Preparing, Adapting, and Rebuilding: Rising Sea Levels Raise New Legal Issues

Probate & Property Magazine: Volume 27 No. 06

By

Sorell E. Negro is an associate in the Hartford, Connecticut, office of Robinson & Cole LLP. She is a 2012−14 RPTE Fellow and vice-chair of the Land Use and Zoning Committee.

This article discusses some of the measures that state and local governments are implementing to adapt to rising sea levels and certain legal considerations raised by such measures, including takings issues.

Sticking your head in the sand might make you feel safer, but it’s not going to protect you from the coming storm. And ultimately, we will be judged as a people, and as a society, and as a country on where we go from here.
President Barack Obama, June 25, 2013, speech announcing his Climate Action Plan at Georgetown University

On June 25, 2013, President Obama unveiled his Climate Action Plan from the steps of the historic Old North building at Georgetown University. This plan set forth, for the first time, a uniform national policy and strategy for addressing climate change. Not only does the President’s Climate Action Plan describe a national energy plan involving deploying clean energy and cutting carbon emissions but, remarkably, it also lays out policies for preparing our communities for the impacts of climate change and adapting to the new realities brought about by climate change, including rising sea levels and more regular severe storm events. From Hurricane Katrina devastating Gulf Coast states in 2005 to Hurricane Sandy pummeling New York City and other parts of the East Coast in 2012, these impacts are already being felt, and rising sea levels will continue to challenge our coastal communities.

Although it is difficult to predict how much sea levels will rise exactly, government agencies expect that they will continue to rise significantly. The Intergovernmental Panel on Climate Change (IPCC) predicted that average sea levels will rise between 19 and 59 centimeters (or between 7 and 23 inches) during the next century. U.S. Climate Change Science Program, Coastal Sensitivity to Sea-Level Rise: A Focus on the Mid-Atlantic Region 2 (Jan. 2009), available at http://www. climatescience.gov/Library/sap/sap4-1/final-report/default.htm (hereinafter Coastal Sensitivity). At the same time, the rate of sea level rise is increasing. Global sea levels rose about 1.7 millimeters per year in the 20th century, but they changed very little during the previous 2,000 years. Id.

Sea levels are not rising at the same rate everywhere. For example, they are rising more rapidly along the mid-Atlantic coast of the United States than in other areas because of subsidence and particularly low elevations. U.S. Global Change Research Program, Global Climate Change Impacts in the United States 37 (Thomas R. Karl et al. eds., 2009), available at http:// downloads.globalchange.gov/ usimpacts/pdfs/climate-impacts-report.pdf (hereinafter Climate Change Impacts). The region between New York and North Carolina is especially vulnerable. Sea levels in that region are rising more quickly than the global average and rose between 2.4 and 4.4 millimeters per year (or a total of one foot) throughout the 20th century. Coastal Sensitivity, supra, at 2. A recent report from the Metropolitan Washington Council of Governments concluded that sea levels in the Chesapeake Bay rose one foot during the 20th century—six inches more than the global average—and could rise between one foot and three feet this century. Metropolitan Washington Council of Governments, Summary of Potential Climate Change Impacts, Vulnerabilities, and Adaptation Strategies in the Metropolitan Washington Region 6 (June 2013), www.mwcog.org/uploads/pub-documents/pl5cXls20130701111432.pdf.

Rising seas present many challenges for coastal communities, including inundation of the shoreline. Higher sea levels accelerate erosion. They also submerge coastal ecosystems like wetlands and barrier islands, and these losses further increase erosion because these natural features assist in flood control and erosion prevention, as well as in pollution control and aquifer recharge. Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use Planning and Control Law § 11.9 (1998). The U.S. Climate Change Science Program has concluded that “it is likely that most wetlands will not survive acceleration in sea-level rise by 7 millimeters per year.” Coastal Sensitivity, supra, at 4. In addition to gradual erosion, severe storm events can cause significant erosion in short periods of time, as well as flooding and wind damage. Rising seas contribute to the severity of storms, resulting in larger waves, which have greater impact on the shores. For example, in 2005, more than 200 square miles of coastal lands and wetlands were flooded and lost when hurricanes Rita and Katrina hit states along the Gulf of Mexico. Climate Change Impacts, supra, at 114 (text accompanying photos).

