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Rising Seas - Text Version
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By James G. Titus*
MARYLAND LAW REVIEW, VOLUME 57, 1279-1399, 1998
This file contains only the text and footnotes of the published report. The footnotes appear at the end as "endnotes." If you want to examine the figures and tables, print the report, or read a version in which the footnotes are at the bottom of the page to which the notes refer, please go to Rising Seas, Coastal Erosion, and the Takings Clause.
I. INTRODUCTION
A. Shall We Give Away the Shore?
B. Organization and Summary
II. ANALYSIS OF POLICIES TO SAVE THE TIDELANDS
A. Background
1. The Shores of the United States
2. The Public's Interest in the Shore
3. Coastal Erosion and Rising Sea Level
4. Greenhouse Effect and Accelerated Sea Level Rise
B. Possible Options to Protect Natural Shores:
Preventing Development, Rolling Easements, Deferring Action, Hybrid Policies, Protecting Access Along the Shore in Developed Areas
C. Ability of the Three Options to Satisfy Various Criteria:
Economic Efficiency and Social Cost, Performance Under Uncertainty, Perceived Fairness, Political Feasibility, Risk of Backsliding
III. WOULD OPTIONS TO PROTECT TIDELANDS REQUIRE COMPENSATION?
A. The Lucas Case and Its Aftermath
B. Physical Invasions
C. Regulations That Deny Property Owners any Beneficial Use of their Property
IV. DO PROPERTY OWNERS HAVE A COMMON LAW RIGHT TO ELIMINATE WETLANDS AND BEACHES?
A. Evolution of the Public Trust Doctrine
B. The Law of Erosion and the Property Public Trust Doctrine
C. Takings Implications
D. The Expansive Public Trust Doctrine
V. THE ACQUISITION ALTERNATIVE: JUST COMPENSATION AND A POSSIBLE ROLE FOR THE FEDERAL AND PRIVATE SECTORS
VI. CONCLUSION AND RECOMMENDATIONS
A. Rolling Easements Will Rarely Be Takings, but Setbacks and Deferred Action Will Often Require Compensation
B. Good Policy Is Also Consistent with the Constitution
C. Recommendations
APPENDIX 1: ROUGH CALCULATION OF THE NATIONWIDE COST OF PROTECTING TIDELANDS WITH ROLLING EASEMENTS
NOTES
I. INTRODUCTION
A.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 300 miles of tidal shoreline have been armored in the last twenty years.1 This trend will accelerate if the greenhouse effect increases the rate of sea level rise.2
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.3 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 eighty 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).4 Where once a fisherman could walk on the public beach, there is no beach. In order to walk along the bulkheads that replaced it, the fisherman must trespass in the backyards of the property owners who built them. Unlike the ocean resorts, where every block has a road leading to the beach, bayfront developments usually provide no access to the shore.5 Environmental regulations provide only temporary relief, having been designed as if shorelines and sea level were stable.6 Effective strategies for saving our natural shores apply to the open ocean--but not to the hidden bay.
[FIGURE 1 GOES HERE]
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.7 Yet, policy makers have not addressed the loss of natural shores along the hidden coast. The rising sea has placed riparian owners' rights to protect their homes on a collision course with the public's ownership of the intertidal wetlands and beaches. Some of the shore8 has been given away, and more will be given away as wetlands and beaches erode.
Should we not 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. Coastal states, however, have no process for deciding how much of the publicly owned shore should remain in its natural condition, or even in public hands.
B.Organization and Summary
This Article examines land use planning options9 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 a well-deserved opposition sufficient to prevent implementation on the scale necessary to have a lasting effect. This analysis also assumes a preference for policies that rely on the free market (where possible) 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.10 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.11 Part II also outlines and analyzes three ways to protect tidelands: (1) prevent development in vulnerable areas seaward of a setback line, (2) defer action, and (3) create rolling easements, which 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.
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: (1) sea level rise is uncertain and, therefore, defining the appropriate setback line would be difficult; and (2) eventually the shore would retreat to any setback that is established, unless development was 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 politicians in the future 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. They do not require particular lines to be drawn on a map, and their impact on current property values would generally be less than one percent. Governments could afford to compensate riparian owners, but even a failure to compensate them would impose only 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 Fifth 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 the land has already been subdivided, development would often be the only economically productive use of the land. In such cases, preventing development would require compensation. In areas that have not been subdivided, however, preexisting land uses may be profitable. In these cases, preventing development may not require compensation. Deferring action and subsequently requiring people to abandon their homes would involve a taking if the homeowner is willing and able to protect the shore, assuming a right to hold back the sea. 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 a thousand years, the law of erosion has held that the boundary between public and private land migrates inland as the shore erodes, and there is no right to increase one's land at the expense of a neighbor. Granted, it does not automatically follow that there is no right to prevent a reduction in one's land at the expense of a neighbor, but the theoretical justifications are the same.
Another ancient principle of property law, the public trust doctrine, provides independent support for this view. Although some portions of this doctrine are controversial, no one disputes the rule that a state does not lose ownership of the shore12 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.13
Part V shows that the low cost of rolling easements allows government to bypass the takings issue by simply purchasing the easements from current landowners. 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 recommendations for moving the issue forward. Local master plans should explicitly indicate which areas will retain natural shorelines. State legislatures should authorize tideland planning studies that recommend how much of the shore should be given away. Conservancies and developers should challenge governments by taking initiatives on their own. The federal government may also have a role in its status as a coastal property owner.
Because land use is a state and local responsibility,14 this Article does not focus on a federal regulatory solution to this problem. 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.15 The survival of our coastal wetlands as the sea level rises, however, depends on how people use land that is currently dry and, as such, outside federal jurisdiction. Nevertheless, those who administer, interpret, or comply with coastal wetland protection laws should stop ignoring the fact that the sea level is rising. Everything that these laws have accomplished will be for naught if the government fails to develop a strategy for allowing wetlands to migrate inland--eventually the wetlands that these laws are protecting will all be under water.
The time has come for Americans to decide how much of our natural shoreline we intend to retain. If we wait until all our coastal areas have been developed before we confront this problem, the solutions will be more expensive, less likely to succeed, and more likely to force a showdown between environmentalists and landowners--a showdown that can be avoided by acting now when decades of lead time make it possible for cooler heads to prevail.
II.ANALYSIS OF POLICIES TO SAVE THE TIDELANDS
A.Background
1.The Shores of the United States. The coastal zone of the United States includes portions of thirty states.16 Because the Great Lakes are not hydraulically connected to the sea,17 the issues discussed in this Article primarily concern the twenty-four states with shores along the Atlantic and Pacific Oceans, the Gulf of Mexico, and, in the case of Pennsylvania, the tidal Delaware River.18 Nevertheless, many of the legal doctrines and responses to coastal erosion are equally applicable to shores along the Great Lakes.
Along the Gulf Coast and the Atlantic Coast south of Cape Cod, sandy public beaches dominate.19 For the most part, the coast is lined with barrier islands and barrier spits.20 In all of these states, other than Mississippi, at least some of the barrier islands are developed with recreational beach resorts.21 Along the southern half of California's Pacific Coast, as well as portions of the Atlantic and Gulf Coasts, there are sandy mainland beaches rather than barrier islands.22 Rock and cliff coasts are more common in Maine, Washington, Oregon, and northern California, but even there, one finds occasional pocket beaches.23 In at least some parts of most coastal states, there is easy access to the beach every 500 to 1000 feet.24 In these areas, the beaches are truly open to the public, and they attract tens of millions of swimmers and sunbathers every year.
Bay shores, most of which are along estuaries, comprise over eighty percent of the nation's shoreline.25 The estuarine coast includes the shores along large embayments such as Chesapeake, Delaware, and San Francisco Bays, smaller embayments like Biscayne Bay, and many small back-barrier bays that lie between barrier islands and the mainland.26 The various types of estuarine shores are put to a wide variety of uses. Marshes and swamps purify water and provide food and nurseries for fish, birds, and terrestrial animals.27 Small crafts navigating the inland waterways may be beached for repairs, overnight rests, or refuge from storms. Fishermen who do not own boats cast their lines from these shores. Many people visit these waterfronts to shop, have dinner, or watch the sun set. Horseshoe crabs lay their eggs on estuarine beaches, providing an important source of food for many shorebirds.28 Estuarine beaches are also an important habitat for terrapins and some endangered species such as the tiger beetle and the least tern.29
Until the second half of the twentieth century, the narrow beaches along Chesapeake and Delaware Bays served recreational needs that are now met mostly by ocean beach resorts.30 In some cases, the proximity of these shores to population centers has ensured their continued use. This is particularly true for Asian Americans, African Americans, and other minorities.31 Nevertheless, these shores are still largely undeveloped, unlike the barrier islands and other ocean shores.32
Figure 2 illustrates some key terminology. Along sandy shores, the wet beach lies between mean high water and mean low water. The dry beach extends from mean high water inland to the seaward edge of the dune grass or other terrestrial plant life, sometimes called the vegetation line.33 The dune grass generally extends inland from the point where a storm in the last year struck with sufficient force to erode the vegetation,34 which is well above mean high water.35 Along marshy shores, mudflats are found between mean low water and mean sea level,36 low marsh is found between mean sea level and mean high water, and high marsh extends from mean high water to mean spring high water.37 Collectively, the lands between mean high water and mean low water (mudflats, low marsh, and wet beaches) are commonly known as tidelands.38
[FIGURE 2 GOES HERE]
2.The Public's Interest in the Shore. The body of common law that collectively describes the public's ownership and access along the shore is known as the public trust doctrine and is discussed in Part IV below. In most states, the public owns these tidelands, while private parties own the dry beach and the high marsh.39 In a few states, the public owns the dry beach, at least in some areas, because of either court rulings or acquisitions.40 However, in five states, the public only owns the area seaward of the mean low water mark.41 By definition, low tide is lower than mean low water during half the days of the year.42 Therefore, even in those states where tidelands are privately owned, there is often a wet beach or mudflat along which one can walk without trespassing.43 Thus, the shore44 itself is publicly owned whether or not the adjacent dry land is open to the public.
