|“It’s not designed to persuade people to not hold back the sea. We’re just trying to provide options to help people decide what is most appropriate for their specific situation.”|
|James G. Titus,
U.S. Environmental Protection Agency
As sea levels rise, many coastal resource managers will face decisions about which waterfront areas to protect and which wetlands, beaches, and barrier islands to allow to migrate inland. A technical primer was recently published to introduce managers to more than a dozen approaches to implementing “rolling easements,” which allow nature to take its course.
“This publication provides a summary of the tools that could be adopted and their possible rationales, to help encourage a thorough consideration of the many available options for responding to rising sea level,” says the document’s author, James G. Titus, who is the project manager for sea level rise in the Climate Change Division of the U.S. Environmental Protection Agency (EPA).
Rolling Easements, which was recently published by the EPA’s Climate Ready Estuaries program, discusses what rolling easements can accomplish, legal approaches for creating them, advantages and disadvantages, where to apply them, and how to manage them.
“If we don’t want to be locked into holding back the sea everywhere,” Titus says, “we have to first decide where it makes sense to protect the land from the rising sea, and where we give the land back to nature. The next step is to look at all the options for making sure we actually do give land back to the rising sea—and that’s where rolling easements fit in.”
In many coastal areas, rising sea levels are already inundating low-lying lands, eroding beaches, and exacerbating coastal flooding. As sea level continues to rise over the next century, these problems will worsen and more areas will be affected.
Governments and landowners often try to keep the sea from inundating developed areas by adding sand to eroding beaches or erecting dikes, seawalls, revetments, and other shore protection structures.
In undeveloped areas, however, landowners have generally allowed wetlands, beaches, and barrier islands to migrate inland as they adjust naturally to rising water levels.
It is primarily on undeveloped lands where development is possible and on barrier islands where beach nourishment is not economically justified that coastal managers may want to look at the options outlined in Rolling Easements, Titus says.
“Defending every coastal property from the rising sea would prevent wetlands from migrating inland, expose large numbers of people to the hazard of living below sea level, and often cost more than what the property being protected is worth,” he says.
By its broadest definition, Titus says, rolling easements are any institutional arrangement that takes away the landowner’s expectation of holding back the sea and “provides the assurance that the shore or public access along the shore can migrate inland instead of being squeezed between an advancing sea and a fixed property line or physical structure.”
In some cases, a rolling easement would require the removal of pre-existing structures seaward of a specific migrating line.
Titus says rolling easements make no effort to restrict land use but prevent shore protection of some coastal lands, either through regulation or by owners voluntarily transferring any rights to hold back the sea to a person, organization, or agency that will allow nature to take its course.
Although the regulatory approach is the more common way to prevent shore protection, Titus says the nonregulatory, or “property rights,” option of having private land trusts, government agencies, and even private citizens obtain rolling easements from property owners may sometimes work better.
“An owner who has voluntarily engaged in the creation of the rolling easement is more likely to perceive the arrangement as fair than a landowner subjected to government regulation,” he says.
Options and Approaches
The primer examines different options for managing sea level rise, looks at 14 different legal approaches to rolling easements, and differentiates opportunities for legislatures, regulators, land trusts, developers, and individual landowners.
Options for every shoreline environment from wetlands to barrier islands are addressed, as are the different objectives that using rolling easements as a management tool could achieve. The document also explains the varying public and private property rights along the shore.
Regulations and Property Rights
Specific regulatory options are examined in the primer, including local zoning that restricts shore protection, as well as state coastal or wetland program regulations that prohibit shore protection or require removal of structures standing on the beach or in the wetlands.
Regulations can also take the form of permit conditions that require public access in return for various types of building permits.
A number of “property rights” approaches are addressed, including affirmative easements that provide the public with the right to walk along the dry beach even if the beach migrates inland, conservation easements that prevent landowners from building shore protection structures or elevating the grades of their land, and restrictive covenants that bind property owners into an agreement to avoid shore protection and allow public access along the shore to migrate inland.
Chapters look at some of the issues a land trust may face in managing a rolling easement and discuss practical issues that may arise with any type of rolling easement.
“Before we seriously consider rolling easements, we have to have decided that retreat is the way we want to go for a particular area, rather than holding back the sea,” Titus says. “When we talk about rolling easements, we are not talking about Manhattan or Miami, or the places where most people live. Those areas are sure to be protected. But we may be talking about some land nearby.”
He adds, “I hope this primer can help people consider the full range of options for anticipating the consequences of rising sea level. It’s not designed to persuade people to not hold back the sea. We’re just trying to provide options to help people decide what is most appropriate for their specific situation.”
To view Rolling Easements, go to www.epa.gov/cre/downloads/rollingeasementsprimer.pdf. For more information, contact James Titus at (202) 343-9307 or firstname.lastname@example.org.