Rising Seas - Text Version

• Bulkheads and any filling of privately owned land are prohibited except to the extent necessary to keep the property useful, e.g., to build a driveway.
• No one needs to abandon a house if it is safe and on private property. Houses on high marsh would probably be safe.144 Those in front of an ocean dune would often be unsafe or would interfere with preexisting easements.
• During the first decade a house is on public land, no one is forced out of the house, but the state charges rent.

79. See MARINE LAW INST., MAINE STATE PLANNING OFFICE & MAINE GEOLOGICAL SURVEY, ANTICIPATORY PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE 5-5, 5-6 (1994) (100 year setback for new construction); id. at 5-9 (removal of a structure if a wetland encroaches up to the structure for six months or more); id. at 5-8 (prohibition of new seawalls).

80. A notable exception is Mississippi, where the barrier islands are undeveloped and the primary beach resorts are along the bays behind the barrier islands. There, the public has access to most of the bay shoreline. See U.S. ARMY CORPS OF ENG'RS, supra note 7, at 43 (showing that Corps of Engineers projects have placed 5.7 million cubic yards of sand along Mississippi shores); Laura S. Howorth & Sondra Simpson, Sea Level Rise: Policy Implications for the Mississippi Coast, in LONG TERM IMPLICATIONS OF SEA LEVEL CHANGE FOR THE MISSISSIPPI AND ALABAMA COASTLINES 18, 20 (David D. Burrage ed., 1990) (noting that most of Mississippi's beaches are "man-made").

81. Compare Robert M. Sorensen et al., Control of Erosion, Inundation and Salinity Intrusion Caused by Sea Level Rise, in GREENHOUSE EFFECT AND SEA LEVEL RISE, supra note 35, at 179, 188 (noting that seawalls used along shores with large waves can cost $3000 per foot or more) with id. at 191-92, 195-97 (stating that bulkheads and revetments used along inland waters cost about $125-$300 per foot). Bulkheads are vertical structures that are usually made of wood that can stop erosion in calm waters but not in the face of substantial waves. Id. at 195-97. Revetments are sloped structures generally made of rock that can withstand greater wave forces. Id. at 191-92. Seawalls are vertical walls that can withstand ocean waves. Id. at 195. Along Chesapeake Bay, revetments comprise the vast majority of new erosion control structures. See WETLANDS ADMIN., STATE OF MD., REPORT ON TIDAL WETLANDS ACTIVITIES AND LICENSES FOR FISCAL YEAR 1993, at 3 (1993).

82. See supra note 5 and accompanying text. The lack of perpendicular access to the shore and the lack of public concern over the status of estuarine shores are probably mutually reinforcing. See supra note 5 and accompanying text.

83. ICF Kaiser, supra note 68, at 3. Although the gradual armoring of estuarine shores is self-evident along eroding shores developed more than 20 years ago, no one has conducted a comprehensive assessment of estuarine shoreline armoring. See id. at 1. An EPA contractor that contacted each of the state coastal zone offices found that two-thirds of the states had no data. Id. at 2-3. Nevertheless, the state officials were able to provide the following estimates of shoreline armoring: California (San Francisco Bay)--66% of the shoreline; Mississippi--42.4 miles of the shoreline; North Carolina--no data, but armoring is a standard practice; Rhode Island--very little armoring of the shoreline; Texas--most privately developed bay shores were armored; Virginia part of Chesapeake Bay--19% of the 383 miles of shoreline was armored, and armoring was increasing by about 1.2 miles per year; Washington State--30% of Puget Sound's shoreline was armored, and 4-5 miles of armoring was added each year. Id. at 3-5 app. 1-7; see also infra Appendix 2 (showing that permits were issued for armoring nearly 330 miles of the Maryland shoreline during 1978-1994).

84. See infra notes 406, 416 and accompanying text (explaining that Rhode Island and Maine have prohibited hard structures specifically so that wetlands can migrate inland as sea level rises).

85. Michael Kearney of the University of Maryland believes that shoreline erosion may be responsible for about 50% of the new sediment entering the Bay. Personal Communication with Michael Kearney, Geography Dep't, University of Md. (Feb. 20, 1997). The turbidity caused by sediments decreases the amount of sunlight that is able to penetrate the water to support the photosynthesis of submerged aquatic vegetation. CHESAPEAKE BAY PROGRAM, U.S. ENVTL. PROTECTION AGENCY, THE STATE OF THE CHESAPEAKE BAY 22 (Robert Magnien et al. eds., 1995). The proponents of shoreline hardening argue that natural erosion did not cause excess turbidity several decades ago, because the oysters filtered all the water in the Bay every three days, but that today only enough oysters exist to filter the water every 10 months. See Roger I.E. Newell, Ecological Changes in Chesapeake Bay: Are They the Result of Overharvesting the American Oyster, Crassostrea Virginica?, in UNDERSTANDING THE ESTUARY: ADVANCES IN CHESAPEAKE BAY RESEARCH 536 (Maurice P. Lynch & Elizabeth C. Krome eds., 1988) (estimating a decline of oyster filtration, but not addressing the shoreline hardening issue). Others argue that natural erosion has always existed, that turbidity is a problem of the last few decades, and that increased sedimentation was caused by changes in land use that promoted soil erosion throughout the watershed. Personal Communication with Michael Kearney, supra. Even if shore erosion caused 50% of the new sediment in the Bay, a large fraction of the turbidity is caused by resuspension of sediment from the floor of the Bay and its tributaries. Id.

86. See infra note 402 and accompanying text.

87. See infra Appendix 2. Maryland's high rate of shoreline armoring may result more from the state's unique history than from environmental insensitivity. See Board of Pub. Works v. Larmar Corp., 277 A.2d 427, 431-37 (Md. 1971) (summarizing the history of riparian rights in Maryland). An 1862 statute granted a riparian owner the right to fill navigable waters in Maryland, "limited only to the extent that he could not obstruct navigation." Id. at 436 (citing 1862 Md. Laws ch. 129). Today, riparian owners in Maryland have a statutory right to hold back the sea and reclaim land lost by erosion since the early 1970s. See MD. CODE ANN., ENVIR. § 16-201 (1996). This right is much more favorable to the property owner and less favorable to the environment and the public than the law in most states. See infra Part IV. But by repealing the longstanding right to fill most tidal waters, see Larmar Corp., 277 A.2d at 440, the existing law is much more favorable to the environment and the public interest than the riparian rights that had prevailed for the previous century.

88. See infra notes 394-405 and accompanying text.

89. Similarly, the federal wetland protection program prevents most wetlands from being filled, but it does not enable their migration inland as the sea erodes their outer boundaries. Personal Communication with Gregory Peck, Office of Wetland Protection, U.S. Envtl. Protection Agency (Dec. 1995); see also POTENTIAL EFFECTS OF GLOBAL CLIMATE CHANGE, supra note 17, at 142 ("Section 404 of the Clean Water Act discourages development of existing wetlands, but it does not address development of areas that might one day be necessary for wetland migration.").

90. See infra Appendix 2.

91. See Jesse H. Ausubel, Historical Note, in CARBON DIOXIDE ASSESSMENT COMM., NATIONAL RESEARCH COUNCIL, CHANGING CLIMATE: REPORT OF THE CARBON DIOXIDE ASSESSMENT COMMITTEE 488 (1983) (citing pre-1900 studies about the implications of rising carbon dioxide levels in the atmosphere).

92. See IPCC 1995, supra note 2, at 56-60 (discussing the general effect of greenhouse gases).

93. See id. at 78.

94. Id. at 4.

95. Id. at 6.

96. In the 1980s, EPA sponsored numerous conferences and sent form letters to approximately 50,000 coastal officials, scientists, and active citizens briefly explaining the impact of rising sea level and offering reports on the subject. As a result, property owners may have been constructively notified that the sea is rising.

97. JOHN S. HOFFMAN ET AL., U.S. ENVTL. PROTECTION AGENCY, PROJECTING FUTURE SEA LEVEL RISE: METHODOLOGY, ESTIMATES TO THE YEAR 2100, & RESEARCH NEEDS 38 (2d ed. 1983).

98. EPA 1995, supra note 2, at 139 & n.12.

99. See id. at 135-38 (explaining that estimates of sea level rise have declined primarily because the warming estimates have declined).

100. These estimates are consistent with the nonprobabilistic projections published by an international collaboration of scientists organized under the United Nations. See IPCC 1995, supra note 2, at 381 (estimating that global sea level is likely to rise 20 to 86 cm by the year 2100).

101. See Holding Back the Sea, supra note 32, at 178 (citing various studies of erosion due to sea level rise in the United States).

102. See id. at 187.

103. See id. at 189, 190.

104. Id. at 190. For example, a nationwide computer modeling study found that a 2.8-foot rise in sea level would result in virtually a total loss of the existing wetlands at two sites along Chesapeake Bay, but the net loss would be only 25% if new wetlands were able to form inland. Armentano et al., supra note 37, at 130-39.

105. See NORDSTROM, supra note 5, at 6 (stating that beaches are generally less than 5 meters (16 feet) wide along narrow estuaries with small tidal ranges, and upwards of 20 meters (75 feet) wide along large estuaries with large tidal ranges); supra note 72 and accompanying text (explaining that most shores will erode more than 100 feet with a one- foot rise in sea level).

106. Holding Back the Sea, supra note 32, at 201.

107. See Conference Statement: Changing Climate, Rising Sea Level, and Chesapeake Bay: Questions and Answers 2 (1996) (visited Aug. 21, 1998) <WWW.CLIMATE.ORG/CONFERENCES/CHESAPEAKECONFSTATEMENT.HTML> (summarizing a conference of approximately 140 scientists, property owners, and governmental officials who met to discuss the implications of rising sea level and climate change for Chesapeake Bay).

108. See supra notes 36-37 and accompanying text.

109. Conference Statement, supra note 107, at 2.

110. Id.

111. See supra note 104 (discussing a model that indicates that a 2.8-foot rise in sea level could result in virtually a total loss of the existing wetlands at two sites along the Chesapeake Bay); cf. supra notes 71-73 and accompanying text (discussing a different model that indicates that a one-foot rise in sea level will cause beaches in Maryland to erode 50 to 100 feet).

112. See, e.g., MD. CODE ANN., ENVIR. § 16-201 (1996) (allowing a property owner to hold back the sea and reclaim land lost by erosion); supra note 87 and accompanying text (discussing Maryland's statutes concerning shoreline armoring).

113. See supra notes 48-49 (discussing Maryland's lack of a policy providing access to most of the shores of Chesapeake Bay).

114. See supra notes 74-75 (discussing the process of beach nourishment).

115. See COMMITTEE ON COASTAL EROSION ZONE MANAGEMENT, supra note 78, at 56-57 (explaining the beach nourishment process).

116. See LOUISIANA WETLAND PROTECTION PANEL, supra note 37, at 51 (discussing a relatively new technique that involves periodic spraying of sediment on the marsh to help increase the rate of accretion).

117. See POTENTIAL EFFECTS OF GLOBAL CLIMATE CHANGE, supra note 17, at 141-42 (outlining different approaches to preserve wetland shorelines as sea level rises); James G. Titus, Greenhouse Effect and Coastal Wetland Policy: How Americans Could Abandon an Area the Size of Massachusetts at Minimum Cost, 15 ENVTL. MGMT. 39, 44-46 (1991) [hereinafter Coastal Wetland Policy] (same). For the first legal analysis of these options, see Robert L. Fischman, Global Warming and Property Interests: Preserving Coastal Wetlands as Sea Levels Rise, 19 HOFSTRA L. REV. 565, 570-74 (1991).

118. See 1 OFFICE OF TECH. ASSESSMENT, U.S. CONGRESS, PREPARING FOR AN UNCERTAIN CLIMATE 199-204 (1993) (analyzing the effects of denying governmental subsidies such as infrastructure, flood insurance, mortgage insurance, and the income tax deduction for mortgage interest payments, and concluding that while these strategies could discourage development, they would not necessarily prevent it).

119. Previous reports have used inconsistent terminology to describe this idea. See id. at 192 ("The `Maine Approach'"); Fischman, supra note 117, at 574 ("bulkhead prohibitions"); Lisa A. St. Amand, Sea Level Rise and Coastal Wetlands: Opportunities for a Peaceful Migration, 19 B.C. ENVTL. AFF. L. REV. 1, 3 (1991) ("presumed mobility"); Holding Back the Sea, supra note 32, at 182 fig.6 ("Enforce Public Trust Doctrine"); Coastal Wetland Policy, supra note 117, at 44 ("presumed mobility"); James G. Titus, Greenhouse Effect, Sea Level Rise, and Coastal Zone Management, 14 COASTAL ZONE MGMT. J. 147, 166 (1986) ("in effect, purchase an option").

120. This Article focuses on coastal lands that are undeveloped today, because in areas that are already developed, setbacks are generally inapplicable, and plans to allow shores to retreat are likely to be politically infeasible. For example, the primary coastal policy document authorized by the Governor of New Jersey suggested that even mentioning the term "retreat" would divide people and impede meaningful discussion of appropriate policies. See COASTAL REPORT TASK FORCE, NEW JERSEY DEP'T OF ENVTL. PROTECTION, NEW JERSEY COASTAL REPORT: A FRAMEWORK DOCUMENT FOR A COASTAL MANAGEMENT PARTNERSHIP 19 (1997) ("The mere use of the word serves to divide people . . . . `[R]etreat' can mean government-imposed prohibition on construction or reconstruction of oceanfront development . . . . [which] often fuels the divisive `retreat' debate . . . .").

121. Until the early 1990s, for example, Maryland offered interest-free loans to anyone who built a bulkhead or revetment to control erosion. Interview with Rick Ayella, supra note 61.

122. The Coastal Barrier Resources Act curtails federal expenditures and financial assistance that would encourage further development of designated coastal areas. See 16 U.S.C §§ 3501-3510 (1994). Until its repeal, the Upton-Jones Amendments of the National Flood Insurance Program denied federal flood insurance to homes that are about to collapse into the sea due to erosion, and authorized subsidies for the removal of these homes to other locations. See 42 U.S.C. § 4013(c)(2)(B) (repealed 1994).

123. See U.S. ARMY CORPS OF ENG'RS, supra note 7, at 37-46 (providing data on 56 federally funded beach nourishment projects).

124. See ICF Kaiser, supra note 68, at 3-4 (discussing how different states are currently managing coastal erosion).

125. In developed areas, the analogous restriction would be regulations that prevent redevelopment or reconstruction of storm-damaged houses. See MARINE LAW INST. ET AL., supra note 79, at 5-6 to 5-7 (discussing the Maine Coastal Sand Dune Rules' requirement for a permit to rebuild a house that is more than 50% damaged by a storm, and speculating that such a permit may be difficult to obtain); see also infra note 266 and accompanying text; cf. 1 OFFICE OF TECH. ASSESSMENT, supra note 118, at 180 (discussing a federal program that purchases storm damaged properties "to break the damage-rebuild-damage cycle that accounts for many damage claims" submitted to the federal flood insurance program).

126. See 1 OFFICE OF TECH. ASSESSMENT, supra note 118, at 187 (listing 15 states and territories that have implemented setbacks).

127. See COMMITTEE ON COASTAL EROSION ZONE MANAGEMENT, supra note 78, at 62-64 (discussing how coastal states have applied various setback requirements).