Ownership, however, is only part of the picture. In the five states where the tidelands are privately owned, the public still has an easement along the tidelands for at least some purposes--for example, hunting, fishing, and navigation. In several states, the public has access along the dry beach for recreational use as well.45 The right to access along the shore, however, does not mean that the public has a right to cross private land to get to the shore.46 Unless there is a public road or path to the shore, access along the shore is thus only useful to those who either reach the shore from the water or have permission to cross private land. Although the public has easy access to most ocean beaches47 and a few large embayments,48 the access points to most bay shores are widely dispersed.49
In the last few decades, state and federal statutes have added to the public's interests in the shore. Perhaps most importantly, section 404 of the Clean Water Act requires property owners to obtain a permit from the U.S. Army Corps of Engineers (Corps) before filling high marsh and other coastal wetlands.50 This statute, along with federal regulations51 and companion state laws,52 discourages private landowners from filling high marsh to create dry land. It does not, however, prevent owners from erecting structures on pilings53 driven into the marsh.54
The section 404 program does not always prevent people from filling wetlands. The Corps can issue a permit to fill a large area of wetlands, as long as the property owner mitigates this destruction by either creating new wetlands or enhancing other wetlands that have been degraded.55 The Corps has also issued a number of general permits that allow activities within narrowly defined categories to fill wetlands. For example, the Corps has issued a general nationwide permit that allows the owner of a lot to fill up to one-half of an acre of wetlands.56 Theoretically, the Corps ensures that these activities do not have a major cumulative adverse effect upon the environment, but the general permits do not indicate how.57
Federal regulations also provide exceptions for bulkheads and other erosion control structures.58 The Corps has issued a general nationwide permit that allows people to erect erosion control structures along shorelines, as long as no vegetated wetlands are filled and no more than a modest amount of fill material is placed below mean high water.59 In Maryland, however, the Corps has delegated its permit approval to the state,60 which tolerates a greater impact on wetlands and tidal waters. For example, property owners who erect an erosion control structure in Maryland can obtain a permit to fill vegetated wetlands61 and to fill beaches and tidal waters up to ten feet seaward of mean high water.62 In addition, Maryland's statute allows anyone whose property has eroded to fill wetlands and other tidal waters in order to reclaim any land that the owner has lost since the early 1970s.63
3.Coastal Erosion and Rising Sea Level. Although some shores are accreting, coastal erosion is far more common.64 The average ocean shore along the Atlantic and Gulf Coasts is eroding two and four feet per year, respectively.65 Although most of California's coast is not eroding, about fifteen percent of it is eroding by at least five feet per year.66 National assessments of wetland erosion are unavailable, but assessments of particular areas,67 and informal opinions of professional observers,68 suggest that estuarine shores are generally eroding as well. Blackwater National Wildlife Refuge on Maryland's Eastern Shore has lost about half of its wetlands in the last fifty years,69 as shown in Figure 3.
[FIGURE 3 GOES HERE]
Coastal erosion is caused by a variety of factors, which broadly fall into two categories. First, sand often migrates along the shore, causing some areas to erode and others to accrete.70 Second, rising sea level causes virtually all shores to erode.71 As shown in Figure 4, sea level has risen approximately one foot in the last century along most of the U.S. coast. Using a model first developed by Danish coastal engineer Per Bruun, coastal geologists have estimated that a one-meter rise in sea level will cause beaches to erode 50 to 100 meters from New England to Maryland, 200 meters along the Carolinas, 100 to 1000 meters along the Florida coast, and 200 to 400 meters along the California coast.72 These model calculations are roughly consistent with the observed rate of erosion.73
[FIGURE 4 GOES HERE]
Recognizing the value of ocean beaches, states have taken a variety of measures to protect them. Densely developed resorts periodically pump sand onto their beaches--a process known as beach nourishment.74 While expensive, this engineering solution permits the continued existence of the beach in approximately its current location.75 In lightly developed areas, where beach nourishment is often too expensive, states focus on preventing structures that impede the natural erosion of the shore: Texas courts recognize the public beach as a rolling easement that migrates inland with the shore.76 North Carolina and many other states prohibit new seawalls and bulkheads.77 Several states require new construction to be set back from the shore by forty to one-hundred times the annual rate of erosion.78 Maine employs all of these approaches.79 These policies, coupled with the high cost of holding back the ocean, seem likely to ensure the survival of ocean beaches in all but a few locations.
The response to bay-beach erosion is very different. Beach nourishment along these shores is exceedingly rare.80 Because the seas are relatively calm, bulkheads are able to hold back the bay and are much less expensive than the seawalls that are needed to hold back the ocean.81 Bayfront developments usually provide no public access to the shore, so officials tend not to think of the bay shore as a community asset.82 As a result, estuarine shores are gradually being armored in most developed areas.83
Nevertheless, attitudes about the need to maintain natural estuarine shorelines vary among the states. At one extreme are Rhode Island and Maine, which prohibit, to some extent, the erection of bulkheads inland of wetlands, because these structures would prevent wetland migration.84 At the other extreme is Maryland, where some scientists, and many officials, believe that the elimination of natural shores may be good for Chesapeake Bay.85 Currently, Maryland recognizes a statutory right to hold back the sea,86 and fifteen to twenty-five miles per year have been armored over the last two decades.87
Most states allow bulkheads where they are necessary to protect property, but they have not formally granted a right to hold back the sea.88 When bulkheads are built inland of a marsh, with the land behind them raised a few feet with fill, there is still marsh seaward of the bulkhead. At that point, the state has not given away the shore. Later, when the marsh erodes up to the bulkhead, the state can say: `Twas the sea, not we, who did the tidelands in.89 Only Maryland has published estimates of the total amount of shoreline that has been armored.90
4.Greenhouse Effect and Accelerated Sea Level Rise. A less immediate but ultimately more serious concern is that rising global temperatures resulting from the greenhouse effect could raise the sea several more feet. Scientists have known for more than a century91 that carbon dioxide and some other gases keep the earth warmer than it would otherwise be, by absorbing infrared radiation that emanates from the earth's surface.92 The average concentration of carbon dioxide has increased from around 280 parts per million before the industrial revolution, to 315 parts per million when precise monitoring stations were set up in 1958, and to 358 parts per million in 1994.93 The earth's average surface temperature has increased by about 0.3 to 0.6 degrees Celsius in the last century.94 Assuming that no major action is enacted to curtail the use of fossil fuels, the earth's average temperature is projected to rise 1.0 to 3.5 degrees Celsius in the next century.95
Since 1983, the U.S. Environmental Protection Agency (EPA) has been warning coastal states and communities about the risks of rising sea level.96 EPA's first study crudely estimated that sea level could rise two to twelve feet by the year 2100.97 From 1985 to 1991, EPA-sponsored publications generally projected that global temperatures would rise four degrees Celsius by the year 2060, causing a four-foot rise in sea level by the year 2100.98 More recent refinements in climate modeling suggest that the global warming will only be about half as great. As a result, sea level estimates have come down as well.99
With these refinements, scientists can now estimate a probability distribution of future sea level rise. For purposes of valuing interests in land that depend on the risk of the land being inundated, the use of probability information is helpful. The value of an easement that vests when the sea rises two feet, for example, would depend greatly on how likely such a rise is to occur by various years. Table 1 shows EPA's most recent estimates for sea level rise at New York City. EPA estimates a 50% chance that sea level will rise one foot by 2050, two feet by 2100, and four feet by 2200, as well as a one-in-forty chance that the sea will rise 1.5 feet by 2050, 3.5 feet by 2100, and over 11 feet by 2200.100
[TABLE 1 GOES HERE]
What are the expected impacts? At first, most of the major effects would concern wetlands and property along the shore. Most waterfront homes are within 100 to 200 feet of the high water mark, and most shores erode 100 to 200 feet for every foot of sea level rise.101 Thus, a one-foot rise would force officials to choose between moving these houses and replacing the tidelands with a wall.
Larger rises in sea level would have a potential to inundate much larger areas. A four-foot rise could bring the sea several miles inland in some areas and would inundate 7000 square miles of dry land--an area the size of Massachusetts.102 In most developed areas, holding back the sea would be cost-effective,103 but it would prevent new wetlands from forming in the newly inundated area. For example, if shores are not armored, a two-foot rise in sea level would decrease U.S. wetland acreage by 17% to 43%, but if shores are protected, the loss would be 38% to 61%.104 These estimates may understate the impact, because estuarine beaches and the narrow strips of vegetated wetlands found along many shores could be entirely lost.105 As a result, protecting all mainland shores could result in wetlands being confined to a small number of isolated reserves, a situation that humanity has already imposed on many terrestrial species.106
A consensus is emerging that Maryland is particularly vulnerable to rising sea level.107 Because Chesapeake Bay has a tidal range of approximately two feet, its coastal wetlands are generally within one or two feet of sea level.108 Farmers in Somerset County are already reporting a gradual loss of arable land as the bay water penetrates inland, leaving soils too salty for cultivation.109 In the next century, rising seas could entirely inundate Smith Island and eliminate its unique subculture of watermen who have populated that island for over three centuries.110 As Figure 5 shows, shores could retreat inland by a few miles in parts of Somerset, Dorchester, and Worcester counties.
[FIGURE 5 GOES HERE]
Maryland's current coastal zone and environmental protection policies, statutes, and regulations would ensure almost complete elimination of the state's bay beaches and coastal wetlands in developed areas. The narrow dimensions of bay beaches and the low wetland elevations imply that a very modest rise in sea level would remove these ecosystems from their current locations.111 The state's recognition of a right to protect shores with hard structures112 will prevent these ecosystems from migrating inland. The lack of public access to most shores, combined with the absence of a policy to create access to inaccessible shores,113 will help to ensure that the public does not even comment on permits to eliminate those shores.
