While the primary future question for beach replenishment is who will pay, a substantial portion of the conversation about the state’s beaches in recent years has been about public access.
How much access does a municipality need to provide to deserve federal and state monies for replenishment? How much parking should beaches designated as public offer to non-residents? Should state-operated public beaches be expanded when they reach parking or visitor capacity on peak days?
Should private communities be forced to provide more access to their shorelines when space on public beaches is at a premium? Should they be asked to pay a premium for replenishment of private beaches in conjunction with public projects, to save taxpayer funds?
Addressing the issue of replenishment funding, and suggesting the time has come when municipal and county governments will be asked to directly pay for a portion of the projects’ cost, state Sen. George Howard Bunting also addressed for the Coastal Point this week some of the connected issues of public and private beaches, and exactly how the public can and should be able to use Delaware’s coastal resources.
Among ongoing discussions, there has been in the last year pressure from the public-interest group Common Cause to examine, or even eliminate, perceived benefits to private communities when they “piggyback” their replenishment projects on planned public projects that are supported by taxpayer dollars.
John Flaherty of Common Cause of Delaware, in October 2006, urged the Delaware Department of Natural Resources and Environmental Control (DNREC) to hold a public hearing on the application by Sea Colony to conduct beach replenishment on the community’s half-mile private beach, immediately to the south of Bethany Beach.
“Public tax dollars are subsidizing this expensive half-mile beach replenishment project without a provision for the public to access the beach that is being replenished,” Flaherty wrote in his appeal. “Using public dollars to replenish private beaches is unacceptable from a public policy standpoint unless there is a public access provision attached to the permit.”
In referencing public tax dollars, Flaherty does not clarify that no public tax dollars are spent directly on the replenishment of private beaches. However, private property owners engaging in a “piggybacked” project save the initial cost — estimated at $1 million — of bringing in the dredges that eventually pump sand onto both the public beaches in the taxpayer-funded projects and the private beach that piggybacks its project onto that public beach replenishment.
The private projects also tap into state resources by using state-controlled offshore sand as their source for replenishment. That has caused concern about the potential for depletion of prime beach sand that could be used for future replenishment of public beaches, as well as questions about whether the private property owners should pay for use of that state resource.
Systemic approach encourages private projects
But DNREC’s Tony Pratt has emphasized the need for a systemic approach to replenishment that would not only include the state’s private beaches but also extend to cooperation with projects across the state line into Maryland and possibly Virginia and/or New Jersey.
The reason: sand recognizes no state boundaries. Much of the sand pumped onto the beach today in Ocean City, Md., eventually makes its way north on natural tidal flows and onto the beaches in Fenwick Island or Rehoboth Beach.
Likewise, the sand pumped onto the shore in Bethany Beach or South Bethany eventually makes its way not only to the public beach in Dewey Beach but also to the private beaches of Sea Colony and Sussex Shores, as well as the shores of the coastal state parks. And sand pumped onto Sea Colony’s beach heads north, helping to keep Bethany Beach’s shoreline healthy over time.
The result: public and private beach replenishment can’t stand separately, in isolation from each other. The lack of one is made up by the other, and replenishment in both cases supplements the health of the entire shoreline. Pratt’s regional approach to beach erosion is in its early stages but could one day be the standard.
Bunting said the resulting impact on funding issues and the responsibilities of private property owners on private beaches is already a noteworthy one.
“Sea Colony is doing the state a favor,” he said. “It would cost the state more in the end if they didn’t do it. It would naturally fill in, were they to leave it unreplenished. In the end, (Sea Colony) would be the beneficiary of the state’s sand, much as Sussex Shores would be now to the north of Bethany Beach.” (Sussex Shores does not engage in replenishment.)
Bunting said that more is at stake than the mere issue of allowing piggybacking and encouraging private beaches to engage in replenishment activities as part of overall shoreline health.
“What (Common Cause is) trying to say about the sand in territorial waters is that you’re going to have to pay for sand. But the public doesn’t have to pay for water they use,” he emphasized, noting draws by utilities such as Tidewater and Artesian on the area’s aquifers.
“It opens an interesting question, which sounds logical when you throw it out to public. But when you look at the geography of it — even if Sea Colony was charged something for it, it’s to Bethany and South Bethany’s advantage to not have that bowl in the middle,” he continued. “They could very well lose all their sand to Sea Colony, whereas now it makes it level.”
Bunting admitted that there are payoffs for the private beaches in the existing piggybacking process and said that there was perhaps room for some compromise that might save some taxpayer dollars in the whole process.
“The advantage they’re getting is fact that the dredge is already in place,” he said of private beaches that piggyback replenishment. “That may be something to ask, for them to step up and pay more in future,” he allowed. “I don’t have a problem with that, that’s for sure.”
DNREC reluctant to expand parks
Along with pressure for the private beaches to perhaps reduce some of their savings from piggybacking replenishment in favor of the savings of some taxpayer dollars at the state level, pressure has also been increasing in recent years for there to be greater public access to the state’s shoreline.
As the inland population has increased each year, the population of beachgoers has increased every summer. As a result, the space available to each person on the beach has decreased. The headaches involved in visiting the public beaches, for those who reside outside the beach towns, has likewise increased.
So far, there have been no universally accepted solutions proposed and only increasing tension between the inland public, state officials and officials in the coastal towns.
Bethany Beach, with a county road that gives access directly to the public boardwalk, provides some 1,000 metered parking spaces, along with options for daily or weekly parking passes for visitors. There are also restrooms and food vendors in Bethany.
But the parking in that area specifically — and in the town as a whole — is often near or at capacity during the summer. And town citizens have been reluctant to consider further expansion of parking facilities, lest the already crowded beaches become even more so.
