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Klaus Philipsen
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Back to Nature - Not as Easy as it Seems
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Temporary urban beach on a reclaimed industrial site in Baltimore
(Photo: Philipsen)
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Turns out, plenty.
I learned this early on after moving to Maryland from Europe decades ago. Living overseas, I had spent vacations roaming seashores and mountains in nearly a dozen countries. This could mean driving my VW camper bus to an especially gorgeous spot overlooking a Norwegian fjord and staying there for a couple of days. This wasn't a campground, nor was it a park; it was just nature.
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Camping near a fjord in Norway (Photo: Philipsen)
[/td]Or sleeping on a Greek beach under the stars. Or hiking and biking from the edge of any German village or town right into the countryside, through fields and woods, using farm access roads or forest roads that were usually a public right of way. In this manner, one could go on for hundreds of miles all the way to Austria, Switzerland, or France and beyond without using any highway or encountering "no trespassing" signs, much like one can hike on the Appalachian Trail here. Taking the kids out let them ride their bikes or trikes on the farm or forest roads that were closed to general traffic, check out the crops, get close to cows, horses, or pigs, or observe the forest wildlife.
Back then I didn't know Justinian's principle, the "right to roam", property law, or any of the legal constructs that I will discuss here and which affect a lot of people:
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Biking through the German countryside
[/td]The Privatized Waterfront
Arriving before there were electronic maps in a state that prides itself on being "America in miniature" for its lakes, seashores, and mountains, I found myself unfolding the latest edition of the official state highway map to scout for the best places along the Chesapeake Bay. So much shoreline, so many islands, peninsulas, and points jutting out into the water, all promising spectacular views, maybe beaches, maybe shoreline trails.
After a few trips to those promising points on the map, I sobered up. Wherever I went, I encountered fences, no trespassing signs, and miles of shoreline entirely walled off by private property—often without any gap.
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Privatized Maryland waterfront: Cape St Claire (Google Earth)
[/td]My explorations by trial and error were very frustrating. I learned the hard way what most U.S. residents who are born here know from growing up here: The U.S. doesn't typically recognize a "right to roam"; private property is sacred and can include natural resources.
The small state of Maryland has a whopping 3,190 miles of shoreline. This exceeds the distance between Baltimore and L.A. by 550 miles!
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Holly Beach Farm, owned by a foundation, but no public access
(Photo: Baltimore Banner)
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Yet only 2% of the shoreline has public access or is public, usually because they are part of a municipal or state park—places that frequently limit access via fees, opening hours, and all types of restrictions that prohibit camping, the use of alcohol, or commercial activity. But not all states are equal! Even in the U.S., with its generally strong property rights, huge differences exist between states that don't fall neatly along the usual party lines of liberal and conservative.
The Legal Side: Riparian Rights, the Public Trust Doctrine and Rights for Nature
Waterfronts provide riparian rights or littoral rights to property owners, which leave a strip between the high and low water marks open to the public. For tidal waters, this could be a substantial area, but it proves useless where no access is provided, and private properties form a tight wall preventing access to the shore.
Public rights are the subject of the Public Trust Doctrine, a concept dating back to the Roman Empire, specifically the year 533. As quoted above this article, it holds that natural resources including wildlife, rivers, and streams, are owned by everyone. The doctrine is one of the main underpinnings of environmental law in the United States, although it is a matter of debate whether federal law explicitly recognizes it. Justice Scalia’s called it in majority opinion in Lucas v. South Carolina Coastal Commission, a "background principle of property law". It is generally understood that the states are supposed to hold natural resources in trust for the good of their citizens. The specifics are more or less narrowly defined and vary widely between states.
The doctrine typically limits itself to the right of access to "navigable" bodies of water; however, the definition of what that means varies quite a bit between states. Montana, Idaho, California, and, believe it or not, Texas and Florida have rather liberal public access rights, the latter two pertaining mostly to beaches. Texas anchored this in the Texas Open Beaches Act since 1959, and 50 years later it was anchored in a constitutional amendment. It guarantees the public's right to access public beaches up to the vegetation line and even allows for a changing coastline by defining a "rolling easement." New York State allows public access to all navigable waters up to the high water mark and has augmented this right with a massive “Public Fishing Rights Easement” program, creating more public space through easements along 1,300 miles of shore on 400 streams.
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Enjoyment on the water's edge (Photo: Philipsen)
[/td]By contrast, even though an outdoor heaven, Colorado has some of the most restrictive laws when it comes to river access. Similarly, Maine, known for its rugged shorelines, allows for fully private waterfront property; no Public Trust access here. California, which has 840 miles of coastline (not counting all wrinkles), allows beach access based on the California Coastal Act. This law grants the public the right to access all beaches in California, even on private property, below the mean high tide line.
Another approach to regulating "water, the sea, and with it, the shores of the sea
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is giving nature in general personhood status and rights. This
is called the Rights of Nature, at this point more of a movement than a legal doctrine. However, with recent decisions of international courts declaring a healthy environment a human right, Rights of Nature got additional buoyancy. So far only Ecuador has enacted a law codifying rights of nature. A few US municipalities have tried to use such rights to protect nature, some of those are mired in litigation.Where you Can and Where Not
Expanding my Maryland travel to other states, I found that laws don’t always match reality and that differences between states are significant. Pennsylvania put Justinian into their constitution, but that is not always obvious. In the agreements between states in the Chesapeake Bay watershed, Pennsylvania usually acts as the brake man, even though its mighty Susquehanna River feeds tons of sediments and pollutants right into the headwaters of the Bay. PA also allows fracking.
California really ensures good access to the shore along most of the Pacific coast, even where very expensive private properties crowd it.
