion damages, or simply provide technical assistance to owners that
are willing to initiate and manage their own property associations.
Such collective action might also encourage local governments to participate
in the Corps of Engineers beach protection programs.

V. Conclusions

The problem of man-induced shore erosion was brought into focus in 1973
when water levels were unusually high on the Great Lakes. Ensuing
discussion concerned the relative responsibility of man and nature in
the subsequent erosion. As damages were observed to be man-induced,
either by specific acts of individuals or by general policies of governments,
it became necessary to define the point at which those actions were so
injurious that legal liability for the damage was appropriate. Some
level of "spillover" effects caused by other parties must be accepted by
all property owners. At some point, however, governments and individuals
must provide compensation for the costs they impose on others. This
report series is an.attempt to define that line between injuries to be
tolerated and those for which legal redress is available.

It is impossible to specify in other than general terms the factual
context in which a shore property owner would seek compensatory relief
for erosion damage. An individual wishing to pursue one of the options
presented here should first consult the particular government agencies
involved, and consider hiring an attorney to work out the proper strat-
egy for seeking relief.

There are many overriding problems, however, that may discount some of
the options preferred in this report series. Although technical knowledge
of the individual agents of erosion is well established, we cannot
distinguish these agents quantitatively in evaluating the overall
erosion process. Additional research is needed to assess the erosional
capacity of a bluff, the mechanics of progressive erosion in the bluff,
and the damages associated with specific agents of erosion such as high
water levels. Unless individual agents of erosion are measurable on a
site specific basis, it is impossible to evaluate damages and show proof
of economic loss in pursuing erosion compensation. The active role of
the State of Wisconsin or the Federal goverment in assisting individual
property owners is limited by the "private" nature of the erosion
problem. In many cases, it is not reasonable for a government agency to
offer assistance to a limited group of individuals at the general
taxpayers' expense.

The two background reports to this summary contain more detailed infor-
mation and references on the legal, administrative and physical dimen-
sions of man-induced shore erosion. The series is written from the
perspective of the individual who seeks some form of compensation. The
options presented here are also for use by policy-makers who may have an
influence on the feasibility of erosion compensation and who are seeking
information on alternative remedies under existing federal, state, and
local policies.

References

1. Soucheray et al. v. Corps of Engineers et al. Case No. 74C109
(W.D. Wis., filed Dec. 10, 1975).

2. H.R. 10015 to Amend the Coastal Zone Management Act, introduced
November 3, 1977.

3. Water Resources Management Workshop and Lake Superior Project,
University of Wisconsin-Madison, 1976, An Analysis of the
International Great Lakes Levels Board Report on Regulation of
Great Lakes Water Levels, 6 vols. Wisconsin Coastal Management
Program.

4. Boundary Waters Treaty of 1909, "Treaty Between the United States
and Great Britain Relating to Boundary Waters and Questions Arising
Between the United States and Canada", 37 Stat. 2448, T.S. 548,
January 11, 1910.

5. H.R. 10015, op. cit.

6. Letter to the Speaker of the House of Representatives from the
Department of Army, August 27, 1976. With respect to relief from
damages, the letter maintains that "existing means of asserting
a claim for any such damages may be available pursuant to the Tort
Claims Act, 28 U.S.C. 1346(b) and 2671, et seq.; and the Tucker
Act, 28 U.S.C. 1346(a) (2) and 1491".

7. For further discussion see Greenwood, Mark, Kent Butler, and David
Thomas, Legal and Administrative Options for Compensation, Vol. II
of this series.

8. National Flood Insurance Act of 1968 as Amended, PL 91-152; Flood
Disaster Protection Act of 1973, PL 93-234; see U.S.C.A. SS 4001-4128.

9. Wis. Stats. Section 87.30 and Wis. Administrative Code NR 116.

10. For further information concerning these reports the reader is
advised to contact shore erosion specialist with the Wisconsin
Geological and Natural History Survey.

11. Internal Revenue Code, 26 U.S.C.A. 165, as amended.

12. Internal Revenue Code, 26 U.S.C.A. 167, as amended.

13. Internal Revenue Code, 26 U.S.C.A. 175, as amended.

14. Internal Revenue Code, 42 U.S.C.A. 5122.

15. Internal Revenue Code, 42 U.S.C.A. 5178.

16. Code of Federal Regulations, Title 13, Part 123 - Disaster Loans.
Those who seek more information about the SBA Loans are advised to
contact the nearest SBA office.

17. International Great Lakes Levels Board, 1973, Regulation of Great
Lakes Water Levels, Appendix C--"Shore Property," International
Joint Commission, Windsor, Ontario. The IGLLB estimated in this
report that the new regulation plan would cause, on the average,
$109,000 per year in property damage along Lake Superior.