But Bunting said even that situation is better than the one in neighboring towns.
“In defense of the towns, specifically of Rehoboth Beach and Bethany Beach, what they have is truly a public beach. They have boardwalk access and true public access,” Bunting emphasized. “But if you try to get on the beach in Fenwick Island or South Bethany, there’s very limited access.”
Bunting said the limited parking and public facilities in both of the southern beach towns reduce their function as true public beaches.
“Even now, when you look at Fenwick Island and the unincorporated area, you can see the difference (in the number of people on the beach), due to the fact that there’s no parking,” Bunting said.
Though daily, weekly or seasonal parking passes can be purchased in both towns, the headaches involved in finding a parking space even with a pass have proven a deterrent to many to visit those beaches. Add in the lack of public restrooms — such as those that now exist in Bethany and Rehoboth — and many not residing directly at the shore opt to head to Bethany or Rehoboth for their beach-going experiences and deal with comparatively modest parking hassles.
The only other options are the two state park facilities: Fenwick Island State Park to the south and Delaware Seashore State Park to the north. Both have public parking and bathhouse facilities, but even they are reaching capacity during the height of the summer season.
“Years ago, I got the money to build the bathhouse complex north of Fenwick,” Bunting said, “but that fills up rapidly in the summer.”
Indeed, lines of vehicles looking to enter both state park facilities from the highway are a common sight during the summer, despite the daily admission fees charged there, more distant locations and increasing crowding. That has led to calls for increased state park beach facilities but no action has been taken by state officials to make that happen.
“DNREC has opposed expanding the public beach,” Bunting explained. “They’re elected like I am, and they’ll have to meet their responsibilities,” he added of any public pressure to get the department to expand state beach facilities.
“We have more state land set aside than anywhere in the country,” Bunting noted. “But DNREC has been reluctant to expand the public beaches. I got them to expand the bathhouse complex, to expand the parking lot there, and I’d like them to expand it again. But we’re getting into major issues there,” he explained.
“I’ve always wanted to see the old firing range south of South Bethany opened for a public beach,” Bunting added. “But the last time I tried, the Delaware Mobile Surf Fishing Association objected to that.”
Walk north, young man
The lack of expansion of the state-controlled beach facilities in recent years has, in turn, led to the push for increased access at private beaches, as well as increasing resentment that those using private beaches experience less crowding than the public beach-goers just yards away.
While beach reconstruction in Bethany Beach and South Bethany promises to alleviate some of those concerns with much wider beaches — about 200 yards wide, beyond the new dunes — the sand still appears whiter on the proverbial other side, where private property rights have historically conflicted with public access.
Delaware remains one of only a handful of states that limits public access areas of the shoreline to below the low-tide mark. Most states use the high tide line as the marker for public access under the Roman-era Public Trust Doctrine that holds that certain resources should be maintained for public use. Allowances for that use vary. But in most states, putting a towel down below the high-tide mark is entirely permissible.
In Delaware, those walking onto private beaches from their public neighbors have often been asked to leave — even threatened with trespassing charges — and those trying to lay down a towel or set up a chair are routinely evicted.
Bunting, as a resident of Bethany Beach, has himself had that experience. “They had stopped me one time as well,” he said of a walk on the private Sussex Shores beach. Bunting said he’d corrected the security guard who had challenged him on the issue, noting that the state allows the public to walk along even private beaches. “If you want to go north, you can walk all the way to the Inlet legally,” he emphasized. “And Sea Colony — there have been many times I’ve walked past there.”
But many would like the ability to enjoy sitting on the less crowded private beaches for an hour or two. In Delaware, the difference in the application of the Public Trust Doctrine generally prohibits that. And Bunting said any changes to that policy are unlikely.
“If we tried opening up private beaches to the public, we would be in litigation until the cows come home,” he said. “I don’t think we can legislate that.”
Bunting explained that when much of the state’s beachfront property was deeded for private communities, it was deeded right down to the low-water mark – something that has been cemented in state law regarding public access under the Public Trust Doctrine.
“Opening those beaches up, that’s something that’s probably going to the U.S. Supreme Court before that would be settled,” he said, noting that issues of the private property deeds would be involved. “In all practicality, the cost that you’d have to extend to go into court to fight a battle of that nature and that length of time… We probably have more lawyers owning those lands that anywhere in the U.S.,” he estimated.
“Looking back, we maybe should have, way back when, said these were public beaches and had some public access, like Ocean City did,” Bunting allowed.
“I remember that some of the people who bought in the condominium project north of Fenwick Island thought they were buying a private beach area,” Bunting recalled. “They found out that the fronts of their condos were fronting on a public park. That’s an unusual arrangement, too.”
And its not one the state is prepared to enforce retroactively on those who bought property in private communities with access to private beaches, according to Bunting. The rest is spilled seawater.
Moreover, Bunting said, the issue is a practical one. Even if the public were able to access a small portion of the shoreline on public beaches, how would they get to those locations and where would they park?
“The problem you get into is, how are you going to cross? There’s no parking for the public (on the east side of the highway), so even if beach accessible … people are not going to walk a quarter-mile carrying their beach towels,” he said.
With a widened beach coming to at least two of the state’s coastal towns in the near future, it remains to be seen whether that change will resolve the complaints of overcrowding from beachgoers. Parking limitations and lack of public facilities also continue to push visitors away from many of the beach towns, toward state beaches and those with less-limited parking.
The question for the future may be one of whether the crowds will shift from one place to another or simply expand to encompass all public beaches and thus add further pressure for state officials to expand access to what little state-controlled beach remains. .