A closer look at the shoreline access bill, H.8055
by Save The Bay’s Policy Team
Save The Bay’s vision is of “a fully swimmable, fishable, healthy Narragansett Bay, accessible to all.” While there is no doubt that the Rhode Island Constitution protects the public’s right to use the shore, the exact location of the public shore is harder to locate than you might think.
In the state constitution, Art. I, § 17, reads:
The people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore, to which they have been heretofore entitled under the charter and usages of this state, including but not limited to fishing from the shore, the gathering of seaweed, leaving the shore to swim in the sea and passage along the shore; and they shall be secure in their rights to the use and enjoyment of the natural resources of the state with due regard for the preservation of their values […]”
Last year, the R.I. House of Representatives created a special legislative study commission to examine the issue of lateral shoreline access, and Save The Bay has been honored to serve on that commission. After hearing from coastal geologists at the URI Coastal Institute, the public, and historical analysis from legal experts,the commission concluded that the General Assembly should (1) define a boundary that is visible to the public as the recognizable high tide line (seaweed, wrack or swash line); and. (2) clarify that the public has a right to use the area of land 10 feet inland of the recognizable line on wet sand, dry sand or rocky beach where passable shore exists (and not above the vegetation line, sea walls or other legally constructed shoreline infrastructure).
New legislation – House bill 8055 – has been introduced to clarify the public’s shoreline access rights, and Save The Bay is supporting the bill.
Why the legislation is needed
A 1982 ruling by the Rhode Island Supreme Court reduced the public’s historic rights and established the mean high water line as the starting point of the public shoreline. This line is determined by calculating the “arithmetic average of high water heights observed over the past 18.6-year Metonic (or lunar) cycle.”
Scientists testified that the mean high water line, as technically defined, changes constantly and cannot be seen on the beach. A good faith beachgoer cannot determine where they may pass along the shore. Even if a property owner were to independently pay for a survey to calculate the daily high tides for the last 18.6 years along the edge of their property, the constantly changing shorelines could alter the results on a day-to-day basis. As the Commission stated in its report, scientists’ analysis revealed that the use of the mean high water line, aggravated by sea-level rise, renders our rights to use the shore “illusory.”
In 1986, in response to the 1982 Supreme Court case, voters overwhelmingly approved updated language to the R.I. Constitution that restored the public’s constitutional rights, rendering the mean high water boundary obsolete. However, the confusion continues–among both the public and coastal property owners—due to a lack of a clear, easily discernible definition. In short, a clearer definition is needed.
Keep reading to learn more about the bill, and join us in urging the General Assembly to pass this legislation to secure the public’s constitutional rights and privileges of the shore.
What the bill WOULD do:
- It WOULD clarify that the public has a Constitutional right to access some portion of dry sand above the most recent visible high tide line
8055 would address current confusion and ambiguity by clarifying that the public’s access along the shore extends 10 feet inland from the recognizable high tide line. This definition would allow a reasonable area for passage beyond a visible marker that is readily identifiable for both the public and property owners. This is consistent with hundreds of years of state and colonial legal history going back at least as far as the Royal Charter of 1663, and is also consistent with coastal science and the dynamics of Rhode Island’s fluid and changing shoreline.
- It WOULD respect private property rights
8055 specifies that the public’s shoreline access rights do not extend to where no passable shore exists, to land above the vegetation line, to sea walls, nor to other legally-constructed shoreline infrastructure. The bill would not allow the public to be on grassy areas or on anyone’s legally constructed back porch or deck.
What the bill WOULD NOT do:
- It WOULD NOT expose property owners to liability for injuries
Private property owners are protected from civil liability by the R.I. Recreational Use Statute, which was enacted “to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability to persons entering thereon for public purposes” (R.I. Gen. Laws § 32-6-1). The statute protects private property owners from claims by people on their property for recreational purposes (with or without their knowledge), as long as there is no charge for the use (R.I. Gen. Laws § 32-6-3).
- It WOULD NOT take private property.
The legislation does not change the boundary lines of property ownership. It merely restores the public constitutional right to use the shore.
Save The Bay looks forward to continuing to advocate for Rhode Islanders’ shoreline access rights, including rights-of-way TO the shore as well as lateral access ALONG the shoreline.