Erosion rates are particularly troubling in Eastern and Gulf states. For example, it is estimated that 31% of Maryland’s shoreline is eroding, and it loses more than 500 acres of its shore each year. Md. Comm’n on Climate Change Adaptation and Response Working Group, Comprehensive Strategy for Reducing Maryland’s Vulnerability to Climate Change, ch. 5, 5 (2008), available at www.mde.state.md.us/assets/ document/Air/ClimateChange/ Chapter5.pdf. Almost two-thirds of Texas’s coast is eroding at the rate of six feet per year, and some areas of Texas lose 30 feet or more each year. Texas General Land Office, Coastal Erosion, www.glo.texas.gov/what-we-do/ caring-for-the-coast/coastal-erosion/ (last visited Aug. 16, 2013).

More than 50% of the people in the United States live within 50 miles of a coast, and this number is expected to continue to increase. National Oceanic and Atmospheric Administration, The Coastal Community Development Partnership, http://coastalmanagement.noaa.gov/partnership.html (last visited Aug. 16, 2013). Thus, a significant number of people and communities have been, and will continue to be, affected by rising sea levels and the degree to which state and local governments prepare for changing climates and shorelines. This article discusses some of the measures that state and local governments are implementing to adapt to rising sea levels and certain legal considerations raised by such measures, including takings issues.

State and Local Adaptation Strategies

What can state and local governments do to address the impacts of sea level rise? One option for maintaining beaches and combating erosion is beach “renourishment,” or replacing sand that has been lost because of erosion or submersion. Many beach towns pay thousands of dollars to replace sand that has washed away, often on an annual basis. St. Augustine, Florida, alone spent $46 million on beach renourishment projects between 2001 and 2012. Peter Guinta, Beach Renourishment Costs $46 Million over Last 11 Years, St. Augustine Record (July 10, 2012), http://staugustine.com/news/local-news/2012-07-09/beach-renourishment-costs-46-million- over-last-11-years#.UdJHjdzD9dg. It has been estimated that since 1985 beach renourishment in New Jersey has cost more than $800 million. Cornelia Dean, Costs of Shoring Up Coastal Communities, N.Y. Times (Nov. 5, 2012), www.nytimes.com/2012/11/06/science/storm-raises-costs-of-shoring-up-coastal-communities.html?pagewanted=all&_r=0. Although it may maintain the status quo, beach renourishment, unfortunately, is a very expensive option and one that must be repeated regularly to address the ongoing problem of erosion.

Another adaptation strategy is retreat. In the wake of Hurricane Sandy, whose unprecedented storm surge caused widespread damage to the Northeast in the fall of 2012, Governor Andrew Cuomo of New York has supported a policy of retreat, whereby the state would buy out homeowners in particularly vulnerable locations, turn those areas into parks or rehabilitated ecosystems, and allow the shores to migrate inland naturally. The state initially proposed using $400 million for the buyout. Thomas Kaplan, Cuomo Seeking Home Buyouts in Flood Zones, N.Y. Times (Feb. 3, 2013), www.nytimes.com/2013/02/04/nyregion/cuomo-seeking-home-buyouts-in-flood-zones.html?emc=eta1&_r=1&.

The problem is that, even with the unprecedented destruction caused by Sandy, many people do not want to move. They would rather put that money toward rebuilding their homes and neighborhoods. At least one neighborhood on Staten Island, however, appears willing to accept the buyout—Oakwood Beach—and it is estimated that it would cost about $100 million to buy out those residents alone. Pete Brush, Smaller Sandy Buyout Sparks Fears over Future Storm Costs, Law360 (May 14, 2013), www.law360.com/articles/441547/smaller-sandy-buyout-sparks-fears-over-future-storm-costs.