128. See MARINE LAW INST. ET AL., supra note 79, at 5-8 to 5-9 (explaining that Maine's regulations discourage the construction of large buildings in areas that will be affected by a three-foot rise in sea level, but do not prevent construction of small structures "based on the assumption that the smaller structures are moveable, and would be moved if threatened by coastal erosion").

129. For example, having a shorter walk to (or better view of) the water may be as valuable to the owner as having a larger backyard.

130. In this case, the setback does not reduce the market value of the land. In either event, it is $20,000.

131. In this case, the homeowner is better off by spending $20,000 for a new lot plus $5000 to move the house than spending $40,000 for the bulkhead.

132. Setbacks have sometimes been challenged as takings without compensation. See infra Part III (discussing the successful challenge of the South Carolina setback). But see COMMITTEE ON COASTAL EROSION ZONE MANAGEMENT, supra note 78, at 99 ("States rarely have been challenged for a taking of property when imposing erosion setback regulations.").

133. Such easements could be purchased either with cash or transferable development rights, i.e., the right to develop other properties more intensely than would otherwise be the case. For simplicity of exposition, this discussion assumes that states either compensate everyone or compensate no one. Nevertheless, some states might benefit from implementing a hybrid in which some, but not all, property owners are compensated. For example, South Carolina has a 40-year setback along its ocean coast, but the courts have required the State to compensate owners whose lots fell entirely seaward of the setback. To avoid this compensation, the State decided to allow development in those cases. See infra Part III.

If a state develops a policy to minimize shoreline armoring along its bay shores, however, the different circumstances might lead the legislature to conclude that the policy would be undermined by exempting property completely seaward of the setback line. For example, the legislature might decide that instead of protecting all of the coast with a 40-year setback, it would be more realistic only to protect half of the state's estuarine shores, but to ensure protection for at least 200 years. Such protection could leave the setback line a mile from the shore in some areas. To avoid unfairness to owners in the protected area, as well as takings challenges, the legislature might compensate those landowners.

134. Cf. infra note 398 (discussing the term "rolling easement" as used in Texas).

135. See infra notes 414-418 (detailing states that have enacted rolling easement policies).

136. See infra note 406 and accompanying text.

137. Such an interest might be characterized as the government's taking an executory interest (or perhaps, because the King was the original owner of the land, as an implied reserved possibility of reverter). See infra Part IV.

138. See, e.g., TEX. NAT. RES. CODE ANN. § 61.011(c) (West 1978 & Supp. 1998). The common law of Texas already applied a rolling easement along the Gulf Coast; this statute explicitly states that houses must be torn down as the shore approaches. See infra notes 414-415 and accompanying text.

139. See, e.g., 40 C.F.R. 230.1(d) (1997) (stating that the destruction of special aquatic sites "may represent an irreversible loss of valuable aquatic resources"); 40 C.F.R. 230.10(d) (granting permits to fill wetlands if the property owner mitigates the destruction); U.S. Envtl. Protection Agency & U.S. Army Corps of Eng'rs, supra note 55, at 1 (discussing the federal program for wetland mitigation).

140. Interview with Sandy Zelen, supra note 54 (discussing the mitigation process in Maryland).

141. Id. ("The regulatory program is not always scientifically based. Mitigation offsets are not always based on the science."). When enough scientific theory and research is put before the Corps, however, the Corps can modify its policies to be consistent with the science. Id.

142. Currently, small projects sometimes purchase credits for wetland mitigation from wetland mitigation banks. Id. A "bank" might create 100 acres of wetlands and receive a mitigation credit. See id. Individuals who obtain permits to fill small amounts of wetlands then buy wetland mitigation credits from the bank to offset the wetlands they destroyed. Id. An analogous procedure would be for someone to purchase a rolling easement along a suitable shoreline and then sell mitigation credits to people who armor shorelines. The primary difference is that these mitigation credits would be measured according to the shoreline length, rather than the area of wetlands filled. Cf. infra notes 424-468 and accompanying text (discussing the unique opportunity offered by rolling easements for actions by the private sector).

143. This variation would occur because the rights of coastal property owners vary, and because there are many ways by which rolling easements might be implemented. See supra Part II.A.2, infra Part IV.

144. Owners often elevate coastal houses on pilings due to flood control regulations. See, e.g., 44 C.F.R. § 9.11(d)(2) (1997) (requiring new construction in coastal high-hazard areas, when allowed, to be elevated on pilings); 44 C.F.R. § 60.3(c)(2)-(3) (1997) (requiring new structures to be elevated above the base flood level). The cost of a catwalk would be similar to the cost of the bulkhead that must otherwise be built. Cf. supra note 81 (discussing the costs of bulkheads). Rather than forcing an owner to leave her house, this approach simply prevents engineering measures. People who like marshes displace those who prefer lawns; eventually the combination of rent and tidal flooding may lead people to leave voluntarily.

145. The reader may logically ask: Why not require houses to be removed when high marsh takes over a lot? People currently have the right to build on private high marsh if they do not fill it. Recently, the Corps has decided that owners of single-family homes can even fill up to half an acre of high marsh. 60 Fed. Reg. 38,651, 38,662 (1995). The focus of this Article is how to save the wetlands and beaches that are already in the public domain. There is a world of difference between ensuring that development does not cause a contraction of that domain as shores erode, and expanding that domain inland to include the high marsh, dry beach, and dunes. Setbacks expand the public domain as a means for guarding against developmental encroachment, thereby raising suspicions as to whether the inland expansion is actually the end and not merely the means. See infra Part III.A (analyzing the Lucas case and the results from that particular setback). By contrast, rolling easements can be tailored to expand, contract, or maintain existing public rights. Cf. infra Part II.B.5 (discussing a rolling easement that only protects public access). Hence, we focus on a scenario in which existing public rights are maintained.

146. See fig.8.

147. See Kana et al., supra note 70, at 123-24, 130-34 (reporting that high marsh is found in areas above mean high water but below mean spring high water); id. at 130-34 (showing how Charleston-area wetlands could migrate inland as sea level rises).

148. In Maine, Massachusetts, Pennsylvania, Delaware, and Virginia, where the public only owns up to mean low water, this scenario would not apply until the sea rises enough for the house to be inundated at low tide. See Slade et al., supra note 33, at 69-70 nn.22-23 (summarizing cases that discuss the public trust doctrine under different scenarios in these five states).

149. See MARINE BOARD REPORT, supra note 19, at 74 (explaining that bulkheads are often used to provide protection for land that is well above sea level). As a result, property owners might be allowed to hold back the sea with beach nourishment. Along wetland shores, elevating the land with fill--even without a bulkhead--prevents new areas from being flooded and new marsh from forming inland as sea level rises. Id. at 64-71, 74-75. Thus, elevating land causes a net loss of wetlands unless the marshes are elevated as well--something that will probably not occur. Id. at 70-71. By contrast, along sandy beaches, the beach will tend toward a characteristic shape and return to that shape even if it is disrupted through the addition of sandy material or rising sea level. Id. at 75-76.

150. See St. Amand, supra note 119, at 8-12, 16-18 (discussing the adoption of this approach along the open coast of Massachusetts and North Carolina).

151. In Maryland, for example, new houses must be set back 100 feet along Chesapeake Bay, see MD. REGS. CODE tit. 27, § 01.09.01C(1) (Supp. 1 1995), but homeowners can armor their shores, see MD. CODE ANN., ENVIR. § 16-201(a) (1996). In South Carolina, by contrast, new construction along the ocean must be set back, see infra Part III, but the State has not decided what it will do when the shore erodes up to the structures that are currently out of harm's way. Interview with William C. Eiser, S.C. Office of Ocean and Coastal Resources Management (Aug. 13, 1997). Eiser suggests that the most likely scenario is that in a few isolated areas, houses will be abandoned and the shore will retreat. Id. More densely developed areas where the shores are open to the public will be protected by publicly funded beach nourishment projects. Id. Private communities with no public access will not be eligible for publicly funded beach nourishment, and hence will either have to fend for themselves or dedicate easements so that they become eligible for beach nourishment. Id.

152. See, e.g., MD. CODE ANN., NAT. RES. II § 8-1807 (Supp. 1997) (limiting densities in areas within 1000 feet of the tidelands).

153. Beach nourishment projects generally cost millions of dollars. See, e.g., U.S. ARMY CORPS OF ENG'RS, supra note 7. Moreover, the turbidity caused by beach nourishment may harm local marine environment. See LYNNE T. EDGERTON, THE RISING TIDE 38 (1991) ("Concerns for the local fauna--especially coral formations--inhibit many beach nourishment schemes in Florida.").

154. See fig.9. Unlike the options to retain tidelands in general, it may still be possible to retain public access in areas that have already been developed.

155. These issues are also examined in Coastal Wetland Policy, supra note 117, at 47-55. The discussion in that paper does not focus on those measures that protect access only; such an analysis, however, would be largely parallel to the analysis presented here.

156. Part IV suggests that this assumption is not always true, but the distinction is unimportant for our purposes here.

157. Government economists generally define "cost-effective" as the cheapest way of accomplishing a goal. See, e.g., EDWARD M. GRAMLICH, BENEFIT-COST ANALYSIS OF GOVERNMENT PROGRAMS 46 (1981) ("This technique of finding the cheapest way of doing something has become known as `cost-effectiveness' analysis in the Defense Department (where the benefits of a program can almost never be quantified)."). In defining a cost-effective action, economists often ignore the question of who pays, not because that question is irrelevant, but because a compensation scheme can in theory be designed to tax winners and compensate losers. Id. at 41-43. Thus, governmental cost-benefit analysis looks for the policy with the greatest net social benefit, regardless of who pays. Id. This approach is sometimes called the Kaldor-Hicks criterion of economic efficiency. Id. In general parlance, many writers shorten this to the term "economic efficiency." Id. at 42. But cf. infra note 170 (defining Pareto efficiency, which is concerned about the distribution as well as the total economic benefits).

158. This ignores other potential benefits of setbacks. Locating a house farther from the shore can also reduce (i) water pollution runoff from impervious surfaces and septic systems, (ii) vulnerability to storms, and (iii) adverse impacts on dune and wetland ecology resulting from physical presence and trampling by residents and their pets. See, e.g., St. Amand, supra note 119, at 4-18 (discussing those three advantages of setbacks under various state programs); COMMITTEE ON COASTAL EROSION ZONE MANAGEMENT, supra note 78, at 55, 65, 67, 126 (discussing setback requirements). In a new neighborhood, there may also be an aesthetic benefit to setting houses back from the shore. This is true because everyone has a view of a natural shoreline, rather than just the water and adjacent houses.

159. Unfortunately, it may also be a case of gaming the system--that is, a calculated risk that if one develops the property, the government will not actually require it to be abandoned. See infra Part II.C.5.

160. If the tidelands are marsh, land three feet above high tide would be tideland with a three-foot rise in sea level. If the tidelands are a typical sandy beach that erodes one to two feet per foot of sea level rise, then land within 300 to 600 feet of the shore would become tideland, regardless of elevation. See supra Parts II.A.1, II.A.3.

161. The owner would lose the land worth $20,000 and would have to pay the $30,000 to move the house, but a bulkhead would have cost $10,000. At a 5% discount rate, the present value of $40,000 is $300.

162. See tbl.1; see also EPA 1995, supra note 2, at 126.

163. The probability that sea level will rise four feet in the next century is only 1%, one-fifth the probability of a three-foot rise. See tbl.1; see also EPA 1995, supra note 2, at 126.

164. Theoretically, a well-informed property owner would make this choice anyway. But because homebuyers are often poorly informed about potential hazards, state and local governments have adopted building codes and safety standards. See, e.g., HOWARD KUNREUTHER, DISASTER INSURANCE PROTECTION: PUBLIC POLICY LESSONS 6-7, 235-36 (1978) (explaining that home owners have limited knowledge of flood risks and that few voluntarily bought flood insurance until the National Flood Insurance Act of 1968, Pub. L. No. 90-448, 82 Stat. 572 (1968) (codified as amended in scattered sections of 42 U.S.C.), conditioned the receipt of FHA and VA loans on the purchase of federal flood insurance).

165. See Holding Back the Sea, supra note 32, at 187 (estimating that a one-meter rise in global sea level would inundate 7700 square miles of dry land, an area the size of Massachusetts).

166. If one looks only at the cost of land and structures lost to the sea, deferring action might appear to be more costly, because both the structure (or the cost of its removal) and the land must be lost, whereas only vacant land is lost if development is prevented. But more than vacant land is lost when development is prevented: Someone is also losing the opportunity to live in a house on that land. The measure of the impact on today's landowner is present value. As shown in the text, losing (or moving) a house in the distant future will have a present value of a few tens of dollars, while the cost of forgoing development will be in the tens of thousands of dollars.

167. A study funded by the Electric Power Research Institute addressed this issue. See Gary Yohe et al., The Economic Cost of Greenhouse-Induced Sea-Level Rise for Developed Property in the United States, 32 CLIMATIC CHANGE 387, 392 (1996). The study quantified the extent to which the cost to property owners from eroding shores could be reduced if, decades before their property was threatened, owners understood the need to abandon the shore. Id. at 390-92.

The "no-foresight" scenario discussed in the study assumed that property owners are uncertain "about the rate of future sea level rise and/or [do not believe] . . . that existing property would actually be abandoned." Id. at 392. Another scenario, labeled "pure foresight," assumed that "the economic value of structures . . . depreciate[s] over time as the threat of impending inundation and abandonment becomes known." Id. at 391. The study estimated that with no foresight, the nationwide cost of a one-meter rise in sea level would be $45.4 billion, but with pure foresight, it would be only $36.1 billion. Id. at 403-05. The nationwide figures, however, include the cost of beach nourishment and other measures for holding back the sea. Id. at 392-93, 405. In several of the sites where holding back the sea is unlikely, the certainty of knowing what would happen to the shore would decrease the cost of sea level rise by 50% to 75%. See id. at 397-98 (estimating that 30 years of notice decreases the cost of sea level rise about 75% for areas around Apalachicola, Florida; Grand Chenier, Louisiana; Long Bay, North Carolina; Sullivans Island, South Carolina; and Palacios, Texas, and by about 25% to 50% in Barataria, Louisiana; Pass Christian, Mississippi; Dorchester, South Carolina; Mt. Pleasant, South Carolina; and Suffolk, Virginia).

168. Cf. COASTAL BARRIERS TASK FORCE, supra note 20, at iii-vi (examining the implications of a congressionally mandated end to federal subsidies for construction on vulnerable coastal barriers).

169. By definition, purchases of land, development rights, and rolling easements do not even implicate the Constitution's prohibition against taking property without just compensation. See infra Part V. Regulatory creation of rolling easements has a good chance of withstanding court challenges if enacted several decades before property has to be abandoned. See infra Parts III, IV.

Deferred action has the greatest legal uncertainty. Prohibiting shore protection without advance warning might be rejected as a taking--especially in states like Maryland, where the government has stated or implied that land ownership includes a right to hold back the sea. See MD. CODE ANN., ENVIR. § 16-201 (1996) (stating that a beachfront property owner "may make improvements into the water in front of the land to . . . protect the shore of that person against erosion"). Yet, the public trust doctrine may imply a longstanding governmental property right to prohibit bulkheads, and courts may hold that the right to hold back the sea is not constitutionally protected until someone actually builds a bulkhead. See infra Part IV. Moreover, whatever the law is today, it could change over the next several decades.

Setbacks are more likely to be (and have been) rejected as unconstitutional takings. See infra Part III. However, they do not create much long-term legal uncertainty. The only fruitful time to challenge them is before one builds. So even if setbacks are rejected as unconstitutional takings, the rejection will come early and will afford policy makers plenty of time to implement other options. See infra Part III.A (discussing South Carolina's implementation of rolling easements in cases where setbacks would be unconstitutional takings).

