- Causes of Future Sea Level Rise
- Elevation Maps
- Will we really lose all that land?
- Sea Level Rise Planning Maps
3.1.2 State Coastal Management
Any land use that can be encouraged or prohibited by a government regulation can also be managed by an agreement between the landowner and those who wish to promote or prevent the same activity. One way to effectuate such an agreement is through a contract in which the owner promises TLC (our hypothetical land trust) that she will comply with the conditions of a rolling easement. Yet contracts are between people (or corporations), so a contractual agreement to allow wetlands to migrate inland would bind the current owner of the land, but not necessarily subsequent owners.[203] If the goal is to prevent the current and all future owners of the land from holding back the rising sea, then one must change the title to the property itself, which is recorded at the local land records office. Rather than signing a contract to not erect shore protection structures, for example, the owner transfers to TLC the property right[204] to erect shore protection structures on the land.
In this primer we use the term “recorded rolling easement” to refer to any property interest designed to ensure that shorelines are able to migrate inland. We refer to the owner of this property right as the “rolling easement holder.” For some types of rolling easements, the holder must be a government agency or a qualified land trust; for other types of rolling easements, the holder could also be a private citizen or a for-profit corporation. Depending on the particular type of rolling easement being discussed, a landowner may sell, donate, or bequeath a rolling easement to any eligible holder. Government agencies may also obtain some types of rolling easements through eminent domain or as a condition for a permit to develop land (also known as an “exaction”).
The term “recorded rolling easement” refers to any property interest designed to ensure that shorelines are able to migrate inland as sea level rises.
The law of property offers many different ways for the owner of a parcel of land to transfer some of her ownership rights to someone else. Many of those approaches can create a rolling easement. Even though the end result is largely the same, rolling easements can emphasize the absence of shore protection, migration of the property line, or preserving access along the shore. This section divides rolling easements into three categories that roughly track those three ways of thinking about a rolling easement:
- Section 3.2.1—Easements, Conservation Easements, and Covenants. The owner is precluded from interfering with natural shoreline migration. As a result, the wetlands or beach along which the public has access will retreat; and the boundary line between public and private property will also retreat. If the land is elevated (surreptitiously, inadvertently, or through natural forces), then the submergence and transfer of title will be delayed. (By “transfer of title,” we mean change in ownership.)
- Section 3.2.2—Defeasible Estates and Future Interests in Land. A parcel that is currently (for example) one meter above mean high water will be transferred from the existing owner to TLC when sea level rises one meter. Erecting shore protection structures or elevating the grade of the land will not delay the day when ownership is transferred. TLC can later restore the land to what its natural condition would have been, or allow the sea to reclaim it over time. Anticipating the eventual transfer of the land as sea level rises, many owners will choose not to invest in shore protection. The inland boundary of public access migrates inland as the land is allowed to submerge.
- Section 3.2.3—Ambulatory Boundaries. As the shore retreats, boundaries migrate. The owner is precluded from interfering with the public access right along the beach. Therefore, no shore protection structures are built, and structures that interfere with public access are removed. The beach, the area along which the public has access, and the boundary between private and public property all migrate inland. Activities that elevate land grades are allowed.
Those
options have seen widespread application in other contexts, but not to address
sea level rise. Given the large
number of possible mechanisms, Section 3.2.4 provides a summary table of our
discussion.
[203] R.E.
Boyer, B.H. Hovenkamp, & D.S.F. Kurtz, The Law of Property (West Publishing Company,
Hornbook Series 1991) [hereinafter Hornbook on Property].
[204]
Transferring the property right to erect shore protection does not mean that
there is a right to shore protection, only that the landowner is transferring
whatever rights she may have to shore protection.
This page contains a section from: James G. Titus, Rolling Easements, U.S. Environmental Protection Agency. EPA‑430‑R‑11‑001 (2011). The report was originally published by EPA's Climate Ready Estuary Program in June 2011. The full report (PDF, 176 pp., 7 MB) is also available from the EPA web site.
For additional reports focused on the implications of rising sea level, go to Sea Level Rise Reports.