18. Butler, Kent S. and Earl F. Epstein, 1977, Delineating Grea
Lakes Shorelines, Wisconsin Coastal Management Program Technical
Report Series, and University of Wisconsin-Madison Institute for
Environmental Studies Report No. 71, 29 pp. See also Weinberg,
Anne C. and Michael Neuman, 1976, "Ordinary High Watermark Determination
on Wisconsin's Great Lakes," Wis. Dept. of Natural Resources,,
Madison, 20 pp.

19. "Navigation Servitude--the Shifting Rule of No Compensation,"
1972, Comment, Land and Water Law Review, Vol. 7, p. 501.

20. See, for example, W.A. Ross Construction Co. v. Yearsley, 103 F.2d
589 (8th cir., 1939) aff'd. 309 U.S. 18 (1940).

21. See Francis W. Laurent, 1978, The Growth of Water-Resources Law
Under the American Federal System. Water Resources Center, University
of Wisconsin-Madison.

22. Soucheray et al. v. Corps of Engineers et al, op. cit.

23. Edison Sault Electric Co. v. United States, 552 F.2d 326 (Ct. of
Claims, 1977).

24. 28 U.S.C.A. 2679.

25. Chicago and N.W. Ry. Co. v. Groh, 85 Wis. 641, 55 N.W. 714 (1893);
Baldwin v. Anderson, 40 Wis.2d 33, 161 N.W.2d 533 (1968);
Boerschinger v. Elkaz Enterprises, Inc., 26 Wis.2d 102, 132 N.W.2d
258 (1965).

26. State of Wisconsin v. Deetz, 66 Wis.2d 1, 224 N.W.2d 407 (1974).

27. Restatement of the Law (second), Torts, tentative draft no. 17,
April 26, 1971.

28. For further description see DeGroot, Robert and Kent Butler, Relation
of Human Activities to Shore Erosion Volume III of this report
series.

29. Water Resources Management Workshop and Lake Superior Project, 1976,
op. cit., Hydrology pp. 27-37.

30. Water Resources Management Workshop and Lake Superior Project,
1976, op. cit., Shoreline Property and Recreation.

31. International Great Lakes Levels Board, 1973, op. cit. Appendix C.

32. Whitney, Charles S., 1936, Stabilizing a Lake Michigan Bluff
Civil Engineering 6(5); 309-313.

33. Packer,, Robert W., 1976, "University of Western Ontario Coastal
Research Activities", In Proceedings of a Workshop.on Great Lakes
Coastal Erosion and Sedimintation, N.A. Rukavina, ed., Canada
Centre for Inland Waters, pp. 85-88, Burlington, Ontario.

34. Observations of authors Kent Butler and Robert DeGroot during field
investigations, July 1977.

35. Wisconsin Administrative Code NR 115 (1975).

36. Personal communication with Mr. Frankenstein, U.S. Army Cold
Regions Engineering Research Lab, Hanover, New Hampshire, 1977.

37. Quinn, Frank H., 1973, "Effects of Ice Retardation on Great Lakes
Water Levels", Proc. of 16th Conf. an Great Lakes Research, Internat.
Assoc. for Great Lakes Research, Ann Arbor, Mich., pp. 549-555.

38. Personal Communication with Lieutenant Hal Henderson, U.S. Coast
Guard, 9th District, April 1977.

39. The local and/or state government pays 30% of the costs related to
public parks and recreation areas. On privately owned lands whose
protection has some public purposes, the non-Federal share is 50%.

40. Edison Sault Electric Co. v. United States, op. cit.

41. Wis. Stats. and Wisconsin Administrative Code NR

42. National Flood Insurance Act of 1968, op. cit.

43. International Joint Commission, June 1973, Special-Interim
Report on Regulation of Lake Superior Outflows to Provide Relief
from High Waters on the Lower Great Lakes, Windsor, Ontario.

44. For example see--Wisconsin Department of Natural Resources,
1977 Some Non-Structural Alternatives for the Reduction of Shore
Damages; Wisconsin Geological and Natural History Survey and
Department of Natural Resources, 1976, Shore Erosion: A Bibliography,
1976; Mickelson, David and Geological and Natural History Survey,
1977, Shore Erosion Study Technical Report and Appendices 1-8
under separate covers. These publications and others are available
from the Wisconsin Coastal Management Program, Madison.

45. Butler and Epstein, op. cit.; Weinberg and Neuman, op. cit.

46. Opinion of the Attorney General, OAG 65-74, June 21, 1974.

47. Wisconsin Statutes, Chapter 33 (1975).

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