170. See, e.g., HAL R. VARIAN, INTERMEDIATE MICROECONOMICS 15-16 (1987) (discussing Pareto efficiency).

171. Cf. David Hawkins, Speech to the Administrative Conference of the United States (Apr. 23, 1990), reprinted in Marshall J. Breger et al., Providing Economic Incentives in Environmental Regulation, 8 YALE J. ON REG. 463, 483-84 (1991) (stating that existing arrangements are usually employed as the baseline for economic incentive approaches, but other baselines might be more appropriate).

172. Property owners assume that they have the right to use their property, and they would find preventing development or subsequent eviction inequitable. Other taxpayers would question the equity of compensation, because people have no inherent right to bulkhead property at the expense of public lands. Nuisance theory leaves this problem indeterminate as well: The ideal of minimizing transaction costs suggests a no-bulkhead rule in undeveloped areas and a pro-bulkhead rule in heavily developed areas. See infra Part IV.C.1.b.

173. For example, recent agreements between Israel and the Palestinian Liberation Organization have not removed the resentments between those Zionists who believe that Israel should occupy all of Judea and Samaria (the West Bank of the Jordan River) and those Palestinians who believe that the State of Israel has no right to exist at all, let alone occupy the West Bank. See Edward T. Canuel, Note, Nationalism, Self-Determination, and Nationalist Movements: Exploring the Palestinian and Quebec Drives for Independence, 20 B.C. INT'L & COMP. L. REV. 85, 104-06 (1997) (discussing the conservative Israelis' and the nationalist Palestinians' continued resentment following the Palestinian Peace Accords).

174. Moreover, agreeing on what is fair is easiest when the judges of fairness are somewhat removed. No matter how difficult it is to decide whether property owners or taxpayers should pay for saving the tidelands, deciding will be more difficult later, when the costs are greater and people know precisely who wins and who loses.

175. In our hypothetical example, deferring action may be Pareto-superior to setbacks. If the $10,000 cost of a setback comes out of investment, then in 100 years, the total cost will have compounded to $1.3 million, more than enough to rebuild the house inland.

176. Multiplying the typical erosion rate, see MARINE BOARD REPORT, supra note 19, at 50, by the time horizon of erosion setbacks for states that have them, see COMMITTEE ON COASTAL EROSION ZONE MANAGEMENT, supra note 78, at 96-97, results in the following typical setbacks: Florida--typically no setbacks, but in areas where the erosion rate is one standard deviation above the norm, the setback is 36 meters; New Jersey--50 meters; New York--no setback in the typical case, 66-88 meters in areas with the highest observed erosion; North Carolina--the minimum setback is 60 feet, and 60-80 meters in areas where erosion is one standard deviation above the norm; South Carolina--80 meters; Rhode Island--no setback in the typical case, and 20 feet in areas with the highest observed erosion. Most other states have a fixed setback that is not based on the erosion rate. Id. at 97. A typical fixed setback appears to be about 100 feet. See, e.g., id. at 64 (100 feet in Delaware); supra note 151 (100 feet in Maryland along Chesapeake Bay and its tributaries). But see infra note 177 (50 feet along back-barrier bays in Worcester County, Maryland).

177. For example, beginning in 1989, the comprehensive plan of Worcester County, Maryland included a 100-foot setback for purposes of decreasing non-point source runoff. Personal Communication with Planning Staff of the Worcester County Zoning Comm'r (Apr. 1994). In 1992, the Commission adopted an interim setback of 85 feet from the mean high water mark. Id. However, the political consensus in the county was unable to support such a large setback, and the final setback was established at 50 feet. See WORCESTER COUNTY, MD., CODE OF PUBLIC LOCAL LAWS § ZS-1-304(s)(1) (1994); Personal Communication with Planning Staff of the Worcester County Zoning Comm'r (Apr. 1994).

178. In terms of the actual cost faced when the decision is made, buying property owners out (or forcing them out) would be more expensive in the future than today, because some land that is vacant today would be developed. Coastal Wetland Policy, supra note 117, at 48, 54-55. Note that when discussing the impact on today's property value or net social cost, one must focus on present discounted value. However, when looking at the risk of backsliding and the political feasibility of enforcing a required abandonment, the key consideration is the cost perceived at the time the property is vacated.

179. Compare Appendix 1 (illustrating that rolling easements are unlikely to cost more than $300-$1100 million) with Holding Back the Sea, supra note 32, at 200 (estimating the value of the undeveloped land that could be inundated by a 50- to 200-centimeter rise in sea level at $13 to $120 billion). Deferring action would eventually cost more than rolling easements, because the former requires the loss of land and structures, while the latter affords property owners the opportunity to depreciate their structures or avoid developing land likely to be inundated, whichever is most cost-effective. Cf., e.g., Yohe et al., supra note 167, at 391 ("[T]he economic value of structures can be expected to depreciate over time as the threat of impending inundation and abandonment becomes known.").

180. An unusual aspect of this approach is that because most of the costs are in the distant future, using a high discount rate makes rolling easements more feasible. This approach stands in stark contrast to the many environmental policies where near-term action produces benefits over many decades, and thus economic viability depends on a low discount rate. Environmental economists have long pondered how to discount appropriately the value of future benefits to present value. See, e.g., GRAMLICH, supra note 157, at 107, 112-13 n.22. The most popular candidates are the rate of return on private investment, often about 7% to 10%, and a lower rate representing the risk-free rate of return or a pure rate of time preference, generally 1.5% to 3%. Id. at 107-09; WORKING GROUP III, INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 1995: ECONOMIC AND SOCIAL DIMENSIONS OF CLIMATE CHANGE 130-32 (1996). It is axiomatic among economists that if an environmental policy has benefits over many decades, a high discount rate tends to discourage policies to protect the environment. See WILLIAM R. CLINE, INST. FOR INT'L ECONS., THE ECONOMICS OF GLOBAL WARMING 235-36 (1992) (predicting that with a discount rate of 5% to 10%, the effects of global warming 100 to 200 years hence are very unimportant); GRAMLICH, supra note 157, at 130 (explaining that high discount rates result in too little investment to protect the environment). Rolling easements are an important exception.

181. Consider once again the numerical example discussed in Part II.C.1. In response to a setback preventing development on a particular parcel, a developer might say that the sea probably will not rise and that any possible impacts are so far in the future that the discounted benefits of taking action today are trivial; yet, the developer is having to bear a substantial near-term cost. By contrast, with a rolling easement that takes over the parcel when the sea rises three feet, these arguments imply that the regulation is not likely to affect the property and that the present value of the regulation's impact is $15. Developers would probably not change tacks and claim that the sea is going to rise more than the government expects, because such an assertion would scare away potential buyers.

182. E.g., Matcha v. Mattox, 711 S.W.2d 95, 97 (Tex. App. 1986, writ ref'd n.r.e.) (affirming a trial court order to "remove the beach house, sand piles, plantings, and any other obstructions or barrier to the public's use of the beach area").

183. See, e.g., Gary Griggs & Lauret Savoy, Shoreline Protection and Engineering, in LIVING WITH THE CALIFORNIA COAST 46, 58-61 (Gary Griggs & Lauret Savoy eds., 1985) (explaining that wooden bulkheads tend to fail in high-energy environments).

184. The economics study by Yohe and his colleagues implies that a rolling easement policy would result in a greater number of people voluntarily allowing the shore to retreat. Yohe et al., supra note 167, at 343-406. If people doubt the sea will rise or expect the government to protect them, they will make imprudent investments that later require protection. Id. at 388-90, 394-96. In the "perfect foresight" case, 45% of the shore is abandoned if sea level rises one meter, simply because the economics do not support holding back the sea. Id. at 403. Without foresight, however, only 30% is abandoned, because 15% of these communities develop or redevelop even though"once the costs of shore protection are considered"the development is not economically justified. Id. To the extent that rolling easements force people to recognize the inevitability of abandoning the shore, they lead to the better investment decisions characterized by Yohe's "with foresight" scenario. See id. at 394-96, 403-05. Because it is not cost-effective to hold back the sea in these cases, the risk of backsliding is minimized. Id. at 388-90, 406.

185. See infra Part III.A (recounting a case in which South Carolina resisted a property owner's request for permission to build a semi-hard structure, because, among other things, the State had effectively paid several hundred thousand dollars for a rolling easement on that property).

186. Public awareness serves at least four different purposes. First, as long as homebuyers know about the potential loss of property to a rolling easement, the market will lower values as the shore approaches the property. Cf. Yohe et al., supra note 167, at 391-92 (estimating that if markets are equipped with information, property values could decline to zero by the time the property is inundated). Second, the discount will lead the public to see the riparian owners not as victims, but as unscrupulous investors who seek to profit from the revision of a government regulation. Third, the public will have little sympathy for those who protest their ignorance of rolling easements. Fourth, the market may reflect higher prices for beach homes in the second row, because they will eventually have a waterfront view. See id. at 391 (explaining that as sea level rises, premiums associated with being close to the shore will migrate inland). As the biggest losers from governmental backsliding, this class might become a countervailing voice. Id. at 391-92.

187. Joseph L. Sax, The Fate of Wetlands in the Face of Rising Sea Levels: A Strategic Proposal, 9 UCLA J. ENVTL. L. & POL'Y 143, 148 (1991).

188. Id. at 153-60. Charging rent for houses and bulkheads that are on public trust land would be a possible source of funds. Cf. MISS. CODE ANN. § 29-1-107(3) (1990) (requiring that those who developed tidelands after 1973 "shall pay an annual rental based on the fair market value as determined by the assessed valuation of the property").

189. Sax, supra note 187, at 147-60 (discussing landowners' likely behavior when the sea level rises).

190. U.S. CONST. amend. V. Although this proscription of government behavior originally applied only to the federal government, today it also applies to the states. See U.S. CONST. amend. XIV, § 1 ("No State shall . . . deprive any person of . . . property, without due process of law . . . .").

191. 505 U.S. 1003 (1992).

192. The study was published later that year as GREENHOUSE EFFECT AND SEA LEVEL RISE, supra note 35, which estimated the future sea level rise, its effects, and the value of policies that prepare for these changes.

193. Lucas, 505 U.S. at 1037 (Blackmun, J., dissenting); accord Klarin & Hershman, supra note 6, at 305 (explaining that the Blue Ribbon Committee was motivated in part by the sea level conference).

194. Lucas, 505 U.S. at 1038 n.2 (Blackmun, J., dissenting). The Committee justified this proposed erosion setback based on both existing erosion rates and the EPA's estimate that the sea level would rise one foot in the following 40 years. See Report of the South Carolina Blue Ribbon Comm. on Beachfront Management (Mar. 1987) [hereinafter Report on Beachfront Management] (citing the predictions of a 1983 EPA study).

195. Lucas, 505 U.S. at 1006.

196. Id. at 1008.

197. Id. at 1038 (Blackmun, J., dissenting) (citing trial transcript).

198. Id.; accord S.C. CODE ANN. § 48-39-290 (West Supp. 1997). See generally id. § 48-39-250 (explaining the legislature's motivation for enacting the Beachfront Management Act).

199. Lucas, 505 U.S. at 1008. For practical purposes, the setback line was either 40 times the annual erosion rate plus 20 feet inland from the crest of the primary dune, or 20 feet inland of the most landward position of the mean high water line over the last 40 years, whichever was the farthest inland. See S.C. CODE ANN. § 48-39-280(A), (B) (West Supp. 1997).

200. Lucas, 505 U.S. at 1009.

201. Id.

202. Id.

203. See S.C. CODE ANN. § 48-39-290(D)(1) (creating a special permit, which is a hybrid between a setback and a rolling easement, rolling only up to the setback line).

204. Lucas, 505 U.S. at 1011.

205. Id.

206. Id. at 1010.

207. Lucas v. South Carolina Coastal Council, 502 U.S. 966 (1991).

208. Lucas, 505 U.S. at 1010-13.

209. Id. at 1011-13 & n.3.

210. Id. at 1024-27.

211. Id. at 1029.

212. Id. at 1031-32.

213. The Coastal Council proposed to brief the South Carolina Supreme Court on the "background principles of nuisance and property law that prohibit the uses [that Lucas] intended." South Carolina Coastal Council, Motion to Clarify Remand at 4, Lucas v. South Carolina Coastal Council, 424 S.E.2d 484 (S.C. 1992) (No. 90-38). Perhaps feeling that at this point the Council needed to concede defeat, the Court never took them up on this offer and instead urged the Council to settle. Interview with Cotton Harness, Former General Counsel, S.C. Coastal Council (Mar. 14, 1994) (on file with author).

214. Lucas v. South Carolina Coastal Council, 424 S.E.2d 484, 486 (S.C. 1992), on remand from 505 U.S. 1003 (1992).

215. Personal Communication with William C. Eiser, S.C. Coastal Council (Mar. 8, 1994).

216. Interview with William C. Eiser, supra note 151.

217. Stanley R. Riggs, Conflict on the Not-So-Fragile Barrier Islands, GEOTIMES, Dec. 1996, at 14, 16, 18.

218. See Interview with William C. Eiser, supra note 151.

219. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027 (1992) ("Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with.").

220. Part IV examines how the validity of that assumption varies from state to state.

221. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 438 (1982) (holding that the installation of a cable television box, which involved the "direct physical attachment of plates, boxes, wires, bolts, and screws to the building," constituted a taking).

222. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 831 (1987) (holding that requiring homeowners "to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach" was a taking); Kaiser Aetna v. United States, 444 U.S. 164, 179-80 (1979) (holding that requiring access to a waterway was a taking because the federal navigation servitude does not apply to waters made navigable by private efforts).

223. See Cinque Bambini Partnership v. State, 491 So. 2d 508, 519-20 (Miss. 1986) (en banc) (citing the rule that where the forces of nature raise the sea level, the public lands expand inland without compensation), aff'd sub nom. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988); see also infra Part IV.B.2.

224. See Pumpelly v. Green Bay & Miss. Canal Co., 80 U.S. (13 Wall.) 166, 181 (1871) ("[W]here real estate is actually invaded by superinduced additions of water . . . it is a taking . . . .").

225. See Pitman v. United States, 457 F.2d 975, 977 (Ct. Cl. 1972) (holding that erosion caused by a Corps of Engineers jetty was not a taking unless the Corps either raised the water level or entered the property), overruled on other grounds, Owen v. United States, 851 F.2d 1404 (Fed. Cir. 1988). See generally Oliver A. Houck, Land Loss in Coastal Louisiana: Causes, Consequences, and Remedies, 58 TUL. L. REV. 3 (1983) (discussing the extreme example of coastal Louisiana, where landowners were not compensated for the 30 to 40 square miles of land lost per year, largely as a result of federal flood and navigation structures).

226. See Dolan v. City of Tigard, 512 U.S. 374, 389-90 & n.7 (1994) (citing cases in several states that require a reasonable relationship or a direct connection between proposed development and required dedication).

227. 483 U.S. 825 (1987).

228. Id. at 828 (explaining that the proposed permit was conditioned on granting the public an easement across the Nollans' private property between the mean high water mark and a seawall that separated the beach from the rest of the Nollans' property). As in all but a few states, the public already had access along the wet beach, but the dry beach was not open to the public other than in particular areas. See infra Part IV (discussing the right to access along the shore).