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People assembling to watch the sun set over
the Pacific in San Diego (Photo: Philipsen)
[/td]the Pacific in San Diego (Photo: Philipsen)
Surfers and beach runners take advantage of this, as do sun lovers sitting on the beaches. Nevertheless, setting up a camper on top of a bluff, as I did in Norway, is out of the question, even here in the land of hippies. Other states' more liberal rules about water access don't do much for me in Maryland, though.
This isn't a trivial matter and has relevance far beyond my personal frustrations. Public access to water or other natural features has to do with those "third spaces" that everyone is talking about these days. Their importance was highlighted by the pandemic, where isolation was the mantra all week and where public parks overflowed as a powerful antidote to loneliness.
Pandemic or not, a beach is a communal experience, no matter how small it is. Water exerts an incredible attraction on us, from the smallest stream to lakes and oceans. It has motivated expeditions, discoveries, and the location of cities and factories.
Privatizing the powerful experience of water provides a very special privilege to a necessarily small group of people and brings to mind the even nefarious practice of limiting beach access by race that has happened on a large scale in Maryland. There were fewer than a handful of beaches where Black residents had access. One was Carr's Beach near Annapolis, which started as part of an 180-acre farm owned by a former slave whose daughter turned parts of the land into a "black Eden" resort. In the era of Jim Crow laws, the facility thrived not only as a regionally popular recreational beach but also as an event venue featuring Count Basie, Ray Charles, Sarah Vaughan, Wilson Pickett, and 'the Godfather of Soul,' James Brown. Development shrank the land to a measly five acres. It took 17 years of diligent work to preserve the legacy as a public beach, an important asset in a county about which the Baltimore Banner wrote an article titled: Anne Arundel County has 533 miles of shoreline. One mile is for public swimming. (0.18%).
Environmental, Health and Economic Challenges of a Privatized Waterfront
The privatization of nature—be it mountains, lakes, rivers, or the sea—goes far beyond deprivation or privilege. It affects human health and happiness through the relaxation that comes from being in nature and the experiences that come from swimming, playing with sand, seeing tides, waves, fish, or seashells; these should be part of anybody's childhood but are kept from most.
Privatized off limits nature also affects our health by making the environment unhealthy.
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An extreme case of privatizing the water's edge:
The abandoned 1968 "mushroom house" in La Jolla,
California with tram up the bluff (Photo: Phiipsen)
[/td]The abandoned 1968 "mushroom house" in La Jolla,
California with tram up the bluff (Photo: Phiipsen)
Development on the water's edge has also economic consequences. Initial benefits, such as increased taxes and new residents, become liabilities through the ever-increasing losses stemming from destruction by floods, storms, and fires fueled by the very assets that attracted the development: water and forests. It becomes clearer with every disaster that it isn't prudent to have development crowding the oceans, the rivers, and the wilderness and that new ways are needed to create resiliency.
Resilience Through Naturalization and Access
On a cloudy day in May 2023 I climbed up to the platform of an observation tower to witness first hand how naturalized water edges may be a way of achieving resilience and public access at the same time. My eyes scanned a massive infrastructure construction site covering 700 acres, the Port Lands project which includes a realigned “naturalized” river, new roads, new bridges and lands set aside for a park and new development. The whole thing is part of Toronto’s Lake Ontario shoreline and a flood prevention project. A large park is getting finished now as the first piece of the $1.4 bn Port Lands project.
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A new park in Toronto as part of a shoreline naturalization project
(Photo: Port Lands press kit
[/td](Photo: Port Lands press kit
The 60 acre Biidaasige Park is part of the naturalization of the Don River and part of the Port Lands' flood protection. Before the realignment and naturalization the Don floodwaters would overwhelm portions of the southeastern area of downtown Toronto. The park and the realignment of the river are a very large landscape infrastructure and urban precedent for resiliency and climate adaptation, wonderfully combining naturalization, resilience and public access of a waterfront
Numerous other such projects are under way or in planning, from New York to San Francisco and from Toronto to Florida They include the Seal Beach National Wildlife Refuge, Surfers Point, San Francisco Bay, Hamilton Wetland, and Humboldt Coastal Dune, projects focused on restoring salt marsh, beaches, dunes, wetlands, and near shore habitats to improve coastal resilience.
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Living shoreline Mahone Bay, Nova Scotia (Photo: G. Harding)
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In Naples Bay, FL, oyster reef restoration aims to protect a mangrove shoreline from storm surge and improve the habitat and water quality. In Nova Scotia a naturalized "living shoreline" already passed the test of a hurricane and saved three historic churches on Mahone Bay.
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Beach near Valencia Spain (Photo: Philipsen)
[/td]We see that the issue of free roaming, water access, and riparian rights goes beyond the binary of private property rights versus public interest or liberal versus conservative or public use versus resilience. Neither international nor state-by-state comparisons fit such simplistic classifications. Where would that put conservative Florida and Texas with their emphasis on public rights in comparison to some "blue states" such as Colorado or Maryland with their emphasis on private property rights? Why would Ecuador and not Norway be the first country to recognize the right for nature?
The question of access to nature, and water in particular, no longer follows the left-right divide, no matter that the right in the U.S. currently shows the middle finger to any environmental protection. Many local and state politicians and legal experts have recognized that being conservative means conservation and, by extension, reining in the seemingly unstoppable destruction of our physical world. Furthermore, many of these dualities can be resolved with creative solutions that turn false choices between environmental protection, property protection, public access and resilience into all of the above solutions.
We have only one nature, and in the end, nature will have the last word. As astronaut Neil Armstrong put it:
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Earth rising over the moon's horizon
[/td]We can't all fly to space to have this experience of earth. But access to nature and more freedom to roam can have the same effect and would make us better stewards of our planet.
Klaus Philipsen, FAIA