The "PUBLIC TRUST" DOCTRINE: (Page 1 of 8)
What is the Public Trust and how does it affect beach access in Fairfield?
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| Zack: content and behaved, off-leash adjacent to Penfield Beach, pursuant to the Public Trust Doctrine |
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| The doctrine is a central issue to beach access |
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1] SUMMARY: THE PUBLIC TRUST DOCTRINE
The Public Trust Doctrine is a legal principle (environmental law) derived from English common law[1]. The essence of the doctrine is that the waters of the state are a public resource owned by and available to all citizens equally for the purposes of navigation, conducting commerce, fishing, recreation and similar uses; and that this trust is not invalidated by private ownership of the underlying land. The doctrine limits public and private use of tidelands and other shorelands in order to protect the public's right to use the waters of the state.
The doctrine has been legally interpreted to support use of the intertidal zone (see below) for relief from the pressures of life in modern society, and the parallel enjoyment of nature’s beauty. Protection of the trust is a duty of the state, and as such, Connecticut’s government is required to maintain it for reasonable use by the public.
The Public Trust Doctrine does not allow the public to trespass over privately owned uplands to access the tidelands. It does, however, protect public use of navigable water bodies below the “ordinary high water mark” (OHWM).
According to the State of Connecticut Department of Energy & Environmental Protection (DEEP): “The general public may freely use these lands and waters, whether they are beach, rocky shore, or open water, for traditional public trust uses such as fishing, shell-fishing, boating, sunbathing, or simply walking along the beach (emphasis added). In Connecticut, a line of state Supreme Court cases dating back to the earliest days of the republic confirm that private ownership ends at mean (average/ordinary) high water line/(mark), and that the state holds title to the lands waterward of mean high water, subject to the private rights of littoral or riparian access.”[2] Put another way, this area, as a natural resource, is analogous to a “public highway” that any citizen of the state may transverse laterally. [3]
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At Fairfield beaches, once upland access is granted (that is: between October 1 and March 31,
when dogs and horses are permitted to accompany “responsible persons” pursuant to §14 of the Fairfield Parks & Recreation Commission Rules and Regulations: Beaches), it is reasonable to interpret that a person may walk with their dog OFF-leash while within this “Public Trust area,” or more simply, below the OHWM.
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| Bertram: an exhilerating run off-leash adjacent to Penfield Beach, pursuant to the Public Trust Doctrine |
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SO… WHAT IS THE PUBLIC TRUST AREA?
HOW DO I KNOW IF I AM LEGITIMATELY WALKING MY DOG OFF-LEASH?
As defined by the State of Connecticut Department of Energy & Environmental Protection: “The public trust area comprises submerged lands and waters waterward of the mean (average/ordinary) high water line/(mark) (OHWM) in tidal coastal, or navigable waters of the state of Connecticut. On the ground, the public trust area extends from the water up to a prominent wrack line, debris line, or water mark. In general, if an area is regularly wet by the tides, you are probably safe to assume that it is in the public trust" (emphasis added). The Public Trust area is also sometimes referred to as tidelands, and is defined as “public beach” by The Connecticut Coastal Management Act, CGS 22a-93(6).[4]
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| Download our monthly tide calendar for guidance |
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WHAT IS THE "WRACK LINE"?
...and HOW DO I RECOGNIZE IT?
The wrack line (or tidal wrack), marks the "fluctuations of tidewaters" deliniating the OHWM, and is the line of dead or dying seaweed, marsh grass and other debris (including litter) left on the upper beach by the preceding high tide.[5]
Below this line: is the Public Trust area.
There may be other lines of wrack higher up, created by former spring or storm tides, but the lowest line will tell you the limit of the last high tide (see illustration, below). In unseasonably warm weather, when the beach may be crowded, asserting your (off-leash or otherwise) right to this area may become problematic.[6] To avoid an infraction, if in question, it is wise to be conservative in your judgement. Download our monthly tide calendar for guidance.
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Then… who holds responsibility for law enforcement within the public trust area?
As public property that is under stewardship of the State, Connecticut State Police hold primary jurisdiction within the public trust area. The practicality, however, of anticipating State Police to present themselves (especially at the moment of importance) is obviously problematic. Upon a complaint, Town of Fairfield Police may therefore request permission (direction) of the State Police to intervene on their behalf, and this would likely be agreed upon. For this reason, it would seem plainly wrong to assume that Fairfield Police have “no jurisdiction” to act within the public trust area. Further, it should be expected that broad leeway would be agreeable to both for interpreting how local and state interests and regulations would overlap and compete, given the contiguous and changing nature of the local/public (state) trust boundary. Indeed, an emergent situation may involve interests (and jurisdiction) of both.
Clearly, however, it is the local authorities who are logically able to respond most immediately. If, for example, a person were within the public trust area but conducting themselves in a manner which would ordinarily violate state public nuisance definitions, local Fairfield ordinances (examples: littering, intoxication, or engaging in behavior typical of “disorderly conduct;” or, in a manner that endangered the safety, well being, or property of others—on either or both sides of the trust area); or, behavior commonly recognized as “public nuisance,”[5] Fairfield Police may legitimately request permission from CT
State Police to intercede on their behalf. More logically, a standing agreement to accomodate this ongoing need
would already be in place.
