Rising Seas,
Coastal Erosion, and the Takings Clause: How to Save
Wetlands and Beaches Without Hurting Property Owners
By James G. Titus
Shall We Give Away the Shore?
In
the next century, the majority of America's publicly
owned tidal shorelines could be replaced by a wall, not
because anyone decided that this should happen but
because no one decided that it should not. Throughout
the United States, housing developments are being built
just inland of the marshes, swamps, muddy shores, and
sandy beaches that collectively comprise the
"public trust tidelands." Because sea level is
rising and most shores are eroding, the water will
eventually reach these houses unless either the houses
are moved or somehow the sea is held back.
The
most common response has been to build a wall near the
boundary between the private dry land and the public
tidelands, saving the former but allowing the latter to
erode away. Most states tacitly reward riparian owners
who build these walls with sole custody of what had been
the public shore by allowing the owners to exclude the
public from the area inland from the wall, where there
would have been a public beach or wetland had the wall
not been built. In Maryland alone, more than three
hundred miles of tidal shoreline have been armored in
the last 20 years. This trend will accelerate if the
greenhouse effect increases the rate of sea level rise.
We
should not, however, paint all coasts with a single
brush, because America has two types of coast: the ocean
and the bay. Along the ocean, sandy public beaches
dominate. Recognizing these beaches to be their
"crown jewels," coastal communities and states
protect them with a variety of policies that seem likely
to ensure their survival in all but a few locations.
Farther
inland lies the hidden coast that comprises 80 percent
of our tidal shorelines. Part sand, part mud, and part
vegetated wetland, these shores have diverse uses.
Unlike the open ocean coast, our bay shores are
gradually being replaced with walls of steel, stone,
concrete, and wood [hereinafter bulkheads]. Where once a
fisherman could walk on the public beach, there is no
beach; and to walk along the bulkheads that replaced it,
the fisherman must trespass in the backyards of the
property owners who built them and appropriated for
themselves the shore that once belonged to the public.
Unlike the ocean resorts, where every block has a road
leading to the beach, bayfront developments usually
provide no access. Environmental regulations provide
only temporary relief, having been designed as if
shorelines and sea level are stable. Effective
strategies for permanently keeping our natural shores
apply to the open ocean – but not the hidden bay.
Why
do we treat the ocean and bay coasts differently?
Virtually every state has made the policy decision to
keep its ocean beaches and not to privatize ocean shores
that are currently open to the public. Yet policy makers
have not addressed the loss of natural shores along the
hidden coast. The rising sea has placed riparian owners'
right to protect their homes on a collision course with
the public's ownership of the intertidal wetlands and
beaches.
Should
we decide which portions of our bay shores will remain
public and in a natural condition? Ironically, land use
planning has provided state and local governments with a
process for ensuring that some of the privately owned
farms and forests remain as open space; but coastal
states have no process for deciding how much of the
publicly owned shore should remains in its natural
condition, or even in public hands.
Rising Seas, Coastal Erosion, and the
Takings Clause:
How to Save Wetlands and Beaches Without Hurting
Property Owners
Organization and Summary
This
paper examines land use planning options by which
coastal states might retain some of their public trust
tidelands in perpetuity—no matter how much the sea
rises--at least in areas that have not yet been
developed. A key assumption of this analysis is that
policies should protect coastal property values. Any
policy that fails to do so is likely to be unfair and
inefficient, and to engender opposition sufficient to
prevent implementation on the scale necessary to have a
lasting effect. The analysis also assumes a preference
for policies that rely where possible on the free market
and that deal rationally with our inability to say how
much the sea will rise.
Part
II presents key background information. For example, a
four-foot rise in sea level would inundate 7000 square
miles of dry land in the contiguous United States--an
area the size of Massachusetts. Although the sea is most
likely to rise one foot every fifty years for the next
few centuries, it could rise at twice that rate--or
more. Part II outlines and analyzes three approaches for
protecting tidelands: (1) prevent development in
vulnerable areas seaward of a "setback line,"
(2) defer action, and (3) rolling easements, that is,
policies that allow development but prohibit property
owners from holding back the sea. Part II also
identifies some combinations of these approaches, as
well as options for retaining public shorelines even
where bulkheads are built.
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A rolling easement
allows construction near to the shore, but
requires the property owner to recognize
nature's right of way to advance inland as sea
level rises. In this case, the high marsh
reaches the footprint of the house 40 years
hence. Because the house is on pilings, it can
still be occupied (assuming that it is hooked to
a sewerage treatment plant-a flooded septic
system would probably fail). After 60 years, the
marsh has advanced enough to require the owner
to park the car along the street and construct a
catwalk across the front yard. After 80 years,
the marsh has taken over the entire yard;
moreover, the footprint of the house is now
seaward of mean high water and hence on public
property. At this point, additional reinvestment
in the property is unlikely, and the state might
charge rent for continued occupation of the
home. Twenty years later, the particular house
has been removed, although other houses on the
same street may still be occupied. Eventually,
however, the entire area returns to nature. |
Setbacks
have been employed along bay shores to limit pollution
runoff and along ocean coasts to keep homes from being
built in areas that are vulnerable to erosion or storms.