B.Possible Options to Protect Natural Shores
Society has two fundamental ways to retain its wetlands and beaches as sea level rises: (1) use technology to enable the shore to keep pace with the rising sea level, or (2) allow nature to take its course and adapt to the retreating shores. The most common technology is to add sand directly to a beach, thereby raising its elevation.114 This process is commonly employed along ocean shores--generally at public expense.115 Estuarine beaches, by contrast, are rarely nourished, and the technology for artificially elevating wetlands is still in its infancy.116
Allowing nature to take its course appears at first glance to be a more straightforward approach. But private property owners generally do not wish to give up their homes or even their land---especially along estuarine shores, where they can hold back the sea with a bulkhead for a small fraction of the value of the land or structures that would otherwise be lost. Thus, if society wants to retain its natural shorelines, then governments will have to induce property owners to yield their land to the sea.
Previous analyses have suggested several different policies for ensuring that human activities do not impede the natural inland migration of shorelines as sea level rises.117 These approaches generally fall into three categories:
1. Prevent Development or otherwise decrease the property owner's economic motivation to hold back the sea;118
2. Create Rolling Easements, a policy that allows development, but explicitly prevents property owners from holding back the sea;119 and
3. Defer Action, continue current policies, and deal with the problem later.
Each of these policies can, in turn, be subdivided according to whether the government or the property owner absorbs the loss. Table 2 lists a number of examples for implementing each of the general approaches. The following sections briefly examine how these approaches might work for areas that are currently undeveloped.120
[TABLE 2 GOES HERE]
1.Preventing Development. Policy makers have two ways to decrease a property owner's motivation to erect a bulkhead: (1) increase the cost, or (2) decrease the benefit of erecting such a structure. Perhaps the most important way by which governments have increased the cost (to property owners) of these structures has been to reduce the subsidies for their construction.121 Removing subsidies for development can decrease the incentive to build homes that might later require protection.122 On the other hand, subsidized beach nourishment has decreased the need to build seawalls along ocean shores123 and would presumably have the same effect if applied along estuarine shores. Nevertheless, these measures are unlikely to reduce substantially the nationwide rate of bulkhead construction along estuarine shores. Even without subsidies, riparian owners in many areas continue to erect bulkheads, and no state is considering a comprehensive program of beach nourishment along estuarine shores.124
Policies that prevent development also decrease the benefits of building bulkheads, and such policies can conserve natural shorelines in a wider variety of situations.125 The most common way to prevent development in vulnerable areas is to require a setback, which prohibits construction seaward of a setback line.126 Setbacks can be based on elevation, erosion rates, or estimates of how the shore might change in the future.127 Land subdivision policies requiring deeper lots along the shore can help to ensure that setbacks do not leave shorefront owners without permissible building sites. Building codes can require houses to be moveable or small.128
Setbacks and other development restrictions can protect natural shores for two reasons. First, they may reduce the value of the vulnerable land below the point where the land is worth protecting from the sea. For example, if an owner has a large lot and the setback requires her to build her house at the landward edge of the lot, the setback, from the owner's perspective, may reduce the value of the seaward land to zero.129
Second, these restrictions may prevent the owner from increasing the value enough to make the land worth protecting. Consider a proposed $100,000 house on a $20,000 agricultural lot, for which a bulkhead costs $40,000. Once the house is built, the combined $120,000 property is worth protecting, but if a setback prevents construction, the land alone may not be worth protecting.130 Alternatively, if the house is built, but is designed so that it can be moved for $5000, the land may still not be worth protecting.131
Policies that prevent development in areas vulnerable to erosion have generally been implemented through regulations that do not compensate landowners.132 At least conceptually, the mechanics of such policies would be essentially the same if the government compensated property owners by purchasing nondevelopment easements.133 In some cases, governments might choose simply to purchase coastal lands, thereby achieving other objectives as well, e.g., preserving natural habitat.
2.Rolling Easements. A more narrowly tailored way to ensure that natural shorelines survive rising sea level is simply to create a rule to guarantee this result. This Article borrows the term rolling easement from the common law of Texas to describe a broad collection of arrangements under which human activities are required to yield the right of way to naturally migrating shores.134 Rolling easements can be implemented with (a) eminent domain purchases of options, easements, covenants, or defeasible estates that transfer title if a bulkhead is built or the sea rises by a certain degree, or (b) statutes that accomplish the same result.135
The simplest way to implement rolling easements throughout a state would be to prohibit bulkheads or any other structures that interfere with naturally migrating shores.136 Another approach would be for the government to purchase a property right to take possession of privately owned land whenever the sea rises by a particular amount.137 Alternatively, the deed to the property could specify that the boundary between publicly owned tidelands and the privately owned dryland will migrate inland to the natural high water mark, whether or not human activities artificially prevent the water from intruding. A government could also obtain a rolling easement by passing a statute that simply clarified existing property law by stating that all coastal land is subject to a rolling easement.138
Rolling easements might also be implemented on a more limited geographical scale. For example, if the Corps of Engineers decided to address the adverse environmental impact of armoring twenty miles of shoreline along Chesapeake Bay, it might create a mitigation program.139 Under the current approach, the Corps or the state might calculate the total area of the wetlands that are lost, a narrow strip of land twenty miles long and a few feet wide would only count as a few acres of wetlands.140 But the true impact of losing twenty miles of beach and wetland shore is very different from the impact of losing a few acres of marsh. Currently, governmental institutions only consider the area of habitat lost, thereby devaluing the importance of long narrow strips.141 A rolling easement along twenty miles of shoreline, by contrast, would ensure the preservation of the resource values that are lost by armoring twenty miles of shoreline.142 The private sector could also play a role. For example, a land trust or an environmentally concerned owner selling coastal property could retain a rolling easement when selling the property, or donate the rolling easement to a conservancy.
While recognizing that the mechanics of rolling easements would vary,143 Figure 6 illustrates a "wetland prototype policy" with the following characteristics:
- Bulkheads and any filling of privately owned land are prohibited except to the extent necessary to keep the property useful, e.g., to build a driveway.
- No one needs to abandon a house if it is safe and on private property. Houses on high marsh would probably be safe.144 Those in front of an ocean dune would often be unsafe or would interfere with preexisting easements.
- During the first decade a house is on public land, no one is forced out of the house, but the state charges rent.
This prototype simply preserves the existing allocation of rights.145 High marsh and dry beach areas, for example, remain privately owned.
The first significant impact of a rolling easement is that the knowledge that the land might eventually have to be abandoned leads an owner to avoid major capital expenditures to expand or otherwise upgrade the home.146 Later, this expectation leads the owner to avoid major repairs (e.g., replacing roofs) in favor of stop-gap measures (e.g., repairing leaky roofs).
[FIGURE 6 GOES HERE--ROLLING EASEMENT]
Eventually the sea rises enough to flood the yard severely whenever an extremely high tide occurs. Without a rolling easement, the homeowner would have the right to use fill to elevate the backyard, and possibly to install a bulkhead as well. But the rolling easement prevents these shore protection options, which would impair the ability of wetlands to migrate inland. To keep the property useful, the homeowner is allowed to haul in gravel or otherwise elevate the driveway. When the sea rises enough for spring high tide to flood much of the yard, high marsh vegetation takes over,147 but the property is still privately owned. Assuming that the house is on pilings or otherwise elevated, it continues to be useful.
Finally, if enough of the property is inundated by mean high tide for the house to be on public land,148 the homeowner is free to move the house and clean up the site. Alternatively, the homeowner can stay for a number of years and pay rent to the state, which owns the land on which the house sits. To mitigate financial hardship, the annual rent might start out at a fraction of its fair market value and increase annually. This rent would generate the funds with which to clean up the sites of houses that are abandoned.
One might also consider a beach prototype policy for property along sandy beaches and relatively large bodies of water, where property is more likely to be lost to erosion than to a gradual inundation and conversion to marsh. As with the wetland prototype, the existence of the rolling easement would discourage reinvestment as the shore approaches. The primary restriction of the rolling easement would be the prohibition of bulkheads. Fill would be less of an issue here, because these shores are often well above sea level.149 As the shore erodes, eventually the house would be at least partly on the public beach. If access along the shore is extremely important, the owner could be required to move the house at that point. If access is not important, the owner could simply be required to pay rent.
Along either wetland shores or beaches, owners--especially new owners--would probably tend to convert their properties to rental uses as the sea approached. Would-be landlords are more willing than would-be homeowners to buy a house with only a five- to ten-year life expectancy, as long as the property pays for itself. Moreover, renters are often willing to tolerate conditions that homeowners would not.
3.Deferring Action. Setbacks and rolling easements are anticipatory planning policies in which shorelines remain natural, because society takes action today. The other fundamental policy option is to take no action today and deal with the problem later. Measures for dealing with the problem later include ordering people to remove their homes without compensation150 and buying people out. For purposes of this Article, the principal difference between rolling easements and deferred action is that rolling easements provide advanced notice to property owners that their land must give way to the sea.
4.Hybrid Policies. Successful policies may also involve combinations of preventing development, deferring action, and rolling easements. Existing setback policies involve combinations of preventing development in the most vulnerable areas and deferring action to address what will happen once the shore erodes up to the setback line.151 Density restrictions are hybrid approaches that defer the bulkheading decision but diminish the benefits of bulkheads by limiting development.152 A promising approach would be to require houses to be set back enough to protect them from the expected erosion over the next several decades, while creating rolling easements to ensure that future generations do not simply build bulkheads along the setback line. However, no state has yet instituted such a policy.
