All posts tagged 'rising sea levels'

Connecticut Introduces Bill to Incorporate Climate Change Strategic Retreat into Coastal Zone Management Act

March 4, 2012 20:48
by J. Wylie Donald
Apocryphally, the emperor of the Eternal City took out his violin while the city was consumed in a conflagration. In lay terms, Nero fiddled while Rome burned.  Some would like to draw the analogy to climate change policy in the United States, held up based on principles, or partisanship, or grandstanding or blind denial.  Whatever the reason, the climate for making climate change policy has grown decidedly colder since the heady days of 2008 when even the Republican party was on board.    Nevertheless, some are not waiting until prediction becomes reality.  For example, lawmakers in Connecticut, which opened the 2012 legislative session on February 8, have the opportunity to address one of the issues caused by a changing climate:  rising sea levels. Two bills introduced in the General Assembly focus on the changing shore. The first, Raised Bill No. 5127, is at first glance an inconsequential revision to the definition of the high tide line. Currently, Connecticut defines mean high tide as "a line or mark left upon tide flats, beaches, or along shore objects that indicates the intersection of the land with the water's surface at the maximum height reached by a rising tide."  Conn. Gen. Stat. Section 22a-359(c).  It can be determined by, among other things, a line of oil, a line of scum, "a more or less continuous deposit of fine shell", vegetation lines or tidal gauge.  Id.  Some (including the authors of 5127) might conclude that for regulatory and enforcement purposes that is a little vague. So the proposed bill seeks something a little more rigorous. But if you thought it would be something simple like the Greenwhich Meridian or an atomic clock, you would be mistaken.  Under the proposed bill, Connecticut would look to the location of the topographical elevation of the highest predicted tide for the period  beginning in 1983 and ending in 2001, referenced to the most recent National Tidal Datum Epoch as published by the National Oceanographic and Atmospheric Administration (NOAA) and described in terms of feet of elevation above the North American Vertical Datum of 1988. Raised Bill No. 5127(c).  This elevation is specified for each municipality along the Connecticut littoral.  Id. While this change advances the science of seashore delineation and has been adopted by others, e.g., Fla. Stat. 177.27, other states are still content to rely on a subjective view of the beach.  E.g.,  Rev. Code Wash.  90.58.030(2)(c).  So what is driving the change in Connecticut? If one turns to the next Raised Bill before the General Assembly one will have the answer.  Raised Bill No. 5128 proposes revisions to the Coastal Zone Management Act.  Section 2 adds a new definition, "Rise in sea level," that is keyed to the North American Vertical Data.  The definition goes on to report that the rise in Connecticut coastal sea level is projected to occur "at an average rate of not less than 2.4 inches per decade, ..."  Id. "Rise in sea level" is important because 5128 makes clear why precise delineation is going to matter.  New subsection (b)(1)(K) to Conn. Gen. Stat. 22a-92 seeks "to encourage a fair and orderly legal process to foster strategic retreat of property ownership, over a period of several decades, for coastal lands that have a likelihood of being lost due to erosion and coastal lands that contain structures that are subject to repetitive damage."  Napoleon from Moscow.  Lee from Gettysburg.  The 21st Century's strategic retreat may last far longer and cost far more than anything in the history books.  The Delaware Department of Natural Resources and Environmental Control described "strategic retreat" as the "remov[al] of oceanfront buildings as the shoreline erodes to maintain a beach width or certain distance between buildings and the water. An effective strategic retreat plan would involve systematic removal of structures as the beach migrates inland and the buildings become threatened by waves and surf."  Jim Titus at EPA described it as "minimizing hazards and environmental impacts by removing development from the most vulnerable areas."  However one describes it, DNREC's further comment is worth noting:  "there are no easy solutions or clear implementation strategies to accompany the issue of strategic retreat while accomplishing the  management goal of preserving and maintaining recreational and protective beaches. Strategic retreat requires hard decisionmaking, funding, and firm commitment by the Administration and the Legislature if it is to succeed."  Accordingly, the Connecticut Legislature should take note:  this is not going to be a walk in the park.  Nevertheless, assuming the political hurdles can be overcome, strategic retreat will undoubtedly become part of the climate change response.  Kudos to Connecticut for not fiddling around. 