229. Nollan, 483 U.S. at 838.

230. Id. at 837-39. The Court also noted that the Commission had an ongoing program of acquiring the dry beach, id. at 841, essentially extending the public trust inland from the mean high water mark to the seawall that divided the beach from the rest of the Nollans' property, id. at 828. The opinion closed by advising that eminent domain is the proper way to convert private land to public beach. Id. at 841-42.

231. Id. at 836. The Court added:

[T]he lack of nexus between the condition and the original purpose of the building restriction converts that purpose to something other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation. . . . [U]nless the permit condition serves the same governmental purpose as the development ban, the building restriction is . . . "an out-and-out plan of extortion."

Id. at 837 (quoting J.E.D. Assocs. v. Town of Atkinson, 432 A.2d 12, 14-15 (N.H. 1981), overruled on other grounds by Town of Auburn v. McEvoy, 553 A.2d 317 (N.H. 1988)).

232. Id. at 838.

233. Id.

234. See id. at 836.

235. Compare Barrie v. California Coastal Comm'n, 241 Cal. Rptr. 477, 485 (Ct. App. 1987) (finding a reasonable nexus between a dry beach dedication requirement and a permit for a seawall) and Whalers' Village Club v. California Coastal Comm'n, 220 Cal. Rptr. 2, 14 (Ct. App. 1985) (finding a reasonable nexus between a dry beach dedication requirement and a permit for a seawall, because seawalls in general cause erosion, which in turn necessitates additional access along the shore) with Surfside Colony, Ltd. v. California Coastal Comm'n, 277 Cal. Rptr. 371, 376 (Ct. App. 1991) (finding an insufficient nexus between a beach dedication and a permit for a seawall because the Commission did not show that the particular seawall would cause erosion, and because the post-Nollan requirement for substantial nexus requires a site-specific showing). Erosion caused by seawalls was the narrow focus of the California courts. This question is irrelevant if the shore is eroding: It does not matter whether the seawall causes the erosion, because a retreating shore will eventually reach the seawall. Considering the latter nexus would lead to a different result in Surfside, because seawalls always eliminate eroding beaches by blocking their landward migration, even if they do not accelerate the erosion. See figs.1, 8.

236. See Dolan v. City of Tigard, 512 U.S. 374, 386 & n.7 (1994).

237. 512 U.S. 374 (1994).

238. Id. at 379.

239. Id. at 379-80.

240. Id. at 387-88.

241. Id. at 388 (citing Nollan v. California Coastal Comm'n, 483 U.S. 825, 834 (1987)).

242. Id. at 391.

243. Id. at 390 (quoting Simpson v. City of North Platte, 292 N.W.2d 297, 302 (Neb. 1980)).

244. Id. at 389-90 (alteration in original). This test had been adopted by Illinois, New Hampshire, New Jersey, Rhode Island, and Ohio. See id. at 389-90, 389 n.7.

245. See, e.g., Divan Builders, Inc. v. Planning Bd., 334 A.2d 30, 40 (N.J. 1975) (applying the specifically and uniquely attributable test); Frank Ansuini, Inc. v. City of Cranston, 264 A.2d 910, 912-13 (R.I. 1970) (holding that state case law embodies the specifically and uniquely attributable test). A New Hampshire case that Justice Scalia quoted fondly in the Nollan decision, Nollan, 483 U.S. at 837, held that the New Hampshire State Constitution required the specifically and uniquely attributable test. J.E.D. Assocs. v. Town of Atkinson, 432 A.2d 12, 15 (N.H. 1981) (holding that the specifically and uniquely attributable test is required by the New Hampshire State Constitution), overruled on other grounds by Town of Auburn v. McEvoy, 553 A.2d 317 (N.H. 1988). The McEvoy case did not overrule the requirement for the specifically and uniquely attributable test.

246. Dolan, 512 U.S. at 392-95.

247. Id. at 395 (endorsing the dissent in Dolan v. City of Tigard, 854 P.2d 437, 447 (Or. 1993) (in banc) (Peterson, J., dissenting), rev'd, 512 U.S. 374 (1994)).

248. See also supra Part II.B.5 and tbl.2 (explaining the one-step easement and other policies for protecting access where shores are armored).

249. See fig.9.

250. See supra note 244 and accompanying text (defining the "specific and uniquely attributable" test).

251. See supra Part II.B.5 and tbl.2 (explaining the option of immediate dedication of an easement when a bulkhead permit is issued).

252. This discussion assumes that the right to protect one's home does not mean a right to protect every square foot of the backyard. Deferring dedication until the beach is lost would be difficult unless the owner seeks a permit to rebuild the seawall just as the beach is about to be lost. By then, the home, rather than just the yard, may also be threatened. Given our assumption that the owner has the right to protect her home, this would diminish any state authority to deny a seawall permit.

253. Dolan v. City of Tigard, 512 U.S. 374, 390 (1994). Ignoring transaction costs, the present value of immediately dedicating an easement has a greater cost to the owner than making it available to the public a few decades later. Cf. supra Part II.C.1 (explaining why the present value of acquiring an interest that vests in the future is far less than the present value of an interest that vests immediately). However, when administrative costs are included, the total cost may be less: The deferred dedication would require surveyors and coastal geologists to monitor the erosion and make a determination when the wet beach has been completely eroded, but immediate dedication avoids that cost.

254. See supra note 235.

255. See Dolan, 512 U.S. at 395 ("[T]he city has not met its burden of demonstrating that the additional number of vehicle and bicycle trips generated by petitioner's development reasonably relate to the city's requirement for a dedication of the pedestrian/bicycle pathway easement.").

256. See id. at 395-96 (holding that to support the dedication of land for a bike path, the City must quantify the extent to which the path is likely to offset the increased traffic resulting from business expansion).

257. See supra Part II.B.5.

258. Given the assumption that people have the right to build and defend their homes, this hurdle may be particularly severe. The hypothetical permit denial leading to the beach regeneration might also destroy the property owner's home, thus implying that denial of the permit would be essentially a taking of the home. In such a case, arguing that the access being protected is something that the state could protect by denying the permit would be even more difficult: Given the assumption in Part III that an owner has the right to build a home, not only is access already gone but the state could not deny the permit anyway.

259. See supra Part II.C.4.

260. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978); accord Gazza v. New York State Dep't of Envtl. Conservation, 605 N.Y.S.2d 642, 644 (Sup. Ct. 1993) ("The rationale behind Lucas is not to punish the `original' landowner, but to prevent a windfall to sophisticated subsequent purchasers."), aff'd, 634 N.Y.S.2d 740 (App. Div. 1995), aff'd, 679 N.E.2d 1035 (N.Y.), cert. denied, 118 S. Ct. 58 (1997). The Gazza court stated that the state's Tidal Wetlands Act was one of the "bundle of limitations" accompanying the property. Id. The court concluded: "He cannot reasonably argue that his investment-backed expectations were impacted by legislation which had long been in place when he purchased the property." Id. at 645 (citation omitted).

261. Cf. Loveladies Harbor Inc. v. United States, 15 Cl. Ct. 381, 388-89 (1988) (acknowledging that balancing a governmental interest in preserving wetlands against a private property interest reveals a private interest deserving compensation, but stating that the "court is most reluctant to hold that a taking has occurred on this basis alone").

262. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992) ("We have . . . described at least two discrete categories of regulatory action as compensable without case-specific inquiry . . . . The first encompasses regulations . . . [creating] a physical `invasion' of . . . property. . . . [and] [t]he second . . . is where regulation denies all economically beneficial or productive use of land.").

263. Id.

264. See Florida Rock Indus. v. United States, 18 F.3d 1560, 1570 n.27 (Fed. Cir. 1994) (stating that a 95% decline in value would be a taking, but if the decline is closer to 60%, "the correct outcome is no longer clear"); Formanek v. United States, 26 Cl. Ct. 332, 340 (1992) (finding that an 88% decline in property value frustrated investment-backed expectations even though the remaining value of the property was still greater than the purchase price).

265. See Florida Rock, 18 F.3d at 1571 (explaining that courts must engage in ad hoc balancing and must consider, among other factors, whether the government "limit[ed] the constraints on property ownership to those necessary to achieve the public purpose"). The balancing test provides an opportunity for courts to find a taking when the diminution in value is less than total. See id. Nevertheless, some commentators are skeptical about whether this capability survives Lucas. See Richard A. Epstein, Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 STAN. L. REV. 1369, 1377 (1993) ("[T]he Court has provided an effective blueprint for confiscation . . . .").

266. Furthermore, however an estate might be partitioned in theory for takings purposes, the right to exclude others from one particular part of the property is not a subparcel that, if destroyed, would automatically trigger a taking. See Dolan v. City of Tigard, 512 U.S. 374, 391 (1994) (adopting a new test to clarify when a regulation can require dedication of land or an easement without triggering a taking).

267. See, e.g., Florida Rock, 18 F.3d at 1568-69 (stating that per se partial takings apply only to physical invasions, but noting that the Supreme Court has not yet considered partial regulatory takings in detail). For an analysis of the anomalies that can result from not recognizing partial regulatory takings, see Epstein, supra note 265, at 1387-92, and William W. Fisher III, The Trouble with Lucas, 45 STAN. L. REV. 1393, 1404-05 (1993). Some partial regulatory takings, such as street setbacks, may be justified by the resulting mutual benefit. See infra note 324 (explaining that no compensation is required under an eminent domain partial taking when the part not taken appreciates in value by more than the value of the portion taken as a direct result of the project for which the land was taken). To a point, a mutual benefit also results from waterfront setbacks, because a single house built close to the water blocks everyone's view of the shoreline. Cf. WARD ET AL., supra note 19, at 48 (noting that "construction setback lines. . . . allow[] natural shoreline processes to operate without interference and preserve[] the recreational and aesthetic values of the beach"). Beyond that, however, the owners are not the beneficiaries. See St. Amand, supra note 119, at 11 (describing the anger of property owners in North Carolina after the enactment of the Coastal Area Management Act and supporting guidelines that together created an erosion setback line).

268. Cf. St. Amand, supra note 119, at 11 (discussing how North Carolina "grandfathered" small lots in its setback program).

269. See First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 321 (1987) (holding that "where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective"); see also supra notes 208-209 and accompanying text.

270. Cf. Esposito v. South Carolina Coastal Council, 939 F.2d 165, 170 (4th Cir. 1991) (holding that a taking does not occur when a regulation today removes from the bundle of property rights the right to rebuild a house should it ever be destroyed by a storm, because existing uses can continue and the impact on those uses is speculative). The long-term contingent prohibition of bulkheads required by a rolling easement is much more remote"and restricts less essential uses of property"than the potentially near-term contingent prohibition of post-storm construction. Moreover, if a regulation that prohibits bulkheads also allowed for nonstructural shore protection such as beach nourishment, the impact on use would be even more "speculative."

271. See, e.g., Oswalt v. County of Ramsey, 371 N.W.2d 241, 246 & n.3 (Minn. Ct. App. 1985) (holding that municipalities can phase out a nonconforming use without paying compensation and that limiting repairs of partially destroyed structures is an acceptable method to phase out nonconforming uses, but declining to decide whether a regulation prohibiting the reconstruction of houses in a floodplain is a taking); Harbison v. City of Buffalo, 152 N.E.2d 42, 47 (N.Y. 1958) (noting that a right to continue a nonconforming use may be terminated after a reasonable period, during which the owner may have a fair opportunity to amortize his investment and make future plans).

272. See, e.g., Naegele Outdoor Advertising Co. v. Village of Minnetonka, 162 N.W.2d 206, 213 (Minn. 1968).

273. See supra Part II.C.1 (explaining why the impact is trivial).

274. Extending this analogy, deferred action would be analogous to laws that require removal of nonconforming uses without a fair opportunity to amortize the investment. See Oswalt, 371 N.W.2d at 246. Hence, compensation would generally be required regardless of this particular interpretation.

Along sandy public beaches, rolling easements may be viewed as physical invasions, similar to the possibility of reverter for a defeasible estate. Courts have held that taking a possibility of reverter does not require compensation when the condition that triggers the reversion is not imminent. See B. Glenn, Annotation, Rights in Condemnation Award Where Land Taken Was Subject to Possible Rights of Reverter or Re-entry, 81 A.L.R.2D 568 (1962). In those cases, however, the rule did not benefit the government, but rather the current estate holders, who were compensated for the full value of the estate. See id.

275. 260 U.S. 393 (1922).

276. 480 U.S. 470 (1987).

277. See Mahon, 260 U.S. at 412; Bituminous Coal, 480 U.S. at 500.

278. See Mahon, 260 U.S. at 412; Bituminous Coal, 480 U.S. at 481-82.

279. The Kohler Act of 1921 was one of the Pennsylvania legislature's first attempts at dealing with the problem of subsidence. See The Kohler Act, 1921 Pa. Laws 445 (codified as amended at PA. STAT. ANN. tit. 52, " 661 (West 1998)) (regulating the mining of anthracite coal).

280. See Mahon, 260 U.S. at 412-13.

281. See id. at 414-16. The Court also criticized the motives of the legislature as being disingenuous. See id. at 398 (remarking that the purpose of the Kohler Act was "not to protect the lives or safety of the public generally but merely to augment the property rights of a favored few").

282. 1966 Pa. Laws 1 (codified as amended at PA. STAT. ANN. tit. 52, §§ 1406.1-1406.21 (West 1998)). The 1966 Act, which regulated the mining of bituminous coal and declaring a public interest in the support of surface structures, was more favorably received. See infra note 285.

283. Bituminous Coal, 480 U.S. at 476-77.

284. Id. at 498-500.

285. See id. at 500-01. The Court also had nicer things to say about this statute compared with the Kohler Act. See id. at 488 ("[T]he Commonwealth is acting to protect the public interest in health, the environment, and the fiscal integrity of the area." (citing the Bituminous Mine Subsidence and Land Conversation Act)).

286. See Mahon, 260 U.S. at 398-99 (noting that the Kohler Act protected the surface rights of the property owners whose right of subjacent support had been withheld or waived).

287. See Bituminous Coal, 480 U.S. at 501 ("Petitioners may continue to mine coal profitably even if they may not destroy or damage surface structures at will in the process.").

288. Admittedly, the Subsidence Act merely hastened the closure of mines that would have to close eventually anyway, while rolling easements affect fee simple property, which theoretically lasts forever. Nevertheless, rolling easements only take effect if the shore erodes. Therefore, rolling easements merely hasten the removal of structures that would eventually have to be removed anyway.

289. See Bituminous Coal, 480 U.S. at 478 (noting that coal companies acquired or retained estates in land, but severed title between the coal underneath the surface and the surface estate).

290. See infra note 366 and accompanying text (discussing how the common law of erosion transfers title from a riparian owner to the state when the land is flooded by mean high water).

291. Compare Appendix 1 (estimating the cost of rolling easements at typically less than 1% of coastal property values) with Bituminous Coal, 480 U.S. at 496 & n.24 (noting that the Subsidence Act would reduce average coal production of 13 mines by about 1.8%, with three mines having to leave at least 4% of the total coal in the ground).

292. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 417-18 (1922) (Brandeis, J., dissenting).

293. Mahon, 260 U.S. at 415.

294. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1024 (1992) ("[T]he distinction between `harm-preventing' and `benefit-conferring' regulation is often in the eye of the beholder."); id. at 1018 ("[R]egulations that leave the owner of land without economically beneficial or productive options for its use . . . carry with them a heightened risk that private property is being pressed into some form of public service under the guise of mitigating serious public harm.").

