Wednesday, December 2, 2009
Sea Level Rise & Local Planning
The co-editors of this blog recently got an interesting e-mail from Jim Titus, an eminent EPA scientist who has been researching sea level rise for many years. He was co-author of one of the first EPA-funded studies on sea level rise in the mid-80s. He wrote to tell us about an important new study:
The study sheds light on the ultimate significance of the Stop the Beach Renourishment (FL) and Severance (TX) takings cases. The name of the article is State and local governments plan for development along most land vulnerable to rising sea level along the US Atlantic Coast
The Texas case ultimately gets at the question about whether the legislature can adjust property law to reflect the geological reality of changing shores without causing a taking for those immediately affected, and for those who will ever be affected. The Florida case looks like a judicial takings case but it too really gets at whether a confusing doctrine of avulsion can be adjusted to reflect the reality of shoreline movement and government response without causing a taking. Ultimately, the question about whether all riparian owners benefit from beach nourishment depends on whether they had a right to build a seawall or would have had to lose their homes without that beach nourishment. That is, cases like Stop the Beach Nourishment will ultimately require resolution of cases like Severance. But ultimately, the relevance depends on where we will hold back the sea and where we will retreat.
Our new study gets into that question. The sea level rise planning study, recently published in the peer-review journal Environmental Research Letters., was based on a $2 million research project by USEPA, conducted in collabortation with 130 local governments. Actually, the regional planning councils did the work in FL, GA, and PA; elsewhere we obtained our data and vetted the analysis through the local governments. The media coverage was mostly in the southeast, especially North Carolina, but the general story is important to all who want to think about either (a) how lands use planning will deal with sea level rise or (b) where all these coastal takings cases ultimately go.
The study does three things worth knowing about. First, we create maps about where people would hold back the sea if current policies continue, based on the data provided by 130 local govenments, refined through site-specific corrections by local planers. The idea is to motivate dialogue on where we **should** protect and where we **should** allow wetlands to migrate inland. So now, local governments that want to start planning for sea level rise have a strawman baseline analysis. This is needed because one can not really address rising sea level in a local plan without making an assumption about which land will be yielded to the sea, which land will be elevated, and which land will be protected by a structure.
With all these GIS maps, we then analyze how much land is likely to be developed and protected from the rising sea (possibly exposing people to a New Orleans situation) and how much land is available for the inland migration of wetlands. We estimate that 60% of low land will be developed, with 10% set aside for conservation and the other 30% undeveloped at first--but shore protection would be possible even here. Opportunities for land-use planning are greatest between Delaware Bay and Georgia; elsewhere emergency and infrastructure planning are more urgent. (My personal view is that, as legislatures and others think about possible clarification and alignment of property rights to reflect rising sea level, the areas shown in blue should all have something like the Texas rolling easement as a background principal, the areas in red are candidates for purchase of rolling easements as an interest in land--possibly by eminent domain, exactions, or conserancies; and the areas in brown should have policies more protective or property rights along estuaries provided that public access is preserved.)
Finally, we conclude that the resulting level of shore protection has a cumulative impact which violates the Clean Water Act (legal reasoning explained in the article).
The Texas case ultimately gets at the question about whether the legislature can adjust property law to reflect the geological reality of changing shores without causing a taking for those immediately affected, and for those who will ever be affected. The Florida case looks like a judicial takings case but it too really gets at whether a confusing doctrine of avulsion can be adjusted to reflect the reality of shoreline movement and government response without causing a taking. Ultimately, the question about whether all riparian owners benefit from beach nourishment depends on whether they had a right to build a seawall or would have had to lose their homes without that beach nourishment. That is, cases like Stop the Beach Nourishment will ultimately require resolution of cases like Severance. But ultimately, the relevance depends on where we will hold back the sea and where we will retreat.
Our new study gets into that question. The sea level rise planning study, recently published in the peer-review journal Environmental Research Letters., was based on a $2 million research project by USEPA, conducted in collabortation with 130 local governments. Actually, the regional planning councils did the work in FL, GA, and PA; elsewhere we obtained our data and vetted the analysis through the local governments. The media coverage was mostly in the southeast, especially North Carolina, but the general story is important to all who want to think about either (a) how lands use planning will deal with sea level rise or (b) where all these coastal takings cases ultimately go.
The study does three things worth knowing about. First, we create maps about where people would hold back the sea if current policies continue, based on the data provided by 130 local govenments, refined through site-specific corrections by local planers. The idea is to motivate dialogue on where we **should** protect and where we **should** allow wetlands to migrate inland. So now, local governments that want to start planning for sea level rise have a strawman baseline analysis. This is needed because one can not really address rising sea level in a local plan without making an assumption about which land will be yielded to the sea, which land will be elevated, and which land will be protected by a structure.
With all these GIS maps, we then analyze how much land is likely to be developed and protected from the rising sea (possibly exposing people to a New Orleans situation) and how much land is available for the inland migration of wetlands. We estimate that 60% of low land will be developed, with 10% set aside for conservation and the other 30% undeveloped at first--but shore protection would be possible even here. Opportunities for land-use planning are greatest between Delaware Bay and Georgia; elsewhere emergency and infrastructure planning are more urgent. (My personal view is that, as legislatures and others think about possible clarification and alignment of property rights to reflect rising sea level, the areas shown in blue should all have something like the Texas rolling easement as a background principal, the areas in red are candidates for purchase of rolling easements as an interest in land--possibly by eminent domain, exactions, or conserancies; and the areas in brown should have policies more protective or property rights along estuaries provided that public access is preserved.)
Finally, we conclude that the resulting level of shore protection has a cumulative impact which violates the Clean Water Act (legal reasoning explained in the article).
Our thanks to Jim for letting us know about this study. It parallels some work being done by the Ecology school here at UGA. I'll blog about that soon.
Jamie Baker Roskie
UPDATE: Jim asked that I be sure to add the links to the sea level rise planning maps and the state-specific summaries. (On the latter page, for extra fun, you can download a Christmas global warming song!) Also, Jim attended oral arguments for Stop the Beach, which I will post in a separate blog entry.
https://lawprofessors.typepad.com/land_use/2009/12/sea-level-rise-local-planning.html
