All levels of government have a “fiduciary duty”
to protect public trust assets.

“Rolling Easements”:
The Texas Open Beaches Act

The 1959 Texas Open Beaches Act (“TXOBA”) uniquely codifies protection of public access to the area of beach between the mean low tide mark and the line of upland vegetation of 367 miles of Texas coastline
along the Gulf of Mexico:

[the public] “...shall have the free and unrestricted right of ingress and egress to and from the state-owned beaches bordering on the seaward shore of the Gulf of Mexico, or if the public has acquired a right of use or easement to or over an area by prescription, dedication, or has retained a right by virtue of continuous right in the public, the public shall have the free and unrestricted right of ingress and egress to the larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico.”

Historically, Texas courts interpreted TXOBA liberally, even recognizing a “rolling easement” along the Texas coast that allows the public beach to migrate, expand, and contract in response to changes in the mean low tide line and the line of upland vegetation. This has meant that storms moving the line of vegetation landward reduces the public beach; and when the mean low tide line retreats: the public beach expands seaward. Moody v. White, 593 S.W. 2d 372 (1979) likened the “roll” of public easement as similar to the boundaries
of navigable rivers.

As such, Texas General Land Office (GLO) guidelines would deny re- construction permits to beachfront residents (or even public utilities), which came to conflict after a 1983 hurricane, and additionally, repairs could only be made in certain circumstances, and then only on structures above the mean high-tide line: because the state had a duty to protect public access when the boundary “rolled.”

The Texas Supreme Court overturned this interpretation in 2012, with Severance v. Patterson (54 Tex. Sup. J. 172 [Tex. 2010]), significantly weakening TXOBA. The court established a distinction between “avulsive events” (storms or hurricanes that cause a rapid loss of land to the ocean) and the slower processes of erosion and accretion (natural growth) that also affect the line of vegetation and the low tide mark (alluvion: growth from the actions of water). Though this decision, the line of vegetation is determined to remain at its
“pre-avulsive event” location.

However, in 2013, the Texas legislature passed H.B. 3459, granting discretionary authority to the Commissioner of the GLO to determine the new line of vegetation after it has been obliterated by a “meteorological event,” or, to suspend the determination for three years: allotting time for the shoreline and line of vegetation to reach a new equilibrium. The new law defines “meteorological event” as including both “avulsive events” that cause abrupt loss of land, and those enfolded by caused by accretion and erosion. While this may appear to hold potential to protect public access and support state-funded coastal preservation efforts, this is unclear, as it will depend on who holds the office, and whether that person decides to exercise the new authority. In particular, as global warming continues to impact weather patterns, three years would appear too short a time period to rely upon.

[1]  Land use refers to modification of natural environments or wilderness by humans into “built environments” (pasture, grazing land, and settlements), the effect of which is deforestation of temperate regions: which in modern times has led to soil degradation and erosion, soil salinization (excess accumulation of salts), and desertification (deterioration of land quality due to loss of vegetation and soil moisture; example: urban sprawl).  Change through land use, and adjunct reliance on uncontrolled consumption of fossil fuels, are the major man-made sources of carbon dioxide, a prevailing greenhouse gas. 

Municipal land use regards zoning of parcels for approved uses and modifications in land use.  Management of land use practices impact natural resources (water, soil and the nutrient balance therein, and flora & fauna), and land use information can be used to develop solutions for natural resource management issues. 

Land degradation needs to be viewed not in isolation as it regards an individually damaged parcel or area; but as change that may affect not only contiguous land, but the totality of the environment as a combination of individual and related and integrated environmental systems and subsystems.  In the absence of comprehensive land use planning, or the orderly execution of land use planning, land degradation is exacerbated.  When financial or legal incentives prevail that may lead to poor land use decisions, or central planning is pursued that over-utilizes land resources (example: public works projects that prioritize time, cost, or a combination thereof), valuable ecosystems may be irretrievably lost.

[2]  Connecticut utilizes both the federal standard of navigability but also the navigable-in-fact test.  See: Enfield Toll Bridge Co. v. Hartford N.H. R. Co., 17 Conn. 40, 1845 WL 431, at *5 (Conn. 1845):  In deciding the issue of whether the Connecticut River was to be considered a public river (and thus covered by the trust), the CT Supreme Court adopted the navigable-in-fact test and concluded that the CT River is navigable even above tide water influence. 

In this test, a river is deemed navigable-in-fact if it is used or subject to being used in its natural condition as a highway for commerce on which trade or travel are or may be conducted in the commonplace modes of travel on water.  Similar to the federal test of navigability (a broader commerce test), it is the potential for use, not the actual scope or manner, that determines the navigability of a waterway.

A waterway may be navigable-in-fact even if it would be impossible to navigate against its current and even if the capacity of the waterway to bear navigation is not continuous over time.  As long as the capability necessary to support navigation sustains for a adequate length of time to make the stream useful as a highway for trade, travel or transport, qualifications as public trust water exists.  Further, a waterway may be navigable in fact even though it enfolds intermittent rapids, falls, dams or other natural or man-made obstructions.

If a waterway is navigable-in-fact, the right to public navigation sanctions the public to walk a vessel around such obstacles or to carry around such obstacles on the shore, even over private property above the mean (ordinary) high water mark (OHWM), so long as the portage is by the most direct and least intrusive safe route possible, and the purpose is directly related to navigation. 