295. Cf. RESTATEMENT (SECOND) OF TORTS § 826 (1979) (providing the general rule that an activity may be a nuisance if the gravity of the harm outweighs the utility of the actor's conduct).

296. Mahon, 260 U.S. at 415. If regulations that pass a cost-benefit test never required compensation, the public would never have to purchase land for nature reserves and other open space. Assuming that the government is rational, decisions to buy land always mean that the value to society is greater if the land is kept in its natural condition. Therefore, developing the land would have a greater harm than benefit, and would thus be a nuisance.

297. See, e.g., McDougal v. County of Imperial, 942 F.2d 668, 676 (9th Cir. 1991) (stating that if landowners are denied all use of their property, takings claims must balance the public interest against the private deprivation); Turnpike Realty Co. v. Town of Dedham, 284 N.E.2d 891, 900 (Mass. 1972) (asserting that the social benefit of avoiding construction in a floodplain outweighs an 88% reduction in property value resulting from prohibited development). The balancing test from Penn Central allows courts to find a taking if the loss is less than 100%. See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 130-31 (1978) (indicating that when the Court is "deciding whether a particular governmental action has effected a taking, . . . [the focus is] on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole . . . ."). By contrast, the balancing associated with a nuisance analysis allows a court to avoid finding a taking when the deprivation equals 100%. Cf. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 491 & n.20 (1987) (describing "[t]he Court's hesitance to find a taking when the State merely restrains uses of property that are tantamount to public nuisances").

298. Lucas, 505 U.S. at 1026.

299. Id. at 1027.

300. See id. at 1029 ("Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership.")

301. Id. at 1031.

302. See id. at 1035 (Kennedy, J., concurring in judgment) ("The Takings Clause does not require a static body of state property law . . . . Coastal property may present such unique concerns for a fragile land system that the State can go further in regulating its development and use than the common law of nuisance might otherwise permit."); Gazza v. New York State Dep't of Envtl. Conservation, 605 N.Y.S.2d 642, 644-45 (Sup. Ct. 1993) (holding that no taking had occurred because wetland regulation was already factored into the investment-backed expectations of the property owner), aff'd, 634 N.Y.S.2d 740 (App. Div. 1995), aff'd, 679 N.E.2d 1035 (N.Y.), cert. denied, 118 S. Ct. 58 (1997).

303. See, e.g., Just v. Marinette County, 201 N.W.2d 761, 768 (Wis. 1972) (declaring that an owner has "no absolute . . . right to change the essential natural character of his land . . . . [and Government can limit] the use of private property to its natural uses"). This widely cited statement probably understates the bundle of rights included in land ownership: Housing, farming, and commercial land uses all destroy natural habitat and alter regional hydrology. See, e.g., NATIONAL RESEARCH COUNCIL, RESTORATION OF AQUATIC ECOSYSTEMS: SCIENCE, TECHNOLOGY, AND PUBLIC POLICY 21 (1992) (describing a side effect of agricultural and urban uses of land as "the degradation of aquatic ecosystems").

304. See supra notes 288-291 and accompanying text; cf. Esposito v. South Carolina Coastal Council, 939 F.2d 165, 170 (4th Cir. 1991) (finding that a taking does not occur when a regulation eliminates the right to rebuild a house if a future storm should destroy it, because the existing use continues and the regulation's impact on the land's use is speculative).

305. In this case, the land will already be subject to a rolling easement before the land is subdivided, developed, and sold.

306. Lower courts generally assume that the expectation of just compensation for a prior regulatory taking is extinguished upon transfer. See Gazza, 605 N.Y.S.2d at 644-45 (holding that just compensation is not required for a denial of a wetland permit for a buyer who should have known that the permit would be denied). In areas where rolling easements are likely to be politically feasible, most houses will not have to be moved until several decades after the rolling easements are enacted. See supra note 158 and accompanying text. Because most houses change hands at least once in the course of several decades, most of the property that has to be vacated will be owned by people who bought their homes after the regulations were enacted, and thus will have no takings claim. Nevertheless, exempting current owners for several decades may be desirable, both to prevent takings claims and to protect preexisting investments in the minority of properties where bulkheads will be needed soon. With or without such grandfather clauses, the apparent nontransferability of the takings claim (or exemption) would tend to discourage transfers, because the ability to sue for a taking (or maintain a property free of the rolling easement) vanishes upon transfer, thereby effectively creating a transfer tax equal to the present value of an exemption.

307. Lucas, 505 U.S. at 1029.

308. See infra note 338 and accompanying text (discussing the history of the law of erosion).

309. See infra notes 440-444 and accompanying text (discussing the state's responsibility toward the tidelands).

310. U.S. CONST. art. I, § 8, cl. 3.

311. See Gibson v. United States, 166 U.S. 269, 276 (1897) (holding that riparian property is subject to a dominant federal servitude); Zabel v. Tabb, 430 F.2d 199, 215 (5th Cir. 1970) (holding that the navigation servitude includes the power to deny a permit to fill the marsh below mean high water without compensating landowners); Coastal Petroleum Co. v. United States, 524 F.2d 1206, 1211 (Ct. Cl. 1975) (holding that the navigation servitude includes a power to mine limestone and build levees on land below mean high water without compensating landowners).

312. See The Clean Water Act of 1977, § 404, 33 U.S.C. § 1344 (1994) (regulating the manner in which dredge or fill material can be disposed of in navigable waterways); accord The Rivers and Harbors Act of 1899, § 10, 33 U.S.C. §§ 403, 409 (1994) (declaring it unlawful to fill navigable waterways without the permission of the Corps of Engineers).

313. Compare Krahl v. Nine Mile Creek Watershed Dist., 283 N.W.2d 538, 542-43 (Minn. 1979) (finding no taking when a regulation restricted filling land in a floodplain, because the fill narrowed the remaining floodway and would thereby increase flooding elsewhere) with Dooley v. Town Plan & Zoning Comm'n, 197 A.2d 770, 773-74 (Conn. 1964) (finding a taking when floodplain regulation prevented residential development and reduced property values by 75%) and Morris County Land Improvement Co. v. Township of Parsippany-Troy Hills, 193 A.2d 232, 239-41 (N.J. 1963) (finding a taking when regulation prevented development in order to preserve a natural floodwater detention basin).

314. See, e.g., Lenawee County Bd. of Health v. Messerly, 331 N.W.2d 203, 205-07 (Mich. 1982) (denying a claim for rescission of a contract when, due to an irreparably defective septic tank, rental property was effectively rendered worthless by the Board of Health, which condemned the property and obtained a permanent injunction proscribing human habitation).

315. Compare supra note 264 (discussing how a new wetland regulation can be a taking) with infra note 316 and accompanying text (discussing how wetland regulation is not a taking when such regulation is already incorporated into investment-backed expectations). Compare Gibson, 166 U.S. at 271-72, 276 (holding that the congressional power to regulate navigable waterways under the Commerce Clause implies a navigation servitude, so that the government's interference with private riparian rights along inland navigable waterways does not require compensation) with Kaiser Aetna v. United States, 444 U.S. 164, 180 (1979) (holding that the same congressional power does not exempt the government from having to compensate riparian owners along waterways that were not navigable until private efforts connected them to the sea).

316. See, e.g., Gazza v. New York State Dep't of Envtl. Conservation, 605 N.Y.S.2d 642, 644 (Sup. Ct. 1993) (holding that a property owner who bought wetlands at a discount because of known restrictions on development did not suffer a taking when a building permit was denied), aff'd, 634 N.Y.S.2d 740 (App. Div. 1995), aff'd, 679 N.E.2d 1035 (N.Y.), cert. denied, 118 S. Ct. 58 (1997).

317. See infra Part IV for a discussion of the oldest of these principles, the law of erosion and the public trust doctrine.

318. See supra Part II.B.2 (discussing rolling easements as a means of prohibiting bulkheads or any other structures that interfere with naturally migrating shores).

319. See infra Part IV.C.2 (explaining that, in undeveloped areas, rolling easements allow the state to take over lands to which the state is already entitled under the law of erosion, so that no taking results); infra Part VI.A.3 (same).

320. See supra notes 143-149 and accompanying text (discussing how rolling easements are consistent with private land use until the rising tide renders the land public).

321. See infra Part V (noting that the required compensation is minimal even if a rolling easement is a taking).

322. For a discussion of the Dolan test, see supra notes 237-247 and accompanying text. Just as a one-step easement would pass this test because it only protects public access, see supra note 154 and accompanying text, a rolling easement should pass the Dolan test because a permit condition that requires a rolling easement simply enables the inland migration of wetlands that would occur if the permit were not issued, see supra Part II.B.

323. Increases in value would be most common for the second row of houses along the shore, where the prospect of a waterfront view relatively soon might increase the property value by more than the reduction resulting from the rolling easement's requirement that the property must be eventually abandoned. See supra note 186.

324. See, e.g., C.D. Sumner, Annotation, Eminent Domain: Deduction of Benefits in Determining Compensation or Damages in Proceedings Involving Opening, Widening, or Otherwise Altering Highway, 13 A.L.R.3D 1149, 1153 (1967) (explaining the general rule that when only part of a property is taken by eminent domain, any benefit to the remaining property can be offset against the required compensation).

325. Deferring action in this case would require an analysis similar to declaring today that rolling easements are in effect in areas that are already developed. The property is not rendered immediately useless, but owners are told that the lifetime of their property has been shortened. The main difference between rolling easements and the choice to defer action is that, in the latter case, when owners are finally told that they cannot hold back the sea, they must immediately spend money moving the house away from the shore.

326. See supra Part II.A.3-4.

327. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1009, 1011-13 (1992) (stating that a setback regulation had deprived Lucas of all beneficial use of his property); see also supra Part III.A (discussing Lucas).

328. See supra note 260 and accompanying text (noting the relevance of investment-backed expectations in a takings analysis).

329. See supra notes 260-262 (discussing the rule that there cannot be a regulatory taking unless investment-backed expectations are frustrated). Farmers generally invest in farmland with the expectation of farming; hence, limiting the land use does not generally frustrate their investment-backed expectations. However, equity, economic efficiency, political feasibility, and the difficulty of deciding how much land to protect, may be more important reasons for avoiding an exclusive reliance on setbacks and other strategies that prevent development. See supra Part II.C.

330. See supra Part III.B.2 (explaining the Nollan-Dolan doctrine in the context of policies to protect access along the shore when bulkhead permits are issued).

331. See supra notes 251-253 and accompanying text.

332. This Article uses "lowlands" to refer to lands that are dry today but are low enough to be tidally flooded if sea level rises significantly.

333. Compare Part III.C.1 (explaining that there is generally no taking when only a fraction of a parcel is placed off-limits to development) with Part III.B.1 (discussing cases where there was a taking when permit conditions required dedication of part of a parcel).

334. See supra note 247 and accompanying text. At first glance, requiring an immediate dedication of land might appear to have some similarity to the dedication of the floodway that the Court rejected in Dolan v. City of Tigard, 512 U.S. 374, 394-95 (1994). Just as the dedication of a floodway was unnecessary when a nondevelopment restriction would suffice, see id. at 393, so one might think that dedicating lowland for wetland migration is unnecessary. There is, however, a difference. The City of Tigard's proposed dedication would have increased its total land holdings. See id. at 380. By contrast, setting aside part of a parcel for wetland migration merely diminishes the extent to which the development decreases the intertidal (and publicly owned) wetlands in the long run. Thus, requiring a dedication of coastal land for wetland migration is more analogous to the Dolan bike path, which was intended to counteract the effect of the property owner's development on the publicly owned streets. See id. at 395 ("Dedications for streets, sidewalks, and other public ways are generally reasonable exactions to avoid excessive congestion from a proposed property use."). However, unlike the City of Tigard's convoluted and unsuccessful attempt to show that the bike path mitigated the transportation problems caused by the store at issue, see id. at 381, the showing necessary to justify wetland dedication would be straightforward, see infra note 335 and accompanying text.

335. Compare Dolan, 512 U.S. at 395-96 (holding that a taking could be avoided by showing that the required dedication would actually avoid the problem associated with issuing the construction permit) with Nollan v. California Coastal Comm'n, 483 U.S. 825, 841-42 (1987) (holding that private property had been taken after having noted that the State had an ongoing program of purchasing the same type of beach access that was being required as a permit condition, but that dedication would not avoid the problem associated with issuing the construction permit). Thus, a permit condition with respect to wetlands can be justified, but only by an actual intent to offset the wetland loss created by the proposed development.

336. The Environmental Protection Agency estimates that along much of the United States coast, a four-meter rise in sea level has a 1% chance of occurring by the year 2200. EPA 1995, supra note 2, at iii, 145. Even a disintegration of the West Antarctic Ice Sheet would only raise sea level about 20 feet. Id. at 89 (citing H.W. Menard & Stuart M. Smith, Hypsometry of Ocean Basin Provinces, 71 J. GEOPHYSICAL RES. 4305 (1966)). Furthermore, such an occurrence is generally thought to be unlikely over the next several centuries. See id. at 85, 113-14 (discussing the impact of the Antarctic ice sheet on sea level); IPCC 1995, supra note 2, at 364, 389 (noting the impossibility of estimating the likelihood of a collapse of the West Antarctic Ice Sheet over the next 100-1000 years, but concluding that such an occurrence by 2100 is very unlikely).

337. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 449-50 (1985) (finding no rational basis for denying a permit to build a home for the mentally retarded in a 500-year floodplain when plaintiff alleged that the denial was motivated by discrimination against the mentally retarded).

338. See, e.g., County of St. Clair v. Lovingston, 90 U.S. (23 Wall.) 46, 66-69 (1874) (quoting the Institutes of Justinian, Code Napoleon, and Blackstone for the universal rule that a boundary shifts with the shore); Ford v. Turner, 142 So. 2d 335, 340 (Fla. Dist. Ct. App. 1962) ("The boundary lines of land . . . restrict[] as that margin gradually changes or shifts by reason of accretion or erosion."); Department of Natural Resources v. Mayor of Ocean City, 332 A.2d 630, 638 (Md. 1975) ("Land inundated by mean high water reverts to State ownership . . . . when, as a result of gradual erosion, fast land becomes submerged."); Cinque Bambini Partnership v. State, 491 So. 2d 508, 519-20 (Miss. 1986) (en banc) (stating that where the forces of nature raise sea level, the public lands expand inland without compensation), aff'd sub nom. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988).

The Lovingston Court noted: "`The question is well-settled at common law . . . . Every proprietor whose land is thus bounded is subject to loss by the same means which may add to his territory, and as he is without remedy for his loss in this way he cannot be held accountable for his gain.'" Lovingston, 90 U.S. (23 Wall.) at 68 (quoting Mayor of New Orleans v. United States, 35 U.S. (10 Pet.) 662, 717 (1836)); accord Shively v. Bowlby, 152 U.S. 1, 35 (1894) ("The rule, everywhere admitted . . . is equally applicable to lands bounding on tide waters or on fresh waters . . . .").

339. See infra Part IV.C.1.b (applying the common law of nuisance to bulkhead construction).

340. See infra Part IV.B.1 (explaining that tidelands are publicly owned under the common law); infra Part IV.D (explaining that in some states the public trust doctrine invalidates legislative grants of tidelands, and in other states the doctrine is a rule of construction with a presumption that the legislature has not permanently placed tidelands into private hands unless the statute indicates an explicit intention to do so).