5.Protecting Access Along the Shore in Developed Areas. Setbacks, rolling easements, and various hybrid policies can enable any state to preserve its natural shorelines. Nevertheless, abandoning homes and businesses to the sea will not always be a realistic option. Because beach nourishment costs are often high,153 many of the older coastal towns will require protection with hard structures even in states that enact land-use planning measures to ensure the survival of wetlands and beaches in newly developed areas.
The armoring of the coast need not mean that the state gives away its claim to the shore. If the citizens want to retain this public property, states can reserve an easement just inland of any new bulkheads, which is where the publicly owned wet beach would be if the bulkhead was not built. Figure 7 illustrates two coastal communities along the western shore of Chesapeake Bay in Calvert County, Maryland. Along Atlantic Avenue in North Beach, the public has access along a narrow walkway between the homes and the revetment. Half a mile to the south at Chesapeake Beach, however, the public is excluded from the shore.
[FIGURE 7 GOES HERE]
Part B of Table 2 lists several options for retaining access along armored shores. These measures are analogous to the means by which natural shores can be protected. As part of a bulkhead permit, landowners could be required to dedicate an easement just above the bulkhead, so that when the shore erodes up to the bulkhead, the public can still walk along the shore for fishing and other purposes. Alternatively, a rolling easement could be created that only protects public access. Let us call this a one-step easement. In such a case, until the bulkhead eliminates the wet beach, the public continues to have access only along that beach. At that point, the alongshore easement "steps over" the bulkhead, giving the public access along the shore just inland of the bulkhead.154
C.Ability of the Three Options to Satisfy Various Criteria
Table 3 summarizes the economic efficiency, performance under uncertainty, perceived fairness, political feasibility, and risk of backsliding for each of the options for protecting tidelands.155 For simplicity's sake, this analysis assumes that land ownership currently entitles coastal property owners to develop their parcels, erect bulkheads, and remain forever,156 and that regulations to the contrary diminish property values.
[TABLE 3 GOES HERE]
1.Economic Efficiency and Social Cost. Assuming that each policy is applied to retain the same amount of tidelands, the most cost-effective approach is the approach with the least social cost--measured at a discounted present value--regardless of whether the public or the coastal property owners bear the cost.157
In general, preventing development will have a higher social cost than rolling easements, because the former prevents the property from being used between now and whenever the sea rises enough to erode it, which may be decades or centuries in the future.158 If a property owner wants to build in spite of the knowledge that the house will have to be abandoned a few decades hence, her reason may be that the rental value of a bayfront house--even for a short period of time--exceeds the cost of the structure.159
Consider a numerical example. A coastal lot would become tideland if sea level rises three feet.160 It is worth $20,000 as a site for a $180,000 house and $10,000 in an alternative use. Preventing development would thus impose a net cost of $10,000. A rolling easement, by contrast, would allow rent to be collected on the property for many decades. Assume further that the cost of moving the house (and cleaning up the site) would be $30,000, while the cost of a bulkhead would be $10,000. Given these assumptions, the bulkhead restriction would cost the property owner a total of $40,000 when the sea rises three feet.161 At a 5% interest rate, the impact of a rolling easement on the market value would thus be $300 if a three-foot rise was certain to occur in 100 years. But given EPA's estimate that such a rise has only a 5% probability,162 the expected cost would be $15. In this case, a rolling easement costs 1/666 as much as a setback, i.e., 0.075% of the value of the land. If the property was four feet above mean high water, the rolling easement would cost only $3, or 0.015% of the land value.163
Setbacks are not always economically inefficient. If locating a house at the landward end of a given lot allows the house to last for sixty instead of thirty years, the long-term benefit is probably greater than the initial aesthetic cost a buyer attributes to being farther from the water.164 In those areas that are likely to be inundated soon, the cost of forgoing the use of the land would be small. But the setback implied by a four-foot rise in sea level would place an area the size of Massachusetts off limits to development,165 preventing any development on many parcels of land.
Measured by present value, deferring action is less costly than preventing development, because land can be put to its most beneficial use between now and the time that the land must give way to the sea.166 Nevertheless, rolling easements would cost even less, primarily because the market would have better information. Knowing that a house must eventually be removed, the owner is more likely to design it so that it can be moved and less likely to build bulkheads and other long-term improvements that would not completely pay for themselves before the house had to be moved, as shown in Figure 8. In the decade or so before the property must be abandoned, it can be converted to rental property and be strategically depreciated,167 and real estate markets can directly incorporate information about future rates of erosion and sea level rise. Without a recognition that the property must eventually be vacated, by contrast, property owners are more likely to make improvements and remain psychologically attached to the property, while governments are more likely to invest in major infrastructure or allow changes in zoning to more intensive uses.168
[FIGURE 8 GOES HERE--TWO PAGE FIGURE (prevent development)]
National assessments of the costs of sea level rise have not sought to estimate the cost of protecting shores with rolling easements. Nevertheless, the published research is sufficient to generate a rough estimate. Appendix 1 roughly calculates that rolling easements could protect U.S. tidelands in undeveloped areas for a total cost of $0.4 to $1.2 billion; 99% of the cost would apply to land threatened with a rise in sea level of less than two feet. Given the low probability and remote nature of a larger rise in sea level, the cost of protecting all of the undeveloped land in the U.S. coastal zone will only be a few million dollars greater than the cost of protecting the land within three feet of mean high water.
2.Performance Under Uncertainty. A serious limitation of setbacks and land purchases is that they prevent either too much or too little development. Future sea level rise is uncertain, and if the sea rises less than expected, society will have unnecessarily removed thousands of square miles of valuable coastal land from development. Yet, if the sea rises more than expected, the shore will erode up to the setback line and the tidelands will be lost anyway. In fact, unless development is kept out of an extremely large area, even if sea level rise is accurately projected, the shore will eventually erode up to the setback line.
Rolling easements, by contrast, are not tied to a specific scenario. If sea level does not rise, they cost nothing. If it does rise, the wetlands and beaches will be protected. Rolling easements also perform better than setbacks given economic uncertainty. Although undeveloped and lightly developed shorefront land is rarely protected today, coastal land values could rise enough in the future for property owners to have an incentive to protect even undeveloped land--especially along estuarine shores.
Uncertainties regarding future coastal development and legal rights are important disadvantages of relying on deferred action. No policy can avoid the fact that abandoning the coast will cost more if coastal property becomes more valuable. Nevertheless, if taxpayers must bear the cost, then purchasing either land or rolling easements is less risky than deferring action and buying people out later, because the compensation can be fixed today. If property owners bear the cost, then the legal uncertainty is greatest if action is deferred.169
3.Perceived Fairness. Economic efficiency and performance under uncertainty primarily concern the total cost to society, rather than the cost to individuals. But legislatures represent individuals. No matter how worthy a policy may be, few people are enthusiastic about bearing its costs, and many will vehemently oppose policies if they feel that the costs they must bear are unfair. The Italian economist Vilfredo Pareto proposed as an equity criterion the condition in which it is not possible to make anyone better off without making someone worse off, a criterion that is now known as Pareto efficiency.170
To avoid the perception of unfairness, policy makers would ideally enact Pareto improvements, that is, policies with no losers. However, for new issues such as sea level rise, defining a Pareto improvement is stymied by the lack of agreement among the various parties about what the baseline would be without the proposed policy.171 Owners assume that land lasts forever, and taxpayers assume the beaches always belong to the people anyway.172 Even winners may perceive themselves as losers.
A regulatory setback policy prohibiting development in low areas would single out some farmers and other land holders to subsidize society's concern about the future environment. At the same time, similarly situated landholders on higher ground could profit from the development that such setbacks would rechannel inland. In this context, those who own undeveloped land less than five feet above mean high water would be big losers.
No legislation can eliminate the resentment that arises when two groups have long assumed that they possess rights that are in fact mutually exclusive.173 But purchasing or legislatively creating rolling easements can minimize the conflict by laying out the rules of the game at least a generation before they take effect. People's ideas of fairness depend mostly on their expectations. Accordingly, a policy is easier to accept if people never expected anything else.174 If future conditions necessitate policy changes, a common baseline will make it easier to agree on how much the new policy costs particular individuals (even if people continue to disagree on how much other people should pay). For this reason, enacting a policy today that decides which shores should be armored will almost certainly improve the likelihood of success, even if changing circumstances prompt future generations to modify the plan.
The intergenerational nature of this problem also favors rolling easements, because such a policy is Pareto-superior to deferring action. Both approaches cost the current generation nothing, but rolling easements leave future generations better prepared. Preventing development through land purchases or large-scale setbacks is not a Pareto-improvement over deferring action. Instead, such policies would force our generation to pay a price for the sake of future generations.175
4.Political Feasibility. The economic, legal, and technical merits of a policy are largely irrelevant if the political process cannot adopt or enforce it. Along ocean shores, coastal setbacks have been feasible because of the widespread interest in ocean beaches and because the setbacks are usually less than 200 feet.176 Preventing development in an area the size of Massachusetts in order to protect estuarine shores seems less likely. There is no evidence that federal or state governments are willing to spend tens or hundreds of billions of dollars to buy all the necessary coastal lands, or even the smaller sums necessary to buy nondevelopment easements. Even if the United States Constitution would permit a blanket prohibition of development without compensation, our political process would not.177 Density restrictions would be more politically feasible than total prohibitions on development, but if minimum lot sizes are too large, they could hurt land values enough to meet strong opposition as well. Deferring action is feasible today, but it would require future politicians to choose between more stringent178 versions of the regulatory and land-purchase options that are presently infeasible.
