10 Legal Points for Maine Waterfront Owners on Sea Rise Erosion of Boundaries and Protective Seawalls

By February 1, 2019 Real Estate

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  1. Waterfront properties may shrink as the ocean rises and the rising low tide moves their waterfront boundaries inland.

Under Maine law, ownership of oceanfront land typically extends to the low tide mark, or 100 rods from high tide. As the low tide line gradually moves inland because of the rising sea level, so too will the waterfront boundaries move inland. Also, as land that was intertidal becomes permanently submerged, it will become State property, as the State owns all submerged land off the Maine coastline.

  1. If waterfront land is lost suddenly from avulsion, as may be caused by a storm surge, its boundary will not have moved, so long as the avulsed land is timely restored.

The sea level along Maine’s shores is projected to rise by nearly a foot by 2028. Storms are also becoming more intense, causing storm surges that can wash away shoreline overnight. In 2018, a storm surge destroyed or damaged shorefront sidewalks, ramps, and sea walls all along Maine’s southern coastline, including in York Beach, Saco and Wells.  Under Maine common law, these “avulsions” do not automatically affect property owners’ boundary lines, and property owners are given a limited time to repair their damaged structures.

  1. Although, in the past, Maine waterfront owners had the right to build seawalls to protect against erosion and storm surges, State law now generally prohibits new seawall construction.

Early common law held that shorefront owners had the right to protect their waterfront from erosion by “armoring” their waterside boundary with seawalls and riprap. Over the centuries, much of Maine’s beach coastline has been modified in some way by seawalls, rip rap, and beach replenishment. Today, however, there are zoning regulations (such as mandatory shoreland zoning ordinances) and environmental protection statutes (including the Maine Natural Resources Protection Act and related Coastal Sand Dune regulations) that generally prohibit new seawall construction, as seawalls can aggravate erosion of abutting waterfront properties that do not have seawalls, and can disturb shorebirds’ natural habitat.

  1. A waterfront owner has only 24 months to repair a seawall damaged by a storm surge if the owner wants to restore it to its pre-surge condition.

A waterfront property owner who delays too long in repairing a seawall damaged by a storm surge may lose the right to repair it, as by Maine statute, the right to repair a damaged seawall is limited to two years from the time of the damage.

  1. Waterfront property owners may repair their existing seawalls if the seawalls’ structural integrity is threatened.

If a waterfront owner obtains from a code enforcement officer, or a qualified engineer or geologist, a finding “that the integrity” of the owner’s “seawall, bulkhead, retaining wall or similar structure in a coastal sand dune” is “threatened”, the owner has the right to shore it up with riprap or other materials so long as it will not be longer or higher. If it is an emergency, the owner can add the materials without a permit. Once it is no longer an emergency, the owner must apply for a State permit, which the State is supposed to grant.

  1. Normal repair and maintenance of a seawall is allowed without a permit so long as the repair is limited to less than 50% of the structure.

Normal maintenance of existing seawalls does not generally require a permit. Maintenance may include activities that do not alter the overall size or location of the seawall, and involve work on less than 50% of an entire seawall structure. Alterations to more than 50% of a seawall structure are considered a seawall replacement, which requires a permit. Any modification of the design of an existing seawall that would alter its size or location also requires a permit. It is important therefore to craft a repair strategy that will fit the 50% rule for each repair.

  1. To help prove the size and location of a seawall for permitting or property rights purposes, waterfront property owners will want to document, with photographs, plans, and measurements, the history, location, size, and materials of their existing seawalls, as well as the location of the existing low and high tides.
  2. In considering how to pay for seawall repairs, waterfront property owners will want to check their homeowners’ insurance policies to see if the policies cover loss due to shoreline erosion.
  3. In considering how to pay for seawall repairs that may have a public component or benefit, waterfront property owners will also want to look into whether a public/private partnership with a municipality can qualify seawall repairs for FEMA or other funding.
  4. If the sea permanently surrounds the seawall, the United States has a statutory right to require its removal because the movement of the tidal boundary locates the seawall entirely in navigable waters.

If you would like assistance in determining what legal rights you have to protect your waterfront boundary against sea rise erosion, or in preparing a seawall repair permit application, we would be happy to provide it.  Just call Peggy McGehee at 207-774-2635 or send her an e-mail.

NOTE:  The above comments are not legal advice, and should not be relied upon to address anyone’s specific circumstances. They do not cover all legal issues about seawalls. Please contact us if you want us to evaluate your circumstances or to help develop a legally sound shoreland protection strategy.