Rising Seas, Coastal Erosion, and the Takings Clause:
How to Save Wetlands and Beaches
Without Hurting Property Owners
By James G. Titus
Rising Seas, Coastal Erosion, and the Takings Clause: How to Save Wetlands and Beaches Without Hurting Property Owners (2.2M pdf) was originally published in the Maryland Law Review (1998), Volume 57, 1279-1399. From the report's Introduction section, Shall We Give Away the Shore? and Organization and Summary are available below online.
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Rising Seas, Coastal Erosion, and the Takings Clause:
How to Save Wetlands and Beaches Without Hurting Property Owners
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 three hundred miles of tidal shoreline have been armored in the last 20 years. This trend will accelerate if the greenhouse effect increases the rate of sea level rise.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. 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 80 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]. Where once a fisherman could walk on the public beach, there is no beach; and to walk along the bulkheads that replaced it, the fisherman must trespass in the backyards of the property owners who built them and appropriated for themselves the shore that once belonged to the public. Unlike the ocean resorts, where every block has a road leading to the beach, bayfront developments usually provide no access. Environmental regulations provide only temporary relief, having been designed as if shorelines and sea level are stable. Effective strategies for permanently keeping our natural shores apply to the open ocean but not the hidden bay.
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. Yet policy makers have not addressed the loss of natural shores along the hidden coast. The rising sea has placed riparian owners' right to protect their homes on a collision course with the public's ownership of the intertidal wetlands and beaches.
Should we 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; but coastal states have no process for deciding how much of the publicly owned shore should remains in its natural condition, or even in public hands.
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