Photo | Michelle Stancil
Orange Beach engineer Vince Lucido helped draw the mean high tide line marking private ownership and public easements along the beach.
To put it simply, it’s how the Gulf works, former State Lands Director Jim Griggs says.
“The Gulf of Mexico is kind of like a big drain that swirls,” Griggs said. “It’s the natural dynamics of the Gulf of Mexico that sand moves from the east to the west.”
As it does, some areas lose beachfront to natural erosion.
“We were losing sand on the beaches particularly in Orange Beach and in Gulf Shores,” Griggs said. “The sand as it moves from Florida would hit Perdido Pass and drop in the pass and could not get out. On the west side of the pass, beaches were being eroded away. They were moving west like all sand moves in the Gulf of Mexico. As those sands moved west, they depleted the beaches.”
But what do those eroding beaches and shifting sands have to do with property ownership and property rights? Who, in fact, owns the Alabama coastline?
That’s a complicated question that takes into account shifting sands, mathematical formulas and surveying based upon mean high tide lines, coastal construction lines and on beach renourishment.
“These are tough questions on this,” Orange Beach Director of Coastal Resources Phillip West said. “Attorneys get confused on it. It’s supposed to be cut and dried. There’s such minutiae in there. The beach, that’s a tough one. It hurts people’s heads to think about it when you start looking at the different angles.”
West says by law all the land south of mean high tide line is owned by the state and regulated by Orange Beach and Gulf Shores in those cities. But that doesn’t necessarily mean it’s open to the public.
“Technically it is state-owned, but there are nuances that go along with that we have to keep in mind,” West said. “Ownership it is, but on the rights and privileges there are nuances.”
For instance, there are certain things the general public can do within state-owned beachfront. But going for a day at the beach isn’t one of them.
“Alabama is a mean high tide line state meaning a riparian owner only owns down to the mean high tide line,” West said. “I can go walk the beach, traverse the beach, fish and do all that. The public has the right to traverse that public beach, but they don’t have the right to squat on it. Meaning you couldn’t have a vendor just come set up and start renting chairs without the permission of that adjacent property owner, even if he’s on state property and the state doesn’t even deal with it. Not without the riparian owner’s permission.
“That’s why we call it nuances.”
Drawing a line
At the heart of all these nuances is the Beach Nourishment Act of 1994, passed when Griggs was still State Lands director. He was one of the chief authors of the act and said its first purpose was to address erosion of the beaches.
“The beach renourishment act was necessary for us, number one, to fix that mean high tide line prior to any renourishment,” Griggs said. “Then to authorize the renourishment of the beaches. That’s the background of that legislation.”
The erosion was becoming critical at some points along the Gulf, Griggs said, and was becoming a growing problem.
“We were losing our beaches,” he said.
At first, Griggs turned to the U.S. Army Corps of Engineers, which was regularly dredging Perdido Pass.
“For a long time [we tried to] convince the Corps of Engineers to pick up the sand that fell into Perdido Pass and just discharge it to the west so that it would renourish the beaches,” Griggs said. “That was cost prohibitive for the Corps because the Corps could pick up the sand when they would dredge the pass and discharge it further out and so that sand never got back into the littoral system to renourish the beaches.”
Eventually, the Corps agreed to move the sand to the west of the pass to help with beach erosion there. But there was still the problem of renourishing the entire coast.
“Then you get into a legal issue,” Griggs said. “As in most states, the state of Alabama owns submerged tidal lands. Not fresh water but tidal lands to the mean high tide line. The mean high tide line is the average 19.6 years average of tidal fluctuation discounting any sudden or unnatural changes such as hurricanes, tropical storms or dredging or flooding. Anything that’s unnatural does not change that ownership line.”
Vince Lucido of Orange Beach was one of the chief surveyors who established that line to give Griggs’ department a starting point for rebuilding the beaches. The survey crews used aerial maps of the beaches before the impact of Hurricane Isidore in 2002 as a guide to establish what is still called the Lucido-Oliver line for Lucido and fellow engineer Tommy Oliver.
“That mean hide tide line is then fixed legally by this act,” Griggs said. “That way if there is erosion the landowner never loses anything, but, at the same time, he doesn’t gain anything.”
Lucido, who now owns his own engineering firm in Orange Beach, said conditions on some of the beaches before the line was established would shock people today.
“Especially down there at the pavilion at Gulf Shores at the park,” Lucido said. “Where the bulkhead, where the sidewalk is, it was gone. There was no sand. Sea ‘n’ Suds was sitting out over the water.”
To fix the problem and establish the line, the cities and state had to get easements from waterfront property owners so the work could be done. It was Griggs’ job to lead public information meetings for residents who would be affected.
