The right to the free flow of water has long maintained “public right-of-way easements” in the United States. In general, if a waterway is navigable, it is a public right-of-way; however, the results of climate change and rising sea levels have turned people’s private property into navigable waterways.
An article in Bloomberg entitled The Fighting Has Begun Over Who Owns Land Drowned by Climate Change highlights recent disputes over water right-of-ways:
America’s coastal cities are preparing for legal battles over real estate that slips into the ocean.
A decade after the global financial crisis popularized the term “underwater real estate,” parts of the U.S. are grappling with a new, more literal version of that problem.
“There’s no question it will be a huge fight,” says Holly Doremus, a law professor at the University of California at Berkeley who specializes in environmental law. “We don’t exactly know the boundaries of what the state can do.” For centuries, a body of law called the public trust doctrine has stipulated that, when it comes to coastal property, anything below the average high-tide line is owned by the government for the use and benefit of the public. Those rules also cover what happens when the high-tide line moves. If that movement happens suddenly—for example, if a portion of beach is washed away by a storm—the land owner retains title to the property provided he or she restores it to dry land.