Officials hope that the relocation program will gain traction over time. Many people in the New York, Connecticut, and New Jersey coastal areas are still reeling from the shock of Hurricane Sandy. Perhaps as people in susceptible areas begin to better understand the nature of the threats posed by sea level rise and think through their options, more property owners will be open to accepting a reasonable buyout.

Retreat, however, presents difficult problems. For one thing, it is expensive, and the state or local governments must know where the money will come from. In the case of New York, the state is proposing using emergency response funds made available by Congress following the destruction from Hurricane Sandy. Id. If a community is considering retreat before a severe storm strikes, it may be more difficult to obtain the significant funds that are needed to buy out property owners because the effort would not be in response to an emergency but rather to avoid one.

Moreover, government officials are likely to encounter people who do not want to move. In that case, the government would have to exercise powers of eminent domain to implement a policy of retreat, which is also very expensive. Furthermore, exactly how just compensation would be determined in this situation is far from clear. The government might claim that the threat of flooding and disaster significantly reduces the property value, but that is difficult to prove and assess. Some of the challenges associated with determining just compensation in these cases are discussed further below.

A more traditional approach is to protect the shoreline from sea level rise with hard structures like seawalls and bulkheads. These hard structures already line a significant portion of our coasts. For example, almost half of New Jersey’s developed coast is armored with these barriers, as is more than 20% of Maryland’s coast. State of the Beach—New Jersey, Beachapedia.org, www.beachapedia.org/State_of_the_Beach/State_Reports/NJ (last visited Aug. 16, 2013); State of the Beach—Maryland, Beachapedia.org, www.beachapedia.org/State_of_the_Beach/State_ Reports/MD (last visited Aug. 16, 2013).

Hard structures can be essential for protecting development, populations, and infrastructure. But they also have significant cumulative impacts. They separate the aquatic ecosystem from the land and prevent wildlife and nutrients from coming ashore. Further, these structures intensify the sea’s erosive power. Without a seawall or similar hard structure, beaches naturally migrate inland. When these barriers are erected, ecosystems become trapped between the seawalls and the rising water until eventually they are submerged and destroyed. Moreover, as waves rebound off of the seawalls, they take sand away with greater force. The Partnership for the Delaware Estuary concluded that Delaware lost more than 2% of tidal emergent wetlands between 1996 and 2006 and projects a net loss of at least 25% in the 21st century. Laura Whalen et al., Strategic Planning for Living Shorelines in the Delaware Estuary, Nat’l Wetlands Newsl. 14 (Nov.-Dec. 2012), available at http://delawareestuary.org/sites/default/files/FinalLSarticle_EnvLaw_2012.pdf. Seawalls also cumulatively increase the intensity of storms because as the beaches disappear, they no longer absorb the impacts of the waves. Robert Jerome Glennon & John E. Thorson, Federal Environmental Restoration Initiatives: An Analysis of Agency Performance and the Capacity for Change, 42 Ariz. L. Rev. 483, 503–04 (2000). Moreover, seawalls actually can increase erosion of neighboring lands that are not protected by seawalls, impacting habitats and possibly stimulating more seawall construction. See Sandy P. Gibson, Living Shorelines Regional General Permit—Alternative Shoreline Protection, Nat’l Wetlands Newsl. 23 (Nov./Dec. 2012). “Living shorelines” are increasingly used to protect coasts from erosion and sea level rise, as well as to protect ecosystems. Living shorelines use plants, stone, sand, and other organic materials to protect the shore for the long-term and stabilize the shoreline. See id. at 20. A living shoreline does this by dissipating the energy impact from the waves. It also increases the area’s storage capacity for water and provides a habitat for aquatic organisms. Id. at 23.

