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HOMEOWNERS SUE ARMY CORPS FOR CAUSING BEACH EROSION

One well-documented example of what happens to adjacent beaches subsequent to channel dredging is found in Cocoa Beach, Florida. Surveys conducted since the 1870's along this Northeast Florida coast show that until 1950, the wide coastal plain had been growing seaward at the average rate of 2 feet per year. A home built 600 feet from water's edge in 1950, behind the dune fields, was expected to be some 690 feet from the water by 1996, for example, as the beach naturally widened.

In 1951, shoreline growth was suddenly reversed when a shipping channel was cut into the coast at Port Canaveral. Surveys show that upon installation, more than 40 miles of adjacent beach switched from plus two feet of accretion to rates of erosion averaging -15 feet per year. The home built 600 feet from shore in 1950 is now at water's edge. In situations like this, the homeowner is often faulted for building too close to a " naturally" receding shoreline.

The River and Harbor Act of 1968 charges the Army Corps of Engineers with mitigating damages caused by the channels it dredges. The corps, however, is allowed to assess the damage caused by its own projects. Corps formulas for calculating the damage caused by channel dredging suggest that navigational cuts cause only a small "shadow zone" of erosion, typically less than one mile. Additionally, mitigation of damage is not mandatory, but discretionary. A community generally needs to mount a major lobby effort, then wait a number of years - to have perhaps only 1% of the actual corps - induced erosion finally mitigated.

Cocoa Beach residents decided to try another approach. Since the Fifth Amendment guarantees that owners of land "taken" as a result of public works must be fairly compensated, residents have filed a class action suit for compensation. Damages are in excess of 200 million dollars. Similar cases are underway in other areas (see Coastal Owners Rights, Section 111 and the Fifth Amendment).

These actions differ from those advocated by the "wise-use" movement, where damages are sought when regulations diminish property value (so-called "regulatory takes"). Here, land is literally taken. When upland beach becomes submerged, the ownership of that property transfers to the state as "submerged lands." Although the state assumes title, the former owner is uncompensated.

The technical term for erosion caused by man is avulsion. Under law, avulsion does not confer uncompensated transfer of ownership. Were it not for such law a landowner whose property line ends at a river, for example, could "notch" the river bank at a bend or oxbow, cause the river to change course, and increase his land holdings free of charge. Since possession is nine-tenths of the law, however, the burden of proof is on the land loser. Cocoa Beach has excellent surveys reaching back into the past century. Many coastal areas are not so fortunate.

The geologic record indicates that in the most recent geologic past, accretion, not erosion, was the natural trend for most of the world's shorelines. That is, beach growth has pushed shorelines seaward over the past several thousand years in most locations.

The environmental community, however, following the teachings of Duke's Dr. Pilkey, fosters the idea that shorelines are in natural retreat today - that a major geological shift has occurred in the last century which has little to do with the widespread introduction of artificial submarine canyons (dredged and jettied navigational inlets).

The engineering community, similarly , tells the public that net erosion is "natural and inevitable." One reason engineers perpetuate this idea, aside from the fact they are powerless to cure the problem, suggests liability concerns for the consequences of installing channels.


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