Erosion Control Easements

Case Study:


Overview:

photo of coast

This model site plan developed by NOAA's Coastal Services Center demonstrates how establishing natural buffers along the shoreline can help protect development from future erosion and preserve the ecological function of the shoreline.


Erosion control easements, a type of conservation easement, are a legal agreement between a landowner and a land trust or government agency that restricts development in erosion-prone areas. Unlike land acquisition, easements do not limit other land uses and still enable the property to remain in private ownership. Erosion control easements can be placed on the entire property or just along the property's shoreline. An easement can be written to prohibit all types of development or designed to restrict the size or density of structures (e.g., only allow small, portable structures near the shore). Easements can also be used to prevent shoreline hardening or specify which types of shoreline stabilization can be used. Finally, easements can prohibit the removal or cutting of natural vegetation within the shoreline buffer and/or restrict any other land use or activity that may either contribute to erosion or impair natural shoreline processes.

Easements are typically placed on property in perpetuity and passed on to the new land owner. Some easements, however, can be written to expire after a certain period of time such as 25 or 50 years. Most easements are placed on individual properties although easements can also be placed on larger waterfront subdivisions or coordinated at a regional scale so that all property owners within a drift cell or embayment have the same easement on their land. Easements can be donated or sold. Land owners that choose to donate a conservation easement often receive a federal property tax break for placing the easement on their property.

Due to the voluntary nature of erosion control easements, they are often more appealing than other more regulatory approaches to shoreline erosion control such as zoning overlays. Landowners have the flexibility to choose how restrictive they would like the easement to be. However, for that reason, easements are often not as effective as other, more regulatory approaches such as establishing setback lines, zoning overlays, or regulating the type of development or erosion control structure allowed because overall voluntary participation can be low. To increase the effectiveness of erosion control easements, the approach usually has be to combined with a strong education and outreach campaign to make sure property owners are aware of erosion control easements and understand their benefits.

Rolling Easements
Rolling easements are a special type of easement placed along the shoreline to prevent property owners from holding back the sea but allow any other type of use and activity on the land. As the sea advances, the easement automatically moves or "rolls" landward. Because shoreline stabilization structures cannot be erected, sediment transport remains undisturbed and wetlands and other important tidal habitat can migrate naturally. Similarly, there will always be dry or intertidal land for the public to walk along, preserving lateral public access to the shore.

Unlike setbacks, which prohibit development near the shore and can often result in "takings" claims if a property is deemed undevelopable due to the setback line, rolling easements place no restrictions on development. They allow the landowner to build anywhere on their property with the understanding that they will not be able to prevent shoreline erosion by armoring the shore, or the public from walking along the shore—no matter how close the shoreline gets to their structure. If erosion threatens the structure, the owner will have to relocate the building or allow it to succumb to the encroaching sea.

Under the Public Trust Doctrine, the public has the right to access tidal lands for hunting, fishing and recreation. Therefore, for most states, tidal land is public land. Even for "low-tide" states where private ownership is permitted up to the low-tide line, the public still has the right to access the intertidal zone. For the purposes of a rolling easement, eventually, as the shore continues to erode, the structure that was once on private property, will be sitting on public land. At this point, the private owner could decide to relocate the structure inland. Alternately, the property owner could allow the structure to remain until it becomes unsafe and pay rent to the state for use of public land.

Because there are no restrictions to land use, rolling easements have minimal impacts on property values, usually reducing property values by one percent or less (Titus 1998). "Takings" claims are also limited because it could be decades or more before erosion impacts are felt. In the meantime, the landowner would have full use of their property. To circumvent any potential "takings" claim, the government could purchase the easement from the property owner. More detailed examples about the cost advantages of rolling easements can be found in Titus (1998).

In addition, because landowners are aware that their structure may one day need to be relocated, rolling easements, like managed retreat policies, can encourage the building of smaller, more mobile structures that can be relocated easily.

Rolling easements can even be used where the shoreline is hardened to allow for continued lateral public access to the shore. As the beach disappears at the base of the hard stabilization structure, the rolling easement steps over the structure, enabling the public to walk along the landward side of the armored shore—an area that used to be private property. Without a rolling easement to enable public access, once the sea advances to the toe of the bulkhead or riprap, the public would be barred from walking along the shore since the dry upland falls into private ownership. The rising water levels would have drowned all access to tidal beach on public trust land.

