This primer focuses on rolling easements. If it is unrealistic to prevent development of low-lying coastal lands that could eventually be submerged by a rising sea, an alternative is to allow development with the conscious recognition that land will be abandoned if and when the sea rises enough to submerge it. This approach combines the strengths of the other two approaches:

• From now until the land is threatened, valuable coastal land can be put to its highest use, as with the laissez-fare approach;
• Once the land is threatened, it will convert to wetland or beach as if it had never been developed.

Rolling easements enable ecosystems to migrate inland and allow society to avoid the costs and hazards from protecting low lands from a rising sea. Like laissez-faire, rolling easements are generally based on the assumption that private investors in a free market could reasonably manage the risks of sea level rise. But unlike laissez-faire, rolling easements are also based on the assumption that to incorporate the risk of sea level rise, the market needs some clearly defined rules about which lands may be protected. Otherwise, uncertainty about future government activities (e.g. subsidizing or regulating shore protection) can overwhelm an investor’s ability to manage the risk of sea level rise.

The following chapters examine many options for ensuring that wetlands, beaches, or barrier islands migrate inland. But the question about which—if any—of these options should be adopted is beyond our scope. We merely provide a summary of the tools that could be adopted and their possible rationales, to help encourage a thorough consideration. We have not excluded options merely because they have not been tested or would require existing policies to change. Because modern civilization has not faced a rapid rise in sea level, sometimes the best response may be to do something new. The mention of a given option in this report does not constitute endorsement for implementing the option anywhere, much less in a particular location. Although the federal government could—in theory—adopt a rolling easement policy, this primer focuses on options for state and local government and the private sector. [16]

A rolling easement would generally prohibit shore protection and require removal of pre-existing structures seaward of a specific migrating shoreline such as the dune vegetation line, mean high water, or the upper boundary of tidal wetlands. This primer uses the term “rolling design boundary” for the shoreline that defines where the restrictions of a particular rolling easement apply. “Submergence” means dry land becoming wetland or open water, whether through actual submergence or shoreline erosion. The term “submerge date” refers to the day the rolling design boundary migrates inland of the main building on a parcel of land subject to a rolling easement. [17]

The next two chapters look at the purpose of a rolling easement and how it could work. Chapter 2 provides an overall picture for why rolling easements may be appropriate in areas where it is important to allow beaches, wetlands, developed barrier islands, and access along the shore to migrate inland. The chapter also includes a brief overview of the legal boundaries that define private land ownership or public access along the shore. In some cases, legal boundaries migrate as the shoreline changes; so public rights along the shore remain the same, albeit inland. But in other states, the inland boundary of public access is fixed as the shore erodes.  Shoreline erosion can leave the only means of (legal) pedestrian access seaward of where ocean waves regularly wash and even break at high tide.

Chapter 3 presents specific ways to put rolling easements into practice. Overall, a rolling easement is a legally enforceable expectation that the shore or human access along the shore can migrate inland instead of being squeezed between an advancing sea and a fixed property line or physical structure. The “rolling easement holder” could be the government agency whose regulations prohibit shore protection, or the person, land trust, or government agency who obtains the property rights embodied in a rolling easement.

The term “rolling easement” refers to a broad collection of legal options, many of which do not involve easements. Usually, a rolling easement is either (a) a regulation that prohibits shore protection or (b) a property right to ensure that wetlands, beaches, barrier islands, or access along the shore moves inland with the natural retreat of the shore. Although the regulatory approach is the more common way to prevent shore protection, the non-regulatory approach may sometimes work better. Private land trusts, government agencies, and (for some approaches) even private citizens can buy (or secure donations of) rolling easements from property owners. 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.

Regulatory rolling easements  include:

• Local zoning that restricts shore protection;
• Regulations that prohibit shore protection by state coastal or wetland programs, or require removal of structures standing on the beach or in the wetlands;
• Permit conditions that require public access along the dry beach in return for a building permit; and
• Permit conditions that require public access along the inland side of a new shore protection structure, in return for a permit to build such a structure.

