Givings Recapture: Funding Public Acquisition of Private Property Interests on the Coasts

Abstract

This Article explores the feasibility of using "givings recapture mechanisms" to promote effective land use management on coastal floodplains. Specifically, current government responses to floods and flood risks - typified by regulatory restrictions on floodplain land use, structural protections, and flood insurance or disaster relief - transfer substantial "givings" to private property owners. These givings have dramatically increased the value of coastal properties and continue to promote or maintain in place unwise and unsustainable coastal floodplain development. Ironically, increased coastal property values resulting from such givings have rendered prohibitively costly one land use management technique that has proven effective at reducing flood losses - public acquisition of high-risk or environmentally sensitive private property. While many scholars and commentators have approached this problem from the perspective of eliminating subsidization of floodplain development, my analysis is unique in that it recommends that government attempt to recapture past givings by offsetting those givings as a credit against the compensation the government must pay when it acquires private floodplain property. Such an approach would protect legitimate investment-backed expectations of landowners while effecting a long-term retreat from coastal floodplains threatened by rising sea levels and increasing hurricane risks.