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Wednesday, April 5, 2023

‘Hard to Fish from a Parking Lot’

Shoreline Access Legislation Back on Table

By Rob Smith / ecoRI News staff

For the second year in a row, shoreline advocates are asking lawmakers to clarify where the public is allowed to walk on the state’s shores. For activists, nothing less than constitutional rights, tourism, and public health is at stake, but waterfront property owners and opponents claim it’s an invitation to bedlam.

This year the General Assembly is considering two bills — one in the House, and a separate piece of legislation in the Senate — that would delineate where on the shoreline members of the public can walk without trespassing onto private property.

H5174, introduced by Rep. Terri Cortvriend, D-Portsmouth, would tie that boundary 6 feet landward of the wrack, or seaweed, line — the highest line on the shore where seaweed, shells, and other ocean detritus remain after high tide.

Similar legislation passed the House last year with unanimous support but died waiting for a committee hearing in the Senate.

Meanwhile, the Senate’s version of the legislation goes in a different direction; S417, introduced by Sen. Mark McKenney, D-Warwick, would affix the boundary at the natural vegetation line.

Both bills are aimed at rebooting the way Rhode Island classifies public access to the shore. Section 17 of the state Constitution enshrines the public’s right “to enjoy and freely exercise all the privileges and rights of the shore,” but what those privileges are has been the focal point of a legal tug-of-war stretching back decades.

For shoreline activists, the right to walk along the shore, fish, collect seaweed, and do other beach-related activities is as old as the beaches themselves. Those rights date back to Rhode Island’s history as a former English colony; the original Colonial charter establishing Rhode Island, granted by King Charles II, spelled out residents’ right to access the shore for fishing.

But that all changed in 1982, when the Rhode Island Supreme Court ruled the boundary for public access to the shore was the mean high water (MHW) line; nearly impossible for beachgoers to identify, and often underwater.

“It’s an elevation line,” Nathan Vinhateiro, a professor and assistant director at the University of Rhode Island’s Coastal Institute, told lawmakers in a House Judiciary Committee hearing on the bill. “It’s not a watermark, it’s not a debris line. In order to find it in real time, you must use precise surveying equipment … its position changes constantly as sands shift after storms.”

“It’s always in a different spot and you can’t see it, making it difficult if not impossible to enforce.”

A number of prominent trespassing cases led the General Assembly to create a study commission on the issue in 2021, led by Cortvriend and then-Minority Leader Rep. Blake Filippi, R-New Shoreham. EDITOR'S NOTE: Flip's replacement, Tina Spears (D-Charlestown) is a co-sponsor of Cortvriend's bill - Will Collette)

The commission recommended the Legislature pass legislation allowing the public lateral access to the shore 10 feet landward from the seaweed line.

Waterfront property owners and opponents of the legislation argue it represents a “radical change” to public access rights and would put the state on the hook for millions in compensation payments as an unlawful taking under the state and federal constitutions.

“The intent behind H5174 may be commendable, but the law is clear and the consequences are far-reaching,” wrote Daniel Procaccini, an attorney writing on behalf of the Shoreline Taxpayers Association for Respectful Traverse, Environmental Responsibility and Safety Inc. “This is not a close call. There are better means to achieve the same ends that do not present the risk of an uncompensated taking.”

Attorney and Westerly property owner Deming Sherman expressed concerns to lawmakers that the wrack line was not definitive enough and would allow for large groups to stay on the beach doing more than what is allowed by law.

“The creation of a 6-foot zone invites people to engage in beach activities … that are not traditional privileges of the shore,” Sherman said.

Shoreline activists, meanwhile, argued that the status quo, with no expansion or delineation of shoreline access rights, would engender more confusion for everyone, from anglers to residents to property owners, and that confusion would have residual effects from the fishing industry to tourism.

“It’s hard to fish from a parking lot,” said Greg Vespie, vice president of the Rhode Island Saltwater Anglers Association. “Both anglers and members of the general public are having difficulty finding where they can access the shoreline.”

Peter Jenkins, owner of The Saltwater Edge, a bait and tackle shop in Newport, told lawmakers he was speaking on behalf of his customers.

“Access is critical to my customers and to the Rhode Island economy,” Jenkins said. “Fifty percent of saltwater fishing licenses in this state are purchased from people who live outside of it — that’s called tourism.”

Westerly resident Carolina Contrata told lawmakers she regularly enjoyed quiet morning walks along Watch Hill’s shoreline until a few years ago, when private property owners erected signs that read “Private property to the mean high tide line.”

“I don’t go there now because I know where the mean high water line is; it’s usually under water,” she said.

The bill was held for further study.