COLUMN: Get your heads out of the sand, officials

All Okaloosa County taxpayers should be very concerned over the casual approach being taken by most of the Okaloosa County commissioners over the possible severe financial liability they are taking on for the county taxpayers by the current beach restoration plan.

In addition to litigation expenses, there are two other situations that could significantly increase taxes all county citizens would have to pay: expensive perpetual maintenance of more restored beaches than need be, and massive eminent domain compensation to upland owners.

Let’s take one at a time.

Florida Statutes Chapter 161, the Beach and Shore Preservation Act, must be followed when a local government (here, Okaloosa County) wants to restore beaches. Under that law (and the recent Florida Supreme Court ruling in the lawsuit arising from the already-completed East Destin-Walton County beach restoration), the Florida Department of Environmental Protection (FDEP) must first declare beaches critically eroded before they can be restored.

This designation means that the county has the right — but not the obligation — to restore critically eroded beaches. The kicker is that once they are restored, the county must continuously nourish the beaches by replacing sand lost to storms or gradual erosion, or must give up the entire benefit of the project if it fails to maintain the new beach.

The requirement to perpetually nourish the restored beach comes from Section 161.051 of the statute, which says the restored beach must be “maintained by and at the expense of” the governmental entity which did the beach restoration.  If the county fails to spend taxpayer money to keep the restored beach nourished, then, when the waterline moves back to a point landward of the erosion control line (ECL) set during the restoration project, Section 161.211(3) of the statute gives beachfront owners the right to demand that the ECL be removed altogether. The upshot is that public money must continue to be spent to perpetually nourish the restored beach, or public money will have been entirely wasted on the project to start with.

In the case of Okaloosa County, the mobilization cost just to bring the restoration equipment to our beach is approximately $3 million, according to FDEP.  Then there is the estimated cost of another several million dollars per mile to restore the beaches. Plus the search for suitable sand gets harder and more expensive each time, as sand sources may be farther away.

Some of the East Destin-Walton County restored beaches completed in 2007 are already in need of complete restoration again, and not just partial nourishment.  Go to the Web site www.sandgone.info for pictures. You will see that all the sand dumped to create the new beach seaward of the ECL is already lost in some of the areas restored.

The city of Destin (which did that project) now must find the money to fix it, or can be made to give up the ECL.
The other issue, eminent domain, is even worse for the county.

The county commissioners are banking on the recent Supreme Court case as their security blanket, simply because the court ruled against the groups that sued to stop beach restoration only on the basis of loss of accretion.

The legal challenge by Destin owners of private beachfront, including Oceania Owners Association, of which I am president, is very different, and takes into account the part of the court’s ruling that is very unfavorable to the county.

The complaint in the other lawsuit was only that the riparian right of accretion was being taken; as the court noted, no claim was made, and no evidence showed, that submerged land owned by the upland owners was also being taken. Fortunately for Destin beachfront owners, the court repeatedly stated that a beachfront owner’s property line stays at the “pre-avulsive”, that is, the pre-storm, mean high water line. Oceania and other beachfront owners in Destin already have surveys and other evidence to show their pre-Opal property lines, and therefore their ownership of the submerged water bottom.

Because Destin beachfront owners own to the pre-Opal mean high water line, and because the ECL set as the new property line is landward of the existing pre-Opal property line, the beach restoration project in Destin results in a taking of the privately owned submerged water bottom out to the pre-Opal mean high water line, as the Supreme Court made clear.

Section 161.141 of the statute requires the county to take that property by eminent domain and to pay just compensation to the upland owners. The county thus far has failed to come to grips with the fact that the Supreme Court strongly affirmed the concept of “avulsion,” under which beachfront property lines are not affected by storms or hurricanes.  In Destin, this means that upland owners own the submerged bottoms that extend to the pre-Opal waterline.  In fact, the Supreme Court specifically mentioned Opal as the key avulsive event.

Most of our county commissioners are ignoring the financial burdens and risk that they are about to impose on the county for perpetual beach nourishment and for eminent domain payments to affected beachfront owners. The price tag could be in the hundreds of millions of dollars.  The lawsuits will be gigantic and endless. So far, however, most of the commissioners are sticking their heads in the sand (pardon the pun).

Oceania is not against beach restoration for those properties that urgently need and want it at the western part of Holiday Isle. FDEP has admitted that Oceania’s beach and the beach on the 2,000 feet to the west of Oceania do not fit their published criteria for designating beaches critically eroded. But our beach is being included, and scheduled for restoration against our will, supposedly because of the need of others. Yet, in other projects around the state, including in our neighboring Walton County, FDEP has had no trouble excluding gaps even much smaller than the half mile stretch that includes our beach and that of the Gulf front homes to our west.

All of this can be eliminated if all of the county commissioners would just listen to their constituents and use common sense.

The crowds at the recent ECL workshops showed that the citizens have better solutions than the commissioners do. The FDEP made it clear that the county can cut the project down to proper size for those who want and need it, without any resistance from FDEP, regardless of which beach is or is not designated critically eroded. Oceania would drop out of the lawsuit, and the controversial Municipal Services Benefit Unit would definitely not be needed. The search for suitable sand would be easier, since less sand would be needed.

The county’s legal expenses would diminish, and its exposure to severe financial strain from perpetual beach nourishment of more beach than need be and eminent domain would be avoided. The properties in need would get the sand they desperately need, and would get it much faster.

To the commissioners who have NOT been listening, please get your heads out of the sand and listen to your constituents. It is not too late to carry out the solution they themselves have come together to support.

Roland Guidry is president of the  Oceania Owners Association, Inc.