Living shorelines are designed in ways that are appropriate to the particular environment. For example, areas with higher energy wave action can have a barrier of large rocks and harder materials to protect vegetation and beaches. See Whalen et al., supra, at 16–17. The living shorelines also can build the elevation of the coastal ecosystem so wetlands can perform their functions without being overtaken by rising sea levels. Id. at 15. The natural wetland or coastal habitat cannot naturally grow vertically to protect itself, but the living shoreline can be made to raise the elevation of the environment so that it can continue to serve its function and dissipate the wave action. See id. Other types of living shorelines are designed to allow coastal ecosystems to migrate inland.

Living shorelines are increasingly used and accepted in a variety of states and countries. Nevertheless, their use is still new, so it remains to be seen how predictable they are and how well they weather rising sea levels and severe storms. See id. at 19.

All of these coastal adaptation measures require funding and support. Certain states are considering increasing funding for preparing communities for impacts of climate change and sea level rise. In 2013, for example, California’s Senate passed a bill to fund state and local efforts to prepare for sea level rise through a Coastal Adaptation Fund, using tideland oil revenue. Cal. S461 (2013), available at http://leginfo.legislature.ca.gov/faces/billNavClient. xhtml?bill_id=201320140SB461. The coastal communities undergoing such efforts also benefit from federal support, and funding from various levels of government is often critical to these projects.

Taking a Look at Takings Issues

Takings issues have arisen in response to certain coastal adaptation measures. Very simply, if the government needs to acquire property rights to implement shoreline protection measures, and takes such property rights for this use, the government must pay just compensation. Yet, as alluded to earlier, there is room to debate what constitutes “just compensation” in this situation.

An intriguing takings case has been working its way through the New Jersey courts during the last few years. Since 2009, New Jersey has been implementing a project to build large sand dunes along its shore to protect the state from severe storms. The government needs easements from property owners to do this and has been paying relatively small fees for them. In Borough of Harvey Cedars v. Karan, one couple brought a takings claim against their municipality, arguing that the $300 they were offered did not justly compensate them for the loss of their property value because of the 22-foot high sand dune that takes up about one-third of their property and partially blocks the ocean view from their home, which was formerly valued at $1.9 million. 40 A.3d 75 (N.J. Sup. Ct. App. Div. 2012).

The jury awarded the Karans $375,000. Id. The municipality argued, however, that the dune in fact protects the property—and did so when Hurricane Sandy struck in 2012—and this protection enhances the property value. In July 2013, a unanimous New Jersey Supreme Court reversed and ordered a new trial. Borough of Harvey Cedars v. Karan, 70 A.3d 524 (N.J. 2013). The supreme court concluded that the trial court erred by not allowing the government to offer evidence of how much the property benefited from the sand dune. In so holding, the supreme court rejected the appellate court’s view that the evidence was properly excluded because the benefits are conferred on the public as a whole, without any special benefits on the couple’s property. The supreme court held:

The Borough should not have been barred from presenting all non-speculative, reasonably calculable benefits from the dune project—the kind that a willing purchaser and willing seller would consider in an arm’s length transaction. Those benefits are part of the fair-market equation, regardless of whether they are enjoyed by others in the community.

Id. On remand, the jury will have to weigh the value of the ocean front view with the value of the sand dune that protects the property. The outcome of this case will determine whether the dunes project can move forward and how expensive it will be to implement. This case will likely have significant impacts on New Jersey’s efforts to protect its shorelines from rising sea levels and severe storms.

The Karan case shows the difficulty of determining just compensation in these types of cases. Adding to the complexity is the difficulty of assessing the value of protection from nonspecific, but expected, future storm events. The details, at least, of future storms are somewhat speculative, and the issue of how to assess the impact on property values from the government’s protective measures is a novel question.