341. See generally Richard J. Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 IOWA L. REV. 631 (1986) (discussing the economic and environmental pitfalls from relying on the expansive doctrine). Like most critics of the public trust doctrine, Lazarus accepts the validity of the property doctrine.

342. Although the focus in this and the following three subparts is on state law, most of the reasoning applies equally to the federal government's navigation servitude. Cf. id. at 636-37 (discussing the federal navigation servitude as an early application of the public trust doctrine in the United States).

343. Arnold v. Mundy, 6 N.J.L. 1, 1-2 (Sup. Ct. 1821).

344. Id. at 2-3.

345. Id. at 2-4.

346. Id. at 76-77.

347. The Institutes of Justinian state:

All persons therefore are as much at liberty to bring their vessels to the bank, to fasten ropes to the trees growing there, and to place any part of their cargo there, as to navigate the river itself. But the banks of a river are the property of those whose land they adjoin; and consequently the trees growing on . . . them are also the property of the same persons. . . .

Any person is at liberty to place on [the shore] a cottage, to which he may retreat, or to dry his nets there, and haul them from the sea.

J. INST. 2.1.4, 2.1.5.

348. See Martin v. Lessee of Waddell, 41 U.S. (16 Pet.) 366, 410 (1842) ("For when the revolution took place, the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use . . . ."). Chief Justice Taney pointed out that submerged lands had originally been "held by the king . . . as the representative of the nation, and in trust for them." Id. at 409. Thus,

"[T]he dominion and propriety in the navigable waters, and in the soils under them, passed, as a part of the prerogative rights annexed to the political powers conferred on the Duke;" and "in his hands they were intended to be a trust for the common use of the new community . . . a public trust for the benefit of the whole community, to be freely used by all for navigation and fishery, as well for shell fish as floating fish," "and not as "private property, to be parcelled out and sold . . . ."

Shively v. Bowlby, 152 U.S. 1, 16 (1894) (emphasis added) (quoting Martin, 41 U.S. (16 Pet.) at 411-13).

349. Pollard v. Hagan, 44 U.S. (3 How.) 212, 229-30 (1845). A century later, the Supreme Court held that the federal government had retained tidelands along the ocean coasts of all new states. See United States v. California, 332 U.S. 19, 38-41 (1947). Congress overruled this decision with the Submerged Lands Act of 1953, 43 U.S.C. §§ 1301-1356 (1994 & Supp. I 1995), which grants the states the ocean floor out to the three-mile limit, see 43 U.S.C. § 1312 (1994).

350. See Martin, 41 U.S. (16 Pet.) at 410; see also David C. Slade et al., The Conveyance of Public Trust Land and the Nature of the Remaining Servitude, in PUTTING THE PUBLIC TRUST DOCTRINE TO WORK, supra note 33, at 175, 180-81 nn.5-10 (discussing judicial limitations on the ability of states to convey public trust lands to private parties); cf. United States v. Denver & Rio Grande Ry. Co., 150 U.S. 1, 14 (1893) ("It is . . . the well-settled rule of this court that public grants are construed strictly against the grantees, but they are not to be so construed as to defeat the intent of the legislature . . . .").

351. See, e.g., Martin, 41 U.S. (16 Pet.) at 410 ("The question must be regarded as settled in England, against the right of the king, since Magna Charta, to make such a grant [of public trust lands]."); Arnold, 6 N.J.L. at 73-78 (stating that the existence of the public trust doctrine since the Magna Carta implies that the king had no power to sell public trust lands).

352. See, e.g., Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 715-23 (1986) (suggesting why certain types of property are vested in the public "where many persons desire access to or control over a given property, but they are too numerous and their individual stakes too small to express their preferences in market transactions").

353. See id. at 722-30 (discussing the traditional doctrines of prescription, public trust, and custom as justifications for the public ownership of roads and waterways). Given this common law justification for the public trust doctrine, a possible justification for privatizing estuarine shores in some areas might be that, compared with the ocean coast, the estuarine tidelands are no longer important for "passing and repassing, navigation, fishing, fowling, sustenance, and all the other uses of the water and its products." Arnold, 6 N.J.L. at 77. Newly recognized uses of the tidelands, such as recreation and environmental habitat may provide countervailing reasons to keep these tidelands in public hands. See supra Part II.A (explaining the uses of estuarine shores).

354. In cases where additional people did pose a crowding problem, such as port construction, even the expansive public trust doctrine allowed a certain amount of privatization. See Illinois Cent. R.R. v. Illinois, 146 U.S. 387, 405-11 (1892) (citing an 1869 legislative grant of a portion of the Lake Michigan shore to a railroad company). By the same token, many communities charge beach user fees, but only for the relatively crowded ocean beaches and only during peak periods of use. See, e.g., Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355, 358-60 (N.J. 1984) (discussing a municipal association's use of fees and restrictions to provide access to the beach for its residents in light of overcrowding).

355. See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 476 (1988) ("[T]he States have interests in lands beneath tidal waters which have nothing to do with navigation. . . . It would be odd to . . . suggest that the sole measure of the expanse of such [public trust tide]lands is the navigability of the waters over them." (citations and footnote omitted)).

356. See supra notes 347-348 and accompanying text.

357. See, e.g., Texas Open Beaches Act, 31 TEX. ADMIN. CODE § 15.7(h) (West 1997) ("A local government shall not . . . close a public beach to pedestrian or vehicular traffic without prior approval of the General Land Office.").

358. See, e.g., Board of Pub. Works v. Larmar Corp., 277 A.2d. 427, 437 (Md. 1971) ("It is well established that the title of land below the highwater mark, as well as rivers or streams within the ebb and flow of the tide, belong to the public."); Slade et al., supra note 33, at 44 n.58 (listing cases from all 23 tidewater state courts defining the landward boundary of the public trust).

359. See fig.2.

360. See LA. CIV. CODE ANN. art. 451 (West 1980) ("Seashore is the space of land over which the waters of the sea spread in the highest tide during the winter season."); WASH. REV. CODE ANN. § 90.58.030(2)(b) (West Supp. 1998) (defining ordinary high water mark with respect to the vegetation line); In re Ashford, 440 P.2d 76, 77 (Haw. 1968) (defining the seaward boundary mark to be the vegetation line); Dolphin Lane Assocs. v. Town of Southampton, 333 N.E.2d 358, 360 (N.Y. 1975) (locating the high water line by reference to the line of vegetation); State ex rel. Thornton v. Hay, 462 P.2d 671, 674 (Or. 1969) (construing high water mark as equal to the vegetation line). The vegetation line is well inland and above the mean high water. See fig.2.

361. Slade et al., supra note 33, at 69 n.22, 70 n.23.

362. See Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355, 358 (N.J. 1984) (expanding the public trust inland along the ocean by recognizing a right to sunbathe and otherwise enjoy the dry beach between mean high water and the vegetation line). The court declared that in New Jersey the public trust doctrine also includes a right of access to the shore: "To say that the public trust doctrine entitles the public to swim in the ocean and to use the foreshore in connection therewith without assuring the public of a feasible access route would seriously impinge on, if not effectively eliminate, the rights of the public trust doctrine." Id. at 364.

363. See Hay, 462 P.2d at 673, 676-77 (holding that the public has access to the privately owned dry beach based on the doctrine of custom); Matcha v. Mattox, 711 S.W.2d 95, 97 (Tex. App. 1986, writ ref'd n.r.e.) (affirming a trial court holding that the public has acquired access to the beach seaward of the natural vegetation line through prescription, dedication, and custom); see also City of Daytona Beach v. Tona-Rama Inc., 294 So. 2d 73, 78 (Fla. 1974) (holding that in the particular area under consideration, the public had an easement to the privately owned dry sand beach based on the doctrine of custom).

364. Beach nourishment projects sponsored by the Corps of Engineers often motivate the creation of public access along the shore. See, e.g., infra note 373 (discussing the federal policy of providing beach nourishment only for beaches that are open to the public); supra note 151 (suggesting that communities in South Carolina may open their beaches to the public to obtain beach nourishment). For example, during the 1980s, the State of Maryland had to obtain access along the dry beach before the Corps of Engineers could undertake the beach nourishment project there. See infra note 373; see also Nollan v. California Coastal Comm'n, 483 U.S. 825, 841 (1987) (mentioning an ongoing program by the California Coastal Commission of acquiring dry beach access).

365. See Bell v. Town of Wells, 557 A.2d 168, 176-77 (Me. 1989) (holding a statute that "imposed upon all intertidal land . . . an easement for use by the general public for `recreation' without limitation" to violate the Takings Clauses of the Maine and United States Constitutions).

366. See MD. CODE ANN., ENVIR. § 16-201(a) (1996) ("A person who is the owner of land bounding on navigable water is entitled to any natural accretion to the person's land . . . ."); Ford v. Turner, 142 So. 2d 335, 340 (Fla. Dist. Ct. App. 1962) (stating that the boundary lines of land located on the bed of a stream or other body of water extend or restrict as the water line shifts by reason of accretion or erosion and that "newly formed land belongs to the owner of the land to which it is an accretion"); Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach, 177 S.E.2d 513, 517 (N.C. 1970) (holding that, because property boundary shifts with advancing and retreating shore, the town's construction of a sand berm at a location that was no longer above mean high water did not constitute a taking because the erosion had divested the landowner of title to the land); see also supra note 338.

367. See, e.g., Patton v. City of Wilmington, 147 P. 141, 142 (Cal. 1915) (holding that artificial accretions accrue to the state). But see California ex rel. State Lands Comm'n v. United States, 457 U.S. 273, 285 (1982) (holding that, under federal common law, accretions along the ocean beach accrue to the upland owner, whether or not such accretions are artificial and whether or not the riparian owner is responsible for presence of the structure causing the accretions). See generally Annotation, Waters: Rights in Respect of Changes by Accretion or Reliction Due to Artificial Conditions, 134 A.L.R. 467, 472 (1941) ("In general, a riparian owner cannot claim title to land added by accretion or formed by reliction as a result of creating by himself an artificial condition causing the accretion or reliction."). The Court in State Lands Commission applied federal common law because the federal government was the riparian owner. State Lands Comm'n, 457 U.S. at 283-84.

In Maryland, an 1862 statute repealed the common law rule and awarded property owners title to any land created by filling tidal waters. See 1862 Md. Laws ch. 129, § 1 ("The proprietor of land bounding on any of the navigable waters of this State, is hereby declared to be entitled to all accretions to said land by the recession of said water, whether heretofore or hereafter formed or made by natural causes or otherwise . . . ."); Board of Pub. Works v. Larmar Corp., 277 A.2d 427, 436 (Md. 1971) (concluding that under the 1862 statute, a riparian owner had the right to make artificial landfill in navigable waters in front of his shore). Although that right was curtailed in 1970, see id. at 442 & n.6 (noting that after July 1, 1970, a party desiring to alter its shoreline had to obtain a license pursuant to the Wetlands Act of 1970), property owners are still awarded title to land created by erosion control activities, as well as land created to offset shoreline erosion that has occurred since January 1, 1972, see MD. CODE ANN., ENVIR. § 16-201 (1996).

368. See, e.g., H.K. Porter Co. v. Board of Supervisors, 324 So. 2d 746, 750 (Miss. 1975) (holding that when accretion is caused by the Corps of Engineers or another stranger without the complicity of the upland owner, artificial accretion goes to the upland owner); see also Slade et al., supra note 33, at 105-08 (listing cases holding that artificial accretions caused by a third party accrue to the dryland owner in Alabama, Alaska, Illinois, Massachusetts, Mississippi, Nebraska, New Hampshire, New Jersey, New York, and Wisconsin); Annotation, supra note 367, at 468 ("Generally, a riparian owner is not precluded from acquiring land by accretion or reliction, notwithstanding the fact that the accumulation is brought about partly by artificial obstructions erected by third persons, where the riparian owner had no part in erecting the artificial barrier."); infra note 369.

369. See Slade et al., supra note 33, at 105-08 (listing cases holding that artificial accretions caused by a third party do not accrue to the dryland owner in California, Florida, Hawaii, and Texas).

370. The shoreline change caused by filling can be ascertained simply by comparing surveys from before and after the land was filled, and the change is often obvious to the naked eye because the fill is a different material than found naturally on the beach. By contrast, if a shore slowly accretes as a result of an artificial structure, the newly created land will be made from the same sediments that are already found on the shore. For example, if a structure catches whatever sand is washing along the beach, the material caught will, by definition, be the same as the material already found on the beach.

371. See, e.g., Larmar Corp., 277 A.2d at 432 ("If an intervening party were permitted to gain title to accretions . . . the riparian landowner would be deprived of his valuable water-access rights.").

372. See NATIONAL RESEARCH COUNCIL, BEACH NOURISHMENT AND PROTECTION app. E at 257-58 (1995) (discussing beach nourishment costs and benefits).

373. The State of Maryland and the Corps of Engineers had to address this issue before undertaking a large beach nourishment project at Ocean City, Maryland. Personal Communication with John Van Fossen, supra note 24. The state law authorizing the beachfill project specified that any land created by the project would belong to the State. See MD. CODE ANN., NAT. RES. II § 8-1103 (1990). Before the project was undertaken, the State also obtained public easements to what remained of the dry beach, which was then privately owned. Personal Communication with John Van Fossen, supra note 24. Property owners were willing to provide these easements, because without the beachfill project, they would have soon lost their dry beach"and perhaps their homes"to the sea. Id. These easements were required by the longstanding Corps policy of only providing government erosion control assistance for beaches that are open to the public. See, e.g., U.S. ARMY CORPS OF ENG'RS, DIGEST OF WATER RESOURCES POLICIES AND AUTHORITIES 14-1 (1996) (explaining that Public Law No. 84-826 authorized federal erosion control assistance only for publicly owned shores, or for private shores if such protection would result in public benefits); see also Act of July 28, 1956, Pub. L. No. 84-826, 70 Stat. 702, 702 (codified as amended at 33 U.S.C. § 426) ("Shores other than public will be eligible for Federal assistance if there is benefit such as that arising from public use or from the protection of nearby public property . . . ."); Act of August 13, 1946, Pub. L. 79-727, § 1, 60 Stat. 1056 (codified as amended at 33 U.S.C. § 426) (declaring U.S. policy to protect shores that are owned by states, municipalities, or other political subdivisions).

374. See, e.g., Pitman v. United States, 457 F.2d 975, 977 (Ct. Cl. 1972) (holding that a boundary migrated inland even though erosion was caused by a Corps of Engineers jetty); see also supra note 338 (suggesting that boundaries have retreated with an eroding shore since the Institutes of Justinian).

375. See CURTIS J. BERGER, LAND OWNERSHIP AND USE § 3.4 (3d ed. 1983) (discussing defeasible estates).

376. See, e.g., First Universalist Soc'y v. Boland, 29 N.E. 524, 524-25 (Mass. 1892) (discussing a deed that granted land to the plaintiff for so long as it was "`devoted to the uses, interests, and support of those doctrines of the Christian religion'").

377. See, e.g., People v. City of Long Beach, 19 Cal. Rptr. 585, 587 n.2, 594 (Dist. Ct. App. 1962) (discussing a deed that required land to be used "for a park, playground, recreational center and/or beach used for recreational purposes, and for no other purposes whatsoever").

378. See, e.g., Preseault v. ICC, 494 U.S. 1, 9 (1990) (holding that where land had been granted for so long as it was used as a railroad, the federal government had authority to convert rails to trails, but that doing so might be a taking that required compensation).