Rolling easement policies are the most politically feasible approach for protecting tidelands on a broad scale. The cost would be small compared with the other options.179 Perhaps more importantly, this approach takes advantage of the long-term180 and uncertain nature of the phenomenon. The setback approach polarizes the political climate and encourages developers to challenge regulations (or governmental estimates of market value) by disputing the underlying science and the projections that the sea level will rise. Rolling easement policies, by contrast, foster political consensus by forcing developers to concede that sea level rise is likely before they can argue that the regulation will affect property values.181
5.Risk of Backsliding. Even if a tideland protection policy is enacted, a subsequent repeal will always be possible. The effectiveness of a tideland protection policy depends upon whether the repeal occurs because the policy turns out to be unneeded or because those with narrow interests who gambled and lost are able to persuade policy makers to backslide and bail them out. Where development is prevented, the risk of backsliding is fairly low. If government buys a no-development easement (or imposes such a condition by regulation), the owner of the remaining estate has little reason to clamor for the government to allow her to develop a property just when it is about to be inundated. If the government buys the land outright, then there is no private owner at all.
If action is deferred, by contrast, the likelihood of backsliding is very high. Few tasks would be more distasteful to a state legislator than to require people to abandon bayfront homes when the property owners themselves are willing to spend the money necessary to protect their property from the sea. Admittedly, governments have required property owners to abandon oceanfront homes as the shore retreats.182 However, the ocean shore has a large constituency of people who use the public beach that a seawall would obstruct. Furthermore, private seawalls are generally unable to hold back the ocean during a severe storm, which creates a potential safety hazard.183
Rolling easements pose intermediate enforcement problems.184 Backsliding would be somewhat more likely with a no-bulkhead regulation than with a government purchase of a rolling easement, because the public can more easily accept relaxation of a regulation than the relinquishment of a public property interest for which the government has paid.185 Private conservancies that bought rolling easements would seem even less likely to allow private individuals to erect bulkheads that eliminate natural shores. There is no guarantee, however, that a century from now conservancies would not decide to sell the easements to property owners and use the proceeds to protect more critical habitat.
The risk of backsliding would tend to be greatest in those areas where: (a) property owners are either unaware of the rolling easements or are lulled into believing that they will not be enforced, and (b) the cost of holding back the sea is small compared with the benefits of doing so. The former consideration suggests that public awareness must be a key component of any effort to ensure the survival of estuarine shores.186
The latter consideration favors some hybrid approaches that, when combined with rolling easements, would probably have a smaller risk of backsliding than a plan that relied solely on rolling easements. Limiting density to one-acre zoning would increase the cost of protecting a given home with a bulkhead. Requiring new homes to be moveable would decrease the cost of not holding back the sea, because the structures themselves would not be lost. Limiting house size would have a similar effect and would also decrease the potential benefits of a bulkhead, even if the house could not be moved. At least along marshy shores, requiring the house to be elevated on pilings would also decrease the need to build a bulkhead by ensuring the utility of the house during those early years when water levels periodically reach the house. It would also reduce public sympathy for people desiring to build a bulkhead.
In a thoughtful commentary on previous EPA analyses of this issue, Professor Joseph Sax, a pioneer of environmental law, warned that even with a purchased easement, success "turns on the assumption that people will play by the rules of the game. It is this assumption I wish to question."187 Sax suggested the creation of a trust fund to compensate property owners when the time comes to abandon their properties.188 While this approach may be appropriate in some areas, there is also the risk that it will take us back to the political infeasibility of deferred action: If the government would not be willing to buy out whole towns just to protect some tidelands, would it be willing to spend the proceeds of a trust fund to buy out whole towns just to protect some tidelands?
Rolling easements would leave future generations with the flexibility to keep their tidelands or give them up. Sax was correct that we cannot guarantee that they will choose the tidelands.189 Perhaps we should be satisfied if we preserve the choice.
III.WOULD OPTIONS TO PROTECT TIDELANDS REQUIRE COMPENSATION?
According to the Bill of Rights, private property cannot be taken "without due process of law; nor shall private property be taken for public use, without just compensation."190 Common sense suggests two literal meanings of this "Takings Clause": (1) all of the tideland protection policies require compensation, because they eventually deprive owners of their property; and (2) none of the policies require compensation, because the public does not use the private land when it prevents development or denies a permit to build a bulkhead. Neither of these views would prevail in the United States Supreme Court.
A. A Case Study Involving Setbacks and Rolling Easements
Consider a story that involved both setbacks and rolling easements, a story that included one of the most important Supreme Court rulings involving shorefront development: Lucas v. South Carolina Coastal Council.191 In 1984, EPA and the South Carolina Sea Grant program sponsored a conference in Charleston, South Carolina to present the results of a study192 on the impacts of future sea level rise on the city and the surrounding barrier islands, with the latter organization mailing 10,000 brochures to people in the area. Shortly thereafter, the South Carolina Coastal Council commissioned a Blue Ribbon Committee to address the problem of rising seas and eroding shores.193 In 1987, the Committee issued its report, which recommended a setback equal to forty times the annual erosion rate.194
In 1986, a developer named David Lucas paid $975,000 for two oceanfront lots on the Isle of Palms in South Carolina.195 The lots were about 300 feet from the beach,196 but because they were near an inlet, the shore had advanced and retreated several times in the preceding few decades, with much of the lot on the active beach as recently as 1973.197 In 1988, the South Carolina legislature responded to the Blue Ribbon report by enacting a Beachfront Management Act that prohibited construction seaward of an erosion setback line.198 Because his lot was seaward of the line,199 the setback left Lucas with a worthless lot.200 Lucas then sued for compensation.201
The trial court decided that the setback was a taking because it deprived Lucas of any reasonable economic use of the property.202 In 1990, this decision and Hurricane Hugo prompted the South Carolina legislature to replace the prohibition of development with rolling easements for lots seaward of the setback line.203 Thus, by the time the Council appealed to the South Carolina Supreme Court, the lots were eligible for building permits. Accordingly, the Council argued that the case was no longer ripe for judicial review.204 The court "shrugged off the possibility of further administrative and trial proceedings"205 and reversed on the merits, holding that the regulation was designed to avoid a serious public harm and thus could not be a taking.206
Lucas appealed, and the United States Supreme Court granted certiorari.207 The Court treated the case as a claim for a temporary taking between the setback's enforcement in 1988 and its conversion to a rolling easement in 1990.208 For this period, at least, it accepted the trial court's finding that the State deprived Lucas of any reasonable economic use of his property.209 With these assumptions, the Supreme Court reversed, holding that the Fifth Amendment's requirement to pay compensation cannot be avoided simply by characterizing the erosion hazard as a nuisance.210 A regulation that prohibits all productive use is a taking unless property law had already given the State the power to prevent the nuisance.211 The Court remanded the controversy to the South Carolina Supreme Court to decide whether the State had that power.212
On remand, the South Carolina Supreme Court chose not to conduct such an analysis.213 It simply said that it knew of no basis in the common law for preventing construction on Lucas's property and remanded the case for a trial on the damages.214 However, the parties settled before trial, with the Council paying Lucas $1.5 million for title to the property. The Council resold the lots to John C. Gwinn for $850,000, with the condition that a rolling easement would govern any construction.215
The State's resolve to enforce the rolling easement was soon tested.216 The erosion-and-accretion cycle switched from accretion to erosion--as much as fifteen feet per month. By the time Mr. Gwinn had completed construction on one of the lots, the shoreline was threatening the swimming pool that he had built seaward of the new house. Even though the Beachfront Management Act prohibited new structures from holding back the sea, the State allowed Gwinn and nearby owners to use sand bags.217
The property owners then petitioned the Coastal Council for permission to install geotectile containers--essentially ten-foot sandbags weighing about 6000 pounds. The Council denied this request, but gave the owners permission to create artificial dunes by bulldozing sand from the wet part of the beach. Gwinn and the other owners filed suit, seeking an injunction to compel the State to allow installation of the geotectile containers. Before the case could be decided, the erosion cycle reversed again and the shore began to accrete. After almost a decade of tenacious enforcement by South Carolina's coastal agencies, the Beachfront Management Act has saved the beach along the Lucas-Gwinn property.218
The holding in Lucas v. South Carolina Coastal Council implies that in some situations, setbacks will require compensation.219 The legislature's replacement of setbacks with rolling easements--only where setbacks were likely to be takings--suggests an assumption that rolling easements will not require compensation. But the United States Supreme Court did not address rolling easements or bulkhead prohibitions.
The remainder of this Part examines the general theory by which a court could decide whether a tideland policy requires compensation, assuming, for the sake of argument, that a property owner has the right to build a home and to protect it from the sea.220 The Takings Clause applies to both physical invasions and regulations that deny all beneficial use to the owner. Parts III.B and III.C of this Article examine these two types of governmental action. Table 4 summarizes the author's best guess regarding the takings implications of the doctrines discussed in these sections, and how they relate to the policy options presented in Part II.