If a waterway (such as a river) is physically navigable, it is legally navigable, or navigable-in-law: however, no court or agency has to designate it as such.  This right to navigation does not authorize the public to go on private land above the mean high water mark for purposes not directly related to navigation, (examples: hunting, camping, or hiking); nor may the public cross private property for the purpose of access to or egress from a navigable waterway.

Waterways that are affected by the tides are considered to be navigable in law and the public automatically has a right to navigate on these waters, regardless of who owns the bed or if the waterway is posted.  It is a misconception that only certain substantial rivers, capable of navigation by motorized ships carrying commercial freight, are legally navigable, or that other rivers, where they flow through private land, are “owned” by adjacent landowners, and that while the public may “run” such rivers in certain cases, they may not touch the banks.  Even rivers that are physically navigable only by canoe, kayak, and raft are still legally navigable, and courts have further ruled that commercial recreational river trips qualify as commerce.  Because they are navigable-in-law, such rivers are held in trust for the public by the states, and the land is public land up to the OHWM, available for walking, fishing, resting, camping, and other non-destructive visits.

Another common mistake is the belief that the state “owns” the river and the land up to the OHWM, and can thus sell or give away the riverbed or its banks to private owners for various projects or private uses.  The state does not actually own the river, it holds it in trust for the public for navigation, recreation, and fisheries. The state is obligated to preserve the river for these public benefits.

Nevertheless, as traditionally interpreted, the State holds authority to invest persons or entities with “ownership” of tidelands subject only to the paramount right of public navigation. So, the State may convey rights in tidelands but those rights conveyed remains subservient to the public right to use the water in place for navigation. The legislature can dispose of the public right to use navigable waters only to promote the interests protected by the public trust doctrine or to further some other public interest (including economic) if doing so does not substantially impair the public trust resource. Passage of time influences the interpretation: the doctrine does not impart a perpetual preservation easement on shoreline natural resources; see: The Shoreline Managment Act of 1971 (Washington); and Chelan Basin Conservancy v. GBI Holding Co., 413 P. 3d 549 -
Wash: Supreme Court 2018).

The malleable concept of navigability means that courts may regard any water as suitable for recreation, regardless of whether it may ever have supported traditional commercial enterprise. Public trust areas have been identified in ordinarily “non-navigable” waters, groundwater, and parklands (see: Mono Lake, and Parks v. Cooper [non-navigable waters]; Waiahole Ditch [groundwater]; and Paepcke v. Pub. Bldg. Comm. and Friends of Van Cortland Park v.NY [parklands] as examples.

Stand-Alone and Case-Specific determination of
“Traditional Navigable Waters”

The US Army Corps of Engineers (USACE) also defines “Traditional Navigable Waters” (TNW) through “Stand-Alone” determinations, and has published a study on that issue.   TNW was further codified through the Corp’s 2008 Memorandum.  Determination that a specific “waterbody” is a TNW can be made by a USACE Division Commander: based on formal report of findings by district engineers, accompanied by legal opinion of District counsel, and forwarded to Division Commander for final decision.  That decision will be evaluated specifically pursuant to § 33 CFR 329.14.

Stand Alone TNW designation is for a specific point or segment of a waterbody, where it is made independently of a regulatory permit action or Alliance for Justice and Democracy (AJD: Mauritania) recommendation.  In this instance careful consideration of upstream and downstream limits and lake borders is integrated into the decision, and specific boundaries are set, which can inform future AJDs.  The Stand Alone TNW does not expire and is not subject to administrative appeal process (that is: there would be no “affected party” to challenge the decision).

A “Case-Specific” TNW determination is specific to use for an AJD recommendation, and cannot be relied upon by the public to inform for future use.   It is only for that specific point or segment of waterbody, and cannot establish limits of navigation generally, as it is part of a specific request  for an AJD or permit authorization, and requires extensive documentation as part of the specific AJD that supports that the waterbody is a TNW.  It is thus appealable, and expires with the specific project.

Relevant factors for consideration can include, but are not limited to: 

• Corps regulations (33 CFR 329);

• Prior determinations by the Corps (Section 10 studies or standalone TNW determinations);

• Documented use of commercial navigation for the waterbody at issue, including commercial waterborne recreation;

• Historic use of Traditional Navigable Water for commercial navigation, including commercial waterborne recreation;

• Physical characteristics of the waterbody that support the capability of navigation (size and depth, volume and frequency of flow, water source, etc.);

• Public accessibility to the waterway, including but not limited to public roads or access points, boat ramps, or similar.

Nationwide Permit Program

The USACE Nationwide Permit (NWP) program involves a streamlined permitting process for “general activities” that involve discharges of dredged or fill material in jurisdictional wetlands and waters.  To qualify for these general permits, the activities must cause “no more than minimal” adverse environmental effects and have minimal cumulative effects on the environment. The nationwide permits are reissued every five years.  Examples include bank stabilization, transportation permits, habitat restoration and enhancement, residential development, temporary construction, access, and dewatering, maintenance dredging of existing basins, commercial and institutional development, land-based renewable energy generation facilities, and water-based renewable energy generation projects.  

We would like to ask the dog
if there is a continuous whir
because the child in the house keeps growing,
if the snake really stretches full length without a click
and the sun breaks through clouds
without a decibel of effort;
whether in autumn,
when the trees dry up their wells,
there isn't a shudder too high for us to hear.

What is it like up there
above the shut-off level of our simple ears?
For us there was no birth cry,
the newborn bird is suddenly here,
the egg broken, the nest alive,
and we heard nothing when the world changed.”

—Lisel Mueller: What the Dog Perhaps Hears