Recent Developments in Coastal Adaptation to Climate Change

• Library: At the Cutting Edge: Land Use Law from The Urban Lawyer (ABA) (2014 Ed.)

Sorell E. Negro^*

"[T]here is a 100 year flood every two years now. It's inarguable that the sea is warmer and that there is a changing weather pattern, and the time to act is now. . . . We must understand the needs of coastal communiities."¹

I. Introduction

WITH GLOBAL TEMPERATURES ACROSS THE SKIES and throughout the oceans climbing, sea levels rising, and severe storm events intensifying and recurring more frequently, state and local governments are faced with the daunting task of adapting to the changing realities brought by climate change. No communities felt this truth more acutely over the past year than those in New York, New Jersey, and Connecticut that were pummeled by Hurricane Sandy on October 28, 2012 and that have slowly been picking up their pieces in 2013. The state and local governments of coastal communities devastated by recent severe storm events are asking critical land use questions related to adapting to, preparing for, and mitigating impacts of climate change, including: where and how should our coastal communities be built or rebuilt? How should we protect our shorelines from increased erosion and rising sea levels? And, inevitably, how do we start? This article discusses recent developments in state and local government law pertaining to coastal adaptation to climate change and how some state and local governments are, so far, answering these questions.

II. Background: Rising Seas, Rising Responsibilities

While there is a fair amount of uncertainty on exactly how quickly sea levels are rising and how often coastal communities will face severe storms in coming years, scientific studies and government agencies across the board predict that average sea levels will continue to rise significantly, and they will do so at increasing rates.² The Intergovernmental Panel on Climate Change ("IPCC"), which was created by the World Meteorological Organization and the United Nations Environment Programme "to assess scientific, technical and socio-economic information relevant for the understanding of climate change, its potential impacts and options for adaptation and mitigation[,]"³ estimates that global mean sea level rise will likely be 0.17 to 0.38 meters by mid-century and 0.26 to 0.82 meters by the end of the 21st century.⁴ The IPCC's draft summary of its updated report, due to be released later in 2013, states "that sea levels could conceivably rise by more than three feet by the end of the century . . ."⁵

Among other challenges, rising sea levels increase rates of erosion; inundate coastal ecosystems, development, and infrastructure; and intensify storms.⁶ The coast of Texas is eroding an average of 2.3 feet per year, and 64% of the state's shoreline is eroding at a rate of 6 feet per year.⁷ Researchers from the University of Hawaii's School of Ocean and Earth Science and Technology reported this year that 78% of beaches on Maui are eroding at an average rate of 0.13 meters per year.⁸ Also this year, Maryland's Climate Change Commission updated its sea-level rise projections and predicted a relative sea-level rise of 2.7 to 3.4 feet in Maryland this century.⁹ This commission also projected that severe storms would be more common and noted that modern record storm surges of over seven feet struck the Chesapeake Bay during Hurricane Isabel in 2003.¹⁰ Another recent study reported that damage from flooding in major coastal cities around the world could cost more than $1 trillion by 2050, and the cities in the United States most vulnerable to flooding are New York, Miami, and New Orleans.¹¹

In the face of such surmounting data and real, destructive impacts, on June 25, 2013, President Barack Obama announced a Climate Change Action Plan for the United States ("Plan").¹² This Plan consists of three principal parts: cut carbon pollution in the United States, lead global efforts to address climate change, and prepare the country for impacts from climate change.¹³ This third category, notably, contemplates direct action by states and local governments. The Plan directs federal agencies to support local efforts to prepare for climate change and establishes a short-term task force made up of state, local, and tribal officials to advise the federal government on how the federal government can help strengthen communities and help them be more resilient.¹⁴ It also calls for pilot programs in areas affected by Hurricane Sandy to prepare communities for impacts from climate change.¹⁵ The Plan equips state and local officials with a "toolkit" containing climate preparedness resources and information, such as interactive sea-level rise maps, and gives states and cities access to federal climate data and NASA climate imagery, including storm surge models.¹⁶ The Plan contemplates the federal government providing states and local governments with information, tools, and technical assistance they need to prepare for impacts of climate change, with states and local governments taking the lead on actual and specific adaptation and mitigation efforts in their communities.