[TABLE 4 GOES HERE]
B.Physical Invasions: Implications for Protecting Access Along the Shore
The most common example of a physical invasion is an eminent domain acquisition. Nevertheless, even installing a cable television box221 or requiring public access along a private beach or waterway222 is enough of an invasion to be a taking. An invasion by the sea due to natural factors is not a constitutional taking.223 If a government dam directly floods someone's property, it is a taking,224 but if a project merely causes riparian land to erode away slowly, it is not.225
1.Permit Conditions: Illegitimate Uses of Governmental Power. Not every physical invasion is a taking. For example, there is no taking when, in return for a permit to develop property, a local government requires a private developer to dedicate land for roads or other public infrastructure directly necessitated by the development itself.226 However, if the conditions of a permit are designed to save the government money on projects the government intended to embark upon anyway, rather than simply to offset the consequences of granting the permit, then the government has exceeded its power. In Nollan v. California Coastal Commission,227 the Commission refused to give the Nollans a permit to replace their small bungalow with a large oceanfront house unless the Nollans gave the state an easement permitting public access along the dry beach behind their house.228 The increased access to the beach, the Commission argued, would counteract the decreased "visual access" for those traveling along the street in front of the Nollans' house.229
The Court found no "essential nexus" between the easement and the objective of preserving the view of the water.230 A permit condition must be the means to an end that the government could already achieve by denying the permit.231 In this case, preserving visual access would have been a legitimate end.232 However, the fact that both the impact and the condition included the word "access" did not imply that improving access along the shore would compensate for a loss of visual access.233 The Court indicated that requiring the Nollans to set aside part of their land for viewing the beach would have passed this test.234 Unfortunately, the Court did not comment on cases in which the Commission required an easement along the dry beach in return for a seawall permit.235 In such cases, because both the adverse impact and the condition involve lateral access, an essential nexus would exist. The question would then become: Is the connection between the impact and the condition sufficient? The Nollan Court did not develop a test for how tight the connection must be, because in that case, there was no nexus at all.236
The required connection between the impact and the condition was at issue in Dolan v. City of Tigard.237 Mrs. Dolan wanted to build a parking lot and expand her business on a parcel adjacent to a floodplain and planned bike path.238 The City granted a permit for the expansion, but only on the condition that she dedicate land for a floodway and the bike path.239 The Court found a nexus between the impacts of the development and each of the permit conditions. First, the development would increase runoff and hence flooding problems that a floodway could ameliorate. Second, the business expansion would increase traffic a problem that a bike path could diminish.240
Because there was a nexus between the impacts and the conditions, the Court had to formulate a test for deciding "whether the degree of the exactions demanded by the city's permit conditions bear the required relationship to the projected impact of [the] petitioner's proposed development."241 The Court adopted what it called a "`rough proportionality'" test based on a rule already adopted by a majority of state courts.242 As an example of this test, the Court favorably cited a Nebraska case holding that "a city may not require a property owner to dedicate private property for some future public use as a condition of obtaining a building permit when such future use is not `occasioned by the construction sought to be permitted.'"243 In adopting this test, the Court rejected the more stringent "`specifi[c] and uniquely attributable'" test, which requires that "the local government . . . demonstrate that its exaction is directly proportional to the specifically created need.: 244 Nevertheless, this test is still relevant in coastal states where it has been adopted as a matter of state law.245
Applying the rough proportionality test, the Supreme Court held that dedicating a floodway was not roughly proportional to the increased flooding. In reaching this conclusion, the Court reasoned that the increased flooding could be mitigated just as effectively by preventing development without granting the public access to that land.246 The bike path was a closer case. The Court acknowledged that a bike path could offset the traffic impact but held that the City had to show that it would offset the impact.247
2.When Is a Policy That Protects Access a Taking? Figure 9 illustrates four alternatives for protecting access along the shore.248 Because all of these measures protect the same alongshore access that a bulkhead might otherwise destroy, they all have the essential nexus that was lacking in Nollan.
[FIGURE 9 GOES HERE--TWO-PAGE FIGURE]
The most straightforward case is the one-step easement. Such a permit condition is narrowly tailored: It protects access along the shore at both the same time and the same place that the bulkhead destroys access.249 As a result, one-step easements would pass even the more stringent "specific and uniquely attributable test" that some states require.250
Requiring immediate dedication251 of an easement above the bulkhead as a condition for a bulkhead permit is not quite as narrowly tailored in time, because the condition takes effect immediately to offset a problem that the bulkhead will cause in the future.252 Nevertheless, an immediate dedication may still pass the specific and uniquely attributable test, because the easement dedicated is "directly proportional to the specifically created need."253 It certainly would pass the rough proportionality test, because the dedication is necessitated by the construction being permitted.
California has sometimes required property owners to dedicate dry beach in return for a seawall permit.254 This policy would probably fail the specific and uniquely attributable test, because such a condition does not specifically offset the problem created by the seawall. At the outset, there is temporal discontinuity. Because seawalls eliminate all of the dry beach before eliminating any of the wet beach, such a condition increases access only during those early years when the seawall would not have diminished public access anyway. In Figure 9, for example, the permit condition increases public access only for the next thirty years in return for the partial loss of access caused by the seawall between thirty and sixty years hence as well as the total loss of access thereafter. Just as the bicycle path in Dolan would not have directly offset the particular traffic generated by the expansion of the business,255 dry beach dedication today does not directly offset the loss in access from eventual loss of the wet beach.
The Dolan opinion, however, implies that one may be able to step away from the particular time and place where access is preserved and look at the total amount of beach to which the public has access. In a state where new seawalls are continually causing the loss of the wet beach to which the public has access, a policy of dry beach dedication could prevent the overall amount of beach area to which the public has access from declining. The Court in Dolan indicated that the dedication for a bike path would not have been a taking if the City had proven that the bike path actually would offset the increase in traffic caused by the store. It did not require proof that customers would all take their bikes to the store or even that the traffic reduction had to occur on the same day.256 Thus, if a state agency can show, for example, that the increase in pedestrian traffic along the beach created by a dry beach dedication will offset the loss in traffic resulting from the elimination of the wet beach, the dry beach dedication policy would probably pass the Dolan test.
A final possibility is to defer action today and then require dedication of an easement above the bulkhead at a later date. For example, eventually the seawall might need to be rebuilt. Some of the same arguments for an immediate dedication would still apply.257 However, deferring action and requiring a dedication later would present two additional problems. First, if the beach is already lost, it may be more difficult to convince a court that the impact of the permit is the loss of the beach (even though, strictly speaking, denial of the permit would eventually cause the bulkhead to be destroyed and the beach to reappear).258 Second, the political difficulties of requiring conditions for renewing a permit would be much greater than requiring the condition when the seawall is built the first time.259
C.Regulations That Deny Beneficial Use
In theory, courts decide whether a regulation is a taking by weighing its importance, economic impact, and interference with "investment-backed expectations."260 Because such balancing is subjective,261 the Court has identified two types of per se takings: physical invasions and property regulations that deny all beneficial use.262 Although the Supreme Court has never precisely defined how much must be taken to constitute a loss of "all economically beneficial or productive use of land,"263 at least two lower courts have found wetland-protection regulations to be takings when they prevented development and decreased property values by roughly ninety percent.264
Must a property owner suffer such an overwhelming loss to be entitled to compensation? The balancing test suggests that less important regulations would warrant a lower threshold. If preventing wetlands from being filled is the only way to prevent their immediate destruction, only a large impact on property values would be a taking. However, if preventing future destruction is found to be less important, then a smaller impact on property values could be a taking. Setbacks may be particularly vulnerable to a balancing test, because there is a lower cost measure that can provide the same protection: rolling easements.265
The next two sections examine two issues that courts would have to consider when plaintiff landowners claim that a regulation has deprived them of the use of their property: (1) whether, for the purpose of a taking, property can be physically or temporally partitioned, and (2) which actions the government can regulate even when doing so destroys the property's value. These issues would not arise with tidelands policies designed to protect access only. Because the owner can build a house, the property's overall utility is not substantially diminished, let alone destroyed, either temporarily or permanently.266 Nevertheless, these questions may be important for policies that attempt to ensure the continued survival of the tidelands themselves.
1.Partitioning the Estate for Takings Purposes. When deciding whether an owner has lost all beneficial use of the property, what portion of the estate must one consider? This question contains both geographic and temporal components. A setback of one foot, for example, might deny all beneficial use to that first foot of land, yet barely impair the use of the remaining land. By contrast, a rolling easement might deny all beneficial use after the year 2100, yet barely affect current property values today.
a.Geographic Partitioning. Unlike physical invasions, a regulation may not be a taking when it destroys the economic utility of one part of a lot, as long as the parcel as a whole remains valuable.267 Although Lucas was an exception, oceanfront setbacks have often avoided the takings problem because the lots were deeper than the setback.268 However, protecting thousands of square miles by preventing development would often require larger setbacks and thereby increase the likelihood of a taking. Nevertheless, the likelihood of a taking can be minimized if setbacks are established before large lots are subdivided. Although prohibiting bulkheads to protect homes may deny all use, denying permits to protect eroding backyards does not.
b.Temporal Partitioning. By allowing development while requiring it to be eventually removed, rolling easements partition an estate temporally rather than geographically. Here too, the law has only been partly settled. For example, if a regulation unconstitutionally prevents the productive use of land for a year, after which the regulation is repealed, the state must compensate the owner for the temporary taking.269 But when the regulation prevents the use of property at the end of a long period of time, the takings implications are less clear.270
Zoning has often phased out nonconforming uses by allowing such uses to continue for only a specified period of time,271 but usually there are alternative uses for the property.272 Although a policy that required land to be abandoned fifty years hence would often allow no productive use when the deadline finally arrived, it would have a trivial impact on the current value of the parcel.273 Thus, the doctrine of nonconforming use argues against the necessity of compensation for rolling easements.274
Two Supreme Court cases concerning coal mining in Pennsylvania, when read together, imply that a regulation that eventually curtails the useful lifetime of real property is less likely to be a taking than a regulation requiring an immediate curtailment. Both Pennsylvania Coal Co. v. Mahon275 and Keystone Bituminous Coal Ass'n v. DeBenedictis276 involved split estates, in which coal companies owned subsurface coal while other parties owned surface rights to the land.277 In each case, the surface owner had conveyed the "support estate," contractually accepting the risk of any subsidence resulting from mining.278
When construction that was vulnerable to subsidence replaced preexisting land uses, the Pennsylvania legislature became concerned about potential risks to public health and safety, and enacted the Kohler Act of 1921,279 which prohibited mining whenever it threatened homes with subsidence.280 Because the Act destroyed the value of the plaintiff's support estate, the Mahon Court found it to be a taking.281
Several decades later, the legislature passed the Bituminous Mine Subsidence and Land Conservation Act of 1966,282 which also sought to prevent serious subsidence by limiting the amount of coal that could be extracted, but allowed mining to continue until subsidence became a threat.283 In Bituminous Coal, the coal companies alleged that by limiting the coal that they could remove, the State had taken their coal for public use and completely destroyed the support estate.284 This time, the Court viewed the mineral estate as a whole and found no taking.285
Comparing these two cases is similar to comparing deferred action and rolling easements. Just as the Kohler Act destroyed the plaintiff's mineral estate to avoid an imminent risk posed to adjacent properties from sinking land,286 deferred action could destroy shorefront land values by preventing bulkheads to avoid imminent tideland loss from the rising sea. Likewise, just as the Subsidence Act put mining companies on notice but allowed mining to continue until it threatened neighboring property,287 rolling easements also put owners on notice but allow homes to remain by the sea until continued occupation threatens elimination of the neighboring public lands. If anything, a rolling easement would be less of a taking than the Subsidence Act's limitation on mining.288 While the coal companies paid for the support estate that was taken,289 coastal landowners generally have not paid the state (the owner of the tidelands) for the right to erect a bulkhead.290 Moreover, the impact of a rolling easement on present property values would generally be less than the one- to nine-percent reductions caused by the Subsidence Act.291
2.Nuisance Versus Public Use: Before and After Lucas.