Takings issues also may arise out of rolling easements, which are a type of coastal adaptation tool developed by Jim Titus of the Environmental Protection Agency. See generally James G. Titus, Rolling Easements (2011), available at http://water.epa.gov/type/oceb/cre/upload/rollingeasementsprimer.pdf. The idea is that the line that separates the public property (or seaward property) from the private property (or landward property) migrates inland as sea levels rise so property owners can build on their property landward of that line, but the property owners cannot hold back the sea. This line varies somewhat from state to state, but it is commonly the high tide water mark. Therefore, if the seas migrate inland and destroy private homes, the homes can only be rebuilt landward of this dividing line. Rolling easements have been upheld in Texas to the extent that the movement occurs gradually, but not dramatically after severe storm events. See Severance v. Patterson, 370 S.W.3d 705, 723 (Tex. 2012).

Other takings issues may arise pertaining to the dismantling or destruction of seawalls. Can a government order a seawall to be dismantled? If the property owner has a lawful, vested right to the seawall, then this would be a taking. But one way around the problem could be amortization, if the state recognizes amortization of nonconforming uses and if the seawall were to become a nonconforming use. See Sorell E. Negro, Built Seawalls: A Protected Investment or Subordinate to the Public Trust?, 18 Ocean & Coastal L.J. 89, 117-18 (2012).

A seawall could become a nonconforming use if, for example, the local government adopted an overlay zone that specifies where seawalls are permitted, or not. If the local government then amortizes seawalls over several years—a reasonable, permissible length of time depending on what is required for that state—that likely would not constitute a taking. The idea behind amortization is that during the amortization period, the owner recoups the investment in the structure. Also, as a nonconforming structure, additional restrictions may be imposed, such as prohibiting the structure from being rebuilt if it is destroyed. On the other hand, if the seawall was never legal, such as if it was built without a required permit or approval, the property owner might not have a vested right in the illegal structure to begin with, and the government could therefore order it dismantled. See, e.g., Sams v. Dep’t of Envtl. Protection, 63 A.3d 953 (Conn. 2013).

Planning for Uncertainty

Many unanswered questions surround climate change and the impacts of sea level rise in particular. The most significant questions include the following: How fast is the sea rising in my state, municipality, or community? What will the impacts be in my state, municipality, or community, including the effects of erosion and storm surges? Which coastal areas are most vulnerable? Where do our coasts need increased armoring, and where do we need to act to protect and preserve natural ecosystems? Should people be required or encouraged to retreat from certain vulnerable areas?

To begin to address the challenges raised by rising sea levels, state and local governments must acknowledge and incorporate sea level rise into their long-term land use planning policies as a key factor to be considered. For example, in 2013, Connecticut passed legislation requiring that the state consider, when setting the priority of water quality projects, among other factors, “the necessity and feasibility of implementing measures designed to mitigate the impact of a rise in sea level over the projected life span of such project.” Conn. Pub. Act No. 13-15 (2013), available at www.cga.ct.gov/2013/act/pa/2013PA-00015-R00SB-01010-PA.htm. Also this year, the New York Senate passed a bill requiring the consideration of climate change impacts, including sea level rise, in land use planning and development, and requiring that the state develop model local laws addressing climate change. N.Y. S5138 (2013), available at http://open.nysenate.gov:8080/ legislation/bill/S5138-2013. State policies addressing sea level rise are needed not only to better manage the type of development that is allowed in vulnerable areas (for example, by requiring buildings to be elevated in certain coastal communities or a certain distance from the ocean) and to protect critical coastal ecosystems (for example, by preserving key ecological features and allowing certain ecosystems to migrate inland) but also to shape expectations for what development is possible in such areas.

To most effectively and efficiently respond to impacts from sea level rise, we need to understand these impacts, as well as the values, functions, and vulnerability of our coastal resources. The rates and impacts of sea level rise vary from place to place, as do the degree and type of development and infrastructure, and the quantity and quality of coastal ecosystems. There is a pressing need for state and local governments to support research to better understand these key issues.

