ROLLING EASEMENTS AS A VIABLE TOOL TO ADDRESS RISING SEA LEVELS IN US COASTAL COMMUNITIES.

• Author: Meek, Katherine

TABLE OF CONTENTS INTRODUCTION I. VIABILITY OF ROLLING EASEMENTS AS A MITIGATION TOOL TO COMBAT SEA LEVEL RISE A. Authority for Rolling Easements B. Property Rights Considerations Surrounding Rolling Easements C. Cost-Benefit Analysis of Rolling Easements II. TAKINGS JURISPRUDENCE SURROUNDING ROLLING EASEMENTS A. Lucas Test B. Nollan-Dolan Test C. Penn Central Test III. APPLICATION OF ROLLING EASEMENTS IN TEXAS A. Texas Open Beaches Act B. Severance v. Patterson Rejects TOBA's Definition of Rolling Easements C. Limitations of Severance v. Patterson IV. APPLICATIONS OF ROLLING EASEMENTS TO NEW JERSEY AND CALIFORNIA A. Application to New Jersey B. Application to California 1. Public Trust Doctrine 2. Customary Use 3. Public Nuisance Principles 4. Permits CONCLUSION INTRODUCTION

Over the next 30 years, sea levels along the US coastline are projected to rise by 10 to 12 inches, on average. (1) Remarkably, this projection is equivalent to the total sea level rise observed over the past 100 years. (2) As greenhouse gas emissions and global surface temperatures increase, the combined effects of thermal expansion and ice melt will prolong sea level rise into the foreseeable future. (3) Rising sea levels pose a threat to coastal communities by inundating low-lying lands, eroding beaches, intensifying coastal flooding, and increasing the salinity of estuaries and tidal wetlands. (4) Sea level rise, coupled with extreme weather events, will undoubtably continue to cause severe property damage in the future. As shorelines shift with changing sea levels, coastal municipalities must be able to balance private property rights against the public's right to future access.

To protect their property from the threat of rising sea levels, coastal owners generally implement two types of armoring practices: hard armoring, which uses structures like seawalls, jetties, and bulkheads; and soft armoring, which uses soft, natural materials like sand and vegetation. (5) In fact, armoring structures cover at least one-tenth of California's 1200-mile coastline, including one-third of its southern coast. (6) While shoreline armoring may temporarily protect coastal property from rising sea levels, armoring structures ultimately damage that which they seek to protect by eroding beaches below walls, blocking public access, destroying nursery habitats of estuarine species, and diminishing inland property values by obstructing oceanfront views. (7)

Another tool to combat sea level rise in coastal communities is the implementation of rolling easements. Rolling easements arise from regulations, interests in land acquired from property owners who want to preserve the value of their realty, or environmental interests that allow wetlands, beaches, or access along the shore to migrate inland. (8) Generally, under a rolling easement, property owners yield a right of way to naturally migrating shorelines with the interest in land attaching to the shoreline no matter where it moves. (9) Accordingly, the public retains a reversionary interest (10) in the moving shoreline. (11) Under the Public Trust Doctrine, (12) shoreline boundaries only shift from gradual events--variations in the height and width of sandy beaches, shoreline erosion or accretion, and uplift or subsidence of land--which change the location of where the mean high tide line meets the shoreline. (13) Conversely, rolling easements may also be created when boundaries shift suddenly through avulsive events like intense storms that cause acute flooding. (14) To this end, rolling easements are well suited to a world where climate change is intensifying and increasing the likelihood of extreme weather events like hurricanes and severe storms.