a.Before Lucas. Courts have long viewed regulations that abated nuisances differently than those that secured public benefits. In Mahon, Justice Brandeis's dissenting opinion emphasized the importance of this distinction, declaring that a "restriction imposed to protect the public health, safety, or morals from dangers threatened is not a taking. . . . Restriction upon use does not become inappropriate as a means, merely because it deprives the owner of the only use to which the property can then be profitably put."292 Justice Holmes's majority opinion did not dispute this distinction, but noted that the Fifth Amendment's protection is even more fundamental: "When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last private property disappears. . . . [I]f regulation goes too far it will be recognized as a taking."293
This distinction has given courts substantial flexibility, because many regulations can be characterized either way.294 Tort theory suggests a cost-benefit test: If the harm is greater than the abatement cost, the property owner has a duty to abate the nuisance.295 Yet, if that principle is applied to the essential bundle of rights implied by ownership, we quickly reach the point where "at last private property disappears."296 Nevertheless, some courts have conducted this type of analysis even when these essential uses are involved.297
b.After Lucas. Justice Scalia's majority opinion in Lucas cleared away some of this analytical underbrush. The fact that a regulation controls a noxious use, he wrote, "cannot be the basis for departing from our categorical rule that total regulatory takings must be compensated. . . . [To hold otherwise] would essentially nullify Mahon's affirmation of [the] limits to the noncompensable exercise of the police power."298 Instead, a state can avoid compensating the property owner only if "the proscribed use interests were not part of his title to begin with."299
Justice Scalia's elaboration leaves room for interpretation, but the general thrust provides several avenues by which tideland policies could escape the need to pay compensation. First, if the regulation merely reaffirms a preexisting common law duty or power of the state to limit construction, it is not a taking.300 Second, if the existing common law has not addressed the issue, but "common-law principles would have prevented the erection" of the structures on the land, then the regulation is not a taking.301 Third, if statutes or regulations have been in force long enough to have been factored into investment-backed expectations of property owners, their enforcement does not require compensation.302
Would the background principles of property law allow a state to retain the tidelands as shores retreat? One must consider both general property law and the unique attributes of coastal property law.
c.General Background Principles of Property Law. A few states have adopted the view that title to property does not include the right to fill wetlands.303 That rule, however, does not address dry land that may become wet in the future. No court has yet contradicted the South Carolina Supreme Court's holding on remand in Lucas that nuisance law would not empower a state to impose setbacks that render a parcel economically unproductive. Rolling easements, by contrast, do not impair the property's use today,304 and by the time they must be enforced, many decades may have passed. As a result, the rolling easement will have plenty of time to become part of the investment-backed expectations in areas that are developed in the future,305 and perhaps even in areas that have already been developed.306
Deferred action will probably be a taking, except where the unique aspects of coastal property law provide government with a basis for taking over shorefront property as the shore erodes. Conceivably, a twenty-foot rise in sea level will eventually occur, causing future generations to consider homes on retreating shorelines to be as irresponsible as Justice Scalia considers "a nuclear generating plant . . . that . . . sits astride an earthquake fault,"307 in which case the common law might respond by allowing the police power to require a massive relocation of coastal homes without compensation. But prudence does not warrant policies that depend on such a speculative eventuality.
d.Background Principles of Property Law Unique to the Coast. A body of law has gradually developed to address the unique problems and opportunities found along the coast. According to the law of accretion and reliction (hereinafter the "law of erosion"), ownership migrates inland when shores erode.308 Moreover, the public trust doctrine requires the state to hold the tidelands in trust for the people,309 and the Commerce Clause of the United States Constitution310 transfers a concurrent interest known as the federal "navigation servitude."311 Federal statutes authorize the Corps of Engineers to regulate and deny permits to fill navigable waterways, including wetlands.312 Finally, statutes and the police power enable states to limit threats to health or safety due to construction in floodplains313 or septic tank discharges314 in areas with high water tables.
All of these doctrines diminish the rights of coastal lowland owners, compared with the rights of noncoastal dryland owners. While some of these doctrines may have imposed takings when first implemented,315 the older doctrines have become background principles of coastal property law, and the newer statutes are now part of the investment-backed expectations of those who purchase coastal land.316 Under at least some conditions, any of these principles might allow a state to enjoin activities that threaten tidelands.317
3.When Is a Tideland-Protection Policy a Taking? The following discussion briefly applies the doctrines introduced earlier in this Part to the three basic policies for protecting tidelands, maintaining the assumption that property owners have a right to hold back the sea.
a.Rolling Easements. A statute or regulation that declares the existence of rolling easements in undeveloped areas318 is unlikely to be a taking, even in a state that recognizes a right to hold back the sea.319 In general, rolling easements would not deny all productive use. Although productive use would eventually end if and when the sea level rises to a particular elevation, the regulation itself does not prevent productive use when instituted.320 Moreover, because the contingency would generally be decades--perhaps centuries--away, the impact on property values would be very small.321 If included as a condition for a subdivision or building permit, rolling easements should pass the Nollan-Dolan test for the same reason that a one-step easement passes this test.322
The most likely situation in which a court would find a taking would be when someone buys shorefront property before a regulation to protect tidelands is enacted and then is forced to abandon that property. The more common scenario would involve people who purchase property after the regulation is issued. These people would find it almost impossible to successfully challenge the regulation as a taking, because the regulation will have been factored into their investment-backed expectations.
The owners of property that is not directly along the shore today would be even less likely to have a valid takings claim. Because the rolling easement would enable these properties to become shorefront for a time before eventually having to become abandoned, the policy might actually increase property values in many cases.323 This increase would preclude a taking even if the property had not been transferred.324
b.Deferring Action. If states avoid addressing the problem of rising sea level, and then prohibit bulkheads at some point in the future, takings claims may succeed more often. If a house could be economically relocated, but there was no room on the existing lot, then denying a bulkhead permit would often deprive the owner of the use of the land. If the house could not be salvaged, then the denial would deprive the owner of the use of the house--even if there was room on the lot to build another home. If the home could be moved back and still remain within the same lot, then there would not be an immediate taking, because the property would still be usable. Nevertheless, the continued erosion of the shore would eventually make the property unusable, and therefore, the ability to relocate the house might merely delay the finding of a taking.325
c.Preventing Development. Most policies that prohibit development in an area likely to be inundated by a rising sea would involve at least some takings, because thousands of square miles of land could be inundated.326 Consider, for example, a new setback that prohibited development below the five-foot contour. Someone who had just bought a small lot that was useful only as a building site, but was entirely below that elevation, would be deprived of beneficial use in the same way that David Lucas was deprived.327 Someone else with a lot that was partly above the contour could still build a home; it would just have to be on the high ground. In agricultural areas, where lots have not yet been subdivided, developers who bought farms entirely below the five-foot contour and paid a substantial premium for the land might have a takings claim because they assumed that the property could be subdivided.328 However, those who bought parcels that were partly above the five-foot contour would probably not have a viable claim as long as they could make an economically viable use of the parcel as a whole. As long as farming remained viable, the farmers who bought the land based on its agricultural value would not have a claim.329
Setbacks do not involve dedicating land to the state. Therefore, they do not present a Nollan-Dolan issue.330 This issue would arise, however, if a permit condition required a developer to dedicate331 part of the parcel's lowlands332 to ensure that wetlands were able to migrate inland. A takings challenge to such a requirement would be more likely to succeed than if the permit simply prohibited development in those lowlands.333 Nevertheless, it could probably pass the Nollan-Dolan test with the proper showing that the condition is designed to address the effect of the permit itself.334 Perhaps the key showing would be that the dedication is genuinely designed to offset eventual wetland loss rather than to serve an immediate purpose such as a park or nature reserve.335 Dedicating land within five feet of mean high water would probably pass such a test, but dedicating a parcel that was mostly more than twenty feet above sea level would probably not.336 Although a rational policy maker might prepare for a very unlikely event occurring over a very long time period, courts are skeptical about whether such foresight is really the rationale when more immediate explanations are apparent.337
IV. DO PROPERTY OWNERS HAVE A COMMON LAW RIGHT TO ELIMINATE WETLANDS AND BEACHES?
For over one thousand years riparian property lines have retreated whenever shores have eroded.338 Consequently, in undeveloped areas, the "law of erosion" always recognized a rolling easement. But suppose a bulkhead prevents the shore from retreating: Should the boundary move inland anyway? If not, is the bulkhead a nuisance?