379. See, e.g., Hagaman v. Board of Educ., 285 A.2d 63, 65 (N.J. Super. Ct. App. Div. 1971) (discussing a deed that stated that it was the "understanding" of the parties that the land conveyed would be "used for the erection and maintenance of a public school").

380. See, e.g., Rosecrans v. Pacific Elec. Ry., 134 P.2d 245, 246-48 (Cal. 1943) (in bank) (requiring a railroad to forfeit land for failure to comply with a grant condition requiring it to run 18 local passenger trains per day); Baker v. Weedon, 262 So. 2d 641, 642 (Miss. 1972) (discussing a will conveying a home to a widow as long as she lived, after which time the home would be transferred to the grandchildren from a previous marriage if the widow had no children at the time of her death).

381. See supra Part II.B.2 (explaining that rolling easements ensure that public tidelands will not be eliminated).

382. See supra Part II.B.3 (emphasizing that lack of notice is the primary way by which deferred action differs from rolling easement policies).

383. See David C. Slade et al., State Powers, Duties, Limitations and Prohibitions Under the Public Trust Doctrine, in PUTTING THE PUBLIC TRUST DOCTRINE TO WORK, supra note 33, at 213, 215 (noting that courts require the state, as public trustee, to prevent the destruction of land subject to the public trust).

384. See Kaiser Aetna v. United States, 444 U.S. 164, 172-73 (1979) (holding that requiring public access to newly navigable waters is a taking, because a federal navigation servitude does not apply to waters made navigable by private effort).

385. In Maryland, statutes modify the symmetry by entitling property owners to reclaim land lost to erosion since the early 1970s. See MD. CODE ANN., ENVIR. § 16-201 (1996).

386. A federal court evaluating a takings claim would often tend to take the state law as it finds it even if there appear to be inconsistencies. See Rules of Decision Act, 28 U.S.C. § 1652 (1994) (requiring federal courts to decide cases based on state law unless they are preempted by federal statutes, the U.S. Constitution, or treaty); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 73-78 (1938) (construing "state laws" in the Rules of Decision Act as including state common law). A state court, by contrast, would have the ability to clarify the property law as part of a takings claim. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1031-32 (1992) (remanding a takings case to state court for determination of rights under state property law). In some states, a federal court could certify the question of state law for a decision by the state's highest court. See, e.g., JACK H. FRIEDENTHAL ET AL., CIVIL PROCEDURE 221 (1985). To the extent that asymmetries and ambiguities in the law appear to leave room for concluding that a property owner can indirectly eliminate the tidelands even though she cannot do so directly, plaintiffs might be best advised to bring cases in federal courts. See, e.g., id. at 219-20 (showing a lack of consensus among federal circuits on whether federal courts interpreting state law are bound by precedent no matter how antiquated it may be, or should consider possible future revisions of the state law even if doing so requires federal court "`to psychoanalyze state court judges'" (quoting Polk County v. Lincoln Nat'l Life Ins. Co., 262 F.2d 486, 489 (5th Cir. 1959))).

387. For example, Guido Calabresi and A. Douglas Melamed showed that economic efficiency is promoted when the law treats an activity as a nuisance if and only if it can be avoided at a cost less than the total harm of the nuisance to society. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1115-24 (1972); accord Epstein, supra note 265, at 1389 ("It is preferable for 5 percent of the cases to involve the purchase of an easement to create a nuisance than for 95 percent to involve the purchase of a restrictive covenant to prevent one. Such an allocation properly reflects a world with positive transaction costs . . . .").

388. Cf. Lummis v. Lilly, 429 N.E.2d 1146, 1149-50 (Mass. 1982) (stating that when an erosion control structure causes a neighbor's land to erode, a court deciding whether the structure is a nuisance should follow the reasonable use rule and weigh the various costs and benefits of the structure).

389. See POTENTIAL EFFECTS OF GLOBAL CLIMATE CHANGE, supra note 17, at app. B 3-37, 3-75 (reporting that houses at Long Beach Island, New Jersey can be moved for $10,000 per house and that bulkheads cost at least $130 per foot).

390. See Slade et al., supra note 350, at 175-77 (noting that a state has the power to convey its jus privatum interest in public trust lands to private ownership through specific legislation). A possible counterargument to this reasoning is that nuisances are broad classes of activities. See supra note 387.

391. See Matthews v. Bayhead Improvement Ass'n, 471 A.2d 355, 360 (N.J. 1984) ("The genesis [of the public trust doctrine] is found in Roman jurisprudence . . . ." (citing J. INST. 2.1.1)).

392. See 50 AM. JUR. 2D Levees and Flood Control § 16, at 266 (1995) ("[A]lthough a riparian landowner may take measures to protect himself or herself from the harmful effects of floodwaters, he or she may not, by erecting a dam, dike, or levee, change or divert the natural flow of a watercourse without being chargeable in damages to persons and property injured thereby."); see also Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1029 (1992) ("[T]he owner of a lakebed, for example, would not be entitled to compensation when he is denied the requisite permit to engage in a landfilling operation that would have the effect of flooding others' land."); Biberman v. Funkhouser, 58 A.2d 668 (Md. 1948) (reaffirming that Maryland follows the civil law rule that no one can substantially change the flow of rainwater runoff so as to flood a neighbor). But see Martin J. McMahon, Annotation, Liability for Diversion of Surface Water by Raising Surface Level of Land, 88 A.L.R.4TH 891, 897-98 (1991) (noting that some jurisdictions follow the "common-enemy doctrine," under which every landowner "has an unqualified right to fend off surface waters as the landowner sees fit without being required to take into account the consequences to other landowners").

393. To argue that the rising sea, not the bulkhead, causes the tidelands to vanish is merely semantics"like blaming a flood on the rain rather than on the dam.

394. The political process generally protects people from losing their homes as long as they do not need a subsidy"and sometimes even when they do. When houses fall into the water along the ocean, it is usually because individualized erosion protection is not feasible.

395. 220 Cal. Rptr. 2 (Ct. App. 1985).

396. Id. at 8.

397. This pre-Lucas case included some dicta suggesting that the State could prevent a seawall: "`one may not do with his property as he pleases; his use if subject to reasonable restraints to avoid societal detriment.'" Id. (quoting People v. Byers, 153 Cal. Rptr. 249 (Ct. App. 1979)). However, Lucas has largely nullified this approach. Lucas, 505 U.S. at 1024-27 (rejecting the theory that regulations are not takings if they prevent social harm, in favor of a rule that when a regulation destroys a property's value, the state can avoid compensation only if the proscribed use was not already part of the bundle of rights associated with owning the property).

398. See Feinman v. State, 717 S.W.2d 106, 111 (Tex. App. 1986, writ ref'd n.r.e.) (recognizing the beach as a rolling easement because otherwise the area of public access would disappear as the shore erodes); Matcha v. Mattox, 711 S.W.2d 95, 100 (Tex. App. 1986, writ. ref'd n.r.e.) ("[B]ecause legal title shifts with the natural movements of the beach, this Court has concluded that the public easement also shifts with the natural movements of the beach." (citations omitted)). The reader may logically ask: Why are we discussing rolling easements in a subpart focused on deferred action? Recall from Part II.B that this Article uses the term "rolling easement" to signify the entire collection of policies in which property owners are warned in advance of their inability to erect bulkheads, and that deferred action policies are essentially the same except for the lack of substantial advance notice. The Texas rolling easement cases involved situations more like the deferred action alternative: their reasoning was that riparian owners never had a right to stop the inland migration of tidelands, and the only notice the property owners had about the need to abandon shorefront structures was the fact that shores are eroding; i.e., the court did not indicate that the government had put property owners on general notice that the structures would have to be abandoned.

399. See, e.g., Arrington v. Mattox, 767 S.W.2d 957, 958 (Tex. App. 1989, writ denied) (holding that the statute requiring removal of structures seaward of the vegetation line merely enforced a common law public right, and hence was not a legislative taking); Matcha, 711 S.W.2d at 99-101 (holding that as the vegetation line moves inland, the State can enjoin reconstruction of a storm-damaged house that is left seaward of the vegetation line). In these cases, a violent hurricane left private property seaward of the natural vegetation line, thereby triggering a transfer of that property. Arrington, 767 S.W.2d at 957; Matcha, 711 S.W.2d at 96. Consequently, the court did not address whether someone had the right to protect her property from impending erosion. Because a bulkhead or seawall would impair public access and eventually be seaward of the vegetation line, these cases imply that they could be ordered removed as well. Beach nourishment, by contrast, would not impair public access and could stop the vegetation line from retreating. See NATIONAL RESEARCH COUNCIL, supra note 372, at 1-2 (discussing beach nourishment as an engineering alternative for shore protection).

400. See, e.g., S.C. CODE ANN. § 48-39-290(B)(2)(a)-(b) (West Supp. 1997) (prohibiting any new erosion control structures seaward of the setback line, as well as the repair of any such structures suffering more than a certain percentage of damage from a storm).

401. Similarly, if protection is allowed, property owners have no basis to expect public access to also be eliminated. During several trips to Great Britain, the author has observed that much of the English coast has been bulkheaded, but there is invariably a walkway just above the wall. In Maryland, along Atlantic Avenue in North Beach, the public has access along a narrow walkway between several homes and Chesapeake Bay. See fig.7.

402. See MD. CODE ANN., ENVIR. § 16-201 (1996) (granting the right "to reclaim fast land lost by erosion").

403. City of Berkeley v. Superior Ct., 606 P.2d 362, 373 (Cal. 1980); Opinion of the Justices, 437 A.2d 597, 604-10 (Me. 1981); Opinion of the Justices to Senate, 424 N.E.2d 1092, 1099-1100 (Mass. 1981).

404. See N.C. ADMIN. CODE tit. 15A, 07H.0208(b)(7)(B) (Apr. 1996) (requiring bulkheads to be constructed "landward of significant marshland or marshgrass fringes"); Webb v. North Carolina Dep't of Env't, Health & Natural Resources Coastal Resources Comm'n, 404 S.E.2d 29, 30-32 (N.C. Ct. App. 1991) (upholding the validity of a permit issued for a bulkhead constructed two feet inland of the mean high water line).

405. According to Doug Huggett of North Carolina's Division of Coastal Management, "It would be political suicide to require people to take down these bulkheads." Interview with Doug Huggett, Assistant Major Permits Coordinator, Div. of Coastal Management, Dep't of Envtl. and Natural Resources (Oct. 29, 1997) (on file with author).

406. Rhode Island Coastal Resource Management Program § 210(B)(4) (1993) ("Bulkheading and filling along the inland perimeter of a marsh prevents inland migration of wetland vegetation as sea level rises."); id. § 210.3(C)(3) ("In Type 1 waters, structural shoreline protection may be permitted only when the primary purpose is to enhance the site as a conservation area and/or a natural buffer against storms.").

407. In Maryland, the State has probably not waived the right to prohibit bulkheads and revetments along the shore, except when bulkheads have been built. Courts have long held that the additional riparian rights provided by statute should be viewed as licenses, which are not constitutionally protected property rights. See, e.g., Board of Pub. Works v. Larmar Corp., 277 A.2d 427, 439 (Md. 1971) (holding that an unused riparian right to fill tidal waters was a license that could be revoked by the legislature). This view is consistent with the public trust doctrine cases, which have narrowly construed any purported legislative grants of tidal waters to private parties. See, e.g., City of Berkeley, 606 P.2d at 369 ("[S]tatutes purporting to abandon the public trust are to be strictly construed; the intent to abandon must be clearly expressed . . . and if any interpretation of the statute is reasonably possible which would retain the public's interest in tidelands, the court must give the statute such an interpretation."). By contrast, where people have already erected an erosion control structure, the owner clearly has a property interest in the bulkhead or revetment. See MD. CODE ANN., ENVIR. § 16-201 ("[A] person may make improvements into the water in front of the land to . . . protect the shore of that person against erosion. After an improvement has been constructed, the improvement is the property of the owner of the land to which the improvement is attached."). Given the court's distinction between used and unused riparian rights in Larmar Corp., 277 A.2d at 439, a court might also conclude that in such a case there is a vested right to hold back the sea.

408. But cf. infra Part IV.D (noting that in a few states, under the expansive public trust doctrine, the government cannot engage in a wholesale transfer of tidelands even by explicit intention, much less by waiver).

409. See fig.6 (illustrating that the notice provided by rolling easements leads the property owner to avoid construction when the easement is likely to take over property soon); fig.9 (same for one-step easement); see also supra Part II.B.3 (explaining that notice is the main difference between rolling easements and deferred action).

410. See supra notes 398-399 and accompanying text.

411. See DAVID H. GETCHES, WATER LAW IN A NUTSHELL 7-21, 47-51, 74-82 (2d ed. 1990) (discussing the "reasonable use" and "prior appropriation" doctrines of water use law).

412. See Larmar Corp., 277 A.2d at 434 (stating that artificial fill was not within the established meaning of accretion at common law). Although a Maryland statute recognizes a right to reclaim land lost to erosion, see MD. CODE ANN., ENVIR. § 16-201, the statute does not include a guarantee from the Corps of Engineers that it will grant the necessary permit. See Maryland General Permit, supra note 60, cat. III, at 9 (stating that the Corps may authorize projects undertaken to fill wetlands only "after review by the Corps and coordination with appropriate federal resource agencies").

413. See supra note 367 and accompanying text (noting that under the common law in most states, owners do not get title to extra land created by their own efforts).

414. TEX. NAT. RES. CODE ANN. §§ 61.001-.178 (West 1978 & Supp. 1998).

415. Id. § 61.011 (West 1978 & Supp. 1998) (stating that if the public has acquired a right of use by prescription, easement, or continuous use, the public shall have unrestricted access between mean low water and the vegetation line). But cf. fig.10.

416. CODE ME. R. ch. 355, § 3(B)(1) (1993).

417. See id. § 3(B)(1)(b) ("If the shoreline recedes such that the coastal wetland . . . extends to any part of the structure, including support posts, for a period of six months or more, then the approved structure . . . shall be removed and the site shall be restored to natural conditions within one year.").

418. See supra Part III.A (discussing changes in South Carolina law, prompted by the decision in Lucas and by Hurricane Hugo, which created a hybrid between a setback and a rolling easement).

419. See supra Part IV.B.1 (identifying the land owned by the state in trust for the people under the public trust doctrine in various states, with no distinction made between oceans and bays).

420. See supra notes 355-360 and accompanying text (explaining that the public trust doctrine applies to tidal waters and tidelands, with the inland boundary of the public trust usually being mean high water, but extending up to the vegetation line or highest storm surge of the average year in some states).

421. The doctrine of waste is an equitable doctrine of property law designed to prevent someone in temporary possession of a piece of property, such as a life tenant, from using the property in a way that unfairly harms the value of the estate that will eventually be transferred to a reversionary interest holder. See RESTATEMENT OF PROPERTY: FUTURE INTERESTS §§ 189, 193 (1936) (detailing the action that the owner of a future interest can take when the owner of the present estate engages in threatening conduct); see also BERGER, supra note 375, at 675-76 (explaining the history of the doctrine of waste).

422. This discussion does not prove that a court would enjoin coastal construction under the doctrine of waste. Rather, its purpose is to illustrate that the background principles of property law are consistent with such an injunction, in which case a court faced with a statute prohibiting the development might be able to avoid a taking.

423. See Feinman v. State, 717 S.W.2d 106, 110 (Tex. App. 1986, writ ref'd n.r.e.) ("The division between public and private ownership under the common law . . . is the mean high tide line.").