Texas was the first US state to adopt rolling easements through the Texas Open Beaches Act in 1959. (15) The Act provided the public with a "free and unrestricted right" to the area extending from the "line of mean low tide to the line of vegetation bordering on the Gulf of Mexico." (16) Such a right could be acquired via prescription, dedication, or by virtue of a continuous right in the public. (17) Essentially, the Act imposed a public beach access easement on all property up to the natural vegetation line, irrespective of whether such property had ever been used by the public. (18) However, in 2012, the Texas Supreme Court's ruling in Severance v. Patterson overturned longstanding judicial and statutory precedent by rejecting the definition of rolling easements under the Texas Open Beaches Act. (19) The Severance court held that private-public property boundary demarcations follow the common law's definition, which only considers shifts in the shoreline through gradual processes like erosion and accretion. (20) To this end, the court reasoned, "avulsive events such as storms and hurricanes that drastically alter preexisting littoral boundaries do not have the effect of allowing a public use easement to migrate onto previously unencumbered property." (21) Although the court's ruling in Severance limited the application of rolling easements in Texas, rolling easements, as established under the Texas Open Beaches Act, remain a viable tool to address sea level rise in US coastal communities. Considering that more than 40 percent of Americans currently live in coastal counties22 and extreme weather events are projected to become even more frequent in the future due to climate change, incorporation of rolling easements into coastal management plans will become increasingly necessary to protect public safety, minimize future recovery costs, and preserve coastal environments and economies.

This Article will first evaluate the viability of rolling easements as a tool to combat rising sea levels in US coastal communities. Then, it will propose how coastal municipalities can use the rolling easement doctrine established under the Texas Open Beaches Act as a model for balancing dual responsibilities of protecting private property rights and safeguarding public access to coastal waters. Finally, it will consider applications of rolling easements to states positioned along the Atlantic and Pacific coasts, namely in New Jersey and California, where sea levels are expected to rise considerably in upcoming decades and profoundly affect the lives of tens of millions of Americans.

1. VIABILITY OF ROLLING EASEMENTS AS A MITIGATION TOOL TO COMBAT SEA LEVEL RISE

   1. Authority for Rolling Easements

      Rolling easement provisions can be streamlined relatively seamlessly into state statutes, zoning ordinances, or environmental regulations that have similar objectives. State legislatures have plenary authority to regulate land use and activities in intertidal zones including prohibiting or discouraging new shore protection structures. (23) For example, South Carolina prohibits new seawalls along the Atlantic Ocean, (24) while Texas discourages all structures that interfere with coastal processes along the Gulf of Mexico. (25) States also commonly adopt permit programs for shoreline protection as part of their wetlands, mudflat, or beach programs. (26) In Texas, rolling easements are directly incorporated into all executory contracts where a purchaser "expressly acknowledges that he has acquired an easement up to the vegetation line and that structures seaward of the vegetation line or that become seaward as a result of natural processes are subject to a lawsuit by the state to remove such structures." (27) For example, the following warning is listed for every transaction in Texas conveying land positioned seaward of an Intracoastal Waterway:

      If the property is in close proximity to a beach fronting the Gulf of Mexico, the purchaser is hereby advised that the public has acquired a right of use or an easement to or over the area of any public beach by prescription, dedication, or presumption, or has retained a right by virtue of a continuous right in the public since time immemorial, as recognized in law and custom. (28) Additionally, zoning ordinances in coastal and coastal overlay zones may include restrictions on shore protection and armoring. (29) In Virginia, zoning ordinances "provide for ... the safety from flood ... for the preservation of agricultural and forest lands and other lands of significance for the protection of the natural environment." (30) Here, localities can create zones regulating "the use of land, buildings, structures, and other premises for agricultural, business, industrial, residential, flood plain, and other specific uses ... and provide adequate provisions for drainage and flood control." (31) Floodplain and wetland regulations also discourage development to avoid harm to beaches, mudflats, or vegetated wetlands and to allow natural migration inland. (32) Such regulations operate in concert with zoning practices to protect low, dry lands that gradually become wetlands. (33)

      The extent of armoring restrictions varies by jurisdiction. In northeastern (MA, RI, NJ, ME), south-Atlantic (NC, SC), and western states (OR, WA) and in Texas, hard armoring (e.g., seawalls, jetties, and bulkheads) is prohibited within dunes and in some estuaries, while soft armoring (e.g., beach renourishment and grade elevation) is allowed so long as these practices offset erosion without impairing beach access. (34) Given California's dedication to providing public beach access and promoting ecological stability, some may find it surprising that California's Coastal Act permits hard armoring. However, such armoring is allowed under the Act to protect existing structures or structures in danger from erosion or in circumstances where there are no other environmentally less damaging, feasible alternatives. (35) It should be noted that a state's public trust rights always trump armoring rights. In cases where armoring privileges are overly broad and therefore violate public trust principles by encroaching on public lands below the "ordinary high-water mark," (36) the...