In undeveloped areas where all the low land is within a
few hundred feet of the shore, preventing or restricting
development may be the best way to retain the tidelands.
But purchasing an area the size of Massachusetts would
be expensive; and regulations to prevent development in
such a large area would be inefficient, unfair, and
politically infeasible. Moreover, the need to draw a
setback line on the map poses two practical
difficulties: (a) sea level rise is uncertain; so
defining the appropriate setback line is difficult; and
(b) eventually the shore would retreat to any setback
that is established, unless development were prevented
in an area much larger than the land that is at risk in
the next century. Deferring action will not save the
tidelands unless future politicians are willing to buy
or order the abandonment of this same land after it is
developed.
Rolling
easements seem more likely to succeed on a broad scale.
These policies do not require a particular line to be
drawn on the map. Their impact on current property
values would generally be less than 1 percent.
Governments could afford to compensate riparian owners;
and even a failure to compensate them would impose a
minor burden. Developers who deny that the sea will rise
would view the policy as costing them nothing. Unlike
setbacks, rolling easements allow landowners to decide
how best to use their property between now and whenever
the land finally erodes. Nevertheless, enforcement may
be politically difficult. A combination of density
restrictions, setbacks, and rolling easements would
probably be more successful than relying on any single
option.
Would
these policies require compensation under the Takings
Clause of the 5th Amendment? Part III examines that
question, based on the assumption that property owners
have the right to build a home and protect it from the
sea. In areas where lots have already been subdivided,
development would often be the only economically
productive use of the land; so preventing development
would require compensation. In areas that have not been
subdivided, however, preexisting land uses may be
profitable, in which case preventing development may not
require compensation. Deferring action and subsequently
requiring people to abandon their homes would almost
always involve a taking if the homeowner is willing and
able to protect the shore. Rolling easements, by
contrast, would probably not require compensation, given
their trivial impact on property values and the several
decades that would pass before they had any actual
effect.
Part
IV suggests that shorefront owners do not have a right
to hold back the sea. For over one thousand years, the
"law of erosion" has held that the boundary
between public and private land migrates inland as
shores erode; and there is no right to increase one's
land at the expense of a neighbor. In fact, the term
"rolling easement" originated with the common
law of Texas. Along much of the shore, there is a public
easement, that is a right to access along the beach. The
courts recognized that if people were allowed to build
seawalls along the shore, public access would be
blocked. Therefore, the common law provided that this
public easement would simply "roll" landward
as the shore erodes.
A
single seawall can diminish the ability of Texas
residents to drive along the beach. At this site near
Corpus Christi, the rolling easement did not apply and
only one-way traffic is allowed.
Another
ancient principle of property law, the "public
trust doctrine" provides independent support for
this view. Some portions of this doctrine are
controversial, but no one disputes the rule that a state
does not lose ownership of the shore unless it intends
to do so. It follows that the state is never required to
allow bulkheads that privatize the shoreline. Thus,
rolling easements are a codification of the expectations
that generally prevailed under the common law. This
logic might apply to deferred action; but not if states
waive their property interests by telling property
owners that they have a right to hold back the sea.
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Part of Florida's
beaches are also open to the public under the
doctrine of custom. In addition to the common
law interest, the public has obtained the right
to access along many shores through voluntary
assignment of easements by riparian owners, as
well as public purchases of shorefront lands and
easements. |
Part
V briefly shows that the low cost of rolling easements
also makes governments able to bypass the takings issue
and simply purchase the easements from current land
owners. This option is also available to developers and
conservancy groups, and may be feasible even in areas
that are already developed. This article concludes with
options by which state, local, and private organizations
could move the issue forward.
This
study does not focus on a federal regulatory solution to
this problem, because land use is a state and local
responsibility. The federal government has had a
paramount role in efforts to stop people from destroying
coastal wetlands, because those wetlands are generally
found within the ebb and flow of our coastal waters,
where the federal government has always had
jurisdiction. The survival of our coastal wetlands as
sea level rises, however, depends on how people use land
that is currently dry, and hence outside of federal
jurisdiction. Nevertheless, the federal government could
also help to ensure that wetlands survive rising sea
level, both in its role as a major coastal landowner and
in its many programs that foster research and policy
implementation at the state and local level.
Download
Full Report (2.2MK pdf)
Rising
Seas, Coastal Erosion, and the Takings Clause: How to
Save Wetlands and Beaches Without Hurting Property
Owners (2.2M pdf) was originally published in the
Maryland Law Review (1998), Volume 57, 1279-1399.
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