“There was a lot of hell raised about it because a lot of those landowners along the front back then they were afraid the state was trying to take their land,” Griggs said, “I held a series of public meetings. The law requires that. I tried to explain that if you don’t renourish the beach you may not have a house. It could erode away until your house falls in.”
There were some homes getting perilously close to doing just that west of the Little Lagoon pass, Griggs said.
“It eroded so badly that when Little Lagoon was cut those houses on the west were about to tumble into the Gulf,” Griggs said. “Because of that cut by the state highway department, the state is under a perpetual agreement to maintain that beach just west of the pass for those landowners.”
Another area in bad shape, Lucido said, was the Gulf Place complex near The Hangout in Gulf Shores.
“Down there where we have the Shrimp Fest, that was just water up to the sidewalk,” Lucido said.
With landowners appeased and the Renourishment Act law, officials had to decide where private property ended and the state’s began. Hurricane Isidore was used to start establishing that line.
“It was after that storm that it got worse and worse and worse and there was no beach,” Lucido said. “It was based on aerial photographs of the beach before a storm called Isidore came by, or a pre-Isidore line. We worked with the cities and the state to establish that line.”
But they couldn’t proceed without the legal permission of the landowners along the Gulf.
“There are so many owners it took a while for the cities to get all the owners to sign off on them,” Lucido said. “They needed an easement to be able to get the equipment on the beach to place the sand. It’s an easement out there to give the cities and the state access to it when it needs to be worked on. We had to write easements for every property owner on the beach from Gulf Shores to the state line. There were quite a few physical documents that we had to write up. It’s a big file, that’s for sure.”
The state delegates the management of the beach to the cities so they don’t have to get involved with it and the city pays for the renourishments. The city is also the enforcer between that line and the water.
“We consider ourselves stewards of the state’s beach and I don’t mean by ownership, but as a resource,” Orange Beach’s West said. “We are taking care of these beaches to the level that we are for the benefit of the entire state, and for the citizens of the state.”
Attaining those initial easements was also a key component to getting permission from the state to put more sand out to fix eroded areas, West said.
“Only municipalities in Alabama are eligible to obtain a beach nourishment permit,” West said. “But the state is going to require the city, before we place the material or before they even give us a permit, we have to show that we have permanent easement on that private property north of mean high tide line all the way to the coastal construction line for the maintenance and regulation of that beach. That we can access it, that we can control it, manage it, patrol it and enforce regulations on it.”
Both cities use the permanent line to enforce beach regulations, usually to keep pop-up tents north of the line so the canopies don’t obstruct the view of other beachgoers. And enforce the regulations of the Leave Only Footprints campaign started in 2015, which includes banning glass and removing all personal items from the beach each day at dusk.
While the fixed line is a permanent guideline, the actual line can be fluid, Lucido said.
“From the mean high tide line it belongs to the state, it’s public,” Lucido said. “It varies from day to day because of the erosion that can occur especially during a storm. It may erode way up close to the dunes then a couple of weeks later nature kind of heals itself. Things move back to where they were.
“That’s one reason we had to establish the line to have some permanent reference point to establish an easement.”
At times, Griggs said, the erosion can take the sand all the way up to and past the mean high tide line, another vital reason for having it in place.
“Ostensibly it was all private land down to the water,” Griggs said. “But there are two different things. There’s ownership of the land which is what we were dealing with. And there’s the public right to cross the land. That’s sort of like an easement. People have been walking the beachfront for millions of years, and it’s more like the right to cross along the water’s edge.”
Owners also benefit from the renourishment, West said, because the distribution of the sand during a rehabilitation project can sometimes go all the way to the dune line.
“When we fill the beach, we fill up to and well beyond that line,” West said. “That’s the whole point of it. We’ve got an eroded beach, we need protection. We’re going to fill 200 or 300 feet past that line in some cases, which we do. We do that because the beach has to go through a process, it has to equilibrate. When you place it out there with equipment, it’s not like Mother Nature shaped it, so she’s going to shape it and you’ll lose some of that depth.”
It all goes back to being the huge drain the Gulf of Mexico is and the constant moving of sand from east to west.
“You cannot interrupt that system of sand moving from east to west in the Gulf of Mexico,” Griggs said. “If you do interrupt it, you’re going to starve whatever is on the west side. You can see so much evidence to the interruption of that system even back to the Civil War era. There was so much erosion back then. Pelican Island just south of Dauphin Island once extended all the way out to the lighthouse and the lighthouse was 45 acres at one time. And now it’s nothing but the light now.”
This page is available to subscribers. Click here to sign in or get access.
It looks like you are opening this page from the Facebook App. This article needs to be opened in the browser.
iOS: Tap the three dots in the top right, then tap on "Open in Safari".
Android: Tap the Settings icon (it looks like three horizontal lines), then tap App Settings, then toggle the "Open links externally" setting to On (it should turn from gray to blue).