51:1 Fix It or Forget It: How the Doctrine of Avulsion Threatens the Efficacy of Rolling Easements

Abstract

We live in a time of rising seas. Sea levels have risen over the last few decades and are projected to continue rising at a steady pace. As sea levels inch higher, coastlines will continue to erode, and public and private property will be destroyed. This reality threatens public access to coastal beaches, which the ancient, but still relevant, public trust doctrine requires states to safeguard. Coastal states have responded to this threat by utilizing regulatory tools including setbacks, development prohibitions, and nourishment initiatives.

This Comment argues that rolling easements, public access easements that move in accordance with shifts in coastlines, are the best solution to the problem. Rolling easements, whether in isolation or combined with other regulatory approaches, provide coastal states with an easy means of ensuring continued public access to beaches. However, the doctrine of avulsion, which holds that easements do not roll in cases of sudden avulsion, threatens the very nature of rolling easements. The doctrine is vague and inconsistent and may eliminate public access to beaches altogether.

This Comment first suggests altering the doctrine of avulsion so as to ensure compliance with the public trust doctrine. It urges states to legislatively determine the line between “erosion” and “avulsion,” combine rolling easements with other regulatory initiatives, and require private landowners to take on the financial burden of restoring lost coastlines. This Comment then suggests that the better alternative is to do away with the doctrine of avulsion entirely. It implores states to make no distinction between erosive and avulsive events, thus allowing the boundary between public and private property to move in accordance with natural shifts in the coastline.