Climate Change | Climate Change Litigation | Legislation | Rising Sea Levels

Highest Court Decisions Affirm Beach Replenishment is Avulsion - a Key Development in a World of Rising Sea Levels

September 23, 2010 08:57
by J. Wylie Donald
Last December 9 was the height of coincidences.  Both the United States Supreme Court and the New Jersey Supreme Court heard oral arguments on the same day in beach replenishment cases.  The fortuity did not continue.  Stop the Beach Renourishment, Inc. v. Florida  was decided by the U.S. Supreme Court in June.  It took the New Jersey Supreme Court over three months longer to decide City of Long Branch v. Liu, where the opinion came down just this past Tuesday.  Nevertheless, both decisions affirmed that beachfront ownership law would be determined based on common law rules.  More significantly, the State's interest in control of the beaches was found preeminent. In Stop the Beach, the Supreme Court considered the following facts:  shorefront property owners in Walton County, Florida, for many years had enjoyed unfettered access to the warm waters of the Gulf.  As part of its efforts to preserve Florida's beaches, the State had renourished (pumped tons of sand) onto the homeowners' beach, and then claimed that land for Florida.  In legal terminology, the property owners' property line changed from the common law mean high water line to a statutorily established erosion control line.  In other words, beach front property now meant that you fronted on a beach, rather than fronted on the ocean.  The homeowners challenged this development as an unconstitutional "taking" under the 5th and 14th Amendments to the Constitution. While the Court could not come to agreement on the meaning of taking in this context (a plurality opinion with two concurrences), the Court was unanimous that this particular circumstance was not one.  It concluded (as had Florida's Supreme Court) that Florida's common law treated the creation of a beach by replenishment as an "avulsion" and under the common law, the Court concluded, homeowners did not acquire ownership rights to such lands, although they did acquire (as Florida conceded) certain other rights (such as access across and an unobstructed view).  In Liu the facts were less sympathetic.  The Lius' upland property had been condemned and its value had been set by a trial.  The Lius also sought, however, to be compensated for the value created when New Jersey's beach replenishment program deposited sand on the Lius' beach and created more land.  Here too New Jersey's highest court found that beach replenishment constituted an "avulsion" and that because the Lius never owned the land below mean high water, they could not own the land created when sand was deposited beyond mean high water, even if that land rose above the surface and severed the Luis's contact with the ocean. Although neither decision addressed the rising sea level problem brought about by climate change, they are very likely to figure prominently in future controversies arising as communities attempt to deal with the submergence of the shore.  Both appellate courts found that beach replenishment constituted an avulsion:  “a sudden and perceptible loss or addition to land by the action of water or otherwise.”  Liu, at 14, “sudden or perceptible loss of or addition to land by the action of the water or a sudden change in the bed of a lake or the course of a stream,” Stop the Beach Renourishment at 3.  Since the common law did not permit property boundaries to be changed by an avulsion, all that was necessary for a decision in favor of the governmental defendants was a finding that beach replenishment constituted an avulsion, which is what the courts held.  One can envision a number of ways how that conclusion may not be obvious.  The courts creating the common law never considered that massive pumps at the bidding of the State would move the seabed.  Nor was it contemplated that governmental entities would be able, at their discretion, to convert littoral properties to land-locked properties.  But be that as it may, this is the law of the land. And as such, communities at the shore can take much solace that they will be able to act to preserve their communities by establishing beaches around their boundaries before they are engulfed.  And who is to say that such beaches may not morph into sand dunes, or even sand walls.  And will the common law permit seawalls and revetments to be constructed on the new lands, converting the former beachfront properties, into beach-view properties, then dune-view properties and ultimately into seawall view properties. The final chapter of this saga is not yet written.  What remains to be seen is whether in the future the littoral property owners at the beach will be as ineffective against the power of the State, as the courtiers in the fable of King Canute were against the rising tide.

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