The property rights approach includes:

• 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 erecting shore protection structures or elevating the grades of their land;
• Restrictive covenants in which owners are mutually bound to avoid shore protection and allow access along the shore to migrate inland;
• Future interests that transfer ownership of land whenever the sea rises to a particular level;
• Migrating (ambulatory) property lines, which move as the shore erodes, enabling waterfront parcels to migrate inland so that inherently waterfront activities can continue.
• Legislative or judicial revisions and clarifications regarding the inland migration of public access along the shore and the rights of landowners to hold back the sea; and
• Transferable development rights—especially along migrating barrier islands—that provide those who yield land to the rising sea the right to build on land nearby.

The regulatory and property rights approaches are not mutually exclusive; a land trust could acquire a rolling easement on lands where regulations currently prohibit shore protection, to ensure that future changes in public policy do not put ecosystem migration in jeopardy.

Usually a rolling easement would involve wetlands, beaches, and open water migrating onto areas that are dry land today. In some cases, however, islands and peninsulas could migrate onto areas that are open water today. Thus a comprehensive rolling easement policy may have to manage newly created land, as well as the loss of land.

The ability to implement rolling easements depends on state law, which varies considerably, as we see in Chapter 4. In some states, local governments have broad powers, while in other states their authority is limited. In some states, local governments can obtain a conservation easement as a condition for a building permit, or through eminent domain. In other states, local governments can only obtain such an easement from a donor or willing seller. Even if a government has the regulatory authority to prohibit shore protection, doing so might be a “taking of private property,” which would require compensation under the U.S. Constitution. Chapter 4 does not evaluate the “takings question” in detail, beyond pointing out that the most important question would often be whether coastal property owners have a right to hold back the sea. This question has not been settled in any coastal state.  A key reason for government agencies and land trusts to acquire a rolling easement is that doing so would resolve the legal uncertainty about whether a particular landowner has the right to shore protection. Even in states where a rolling easement regulation or statute does take away an existing property right, the requirements would have a more modest impact on landowners (and hence require less compensation) if they were enacted long before landowners would have otherwise attempted to hold back the sea.

The greatest obstacle to implementing a planned retreat from the coast is that few landowners choose to give up their homes or businesses to a rising sea (see Photos 1 to 4), unless the means of defending their land costs more than their property is worth. Therefore, at first glance, it seems implausible that landowners would agree to eventually allow their lands to become submerged, especially along estuarine shores where holding back the sea is likely to be cost-effective. But as Chapter 5 shows, for the typical parcel of coastal land, a rolling easement would decrease the property value only slightly, because the eventual submergence is so far in the future. Therefore, a relatively modest near-term inducement can lead a reasonable farmer or developer to agree to a rolling easement—especially if the landowner is more skeptical than the land trust about a large rise in sea level and hence views the eventual submergence as a distant possibility. If a rolling easement is part of the permit condition, for example, approval for subdivision of a large parcel of land may be more than an adequate inducement. Cash payments amounting to less than 5 percent of the land’s value may be adequate for farms whose owners have no intention of developing the land.

Photos 1 to 4. Few landowners choose to give up their homes to a rising sea. Top left and right: A home on pilings in front of shore protected by a stone revetment (left) and two homes protected by seawalls (right) on land extending into the Gulf of Mexico, along Bluewater Drive north of Surfside, Texas (May 2003). Bottom left: a home on pilings on an eroding beach at Kitty Hawk, North Carolina (October 2002). Bottom right: homes behind a bulkhead whose toe is protected by a stone revetment at North Beach, Maryland (September 2008). Photo source: ©James G. Titus, used by permission.