Some states are already funding such research. In 2013, Connecticut passed legislation requiring the Connecticut Department of Energy and Environmental Protection (DEEP) and the University of Connecticut to report to the state legislature on their efforts to establish a Connecticut Center for Coasts to conduct “research, outreach and education projects to guide the development of technologies and regulatory provisions that increase the protection of ecosystems, coastal properties and other lands and attributes of the state that are subject to the effects of rising sea levels[.]” Conn. Special Act No. 13-9 § 1(1) (2013), available at www.cga.ct.gov/2013/act/sa/pdf/2013SA-00009-R00SB-01013-SA.pdf. The Center is also intended to, among other things, map and assess key characteristics of shoreline resiliency, conduct pilot-scale engineering and impact assessment studies, assist in developing statewide uniform guidelines for planning and development, assess “soft shore protection strategies,” develop a comprehensive coastal infrastructure inventory, analyze the impacts of seawalls, and develop statewide models for predicting flood scenarios under both gradual sea level rise and storm surges. Id. § 1. Connecticut passed another law in 2013 requiring DEEP to consult with environmental agencies in other coastal states, as well as the federal government and commercial entities involved in activities requiring permits to obtain information to be used to develop a best practices guide for permitting coastal development. Conn. Pub. Act No. 13-179 (2013), available at www.cga.ct.gov/2013/act/pa/2013PA-00179-R00SB-01012-PA.htm.

Also this year, New Hampshire enacted a law allowing for coastal management provisions in master plans to plan for projected risks from sea level rise. N.H. SB 164 (2013), available at www.gencourt.state.nh.us/legislation/2013/SB0164.pdf. This may address loss of property or habitat “due to increased frequency of storm surge, flooding, and inundation.” Id. New Hampshire also enacted a law that established a coastal risk and hazards commission to recommend legislation and other actions to prepare for projected sea level rise. N.H. SB 163 (2013), available at www.gencourt.state.nh.us/legislation/2013/SB0163.pdf. This commission is required to review data from scientific agencies regarding coastal storm inundation and flood risks, including data from the National Oceanic and Atmospheric Administration, to assess property risks. Id. Such legislative efforts acknowledge the issue of sea level rise and begin to create a framework for understanding and addressing these problems.

Importantly, state policy and laws also make up the “background principles” that affect people’s reasonable expectations for how they can use their property and, therefore, potential outcomes of takings claims. Under the balancing analysis that the U.S. Supreme Court set forth in Penn CentralTransp. Co. v. New York City, when deciding regulatory takings claims, courts weigh the character of the governmental action with the economic impact of the regulation and the property owner’s reasonable expectations of its property, which is determined by looking at the laws in place at the time the owner purchased the property. See Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978). If the existing laws prioritize living shorelines or retreat in the area where the property owner purchased the property, the property owner may not have a reasonable expectation to hold back the sea.

Such background principles can be developed through policies and statutes. For example, Connecticut recently amended its Coastal Management Act to require consideration of sea level rise in planning and coastal development and to favor living shorelines over armoring. See Conn. Pub. Act No. 12-101 (2012), available at www.cga.ct.gov/2012/act/pa/pdf/2012PA-00101-R00SB-00376-PA.pdf. These changes affect a property owner’s reasonable expectations of whether certain coastal development is permissible, including whether shoreline armoring is permissible and, if so, what types of armoring is allowed, and therefore may affect takings claims.

Conclusion: Acknowledge the Problem, Study Up, and Tailor Strategies

Coastal adaptation is not a one-size-fits-all model. What will work best and what is most appropriate depends on numerous local factors such as geography, soil types, erosion and subsidence rates, and even boat traffic—as well as the community’s values and priorities, including how to balance the need to address erosion versus protecting ecosystems and shielding development and infrastructure. Preferences for how to balance these often competing priorities differ from place to place, but there are an increasing number of options available to protect shorelines and coastal communities. Federal and state policies specifically addressing sea level rise—including acknowledging sea level rise as a key consideration in long-term planning, assessing, and mapping a state’s and region’s most vulnerable coastal areas, funding research and long-term planning efforts, and implementing innovative adaptation measures—are essential to adequately protecting our built as well as our natural environments.

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