Among other things, Stephanie Showalter Otts provides a good overview of the case history that guides decisions today, and some insight into how they might inform communities’ decisions today. We’ve added it to the legal resources section of our site.

Unfortunately, nobody has found a silver bullet to save coastal development from future sea levels (yet). Worse, if you spend any time researching the most popular adaptation options, you’ll quickly realize that they tend to be incredibly expensive for somebody (property owners, tax payers, or both) AND they’re, at best, stopgap measures. Sea walls? We’ve all seen impermanent they are, the problems they cause, and how expensive they are to repair when they start to fail. Beach nourishment? Super pricey, and even if you could somehow secure an endless source of funding, we’re running out of usable sand in many parts of the country. So many of these techniques feel a little like kicking the can down the road, and aren’t even possible short-term solutions for areas without substantial economic resources.

The EPA’s Climate Ready Estuaries Program has just released an interesting and fairly in-depth report on one method that could help comprehensively address the country’s changing climate: rolling easements.

When a community or state adopts rolling easements, it embraces or at least accepts the fact that some low-lying coastal areas are going to either be eroded away or inundated by rising seas. Property owners in these areas are allowed to use their property as they wish (within regular guidelines, of course), but are NOT allowed to stop the advance of the sea, and must remove structures and infrastructure as areas submerge.

Rolling Easements (PDF), provides a good overview of specific ways that communities can begin to implement or at least consider using rolling easements.

Chapters include:

• What can a rolling easement accomplish?
• Legal approaches to creating a rolling easement
• Choosing the approach: is there legal authority
• Advantages and disadvantages of rolling easements
• Defining how it will work
• Defining where to apply the rolling easement
• Managing the rolling easement
• The endgame: managing the transition

Definitely worth a look. This isn’t an easy solution, and it’s not going to make everybody happy. But if we had easy solutions that would make everybody happy, we’d have implemented them by now.

Rolling Easements, by the EPA’s Climate Ready Estuaries Program (via John Bowie).

Speakers include Ed Thomas (Baker), Terri Turner (Augusta-Richmond County Planning Commission, GA), Sandy Eslinger (NOAA CSC), Allison Hardin (City of Myrtle Beach, SC), and Christy Miller (TetraTech). And I’ll do a little presentation, too.

We’ll be talking about topics including:

- No Adverse Impact / No Adverse Impact Toolkit – to include basic/better/best (NAI) strategies
- Digital Coast and associated tools
Roadmap for Adapting to Coast Change and associated tools
- Legal aspects of incorporating NAI into the community – topics such as floodplain development case law, community responsibilities, community liability, standards of care, public trust, and takings

The session is Friday from 9-1. 4 CEC credits for participants (in case we needed to sweeten the pot). Register at www.floods.org or call (608) 274-0123.

Hope to see you there!

He acknowledges that predicting the effects of sea level rise on beaches is complex, and that results will vary greatly depending on many factors. But overall, the picture isn’t pretty.

It seems likely that the cities will be where the world’s national treasure will be expended and the remaining shorefront communities will face eventual abandonment. For the sake of the beaches we can only hope that a real retreat policy will be instituted and as communities are abandoned, their buildings will be demolished and removed. Otherwise we can expect that within 40 to 60 years, the world’s beaches will begin to be lined with debris from abandoned and deteriorating buildings providing much hazardous material to pollute the oceans.

If our beaches are to survive for our grandchildren’s enjoyment, the time has come to plan the big withdrawal.

Worth a read (or a look: the photos are great, though troubling).

“Sea Level Rise and the World’s Beaches“

However, we at StormSmart Coasts are obsessed with making sure that things worth sharing get shared, especially if they’re designed to be shared. And we’ve got one such sharable thing today.

It’s called the Model Bylaw For Effectively Managing Coastal Floodplain Development, and it was created by a partnership of people working at Woods Hole Sea Grant, the Cape Cod Commission, and the University of Hawaii Sea Grant.

The bylaw this team assembled is built on the premiss that local floodplain ordinances are extremely effective at reducing storm damage (preventing $1.1 billion in losses a year), and that the the most effective ordinances guide two aspects of coastal or waterfront buildings: siting and elevation. Specifically, they regulate these two aspects during permitting and initial construction.

The document (which includes both an introduction/explanation, and the regulatory bylaw itself) walks the reader through both the reasoning behind the bylaw and what the reader needs to do to adapt it to his or her municipality.

How hard is it to adapt? Surprisingly easy. Part of it is as simple as filling in the appropriate blanks (along the lines of “add the name of your permit issuing authority here” with an italicized explanation below explaining how to decide which issuing authority the reader should consider using).

Other sections require the reader to choose from a menu of choices (e.g., “Communities need to decide what types of development, if any, they will allow in the Coastal Floodplain District.“) followed by guidance on what a community might wish to consider while making this choice.

If your community is contemplating regulations as one of its options to protect your citizens and their property (and if you’re not, why aren’t you?), this is definitely worth a look. Also have a look at our information on zoning ordinances and regulations.

You can download the Model Bylaw For Effectively Managing Coastal Floodplain Development here. (PDF)

Image by Skagman.

