ARI SILLMAN, JD 2021 Troubled Waters: Coastal Avulsion, A State Survey | March 24, 2020 | eelp.law.harvard.edu The Environmental and Energy Law Program provides cutting-edge, rigorous legal analysis to: Facilitate the transition to a low-carbon, sustainable future; Address the disruptive effects of climate change; and Protect public health and welfare from environmental degradation. Ari Sillman is a student at Harvard Law School graduating in 2021. He is a Research Assistant at EELP. | Table of Contents Common Law Approaches to Boundary Change ______________________________________4 Current State Approach to Avulsion __________________________________________________5 Problems Created by Existing Common Law Approach to Avulsion _________________6 Potential Solutions ____________________________________________________________________7 Conclusion ____________________________________________________________________________8 Survey of Avulsion in State Law ______________________________________________________9 Troubled Waters: Coastal Avulsion, A State Survey | Ari Sillman, JD 2021 3 | Common Law Approaches to Boundary Change Common Law Approaches to Boundary Change Courts address riparian and coastal boundary change by relying on the well-developed common As the world warms, rising seas and more intense law principles of accretion, erosion, reliction, and storms threaten to reshape the American coastline. avulsion. Accretion is the “addition[] of alluvion Climate change has already had a dramatic effect (sand, sediment, or other deposits) to waterfront 2 on US coasts. For example, from 2004 to 2009 the land.” Erosion is the removal of alluvion from coastal US lost 80,160 acres of coastal wetlands per year.1 or riverfront land. Reliction is previously submerged 3 Erosion and sea level rise will increasingly submerge land that “become[s] dry when the water recedes.” coastal landscapes and have a significant impact on Accretion, erosion, and reliction are gradual property ownership in the US. processes. By contrast, an avulsion is “the sudden or perceptible loss of or addition to land by the action of The common law principles of avulsion, erosion, the water or a sudden change in the bed of a lake or accretion, and reliction have traditionally governed the course of a stream.”4 changes to coastal property lines. These principles have changed little for over two centuries. However, In most states, a property owner “automatically takes given the rapid pace of change facing US coastlines, title to dry land added to his property by accretion” 5 these principles may not be enough to efficiently or erosion. Emerging out of English law, “accretion and equitably resolve questions of coastal property . developed as an exception to the common law rights. Avulsion, in particular, is ripe for change. Most property rule requiring a deed transferring title in 6 coastal states adhere to common law principles of order to change a property boundary.” Thus, gradual avulsion, yet these principles may not be suited for a future where avulsive events occur regularly. 2 Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 US 702, 708 (2010). 3 Id. 4 Bd. of Trs. v. Sand Key Assocs., 512 So. 2d 934, 936 (Fla. 1987). 5 Stop the Beach Renourishment, 560 US at 709. 1 Elizabeth Fleming et al., Impacts, Risks, and Adaptation in the United States: Fourth National Climate Assessment, Volume II, Coastal Effects 6 Alyson C. Flournoy, Beach Law Cleanup: How Sea-Level Rise Has 331 (2018), https://nca2018.globalchange.gov/downloads/NCA4_ Eroded the Ambulatory Boundaries Legal Framework, 42 Vt. L. Rev. 89, Ch08_Coastal-Effects_Full.pdf. 104 (2017). Troubled Waters: Coastal Avulsion, A State Survey | Ari Sillman, JD 2021 4 | Current State Approach to Avulsion increases or diminution of coastal land automatically common law position on avulsion.10 Many of these led to corresponding changes in the property states have not directly applied the principle of line. The principle was based in fairness and an avulsion to changes in coastal boundaries.11 Rather, understanding of the “flux and ebb of the sea,” as their case law focuses on riparian properties. coastal property owners would sometimes gain and There are also regional variations in the applicability sometimes lose land.7 of avulsion. In Hawaii, for example, “land added to Avulsion, in contrast to accretion, does not generally oceanfront property through avulsive lava extension result in a change in the property line. Rather, belongs to the State.”12 In New Jersey, state courts property lines remain as they were prior to the have recognized beach replenishment programs as avulsive event.8 This too is an issue of equity. While avulsive events.13 Thus, the land added to a shoreline a coastal property owner could expect their land through such a program does not accrue to the to change with the tides, avulsive