The law of beach replenishment

A Florida case suggests a legal framework for Maryland and other states to combat rising sea levels

June 23, 2010

Last Thursday the Supreme Court issued its long-awaited decision in Stop The Beach Renourishment, Inc. v. Florida Department of Environmental Protection, which addresses whether a beach replenishment program constitutes an impermissible "taking" within the meaning of the Fifth and Fourteenth Amendments. It sounds like an obscure question only of interest to those lucky enough to own beachfront property in the Sunshine State, but in fact, it could have a significant impact on how Maryland and other states respond to the threat of rising sea levels.

Although the justices could not agree on the scope of a beachfront "taking", they had no difficulty concluding (8-0) that Florida's beach replenishment was not one. The gist of that decision is that Florida has the right to fill the water and submerged lands adjacent to shorefront property, provided it doesn't interfere with the rights of the public or of shoreline property owners, and that any new land created is the property of the state, even if it interferes with a shorefront owner's direct contact with the water.

This decision will give great heart to advocates of beach replenishment both because it will allow these public works projects to continue and because it confirms that replenishment does not confer a property windfall to the adjacent landowners.

Of more significant import, however, is how the decision could shape the nation's response to rising sea levels. There will be two monumental changes in the American shoreline if, as the climate warms, the oceans rise. First, the rule in many states (including Maryland) is that the state owns the land up to the mean high water line. What this means is that as the oceans rise, there is as a result a transfer of property from private citizens to the state. The Stop the Beach decision suggests that common law rule will continue to apply. And if the common law is not changed, we will see the largest land transfer since the acquisition of Alaska in 1867.

Second, one of the responses to rising sea levels is a set of actions known in the jargon as "coastal armoring," which includes the construction of dikes, sea walls and sand dunes. Stop the Beach confirms that the state (at least in Florida) can fill its submerged properties. Thus, the creation of expansive beaches to absorb storm surges might be approved without compensation to adjacent landowners. Not resolved is whether filling coupled with a seawall that limits access would be permitted, or filling and dune construction that blocks views. Stop the Beach suggests that such interference could constitute a taking, but if the choice is whether the state takes a portion of the property or the ocean takes all of it, perhaps a different outcome is in order.

Maryland's guiding document in response to rising sea levels is a 2000 report, A Sea Level Response Strategy for the State of Maryland. The report identifies six areas that are at risk from erosion, flooding and inundation: coastal wetlands, developed shorelines, bay islands, coastal bluffs, barrier islands and the low-lying coastal plain. As just one example, a one foot increase in sea level may make the likelihood of a 100-year flood 10 times greater in certain areas. In other words, such a flood would be expected every 10 years.

In response, Maryland will likely consider beach replenishment, armoring and other activities associated with the preservation of the state's at risk areas. Stop the Beach shows that a state's (not the federal government's) jurisprudence will very likely control the rights of those along the shore. Maryland fully recognizes the premise that the lands below mean high water are the state's and held in trust for the public's use. If beach replenishment is necessary to protect Maryland's shores, it is likely that some challenge will surface, if only to decide upon whom the costs of rising sea levels will fall.

J. Wylie Donald is a partner in the Wilmington, Del., office of law firm McCarter & English, where he is also co-chair of the firm's Climate Change and Renewable Energy practice. He lives in Baltimore. His e-mail is jdonald@mccarter.com

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