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| Danny: deftly straddling a legitimate outing on Penfield Beach |
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146 U.S. 387, 452.
As discussed in the subsequent pages of this essay, various legislatures and the courts have examined and re-evaluated the parameters of tidelands trust issues since then, however, the basic premise of the trust remains fundamentally unchanged: the Court affirmed that a state’s title to its tidal and submerged lands differs from title to lands it holds for sale. The Public Trust, therefore, is an affirmation of the duty of the state to protect the people’s common heritage of tide and submerged lands for their common use: “… It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing,” that is, unencumbered from obstruction, or interference from private parties.
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ENDNOTES:
[1] For this discussion, common law refers to laws and the parallel legal system that is developed through court decisions (case law), rather than through legislative or executive action. As such, the decision in a currently pending legal dispute is dependent on decisions in similarly themed cases that have already been resolved; and in turn, it affects the law to be applied in future cases. When there is no authoritative statement of the law, judges have the authority and duty to interpret and apply (create) law, and by so doing, develop precedent for future cases. The mass of precedent (called: common law) binds future decisions, such that the parties and judges must follow the reasoning used in the prior decision (stare decisis, or "to stand by the decision"). If the current dispute is fundamentally dissimilar to those already adjudicated (a “matter of first impression”), the court’s new decision becomes binding precedent which is used to resolve future cases.
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| The position of the OHWM changes every day |
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[2] CT Department of Energy & Environmental Protection: The Public Trust: What are the public's rights along Connecticut's shore?
[3] The definition of “navigable waters” is set forth in Title 33 CFR (Code of Federal Regulations) Part 328.3, Definition of Waters of the United States. Federal jurisdiction over non-tidal navigable waters is established in: 33 CFR Section 329.11(a)(1), and utilized by USACE to administer the R&HAA and CWA regulatory programs; (see note #5, below).
[4] Approved by the National Oceanic and Atmospheric Administration, Connecticut's Coastal Management Program is administered by the DEEP under the federal Coastal Zone Management Act. Enacted in 1980, the Connecticut Coastal Management Act (CCMA) codifies through statute a program to ensure neutral growth along the coast, improve public use and access, protect water-dependent uses, public trust waters and submerged lands, restore coastal habitats, promote harbor management, and facilitate research. The Coastal Management Program also regulates work in tidal, coastal and navigable waters and tidal wetlands under the CCMA; development of the shoreline is regulated at the local level through municipal planning and the zoning boards and commissions, provided technical assistance and oversight by program staff ensuring compliance with policies of the CCMA.
See also: State of CT Dept of Energy & Environmental Protection: Living on the Shore: Who Owns the Shore? Further, see also: public trust as created statutorally in the Connecticut Environmental Policy Act (CEPA), C.G.S. ann. § 22a-16, 22a-17; which asserts “the public trust in the air, water and other natural resources of the state” and crafts an expansive citizen suit provision allowing any member of the public to sue to protect these resources “from unreasonable pollution, impairment, or destruction.”
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| Duncan: low tide adds room to run |
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With 34,600 civilian and 650 military personnel, USACE is the largest public engineering, design, and construction management agency in the world, and is engaged in public works support to the nation domestically and the Dept. of Defense globally. The charge of USACE is to provide military and public works services to the US through critical engineering services and capabilities, as a public service, to support the “national interest.”
According to USACE: “The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding area."
USACE identifies 15 characteristics for this purpose: (1) natural line impressed on the bank; (2) shelving (incline or slope);
(3) changes in the character of soil; (4) destruction of terrestrial vegetation; (5) presence of litter and debris; (6) wracking;
(7) vegetation matted down, bent, or absent; (8) sediment sorting; (9) leaf litter disturbed or washed away; (10) scour (errosive force of moving water); (11) deposition of soil; (12) multiple observed flow events; (13) bed and banks; (14) water staining; and (15) change in plant community.
Further stipulated as other (but not limited to) reliable methods that may be indicative of the OHWM include: (A) lake and stream gage data, (B) elevation data, (C) spillway height, D) flood predictions, (E) historic records of water flow, and (F) statistical evidence. The Agency does discuss that these should include “characteristics associated with ordinary high water events, which occur on a regular or frequent basis. Evidence resulting from extraordinary events, including major flooding and storm surges, is not indicative of the OHWM. For instance, a litter or wrack line resulting from a 200-year flood event would in most cases not be considered evidence of an OHWM” (USACE Regulatory Guidance Letter: 07 December 2005).
[6] Under the common law, the term "nuisance" is customarily used to describe an activity or condition that is harmful or annoying to others. The scope of application can obviously be broad and flexible according to emergent needs or interests of the state or local law enforcement bodies. The law of nuisance was created to stop such vexing activities or conduct when they unreasonably interfered either with the rights of other private landowners (private nuisance) or with the rights of the
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| "Public Beach" is "that portion of the shoreline below the mean high tide elevation..." |
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This essay is written for informational purposes, not as legal scholarship, researched from publicly available sources and government documents. We strive to keep these links current, but occasions may arise wherin upgrades to State of Connecticut sites or editing of other portals by their domain owners may cause the links to mis-direct. If this happens, let us know (simply by clicking any image on this page) and we will endeavor to correct.
This essay continues:
NEXT: [Page 2] Scope of the Public Trust Doctrine (→click here)
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