events, by their property owner but rather becomes part of the public very nature, are unexpected. As such, applying the trust.14 Though such an approach helps state and principles of accretion, erosion, or reliction in such federal actors harden coastlines against rising seas, a situation would unfairly benefit one party over it can, in some instances, cause coastal property another.9 owners to lose access to the coast. Many states allow owners of property submerged by an avulsion to reclaim the property if done within a reasonable amount of time.15 Some states are Current State Approach 10 Results from an analysis of available case law. Coastal states include those bordering the Great Lakes as well as the Atlantic and to Avulsion Pacific Ocean. Delaware, Maine, Massachusetts, New Hampshire, and South Carolina lack recent controlling cases that specifically accept the principle of avulsion. At present, 25 of 30 US coastal states have a clear 11 Based on analysis of case law of coastal states. See also Sophie Stocks, No Firm Ground: Fifth Amendment Takings and Sea-Level Rise, 70 Hastings L.J. 621, 631 (2019). 7 Joseph L. Sax, The Accretion/avulsion Puzzle: Its Past Revealed, Its 12 Maunalua Bay Beach Ohana 28 v. State, 222 P.3d 441, 453 (Haw. Future Proposed, 23 Tul. Envtl. L.J. 305, 320 (2010). Ct. App. 2009). 8 Stop the Beach Renourishment, 560 US at 709. 13 See City of Long Branch v. Jui Yung Liu, 4 A.3d 542, 552-54 (N.J. 2010). 9 See Bonelli Cattle Co. v. Arizona, 414 US 313, 327 (1973) (“The rationale for the doctrine of avulsion is a need to mitigate the hardship 14 Id. at 553-55. that a shift in title caused by a sudden movement of the river would cause the abutting landowners were the accretion principle to be 15 See Walton County v. Stop the Beach Renourishment, Inc., 998 applied.”). So. 2d 1102, 1117 (Fla. 2008); see also Beach Colony II v. California Troubled Waters: Coastal Avulsion, A State Survey | Ari Sillman, JD 2021 5 | Problems Created by Existing Common Law Approach to Avulsion especially generous. New York, for instance, has held Several coastal states that depend on tourism for that a property owner may reclaim land lost due to growth have invested in beach renourishment and an avulsive event, noting that “[w]here one acquires other programs that may be considered an avulsion a title by deed, it will not be affected by . [non-use] in some states. Florida, for example, spent around unless there is a loss of title in some of the ways $100 million on beach renourishment from 2016 recognized by law.”16 Thus, a property owner was to 2018.19 Florida common law permits the state able to reclaim land lost to an avulsion over thirty to reclaim submerged lands that were previously years prior.17 In Michigan, the state supreme court owned by the state.20 Lands created by beach held that property owners had an indefinite right to renourishment constitute an avulsion rather than reclaim land lost to an avulsive event so long as they accruing to the adjoining property, which means that could establish valid, continuous title to that land.18 they belong to the state. See a full table of coastal states’ treatment of the Property owners in Florida challenged beach principle of avulsion at the end of this document. renourishment permitted under Florida’s Beach and Shore Preservation Act as an unconstitutional taking of their right to accretion and to have their property touch the water.21 The Supreme Court, however, held that the beach renourishment, a state-created avulsive event, did not constitute a taking under Florida law. Under Florida law, “if an avulsion exposes Problems Created by land seaward of littoral property that had previously been submerged, that land belongs to the State Existing Common Law even if it interrupts the littoral owner’s contact with Approach to Avulsion the water.”22 The Court found that property owners’ rights to accretion were always subject to potential avulsions and state law made no distinction between Current state approaches to avulsion may increase artificial and natural avulsions. As a result, the tensions among government, property owners, and the public as sea levels rise. 19 Dan Sweeney, Florida has spent more than $100 million pouring more sand onto beaches in the past three years. Is it time to wave a white flag?, SUN SENTINEL (Jun. 8, 2018) https://www.sun-sentinel.com/ Coastal Com., 199 Cal. Rptr. 195, 203 (Cal. App. Ct. 1984). news/sound-off-south-florida/fl-reg-beach-renourishment-20180608- story.html. 16 City of New York v. Realty Assocs., 176 N.E. 171, 172 (N.Y. 1931). 20 Walton Cty., 998 So. 2d at 1117. 17 Id.; see also Trustees of Freeholders & Commonalty of Town of Southampton v. Heilner, 375 N.Y.S.2d 761, 769 (N.Y. Sup. Ct. 1975). 21 See Stop the Beach Renourishment, 560 US at 729. 18 Klais v. Danowski, 129 N.W.2d 414, 422 (Mich. 1964). 22 Id. at 730.