June 26, 2012
Contact: Ken or Kate Gooderham, ASBPA executive directors -- (239) 489-2616
Harry Simmons, ASBPA president -- (910) 200-7867
Sea level and the law
Public interests vs. private property in play when coastlines undergo change
Much of the discussion surrounding sea level rise has focused on the practical – is it happening, what’s causing it, how much rise can we expect, what needs to be done about it? This has kept the scientists and policymakers busy, and given the pundits and pols plenty to talk about.
Well, it appears, the lawyers will soon have their turn. As is often the case when the law is involved, the consequences could be widespread in their own unique way.
First, there’s the question of property rights – what happens if rising tides submerge the public shore and encroach on private property? This has always been an issue in the fight against erosion, and it should accelerate if the level of the seas picks up its pace of rise.
One spin-off from that could be cause and blame. If an inlet could be identified as the cause of downdrift erosion, those impacted could seek relief either from what caused the inlet (say, if it was dredging or otherwise man-made) or what was being done to keep it open (again, through dredging or structures such as jetties). If the problem, however, is melting ice caps, blame become a lot more difficult to assign.
Then there’s the matter of public access to the coast and its open waters. If the law now states that beaches are public, what happens when that beach moves a hundred feet landward onto someone’s private property? Who wins… public interest or private property?
A homeowner’s lawsuit in the wake of Hurricane Rita has engaged that battle in Texas courts, putting the state’s Open Beaches Act and potential future beach restoration work at risk… and the final resolution of this fight could reverberate around the country. If the public wins, private property rights along the coast will take a hit. If the property owners win, the public could lose access to its coast – or be forced to pay a high price in compensation to lost private land.
Finally, the impact of rising tides on land use will exacerbate an already contentious conversation – and could even tiptoe into the states’ rights debate. Right now, coastal land use laws are a patchwork of regulations that vary state to state, driven by local custom and conditions as well as legal tradition. But if water starts pushing landward, communities (and, eventually, states) will be forced to take a stronger role in regulating what can be done where along the shores (or risk paying for the consequences).
From there, it’s not too far-fetched to envision a scenario where more federal oversight is urged to achieve a more uniform coastal land use policy (riding on the back of federal flood insurance and disaster relief demands) – which then pits state control against federal costs, a familiar legal quagmire.
If sea level is rising, the laws it impacts will soon follow. Indeed, the legal encroachment has already begun, and some might argue that the erosion of private (or public, depending on the instance) rights has also seen an uptick. Coastal advocates and communities would be wise to open the debate on the legal ramifications sooner rather than later – to help ensure that the law leads rather than follows, to keep the science of these issues on an equal footing with the legal debate, and to better plan for the impact that change could have on our coasts in terms of planning, policy, and the always tenuous balance between public and private concerns.
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ABOUT ASBPA: Founded in 1926, the ASBPA promotes the integration of science, policies and actions that maintain, protect and enhance the coasts of America. For more information on ASBPA, go to www.asbpa.org, facebook or www.twitter.com/asbpa.