As discussed below, certain states and local governments are already beginning such endeavors. This year saw significant developments from the states most affected by Hurricane Sandy (New York, New Jersey, and Connecticut) which incurred widespread flooding and property damage in coastal areas. We now turn to those state and local endeavors including recent state climate change legislation, local governments' efforts to rebuild and prepare for climate change impacts, and significant cases in 2013 arising out of coastal protection efforts.

III. State Efforts Addressing Climate Change

A. State Policies on Climate Change

Several states passed or proposed legislation incorporating climate change into state policy. For example, the New York Senate passed a bill calling for the state to develop model local laws addressing climate change and requiring the consideration of climate change impacts, including sea level rise, in land use planning.¹⁷ In New Hampshire, the legislature passed a bill authorizing master plans to contain coastal management provisions in order to plan for sea level rise, including storm surges and flooding.¹⁸ The state also established a coastal risk and hazards commission, which is meant to recommend actions, including legislation, to prepare for sea level rise.¹⁹ Such legislative efforts acknowledge problems raised by climate change, and specifically the issue of sea level rise, and begin to create a framework for understanding and addressing these problems.

In 2013, Connecticut enacted a statute requiring the Connecticut Department of Energy and Environmental Protection ("DEEP") and the University of Connecticut to report to the legislature on their joint efforts to establish a "Connecticut Center for Coasts."²⁰ The purpose of the Center is to conduct research, outreach, and education projects to aid in developing technologies and regulations to protect coastal areas from rising sea levels.²¹ The Center's mission includes assessing key characteristics of shoreline resiliency, conducting pilot-scale impact assessment studies, developing statewide uniform guidelines for planning and development, developing a comprehensive coastal infrastructure inventory, analyzing the impacts of seawalls, and developing statewide models for predicting flood scenarios.²² Also in 2013, Connecticut passed a law requiring DEEP to consult with environmental agencies in other states, as well as the federal government and commercial entities involved in activities requiring permitting, to gather information to develop a best practices guide for permitting coastal development.²³ These proactive policies set specific goals and set up mechanisms for collecting and analyzing information, and then using that information to help make communities more resilient.

B. New York Retreating? Not So Much

Reeling from Hurricane Sandy, Governor Andrew Cuomo proposed a policy of retreat this year, under which the state would buy out homeowners in vulnerable locations of New York City.²⁴ The retreat proposal would turn those susceptible areas into parkland or rehabilitate the coastal ecosystems in those locations and allow the shores to migrate inland.²⁵ While the state initially proposed $400 million for this effort, the proposal was not widely accepted.²⁶ Many of the people affected by Hurricane Sandy in New York and living in the most vulnerable areas of the City are also among the poorest.²⁷ Furthermore, a significant percentage of New York City was inundated by Sandy's storm surge,²⁸ and up to a quarter of New York City, in which about 800,000 people live, is expected to be in the floodplain by 2050—posing the difficult question of where would all of those people be moved?²⁹ Many people would rather put that money toward rebuilding their homes and neighborhoods, and stay put, and Mayor Bloomberg has stated that with so much of the city threatened by sea level rise, retreat is not a realistic solution.³⁰ With less support than anticipated, the initial amount for the relocation program, if it even moves forward, is now expected to be about $170 million.³¹

C. New Jersey: Streamlining Recovery

To assist communities in recovering after the widespread damage New Jersey's coast suffered from Hurricane Sandy, Governor Christie's administration adopted rules this year to streamline obtaining permits from the state's Department of Environmental Protection ("DEP") for rebuilding.³² The new rules allow certain projects to proceed under permits by rule or general permits rather than needing to obtain project-specific permits.³³ For example, necessary sand fencing is allowed under a permit by rule, and beach and sand dune maintenance activities are authorized under a general permit.³⁴ Living shorelines can also be created under a general permit.³⁵ A permit by rule authorizes reconstruction of damaged residential and commercial structures in certain upland waterfront development...