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Shore Easements on a Roll
There is a 1 percent chance, says the EPA, that the U.S. sea level will rise four feet during the coming century. Were this scenario to come about, writes James Titus, EPA Project Manager for Sea Level Rise, an area of dry land the size of Massachusetts would be inundated. In many areas, coastal wetlands, bay beaches, and public access along the shore would vanish as the rising sea makes direct contact with bulkheaded private property. Even a less dramatic rise, which is far more likely, would eliminate many such areas. Accordingly, Titus proposes what he views as an affordable and politically feasible way to protect tidelands for public use and as important habitats for many non-human species—and shoreline property values—even if the worst happens.
In his detailed article, "Rising Seas, Coastal Erosion, and the Takings Clause," (Maryland Law Review, Volume 57, No. 4, 1998), Titus recommends that state and local governments, as well as federal agencies and environmental organizations, purchase "rolling easements" from property owners that "allow development" but prohibit them from "holding back the sea." Under these arrangements, which can come in a variety of different forms, private landowners along rivers and in estuaries, as well as on the oceanfront, could continue to use and develop their properties as long as they refrain from armoring the shoreline. Ownership of portions of the property would revert to the easement purchaser if they become inundated because of a rise in the sea level.
What should appeal to many property owners, Titus says, is that they would receive payment up front in return for their commitment not to bulkhead their properties against what to many of them seems less than an immediate threat. His article estimates the full cost of a nationwide program as falling between $373 million and $1.2 billion, a tiny fraction of what it would take to make outright purchases of the nation's remaining undeveloped tidelands, or acquire the development rights to them. The programs would have such a "trivial impact" on property values, he continues, that inaugurating them would involve little or no need to provide compensation as called for under the controversial "takings" provision in the Fifth Amendment to the U.S. Constitution.
Regulations forbidding shoreline hardening exist in many states, says Titus, but in all but a few areas they apply only to the oceanfront. Now the rolling easement principle is being experimentally applied to other portions of the coastal zone in several areas including Maine, Rhode Island, and Cape Cod. Though aware that "armoring is not about to stop," Titus hopes that more and more conservancies and public agencies will turn to the rolling easement as a means of protecting coastal habitat. "Ultimately, state governments must decide what fraction of our shores we want to retain," he says. "In states that strongly respect property rights, this may not happen until the private sector demonstrates that saving our natural shores does not have to harm coastal property owners." |
