Ownership issues cloud Primehook dune repair

The fate of a proposed beach-scraping project to rebuild and protect dunes in the area of Primehook Beach may rest on sand ownership.

Members of the Prime Hook Beach Organization Inc. claim they own the storm-damaged beach. Opponents say they are wrong, that the beach is public property deeded to the Prime Hook National Wildlife Refuge.

The two state permits requested by the organization for the scraping project must be applied for by property owners.

Although a decision to issue permits rests in the office of Department of Natural Resources and Environmental Control (DNREC) Secretary Collin O’Mara, hearing officer Robert Haynes hinted the issue could eventually be decided in court.

No one, including state environmental officials, gave a definitive answer to beach ownership at Primehook Beach during a Thursday, June 4 public hearing at the Richardson & Robbins Building in Dover.

“People applying for the permit do not own the beach they want to scrape,” said Sam Burke, a Lewes-area attorney representing several property owners opposed to the scraping project. Burke also owns property in Broadkill Beach to the south of Primehook Beach.

Burke said he researched the lots in the county Recorder of Deeds Office.

Outlining a detailed history and analysis of lots and deeds in Primehook, Burke said the original owner sold lots not including beach property. He said the remaining land, including beachfront property, was then donated to the Nature Conservancy, which in turn donated the land to the refuge.

“It’s my legal opinion the refuge owns all the beach,” Burke said. “They [Primehook residents] can’t prove ownership of the land being scraped.”

Adding to the confusion, the refuge does not include any beach property on its surveys or maps.

Ron Godwin, who lives in Primehook Beach, disagreed. “The ownership of the beach is not in question,” he said.

He said the original owner, Joseph Short, conveyed the deeds establishing the Delaware Bay as a natural monument. He said there is no doubt the beaches are private and under the ownership of those in the organization.

Laura Herr, section manager of the Division of Water Resources Wetlands and Subaqueous Lands Section, said every property owner has submitted a deed. “We are looking at every deed very carefully. It’s a mixed bag in this case,” she said.

She said most deeds for property along water in the state include or imply property to the mean low-tide line, which would include the beach. “But, it depends on how the deed reads. We also have to research how prior deeds read. Prior property owners can’t transfer something they don’t have,” she said.

Dunes are project focus
The organization is seeking two state permits to scrape approximately 20,500 cubic yards of sand from just above the mean low-water line and place it along 7,400 feet of dune remnants in Primehook Beach, Shorts Beach and Clifton Shores on the Delaware Bay.

The sand will be scraped from a 125-foot wide section of the beach along the mile and a half of the project. According to the permit application, the plan is to start 20 feet landward of low tide, and gradually scrape sand landward to a maximum depth of 24 inches.

Although there were disagreements over many issues during the public hearing, no one disagreed that scraping as a beach rebuilding process is only a temporary measure. Scraping is the transfer of sand from the lower beach to the upper beach to rebuild the dunes. The process has taken place at least three times in Primehook Beach over the past 25 years.

John Chirtea, a resident representing the Prime Hook Beach Organization, said two major storms, Ernesto in 2006 and the Mother’s Day storm in 2008, have done major damage to the Primehook beach and dunes.

“We need to rebuild our dune line 10 to 15 feet to protect our homes and protect the tax base in Sussex County,” he said.

He said the enhanced dune line would stop saltwater intrusion into the freshwater impoundments in the refuge and also help to restore the beaches as a viable source of recreation.

“We know this is not a permanent fix, but this is the only option we have available now,” he said. “The last scraping lasted nine years.”

He said the 100 or so homeowners who live along the beach would pay the cost of the project.

Issues on sand migration
Some opponents urged Primehook homeowners to seek a more long-term solution to their beach erosion problems like the beach replenishment programs that have taken place along the oceanfront.

Carolyn McKown, who lives in Back Bay Cove, said there was something missing from the application – consideration for the long-term effect on neighboring beaches.

“Our sand will fill your beach, and that’s not right,” she said. “I object to you taking our sand. Scraping is putting a Band-Aid on a jugular cut. You need to replace what is lost and bring in sand from somewhere else.”

“Sand is going to come from somewhere to fill this hole,” Burke said.

“It’s going to come from the beach in front of my clients’ homes.”

He said sand moves south to north in that location. He estimates the total amount of sand would equal about 25 acres of land.

While some opponents expressed worries about sand migrating from nearby beaches to fill in the hole of scraped-off sand, one resident who lived in a development to the north of the project said he has witnessed three other scraping projects with no evidence of beach erosion from other areas.

Charles Darling, who lives in the Back Bay Cove development, which is not included in the project, said there is no updated scientific data that he has seen on the sand flow in the area.

“And with this project we are not talking about a lot of sand in my view,” he said. “It’s not a panacea, but it is a quick way to provide protection. They are trying to provide protection from storms that we all know we are going to get hit with.”

Darling said, from his experience, the hole fills in less than two weeks from offshore – not from lateral drift.

His wife, Ann, who has been a beachwalker for years, said she didn’t feel concerned about losing sand in front of the Back Bay Cove community.

Burke said a comprehensive study was being conducted by DNREC on Delaware Bay beaches from Lewes to Kent County. He asked that the record remain open to accept findings from the report.

Haynes, the hearing officer who will compile the information from the hearing and make a recommendation to the secretary, said the department would listen to its consultants.

“I will be doing a lot of research on this one,” he said.