A Bay-side Rolling Easement to Insure Wetland Migration

small wood boat on shore near wetlands

Could a bay-side rolling easement, roughly modeled on the rolling public access easement in the TOBA, be instituted or the purpose of preserving inundatable lands? There is not likely enough political will in any of the Gulf states to put in place the same strict provisions of practically no development in the easement zone that are found in the TOBA, but a rolling easement that would only prohibit permanent, bulkheaded development over inundatable lands might be more acceptable.

The rolling easement is perhaps the simplest way to comply with the public trust doctrine and the law of erosion while ensuring a modicum of fairness for coastal landowners. The concept would need considerable study and discussion before it could be implemented. Our purpose here is to put the concept on the table for discussion. As awareness of the impacts of sea level rise on coastal wetlands grows, this concept will no doubt receive greater attention.

Benefits

The principal benefit of the rolling easement as compared to fixed setbacks is that they do not deprive property holders of all economic use of their property. A prohibition against bulkheading is certainly a restriction, but it does not deny all economic use, which is main argument for a takings ruling.

A second benefit is that it is not necessary to draw as careful of a line to establish a buffer for the easement as it is for a setback prohibiting all development. Lines obviously have to be drawn in both cases, but the line for the rolling easement could be much farther inland because development per se is not being prohibited outright.

Key Features

The most important feature of this kind of easement is that landowners would not be deprived of the productive use of their land unless and until sea level rises enough to inundate their land with daily tides. To be effective, the easement would have to prohibit holding back the sea through bulkheads and sea walls. A well-designed rolling easement could avoid the issue of constitutional takings, because landowners would not be denied use of their lands for very long periods, and they would have ample notification that they would not have this use in perpetuity.

Titus (1998, 2000) suggests a rolling easement could be strengthened by compensating landowners for the easement. This compensation would not be trivial, but it would be a minor expense compared to the cost of legal battles that would ensue if governments deferred action until the crisis stage of inundation. The rolling easement would be based on the present discounted value of the land, pennies on the dollar compared to the future values. The compensation would further insure against takings litigations.

 

 

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