Rising Seas, Coastal Erosion, and the Takings
Clause
By James G. Titus
Rising Seas, Coastal Erosion, and the Takings Clause: How to Save Wetlands and Beaches
Without Hurting Property Owners (PDF, 121 pp., 2.2 MB) was originally published in the
Maryland Law Review (1998), Volume 57, 1279-1399. From the report's Introduction
section, Shall We Give Away the Shore? and Organization and Summary are available below
online.
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For additional reports focused on the implications of rising sea level, go to Sea Level Rise
Reports.
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.
Top of page
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.
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
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.
public easement would simply "roll" landward as the shore erodes.
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.
[D]
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.