Lake Erie Public Trust
Submerged Lands Leases
Leasing submerged land enables the state to manage the Public Trust, accommodate various private and public uses, and help protect the rights of littoral property owners. A Submerged Land Lease is the mechanism by which Ohio authorizes use of the Lake Erie Public Trust.
The Public Trust arises from the recognition that there are certain public uses so intrinsically important that their availability tend to be a mark of a free society. There is a public trust interest in lands beneath the navigable waters of Lake Erie as with tidal waters and other navigable fresh waters.
The public right of use extends to the full reach of state-owned lands covered by navigable waters. The application of the Doctrine is not determined by ownership, but by public rights of use.
The Public Trust, which includes Lake Erie's water, the land beneath the water, and the resources living in the water, is held in trust by the State of Ohio for the benefit of its citizens. The State, acting as a trustee for all Ohioans, allows public land and natural resources to be used for recreation, public infrastructure, private enterprise, and in the case of Lake Erie, protection of littoral property from flooding and erosion.
The Public Trust Doctrine recognizes that littoral (shoreline) property owners have the right to reasonably use the water fronting their property.
What is a Submerged Lands Lease?
A Submerged Lands Lease is a contract between a shoreline property owner and the State of Ohio. The lease grants a private or public entity the special use of a portion of Public Trust (i.e. Lake Erie submerged land) in exchange for a rental fee.
The lease states the legal responsibilities of the lessor (the State of Ohio) and the lessee (the applicant). It defines the leased land's boundary, the authorized use(s), sets the rental rate and the term of occupancy. Leases are prepared by the Ohio Department of Natural Resources (ODNR) and executed by the Governor as proprietor in trust for the citizens of Ohio.
How is a Submerged Lands Lease application obtained?
A Submerged Lands Lease application form and detailed instructions can be found in the ODNR Coastal Permits and Lease Booklet, which can be downloaded or obtained from the ODNR Office of Coastal Management by calling 419-626-7980.
Please note that a resolution from the local legislative authority that has jurisdiction at the location of the proposed lease area (e.g. port authority, municipality, or county) must accompany a Submerged Lands Lease application. Contact information for these local authorities and guidance on obtaining a resolution can be found in the permit application, on the Local Resolution WebPage and/or can be obtained by contacting the Office of Coastal Management.
What are the rental rates?
The annual rental rate is based on the square footage of Public Trust area occupied by the structure and the proposed use of the structure. Rental rates range from 1 to 4 cents per square foot. A flat annual fee for processing the payment may be charged in addition to the rental rate depending on the type of use. (See Ohio Administrative Code Section 1501-6-06)
What projects require a Submerged Lands Lease?
A Submerged Lands Lease is required for wharfs, docks, marinas, piers, boat ramps, seawalls, breakwaters, stone revetments, groins, jetties, water intakes, utility lines, and any other acceptable structure or fill that occupies the Lake Erie Public Trust. Only the area occupied by a structure or fill within the Public Trust must be leased. Areas within the Lake Erie Public Trust that are included in a valid deed may be excluded from the leased area. Sandusky Bay and Maumee Bay are considered part of the Lake Erie Public Trust. The rivers and streams that empty into Lake Erie are not.
Do existing structures require a Submerged Lands Lease?
Existing structures or fills that are not currently leased require a Submerged Lands Lease. Areas within the Lake Erie Public Trust that are included in a valid deed may be excluded from the leased area. In some circumstances, modifications to the existing structure or fill may be required to comply with applicable laws and policies. ODNR will assist you with determining what structures need to be leased and what, if any, modifications may be necessary.
Is there an application fee?
There is no fee to apply for a Submerged Lands Lease. However, the services of an Ohio Registered Professional Surveyor are usually needed to establish the lease boundary and square foot area.
What happens after an application is submitted?
ODNR reviews the application to determine if it is complete and if the project complies with Ohio law, including Ohio's coastal management policies. If the application does not contain all of the documents and information listed in the ODNR Coastal Permits and Lease Booklet, ODNR will request the information needed to complete the application. If the missing information is not received in a reasonable time, the application is returned as incomplete.
ODNR's review of the application usually includes a site visit and may generate comments. These comments are sent to the applicant noting any specific concerns that need to be addressed. The applicant may need to modify the proposed project to address any conflicts with applicable laws and policies.
After ODNR determines that the project is acceptable, a draft lease is sent to the applicant. The draft lease must be signed by the applicant and returned to ODNR along with the first lease payment. ODNR then forwards the draft lease to the Governor for signature. An executed lease is sent to the applicant. The executed lease represents a binding property transaction and should be recorded by the applicant at their county recorder's office.
How long is a Submerged Lands Lease valid?
Submerged Land Leases are typically valid for a 50 year period and renewable for an additional 50 years.
Additional Reading
The Public Trust Doctrine is a common law doctrine developed through judicial decisions with origins in unwritten law and custom dating to old England. Following the Declaration of Independence, the courts of each state continued to apply and further develop the English common law as separate sovereigns. The Public Trust arises from the recognition that there are certain public uses so intrinsically important that their availability tend to be a mark of a free society.
The public right of use extends to the full reach of state owned lands covered by navigable waters. The application of the Doctrine is not determined by ownership, but by public rights of use. |