To analyze this question, consider a situation in which the tidelands are owned by a private party. If the owner of the adjacent dry land builds a bulkhead, and thereby prevents the property line from migrating inland, the bulkhead would reallocate land ownership from the tideland owner to the dryland owner. The tideland owner could argue that because the dryland owner took away her land, she should be compensated. However, if a house had been built, the dryland owner could counter that the bulkhead benefitted society in that the private house is worth more than a wetland or a beach. A common law court deciding whether the law of erosion should only apply to undeveloped areas would have to weigh the value of protecting tidelands against the value of encouraging development.339
When tidelands are owned by the public, however, the common law replaces this balancing with a per se rule known as the "public trust doctrine": The state retains ownership of the tidelands unless it decides otherwise.340 This "doctrine" is really two doctrines: (1) the "property doctrine," which is a universally accepted set of principles regarding the ownership of submerged lands at the time of statehood and subsequent changes in ownership, and (2) an "expansive doctrine," which is a controversial theory of substantive due process that invalidates even legislative grants of submerged lands.341 Subpart A below describes the origins of the public trust doctrine, and subpart B explains the relationship between the law of erosion and the property portion of the public trust doctrine. Subpart C examines the implications of these doctrines for the three tideland protection policies. This Article focuses on the property doctrine because its tideland-protection features apply to every coastal state. Nevertheless, subpart D examines the takings implications of the more expansive doctrine. Although the focus here is state law, most of the reasoning applies equally to the federal government's navigation servitude.
A. Evolution of the Public Trust Doctrine342
In 1820, Robert Arnold, a waterfront property owner found Benajah Mundy collecting oysters from the mudflats on his property in Perth Amboy, New Jersey.343 Showing surveys and titles to those lands dating back to a grant from Charles II to the Duke of York, the property owner sued in trespass.344 The shellfish collector defended on the grounds that the mudflats were incapable of ownership.345 The New Jersey Supreme Court reviewed the civil law, the Magna Carta, and subsequent English cases and concluded that before the American revolution, the King had no authority to grant ownership of tidelands to private individuals:
[T]he ports, the bays, the coasts of the sea, including both the water and the land under the water, for purpose of passing and repassing, navigation, fishing, fowling, sustenance, and all the other uses of the water and its products (a few things excepted) are common to all the citizens, and . . . each has a right to use them according to his necessities . . . .346
In so holding, the New Jersey court recognized a doctrine that since at least sixth century Rome had given the public the right to enter any beach and fish, construct cottages, land boats, and off-load cargo.347 In the following decades, the United States Supreme Court stated that all thirteen original states followed the public trust doctrine348 and that new states were also granted submerged lands upon statehood.349
B. Interrelationships Between the Law of Erosion and the Public Trust Doctrine
1.The Public Trust Doctrine of Property Law. According to the public trust doctrine, navigable waters and the underlying lands were publicly owned at the time of statehood, and grants of riparian land do not reduce the public's right to use submerged lands unless the state's intent to do so is unambiguous.350 Early courts justified this doctrine on the ground of the sanctity of preexisting arrangements.351 Commentators have emphasized that from an economic standpoint, navigable waters and roadways are logically public goods: Most land is privatized because the administrative costs of having private property (e.g., title keeping and rent collection) are small compared with the benefits (e.g., privacy, more efficient use, and avoiding a tragedy of the commons).352 Along beaches, waterways, and roads, by contrast, the likelihood of a tragedy of the commons and a need for privacy is much less.353 Up to a point, there may even be safety benefits from additional users.354
[Figure 10 goes here]
Cases invoking the public trust doctrine usually refer to navigable waters, but "navigable" includes areas subject to the ebb and flow of the tide whether or not they are truly navigable.355 Tidelands are usually included because of the needs associated with hunting, fishing,356 transportation along the shore (see Figure 10),357 and landing boats for rest or repairs. Most states own the land up to the high water mark,358 which is usually construed as mean high water; therefore, the public trust includes mudflats, low marsh, and wet beach--but not high marsh or dry beach.359 Hawaii, New York, Oregon, Washington, and Louisiana include the dry beach as well.360 In Maine, Massachusetts, Pennsylvania, Delaware, and Virginia, publicly owned land extends only up to the low water mark, but the public has access to the tidelands for fishing, hunting, and navigation (see Figure 11).361
[Figure 11 goes here]
In several states the public now has the right to access along all or part of the privately owned dry beach. The New Jersey Supreme Court has expanded the public trust doctrine to include access along the dry beach for recreation as well as the traditional public trust purposes.362 The public has access along the dry beach in Oregon, Texas, and parts of Florida based on the doctrine of customary use.363 A number of states have gradually obtained access in particular areas through purchases or voluntary assignment by the property owners in return for proposed beach nourishment.364 However, the Supreme Judicial Court of Maine invalidated as a taking a legislative effort to expand the existing right of access along the wet beach to include recreational activities.365
2.The Law of Erosion. The property lines between private and public land move inland with eroding shores and seaward with advancing shores,366 assuming that the shoreline change is natural. When riparian landowners cause the shorelines to advance seaward, virtually all courts have held that, under the common law, the riparian owner does not get title to the new lands.367 A majority of states award the riparian owner the artificially formed land if she is not responsible for the accretion (e.g., a federal navigation jetty causing the shore to advance seaward).368 The minority rule, however, vests the state public trust with the new land.369
The majority rule has two practical advantages. Determining what portion of a shoreline change resulted from artificial causes, such as sedimentation from a jetty or a river diversion, is much more difficult than determining how much the shoreline changed when the owner filled some wetlands.370 Moreover, the majority rule prevents the state from depriving shorefront owners of their riparian access by pumping sand onto the beach and creating new land.371 That "advantage" can also create a problem: Beach nourishment reduces the vulnerability of all oceanfront homes to erosion and storms.372 These public projects may be delayed, however, if a few of the owners insist upon reaping the additional benefit of title to the newly created beach.373
When a shore retreats, the boundaries retreat--regardless of whether the erosion is natural or anthropogenic.374 Were it otherwise, the public trust rights, such as lateral beach access, would be routinely eliminated--even on the ocean shore, where jetties and groins regularly cause pockets of erosion.
From the standpoint of traditional property law, the law of erosion is like the law of defeasible estates, in which title to land changes hands when a specific condition occurs.375 Courts have long dealt with conditional grants in which a landowner conveys a piece of land but only for so long as it is used for a church,376 a park,377 a railroad,378 or a school,379 or until the occurrence of a specified event.380 The law of erosion reaches the same result as would occur if the sovereign had conveyed coastal property only for so long as erosion processes do not submerge it, reserving for the public a reversionary interest that vests when the land is below mean high water.
C.Takings Implications of Tideland Policies
Could efforts to ensure that tidelands migrate landward as sea level rises be enforced at common law The answer is yes, at least for rolling easements, and possibly for deferred action. With a rolling easement, the granting sovereign tells the riparian owner today that she will not be allowed to eliminate the public's reversionary interest by building a bulkhead.381 With deferred action, the sovereign enforces the reversion eventually, but without having warned the riparian owner that it would do so.382 In the context of nuisance law, people usually are not allowed to interfere with (let alone destroy) a neighbor's property without the owner's permission, and the public trust doctrine holds that the sovereign--who owns the neighboring tidelands--generally will deny the permission to destroy the tidelands.383 These arguments are less likely to justify setbacks.
1.Deferring Action. Must the public's right to the tidelands give way to a private owner's desire to maintain his premises? Simple symmetry, nuisance principles, and analogous cases concerning ocean coasts suggest that the public's rights are superior.
a.Is the Law of Erosion Symmetric? The natural effect of erosion is to reduce the estate of the dryland owner. A bulkhead shifts the loss onto the tidelands owner. Given that the law of erosion does not allow a riparian owner to expand her holdings by bulkheading and filling seaward, allowing the same owner to retain the saved land by bulkheading and filling landward would be an asymmetry. Similarly, a landowner does not generally lose the right to exclude the public when she lowers dry land to become navigable water.384 It would be asymmetric to allow the landowner to gain the right to exclude the public by elevating dry land so that it does not become navigable water.
The law of erosion is generally symmetric.385 The general principles are that shoreline ownership advances and retreats with the gradual changes of the sea, and those boundaries are not altered by the private activities of a landowner that change the shoreline itself. Even if the equivalence between filling navigable waters and preventing their encroachment by elevating dry land has not been recognized by reported cases, common law courts have the ability to rectify inconsistencies in the law that are brought to their attention.386
b.Nuisance Principles. Many commentators have suggested that nuisance law maximizes social wealth by minimizing social costs, including transaction costs.387 In an undeveloped area--or even in a developed area as long as the house is set back from the shore--structures that change land ownership without creating new land produce no social benefit. If the law treats them as a nuisance, they will not be built; if they are not treated as a nuisance, the owner who benefits will want to build them in spite of the net cost to society. As a result, resources will be wasted on negotiations to prevent their construction. In this context, the rationale for denying riparian owners any land created by bulkhead and fill projects applies equally to bulkheads that stop erosion and those that fill navigable waters.388
When the shoreline approaches a home, this balance might change. If the cost of moving the house plus the value of the dry land is greater than the cost of the bulkhead plus the value of the lost tidelands, social welfare is maximized by building the bulkhead. In cases where moving a house costs at least as much as a bulkhead,389 a common law court might find bulkheads not to be a nuisance, unless the tidelands are more valuable than the dry land.
In the case of publicly owned tidelands, however, this balancing has already taken place: The public trust doctrine's requirement that tidelands must not be privatized unless the sovereign indicates otherwise390 is effectively an ancient determination that tidelands are more valuable to society as public lands. Because this doctrine preceded the original grants of land from the King of England,391 it can also be viewed as an intention of the original grantor and grantee in titles to coastal property.
A bulkhead that protects one's own land by reducing the size of an adjacent lot is like a dam that diverts floodwater onto a neighbor's land. In most states, a landowner has no right to protect her land from floodwater with a structure that floods a neighbor instead;392 thus, it follows that no one has an automatic right to build a bulkhead that causes the public's tidelands to disappear.393
c.Ocean Coasts: Case Law. Some states have explicitly addressed the conflict between owners defending their homes from erosion and the public's right to use the beach. Although courts have rarely been asked to rule directly on the right to protect one's property,394 they have come close in California and Texas. In Whale | |