In a small number of cases, a landowner may actually benefit by donating a rolling easement.   A conservation easement sometimes has tax benefits that more than offset its cost to the landowner. But land trusts are not necessarily interested in managing every conservation easement that a landowner might wish to donate. If a rolling easement enticed a land trust to accept a conservation easement that it would otherwise not accept, then the rolling easement could economically benefit the donating landowner.

Chapters 6–9 discuss some of the key considerations for those designing a rolling easement. Chapter 6 examines the restrictions: The “rolling design boundary” can be based on whatever shoreline most closely corresponds to the particular resources the rolling easement is meant to preserve. Along a beach, for example, the rolling design boundary is often the dune vegetation line, which separates the dry sand beach from the dunes. A rolling easement can specify that the public will have access to the beach and that homes encroaching onto the beach as a result of shoreline erosion will be removed within a defined period of time. Chapter 7 looks at ways to identify the lands where a rolling easement would be most useful.  

The final two chapters discuss some of the issues related to managing a rolling easement once it is created. Chapter 8 examines what the land trust or government agency would have to do between now and sometime in the future when a given parcel of land will be threatened. The chapter focuses on inspection, enforcement, and possible efforts by property owners to have a rolling easement invalidated.

Chapter 9 looks at the endgame: management of the rolling easement from the time when submergence of a parcel becomes imminent until it is finally submerged. The ultimate cost of yielding land and home to the sea can be minimized if the rolling easement leads landowners to gradually alter what they do when the eventual submergence is still a few decades away, and continue to adjust how they use the land and structures as the submerge date approaches (Section 9.1).  Whether the owner actually prepares, however, will dependlargely on what the rolling easement holder does (9.2). Because people will not always prepare optimally for the loss of a home to the rising sea, some form of relocation assistance may also be necessary (9.3).

Internal Revenue Service (IRS) regulations require that restrictions from tax-deductible conservation easements apply in perpetuity. The restrictions in a rolling easement would also be in perpetuity, but unlike the standard conservation easement, the entire purpose of a rolling easement is to prepare for the day when the easement is no longer relevant. If the landowner complies with the rolling easement, then eventually the land will convert to tidal wetlands, beaches, or open water. This conversion will subject the land to existing wetland protection rules and (in most cases) eventually transfer title of the land from the owner to the state. At that point, the mission of the rolling easement will be accomplished. A rolling easement can set ground rules for this transition.

We hope that this exposition does not leave the impression that rolling easements are easy to enact or enforce. A large rise in sea level would eventually require communities to either hold back the sea or move inland. Neither of these options seems feasible today, given what we know about the forces of nature and human nature. Yet those are the only logical possibilities. If some lands must give way to the rising sea, the economic, environmental, and human consequences could be much less if the abandonment occurs according to a plan rather than unexpectedly.

The merits of planning do not guarantee, however, that the plan will be carried out everywhere that lands are subject to a rolling easement. People rarely give up a home voluntarily, even when they have notice.[18] Governments may relax rolling easement regulations instead of preventing shore protection, especially if the public sympathizes more with the waterfront landowners losing their homes than with the environmental resources threatened by shore protection. Courts are often skeptical about previous generations’ efforts to use land deed restrictions to limit what people can do today with their land. [19] Even restrictions recorded onto a land deed in return for a fair payment may eventually be overturned by a court, especially if the original purpose of the restrictions no longerseems to benefit society. Yet some legal agreements and regulations continue to have force for a long time, when succeeding generations continue to find the rules reasonable. The principle that property boundaries move as the shore erodes, for example, is more than 500 years old.[20]

Thus an underlying premise of this report is that some rolling easements will be enforced, some will be modified, and some will be invalidated. Rolling easements would generally involve permanent restrictions. But the overall objective of a rolling easement policy need not be to force future generations to give up homes to a rising sea against their better judgment. It is simply to ensure that they will have the option to retreat or hold back the sea as they see fit in the circumstances they face, instead of having their options limited by the decisions that our generation makes today.