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

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

March 4, 2012 23:48
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


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