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COASTAL OWNERS' RIGHTS, THE FIFTH AMENDMENT AND SECTION 111

Federal water works projects such as dams, navigational channels and harbor complexes have been constructed over the years with little consideration for their long-term impacts to adjoining coastal areas. Beginning in the 1800's, coastal property owners have protested the loss of coastal property associated with these government projects.

Owners were told, however, that the Corps of Engineers was empowered by the Commerce Clause of the U.S. Constitution to control activity affecting interstate commerce. The clause confers so-called "dominant servitude" to the Federal government over all navigable waters to protect and promote navigation. When riparian (coastal) land is condemned in exercising the clause, the government is not constitutionally required to pay for that part of the land inhering to the attached riparian rights. What came to be called "navigational servitude" allowed the government to cut off those rights without compensation.

In 1967, a Federal Court decision (U.S. v. Rands) substantially narrowed Federal powers. The government no longer maintained powers over coastal lands that are not directly used "in their ordinary condition as highways for commerce." Open coastal shorelines were thus relieved from "navigational servitude."

Congress subsequently established a new River and Harbor Act. Section 111 of the Act instructed the Army Corps to identify and mitigate shoreline damage caused by Corps-designed projects. Damage mitigation under the Act is entirely at the discretion of the Corps, however. The Corps is allowed to determine the extent of damage caused by its own projects, and to address these problems when and how it chooses.

Perhaps not surprisingly, the Corps has established formulas for damage that few if any professionals outside the Corps agree with. For example, while it is well-accepted by independent experts that Corps projects now cause 85%-100% of all erosion occurring on American shorelines, the Corps' own formulas define less than 1% of coastal erosion as being induced by Corps projects.

Because of the weakness built into Section 111, groups of coastal owners have recently begun to rely on their Fifth Amendment rights, which guarantee that land will not be taken by the government without just compensation. A $100 million New York case was recently settled to owner satisfaction. At least two similar class actions are proceeding through the courts in Florida. Other class actions are being organized along the Great Lakes and Texas coastlines. Several law firms are presently investigating methods to streamline such class actions, making them available to more coastal landowners.

With the inefficient methods (dredging) currently used by the Corps for shoreline restoration, some have argued that not enough money exists to satisfy owners' Fifth Amendment rights. With efficient restoration technology, however, it is entirely possible to service these rights. (Click on Cost Comparisons.)

Money invested in efficient, wide-scale coastal restoration actually promises substantial economic returns. Healthy beaches are natural resources which, more than any other, produce economic value and growth. In fact, savings to the national Flood Insurance Program, coupled with money now spent on short-lived restoration methods, would go a long way toward paying for such wide-scale restoration.


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