Although rolling easements, like erosion control easements, can be useful shoreline management tools by themselves, and an effective way to implement managed retreat policies, they are typically more effective if used in coordination with other approaches such as setbacks and other building restrictions along the shore.

For a more in-depth discussion on how rolling easements can be used to preserve public access along the shore and enable the natural migration of wetlands see the 1998 article in the Maryland Law Review by James Titus, "Rising Seas, Coastal Erosion, and the Takings Clause: How to Save Wetlands and Beaches Without Hurting Property Owners". The article describes how rolling easements work as the shore erodes. Diagrams are also used to support the discussion. Model scenarios demonstrate the cost-savings for rolling easements verses other conventional shoreline management solutions. Finally, mechanisms to implement rolling easements are also discussed.

Benefits: Helps minimize activities that could enhance erosion problems without prohibiting development altogether. Often property owners can receive tax benefits for placing a conservation easement on their property. Helps maintain natural shoreline processes. Minimal "takings" issues compared to setbacks. Can promote construction of small, more easily mobile structures near the shore. Rolling easements do not require as much scientific data as some other shoreline management approaches such as setbacks. Rolling easements are typically less costly than setbacks as well.

Drawbacks: Not as effective for shorelines that are already significantly developed. Property owners may be hesitant to place easements on their property because the restrictions may decrease the resale value of their property. Property boundaries typically do not align with drift cell boundaries or other environmentally relevant scales. Therefore, placing an easement along the shoreline to prohibit shoreline armoring or limit development in one area but not for another site in the same drift cell could exacerbate erosion rates down drift from the hardened/developed shoreline, negating any benefits a conservation easement could have. Enforcing easements could be difficult.


Case Studies:

Worcester County, Maryland Implements Conservation Easement Strategy to Protect Coastal Property

Worcester County, Maryland, along Maryland's Eastern Shore, created a plan in 1997 to protect important undeveloped land fronting Chincoteague Bay. The plan, which established the Worcester County Coastal Bays Rural Legacy Area, calls for a combination of conservation easements and fee simple purchases to protect 15,400 acres of waterfront land and 16 miles of undeveloped shoreline from encroaching development. The county selected the Chincoteague Bay area to focus on because it is the county's most pristine waterbody. The county also recognized the value of protecting the shoreline from development and hardening to allow for the natural migration of wetlands. In addition, many landowners in the area were interested in the program.

In the beginning, the county worked with a local land trust to reach out to the landowners within the Rural Legacy Area through mailings, face-to-face meetings, and phone calls. The County continues to reach out to landowners not participating in the program through general meetings and phone calls to discuss the different programs available for land protection. To help promote the program, Worcester County has also developed a brochure about the program which includes quotes from participating landowners about why they chose to join the program.

As of 2005, the county secured $7.25 million from the Maryland Rural Legacy Program and contributed $400,000 in local funds to purchase conservation easements for 6,000 acres of land (representing eight miles of shoreline) within the Worcester County Bays Rural Legacy Area. The county continues to work with land owners within the Coastal Bays Rural Legacy Area to encourage others to place conservation easements on their property as well.

South Carolina's Rolling Easements

In 1984, the South Carolina Coastal Council commissioned a Blue Ribbon Committee to address coastal erosion and sea level rise. Stemming from the Committee's report, the South Carolina legislature passed the South Carolina Beach Front Management Act of 1988 which established a setback line for ocean-front property of 40 times the annual erosion rate. When the setback line was drawn, some property lacked a sufficient developable area after the setback or ended up being entirely seaward of the setback line.

David Lucas, who owned property that was now "undevelopable" due to the new setback line, sued the Coastal Council for compensation. The trial court for the landmark shoreline management case, Lucas vs. the South Carolina Coastal Council found that the setback line resulted in a "takings." The state had to compensate Lucas for the lost use of his property.

The Lucas decision and Hurricane Hugo prompted the legislature to amend the Beach Front Management Act in 1990 to allow for a rolling easement on any lot seaward of the setback line to avoid the need for "takings" compensations. As a result, lots seaward of the setback line can be developed but no hard shoreline stabilization structures can be used to protect the property. However, some "soft" erosion control methods can be used including beach renourishment, building up artificial dunes, and temporarily placing small sandbags around a home. If homes are damaged or destroyed during a storm, they are allowed to rebuild as long as high ground still exists. If the lot is submerged during high tide, rebuilding/repairing is no longer allowed. (Source: Titus, 1998)