Sea level rise and tidal flooding pose long-term and systemic risks to coastal New England communities—areas that historically tied their identities to the sea. Warming waters accelerate sea ice melting rates. Thermal expansion of the ocean in response to climbing temperatures also raises sea levels. And strong tidal forces like astronomically high king tides, combined with overall sea level rise, can push water above the mean high tide mark in coastal areas. High tide flooding is often called “sunny day flooding” because it occurs when no storms are present. New England will face profound impacts as climate change continues to increase the frequency and severity of high tide flooding. The National Oceanic and Atmospheric Administration published its State of High Tide Flooding and 2022 Outlook in August 2022. The report predicts six to 11 high tide events in the Northeast in 2023, and that by 2050, Boston could experience 50 to 70 “flood days” per year.
Since 2017, all five New England coastal states (Connecticut, Maine, Massachusetts, New Hampshire, and Rhode Island) have enacted state climate adaptation, preparedness, and resilience laws that address sea level rise and high tide flooding. This article surveys how the New England coastal states’ new laws consider sea level rise and high tide flooding, identifying commonalities between and promising practices within the laws.
Connecticut’s 2021 Act Concerning Climate Change Adaptation enables municipalities to create a stormwater authority to help manage stormwater and improve resilience to climate change by assessing fees based on the amount of stormwater runoff a property generates. Conn. Pub. Acts 21-115 (2021), § 1(c). User fee funding can be used to maintain and enhance stormwater treatment measures and resilient infrastructure and provide matching funds for state and federal grants. Id. This new state authority is particularly critical for coastal communities since high tide flooding and sea level rise can inundate and weaken coastal stormwater infrastructure.
Second, the law allows municipalities to convert existing “flood and erosion control boards” into “flood prevention, climate resilience, and erosion control boards” (FPCREBs) with broader climate-related responsibilities. Id. § 4(a)(1). Such boards would broaden their scope to specifically include flood prevention and climate resilience work, including operating and inventorying the town’s existing flood prevention, climate resilience, and erosion control systems; identifying additional needs; and “analyzing the manner in which vulnerable communities are prioritized and protected” by the town’s systems. Id. § 4(c). The definition of “systems” that such boards operate is expanded to include green infrastructure features, living shorelines, and other nature-based features in addition to traditional “hard” flood controls such as dikes, jetties, berms, and tide gates. Id. § 5(a). Several Connecticut coastal municipalities, including Stonington and Fairfield, have already converted flood and erosion control boards into FPCREBs. Furthermore, Connecticut municipalities can form cross-municipal FPCREBs and “enter into an agreement to jointly exercise through a joint flood prevention, climate resilience and erosion control board [which] shall have jurisdiction over each municipality subject to such agreement.” Id. § 4(a)(2). Such joint efforts will be important for a watershed approach and working toward regional solutions to increased precipitation and flooding.
Maine’s 2019 Act to Help Municipalities Prepare for Sea Level Rise amends state land use and zoning law to authorize coastal municipalities to form “multi-municipal regions” to share financial resources and coordinate sea level rise planning and response. Such coastal multi-municipal regions are to create comprehensive plans to explicitly “assess . . . and plan for the effects of the rise in sea level on buildings, transportation infrastructure, sewage treatment facilities and other relevant state, regional, municipal or privately held infrastructure, property or resources.” See H.P. 407, 1st Regular Sess., § 7 (Me. 2019) (adding sub-§10 to Me. Rev. Stat. Ann. tit. 38, § 1801). The intermunicipal resource-sharing that this law authorizes should provide small coastal towns with capacity-building, planning, and adaptation opportunities that may be infeasible on their own.
Also in 2019, Maine enacted An Act to Promote Clean Energy Jobs and to Establish the Maine Climate Council. 2019 Me. Legis. Serv. ch. 476 (S.P. 550) (L.D. 1679). This act declared that climate change fits under Maine’s constitutional definition of “emergency”—i.e., the legislation was “immediately necessary for the preservation of the public peace, health and safety.” Id., pmble. The act established the Maine Climate Council, charged with broad climate assessment and reporting duties to advise the governor and legislature. The Climate Council’s enabling act emphasizes public participation and equity. It must solicit “input from members of the public when developing the State’s updated climate action plan and communicating with the public on progress and actions” and must develop “mitigation and adaptation strategies [that] include consideration of how low-income residents of the State and residents of the State who are members of vulnerable communities will be affected by climate change.” Id. § 2.8.E. The Climate Council must also “develop and recommend strategies to address and prepare for coastal and coastal watershed hazards [such as] ocean and coastal acidification, increased storm surges, extreme precipitation and other extreme weather events, projected sea level rise and increased river flooding and storm water runoff and the risks such hazards pose to municipalities, the coastal economy and state assets.” Id. § 2.8.L.
In June 2021, Maine enacted a resolution requiring many state agencies to review the laws and regulations that they implement and recommend changes needed to “incorporate consideration of 1.5 feet of relative sea level rise by 2050 and 4 feet by 2100 into administration of those laws and rules.” See 2021 Me. Legis. Serv. Resolves ch. 67 (H.P. 1169) (L.D. 1572), § 1.1. This resolution set a scientifically driven common sea level rise baseline from which all agencies and the state legislature can evaluate, and as necessary amend, relevant laws and regulations.