Here’s the blurb from the Massachusetts Office of Coastal Zone Management’s ever-useful CZ-Mail:

On September 16, the Oak Bluffs Zoning Board of Appeals voted unanimously to adopt special permit regulations (PDF, 53 KB) associated with the town’s recently adopted floodplain overlay district bylaw. Oak Bluffs is one of [the Massachusetts Office of Coastal Zone Management's] CZM’s StormSmart Coasts pilot communities, and CZM provided assistance to a team of local officials to develop these special permit regulations.

The new regulations:

• Provide fair and equitable submission requirements and design criteria/performance standards to minimize potential loss of life, destruction of property, and environmental damage
• Enable safe access for homeowners and emergency response personnel
• Diminish monetary loss and public health threats

When the pilot project began, CZM staff provided assistance in drafting amendments to the town’s existing floodplain overlay district bylaw, which were then adopted by town meeting in May by a near unanimous vote. The bylaw allows specific land uses by special permit, so CZM and Oak Bluffs officials then focused on preparing special permit regulations that clarify the process and parameters for development within the floodplain district. The new regulations also incorporate recommendations from CZM’s coastal landscaping website. Landscapes with native plants can help coastal property owners prevent storm damage and erosion, provide wildlife habitat, and reduce coastal water pollution—all while improving a property’s visual appeal and natural character. CZM congratulates the town of Oak Bluffs for it progressive work to protect its residents, businesses, and natural resources.

We’d like to join CZM in congratulating Oak Bluffs, too. Nicely done.

These regulations are refreshingly straight-forward. Essentially, they say: here’s what you can and cannot do in our designated Floodplain Overlay District (established in their zoning bylaw), and here’s how to apply for a special permit if you’d like to do something else. The regulation itself is only 5 pages long, and even with all the necessary appendices it’s only 13 pages. You can download the regulations from the Massachusetts Office of Coastal Zone Management’s site (PDF, 53 KB).

Again, really nice work.

Image Samantha Decker

This training course will present the National Flood Insurance Program (NFIP) concepts in flood management, damage prevention terminology, and protocols from a local regulator perspective. Major discussion topics include: a historic perspective of the NFIP, roles and responsibilities, cooperative agreements, basic terminology, requirements to local floodplain management, regulatory standards, and administrative priorities. Practical graphic illustrations and procedural flow charts, as well as sample documents are part of the presentation. Each attendee may keep the materials for future reference.

Who’s it for? State and local agency staff and decision makers, attorneys, consultants, members of environmental organizations, and interested citizens.

We’ve added it to our calendar.

Want to learn more? Have a look at their website.

You can find a schedule of all the conference’s events on their website (and we’ll add the lot to the StormSmart Coasts Calendar), but we’d like to especially highlight tomorrow’s: a session called “Sea Level Rise and Property Rights.” Here’s the description:

Even assuming conservative predictions, sea level rise will result in significant threats to the resiliency and long-term sustainability of coastal communities. As the seas continue to rise, waterfront areas along the Gulf of Mexico are undergoing tremendous population growth. Thus, escalating seas present alarming potential for causing physical and economic harm to millions of people around the region. Nevertheless, no Gulf states have implementable, meaningful, comprehensive plans, policies, or regulations directly addressing sea level rise. A team of researchers have been analyzing federal and state constitutional and statutory takings jurisprudence and theories to aid in the creation of innovative land use planning policies for adapting to sea level rise. Members of that team will present their early foundational research.

Sounds good, and is even worth continuing education credit for Florida Bar members. We’ll be listening in. See you there?

The brief memo suggest that the NFIP will bill the party that caused the oil damage (in this case, British Petroleum) for the damages. And while this bit is somewhat less clear, it sounds like if the policyholder later directly bills the responsible party for the same damage, the policyholder must pay back the NFIP (no double-dipping).

A few other selections from the memo:

• Coverage for commercial buildings and contents must be purchased separately and the limit for damage caused by pollutants is $10,000
• Homes and contents are covered up to the policy limits (this doesn’t raise the maximum payout)
• Damage to ground, soil, or land caused by flood, oil, or flood water mixed with oil is not covered

You can download a PDF the June 7 memo “Write Your Own (WYO) Principal Coordinators and the National Flood Insurance Program (NFIP) Servicing Agent” here.

“A Texas appellate court struck down a challenge from several beachfront property owners to the Texas Open Beaches Act. The homeowners filed the action seeking a declaratory judgment for their right to repair, maintain, and access their houses, as well as for damages for the loss of use of the property following Tropical Storm Frances. The appellate court held that evidence conclusively showed an easement by implied dedication on these properties, due to historic public use. The court noted that the Act requires the removal of obstructions, barriers, and encroachments whether or not they existed when the easement first applied. The court concluded that the enforcement of the easement was not a taking, because acts of nature, not the government, moved the line of vegetation landward of where the houses were located.”

You can read the opinion here. To subscribe to the Ocean and Coastal Case Alert Newsletter, send an email to waurene@olemiss.edu with “Case Alert” on the subject line.