424. See id. (recognizing that Texas case law approves the "concept of a rolling easement").

425. A fee simple determinable is an interest in land in which the owner loses title automatically upon the occurrence of a condition. The previous owner's interest is known as a "possibility of reverter," because the estate reverts back to him if the condition occurs. See BERGER, supra note 375, at 183-84.

426. See RESTATEMENT OF PROPERTY: FUTURE INTERESTS §§ 139, 140, 189 (declaring that the remainderman of a life estate can obtain an injunction if the life tenant impairs the property value, accelerates the termination of the remainderman's estate, or breaches any other duty of the life tenant to the remainderman); id. § 193(c) (declaring that the contingent owner of a defeasible estate can obtain an injunction against waste if it is "wanton or unconscionable"). The greater the probability that the contingent owner's estate will vest, the greater the duty of the current estate owner to avoid harming the value of the contingent owner's estate. Id. § 193 cmt. f; accord J.W. Oler, Annotation, Right of Owner of Contingent or Defeasible Future Interest to Maintain Action for Relief in Respect of Property, 144 A.L.R. 769, 785-90 (1943) (explaining that equity will not allow a wrong to go without a remedy, but that its readiness to protect contingent estates is tempered by the power to withhold relief when the interest is unlikely to vest). Because sea level rise is very likely, a court applying this type of analysis could hold that the duty to the public trust's future interest is almost as great as a life tenant's duty to the remainderman. But cf. Williams v. Ramey, 41 S.E.2d 159, 159 (Ga. 1947) (stating that authorities are split on the issue of whether a conditional remainderman is able to obtain an injunction to stop waste).

427. See BERGER, supra note 375, at 675 n.5 (explaining that the doctrine of waste usually applies when the current holder strips the land of its resources).

428. See Brokaw v. Fairchild, 237 N.Y.S. 6, 20 (Sup. Ct. 1929) (preventing a life estate holder from replacing a money-losing historic mansion with a profitable apartment building), aff'd per curiam, 245 N.Y.S. 402 (App. Div. 1930), aff'd per curiam, 177 N.E. 186 (N.Y. 1931).

429. This statement assumes that the beach is not armored with a seawall.

430. Cf. Lucas v. South Carolina Coastal Council, 424 S.E.2d 484, 486 (S.C.) (rejecting the notion of a common law basis for preventing the development of coastal land), on remand from 505 U.S. 1003 (1992).

431. The Restatement implies that if the contingent interest is likely to vest, the current estate holder's duty to the reversionary interest holder is essentially to manage the property as if she were the owner of the entire estate. See, e.g., RESTATEMENT OF PROPERTY: FUTURE INTERESTS §§ 140, 193 cmt. h (requiring conduct similar to that of the most recent owner of the entire estate, and encouraging conduct from someone who owned both estates). This standard suggests that in areas where beaches are important, a riparian owner might not be allowed to eliminate the shore, but that in areas where beaches are not important, eliminating the shore would be allowed.

432. See supra note 426. Courts occasionally prohibit all productive uses of land if the productive uses ruin the estate of the remainderman. See, e.g., Brokaw, 237 N.Y.S. at 20 (denying the only proposed profitable use of property to a life tenant who was losing $70,542 on the property's current use). Nevertheless, an equity court would be more likely to prevent land from being filled than to prevent all development, because the former protects the tideland owner's reversionary interest without destroying the value of the dry land estate.

433. For example, filling some land that would otherwise be tideland within five years may justify an injunction.

434. For example, a hazardous waste site or construction that would subsequently make tidelands unusable to the public trust due to replacement of natural soils with materials unsuitable to vegetated wetlands may justify an injunction.

435. Cf., e.g., Lippman v. Sears Roebuck & Co., 280 P.2d 775, 781 (Cal. 1955) (awarding a landlord damages when a lease specified that rent was based on a percentage of sales, and the tenant had no sales because the premises were used as a warehouse after the tenant relocated the store).

436. See Burton v. Moses (In re Estate of Moses), 300 N.E.2d 473, 480 (Ill. App. 1973) (denying a son who murdered his mother the benefits of premature reversion); Eisenhardt v. Siegel, 119 S.W.2d 810, 813 (Mo. 1938) (denying reversion to a grantor who murdered his grantee after having conditioned his reversion on the grantee dying first); RESTATEMENT OF RESTITUTION § 188 cmt. c (1937) (declaring that when a remainderman murders a life tenant, and the murderer's interest is contingent on surviving the life tenant, the remainderman can be compelled to surrender the entire interest). But cf. G.H. Fischer, Annotation, Murder of Life Tenant by Remainderman or Reversioner as Affecting Latter's Rights to Remainder or Reversion, 24 A.L.R.2D 1120, 1120-22 (1952) (listing cases in which murderers received early reversions of life estates).

437. Cf. RESTATEMENT OF PROPERTY § 135 (1936) (finding a duty to avoid causing or accelerating the termination of a defeasible estate). Wetlands taking cases have not considered this argument, because wetlands law prohibits filling high marsh due to the immediate impact on the wetlands, rather than due to any eventual impact on the public trust low marsh. Another difficulty is that federal and state programs sometimes encourage developers to fill dryland to prevent flooding. See, e.g., 44 C.F.R § 60.3(c)(2)-(3) (1997) (requiring new structures to be elevated above the base flood level). Although houses are usually elevated on pilings, fill is often brought in as well. The author has observed that in Ocean City, Maryland, for example, the highest ground on the barrier island is the sewerage treatment plant where fill was brought in to elevate the facility to flood levels.

438. The standard technique for creating coastal wetlands is to excavate coastal land to bring it down to the elevation necessary for wetlands to form. See NATIONAL RESEARCH COUNCIL, RESTORATION OF AQUATIC ECOSYSTEMS: SCIENCE, TECHNOLOGY, AND PUBLIC POLICY 290-92 (1992) (providing a comprehensive review of the techniques for creating and restoring wetlands); Stephen W. Broome, Creation and Restoration of Tidal Wetlands of the Southeastern United States, in WETLAND CREATION AND RESTORATION 37, 42-44 (Jon A. Kusler & Mary E. Kentula eds., 1990) (discussing the grading of upland sites to elevations appropriate for marsh formation in the Southeastern United States); Roy R. Lewis, III, Creation and Restoration of Coastal Plain Wetlands in Florida, in WETLANDS CREATION AND RESTORATION, supra, at 73, 83 (discussing similar grading issues for Florida); Joseph K. Shisler, Creation and Restoration of Coastal Wetlands of the Northeastern United States, in WETLANDS CREATION AND RESTORATION, supra, at 143, 152-53 (discussing similar grading issues for the Northeastern United States); Interview with Dennis King, University of Md. Ctr. for Envtl. & Estuarine Studies, Solomons Island (Sept. 4, 1997) (on file with author) (asserting that 60% of the cost of wetland creation is excavation).

439. Joseph L. Sax rekindled scholarly interest in this traditional view of the public trust doctrine. See generally Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471 (1970). Sax has never suggested that the doctrine should be employed to enable a landward migration of wetlands, but he has recommended that trust funds should buy out riparian owners as the sea rises. See Sax, supra note 187, at 148-49; see also supra Part II.C (discussing the risk of backsliding).

440. See City of Berkeley v. Superior Ct., 606 P.2d 362, 373 (Cal. 1980) ("[T]he appropriate resolution is to balance the interests of the public . . . against . . . landowners who hold property under these conveyances.").

441. See, e.g., Lake Mich. Fed'n v. United States Army Corps of Eng'rs, 742 F. Supp. 441, 445 (N.D. Ill. 1990) (mem.) (applying state law to invalidate a grant by the Illinois legislature of submerged lands to expand a university located along Chicago's lakefront).

442. See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 484-85 (1988) (holding that the state never gave up tidelands); Illinois Cent. R.R. v. Illinois, 146 U.S. 387, 463 (1892) (holding that a state can renege on a sale of trust lands, because it lacks the power to sell them).

443. For example, after Phillips Petroleum, Mississippi enacted legislation that awarded title to those who filled tideland before 1973. See M. Casey Jarman & Richard J. McLauglin, A Higher Public Purpose? The Constitutionality of Mississippi's Public Trust Tidelands Legislation, 11 MISS. C. L. REV. 5, 13 (1990) (explaining the Mississippi legislature's justification that the "swift resolution of uncertainty over [land] title served a higher public purpose than protecting the state's interest in its public trust tidelands"). Courts in Massachusetts, Maine, and California have employed similar justifications. See supra note 403 and accompanying text.

444. See, e.g., Illinois Central, 146 U.S. at 453 ("The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein . . . .").

445. See fig.9 (showing how shoreline armoring can lead to a privatization of the shore); supra note 83 (describing estimates by various state officials of the rate of shoreline armoring).

446. See, e.g., Board of Pub. Works v. Larmar Corp., 277 A.2d 427, 444 (Md. 1971) (explaining that under Maryland law, the State can sell any property, including the inland waters and the land beneath those waters).

447. See, e.g., Slade, supra note 383, at 219-21 (listing cases from Alaska, California, Massachusetts, Michigan, New Hampshire, and Texas in which courts held that public trust lands cannot be conveyed to private parties without the authorization of the legislature).

448. Illinois Central, 146 U.S. at 405-11.

449. Id. at 409-13.

450. Id. at 418.

451. Id. at 452. The state can sell off parcels for wharves and docks, provided that doing so helps commerce and does not "substantially impair the public interest in the lands and waters remaining . . . . But that is . . . very different . . . from . . . the abdication of the general control of the State over lands under the navigable waters of an entire harbor or bay." Id. at 452-53.

452. See id. at 460 ("There can be no irrepealable contract in a conveyance of property by a grantor in disregard of a public trust, under which he was bound to hold and manage it.").

453. See supra Part IV.B.5 and fig.9., which describe ways to retain public access along armored shores.

454. Part II.D and Appendix 1 discuss the cost of a rolling easement.

455. Courts have generally found that no compensation is due for eminent domain takings of a reversionary interest. See Glenn, supra note 274, at 570-76. In those cases, the government bought the entire estate, and the beneficiaries of the rule were the current estate holders. Id. Lacking a way to value the contingency, courts have assigned a value of zero. Id. But when the government purchases only the reversionary interest, such action demonstrates that the value is greater than zero.

456. This is true because a regulation is a taking only if it essentially destroys the ability of the owner to put the land to beneficial use. See supra Part III.

457. See supra Part III (explaining that, as a general rule, a reduction in land value is not considered a taking).

458. The net cost of moving the structure would be (1) the value of the structure or the cost of moving it to another location, whichever is less, minus (2) the cost of the bulkhead that is avoided by not holding back the sea. See supra note 389 and accompanying text.

459. See supra Part II.C (discussing how the cost to property owners would generally be less than one percent of the current property value for any property that would not be threatened until the sea rises at least two feet).

460. Such a policy would be a "Pareto improvement": It would be fair to everyone because the public's interest would be better off"without the private landowners being worse off"than if no policy was enacted. See supra notes 170-175 and accompanying text.

461. See United States v. Little Lake Misere Land Co., 412 U.S. 580, 603 (1973) (ruling that federal land purchases for wildlife refuge purposes need not be defined according to state law); United States v. Albrecht, 496 F.2d 906, 911 (8th Cir. 1974) (holding that 16 U.S.C. § 718d(c) (1958) allowed the United States to acquire wetland areas and interests therein, because easements against draining wetlands "effectuate[] an important national concern," and holding that the easement is thus a valid conveyance under federal law even if such an easement is prohibited under state law).

462. See, e.g., BOYER ET AL., supra note 14, § 1201, at 430.

463. See, e.g., WORKING GROUP III, supra note 180, at 306-07, tbl.9.4 (summarizing existing studies, which suggest that reducing carbon dioxide emissions by 20% would reduce Gross Domestic Product by 0.9% to 1.7%).

464. See Appendix 1. A suit at common law by the federal government to enjoin a bulkhead would be more likely to fail than a suit by a state for two reasons. First, the state is the owner of the tidelands whose inland migration is thwarted by the bulkhead. Second, property owners would have a defense that the erosion was caused partly by the same nation that now seeks the riparian owner's land.

465. Such mitigation in the cost would be essentially the public sector equivalent of what Wall Street traders call "arbitrage." Environmentalists have lower discount rates and are more likely to believe that the sea will rise three feet. Accordingly, they would place a higher value (than would a developer) on the right to decide whether to eliminate the tidelands if, and when, the sea rises. See supra note 180 (explaining that the private sector requires a discount rate of 7% to 10%, while environmental protection typically requires a rate of about 2%). Moreover, the law of erosion and public trust doctrine may already give the state ownership of a rolling easement, see supra Part IV.B, but environmentalists fear that the state will choose not to enforce it, see supra notes 184-186 and accompanying text. Turning the easements over to a conservancy group would substantially reduce the risk of backsliding, and hence would have a higher present value to environmentalists than turning them over to the state. See supra notes 184-186 and accompanying text.

466. See Melissa Waller Baldwin, Conservation Easements: A Viable Tool for Land Preservation, 32 LAND & WATER L. REV. 89, 98 (1997) (cautioning property owners who donate land to choose a land trust with compatible "conservation goals and projects").

467. Some care is necessary to avoid the common law "rule against perpetuities," which holds that a contingent interest is void if it is not guaranteed to vest within 21 years of the death of someone currently alive. BERGER, supra note 375, at 161-62. As long as the rolling easement is implemented as an easement, the rule does not apply. However, if it is viewed as a defeasible estate, where the land changes hands upon the occurrence of a condition, then the rule might apply. Because reversionary interests are generally exempt from the rule, see id. at 164-68, the rule would not apply if a developer reserves a rolling easement and then donates it. But when the interest is obtained from a third party, it is void unless it either fits into a statutory exemption, or is viewed as something other than a defeasible estate. Id.

468. See I.R.C. § 170(f)(3)(B) (1994) (allowing landowners to deduct the value of deed restrictions or donations of contingent interests in land for conservation purposes).

469. See supra notes 64-89 and accompanying text.

470. See supra notes 350-365 and accompanying text.

471. See supra notes 50-63 and accompanying text.

472. See supra notes 356-361 and accompanying text.

473. See supra notes 394-401 and accompanying text.

474. See supra notes 64-113 and accompanying text.

475. See supra notes 261-291 and accompanying text.

476. See supra notes 267-268 and accompanying text.

477. See supra notes 402-406 and accompanying text.

478. See supra notes 166-167 and accompanying text.

479. See supra Part III.

480. See supra Part IV.

481. See supra notes 129-133.

482. See fig.5 (map of Chesapeake and Delaware Bays).

483. See supra notes 129-133.

484. See supra Part II.

485. See supra notes 167-168.

486. See supra notes 50-54 and accompanying text.

487. See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 217-18 (1824) (holding that the federal government has exclusive jurisdiction over commerce of the coastal waters).

488. See supra note 462 and accompanying text.

489. See supra Part II.

490. See 1 OFFICE OF TECH. ASSESSMENT, supra note 118, at 109-52 (detailing federal efforts to alleviate global warming problems).

491. See Table 1, which appears in supra Part II.

492. See generally Holding Back the Sea, supra note 32.

493. See generally id.

494. The estimates of the increments are based on linear interpolations of four estimates used throughout Holding Back the Sea, supra note 32.
This file contains only the text and footnotes of the published report. The footnotes appear at the end as "endnotes." If you want to examine the figures and tables, print the report, or read a version in which the footnotes are at the bottom of the page to which the notes appear, please go to Rising Seas, Coastal Erosion, and the Takings Clause.