Rolling Easements

The EPA’s Climate Ready Estuaries program recently released Rolling Easements (James G. Titus, 2011), a technical primer that summarizes more than a dozen approaches that could be taken to allow wetlands, beaches, and barrier islands to migrate inland as sea levels rise. It also addresses what rolling easements can accomplish, legal approaches for creating them, advantages and disadvantages, where to apply them, and how to manage them. The primer defines rolling easements this way:

1. "Regulation or an interest in land in which a property owner’s interest in preventing real estate from eroding or being submerged yields to the public or environmental interest in allowing wetlands, beaches, or access along the shore to migrate inland.
2. An interest in land along the shore whose inland boundary migrates inland as the shore erodes.
3. In Texas, an easement along the shore whose inland boundary migrates inland or seaward as the shore erodes or accretes.

There is generally a rolling design boundary seaward of which the restrictions apply, such as the dune vegetation line. At a minimum, a rolling easement prohibits hard shore protection and other structures that prevent the landward edge of wetlands or beaches from migrating inland or block public access along the shore. A rolling easement may also require removal of preexisting buildings as they become nonconforming structures seaward of the rolling design boundary. Along estuaries, a rolling easement may also prohibit grade elevation of dry land, which would tend to squeeze wetlands."

Rolling easements are one of the tools mentioned in a report from NOAA's Office of Ocean and Coastal Resource Management (OCRM). The report How Coastal States and Territories Use No‐Build Areas along Ocean and Great Lake Shorefronts looks specifically at where states and territories employ no-build areas (e.g., through setbacks, rolling easements, or zoning) along ocean and Great Lake shorefronts, typically on dry, privately owned land, to protect the public interest.

A related earlier publication by James Titus is Rising Seas, Coastal Erosion, and the Takings Clause: How to Save Wetlands and Beaches Without Hurting Property Owners (Maryland Law Review, 1998). This publication outlines and analyzes three ways to protect tidelands: (1) prevent development in vulnerable areas seaward of a "setback line," (2) defer action, and (3) create rolling easements, which allow development but prohibit property owners from holding back the sea.