Massachusetts enacted the Act Promoting Climate Change Adaptation, Environmental and Natural Resource Protection and Investment in Recreational Assets and Opportunity in July 2018. 2018 Mass. Legis. Serv. ch. 209 (H.B. 4835). This act built on previous climate-related state legislation by authorizing $2.4 billion for new climate change work. Of many significant initiatives, two stand out as particularly innovative in meeting threats from high tide flooding. First, H.B. 4835 authorizes $30 million for the Secretary of Energy and Environmental Affairs to acquire coastal lands “for the purposes of open space, recreation and conservation” that are located in:
coastal high risk flooding zones and the lands or structures thereon have suffered or are projected to be subject to repeated damage from flooding, storm surges, wave action or erosion caused by ocean waves or waters or are otherwise impacted or projected to be impacted catastrophically by extreme weather events, astronomical high tides or elevated sea levels related to climate change and cause a substantial risk to public health, public safety or the environment.
H.B. 4835 § 2(c). Second, like Connecticut has done, H.B. 4835 newly authorizes infrastructure resilience and adaption expenditures to include nature-based solutions like wetlands restoration and living shorelines in addition to man-made “hard” seawalls and tide gates.
In September 2018, Massachusetts adopted its current State Hazard Mitigation and Climate Adaptation Plan (SHMCAP). The 2018 SHMCAP is an integrated hazard and climate plan, and dives deeply into high tide flooding hazards, projections, and mitigation efforts. It projects that sea level rise along Massachusetts’ coastline could reach 1.3 to 3.1 feet by 2050 and 4.0 to 10.5 feet by 2100. See 2018 SHMCAP at 4–80. The plan identifies the municipalities most at risk of increased frequent and severe high tide flooding and discusses how the Massachusetts Coastal Zone Management agency is implementing the municipal vulnerability preparedness grant program. H.B. 4835 authorized $100 million for continuous implementation of the SHMCAP and $75 million to the municipal vulnerability preparedness grant program.
With the shortest coastline in New England, New Hampshire has perhaps one of the most innovative municipal resource-pooling laws specifically aimed at responding to sea level rise. New Hampshire Senate Bill 285, Establishing a Coastal Resilience and Economic Development Program, passed in 2019, provides local governments with innovative new land use law mechanisms to address sea-level rise, storm surges, and flooding, and to share revenue collection and sea-level rise–related expenditures. See 2019 N.H. Laws ch. 318 (S.B. 285). Under this law, coastal New Hampshire municipalities may declare climate emergencies and then either alter their existing geographic boundaries or combine with one or more other municipalities to create entirely new (larger) municipalities. See S.B. 285 § 2, codified in N.H. Rev. Stat. § 31:9-d. Municipalities that wish to share tax revenues and sea-level rise–related expenditures without altering their boundaries may enter into newly authorized Joint Municipal Development and Revitalization Districts. See S.B. 285 § 3. Additionally, the law authorizes new coastal resilience and cultural and historic reserve districts. With a newly established state fund, such districts can determine whether and how to relocate historic structures and cultural resources to higher ground away from coastal flooding. See S.B. 285 §§ 5, 6.
In Rhode Island, local planning boards have sole responsibility for preparing municipalities’ comprehensive plans and for approving or denying variance and special permit requests submitted as part of land development applications. A 2017 Rhode Island law requires all municipal planning board members and commissioners to complete training “concerning the effects of development in a flood plain and the effects of sea level rise once every two years.” 2017 R.I. Laws ch. 17-438 (17-S 1005), § 1(j). These new sea level rise continuing education requirements will equip planning board members and commissioners with a greater understanding of how sea level rise impacts development in flood plains and coastal zones.
Environmental justice and equity requirements run through many parts of the 2021 Act on Climate, which amends the 2014 Resilient Rhode Island Act. See 2021 R.I. Laws ch. 21-2 (21-H 5445). The 2021 law requires the Rhode Island Climate Council to establish a climate plan that “shall include an equitable transition to climate compliance for environmental justice populations, redress past environmental and public health inequities, and include a process where the interests of and people from populations most vulnerable to the effects of climate change and at risk of pollution, displacement, energy burden, and cost influence such plan.” Id. § 42-6.2-2.-2v. The law also calls for the equitable transition plan to include clean energy and resilience-related jobs and for “the development of programs that directly recruit, train, and retain those underrepresented in the workforce, including women, people of color, indigenous people, veterans, formerly incarcerated people, and people living with disabilities.” Id. § 42-6.2-2.-2vi.
The 2021 Act on Climate amplifies state agencies’ climate change–related responsibilities, including requiring state agencies to “assess the vulnerability of infrastructure and natural systems, including, but not limited to, roads, bridges, dams, and wastewater and drinking water treatment facilities, and riverine and coastal habitats, to impacts on climate change and recommend implement strategies to relocate or protect and adapt these assets.” Id. § 42-6.2-3.7. It also requires Rhode Island municipalities to incorporate climate change adaptation into local hazard mitigation plans and, when feasible, into hazard mitigation projects. Id. § 42-6.2-3.11. Rhode Island’s 2021 Act on Climate concludes with a novel right of action provision whereby, beginning in 2026, any Rhode Island resident may bring an action to enforce the act’s climate plan requirements and greenhouse gas reduction mandates. Id. § 42-6.2-10.
New England coastal states’ laws appear to be equipped to take on the governance and funding challenges that high tide flooding will continue to present. In the states that allow multi-municipal sea level rise and flooding management, small towns may be able to share resources and adapt more efficiently. Municipalities also seem more likely to get approval of and funding for high tide flooding mitigation measures like living shorelines than they may have been able to without explicit authorization.
