Managed Coastal Retreat: A Handbook of Tools, Case Studies, and Lessons Learned
Free handbook published by the Columbia Center for Climate Change Law at Columbia Law School provides terrific resource for shifting development in vulnerable areas.
Written by Anne Siders
"As the coasts become increasingly populated, more and more people are placed in harm's way. Thus far, science has not found effective ways to reduce most hazards. Therefore, citizens must look to strengthening communities. Building safer buildings and strengthening infrastructure are important steps, but it is the manner in which societies are built that largely determines disaster resilience. A vital part of effective disaster planning—whether for mitigation, preparation, response, or recovery—is an understanding of the people and institutions that make up each community, including their strengths and their weaknesses, as a basis for developing policies, programs, and practices to protect them. In the end, it is human decisions related to such matters as land use planning and community priorities that will build stronger, safer, and better communities." — H. John Heinz III Center for Science, Economics and the Environment, 2002, Human Links to Coastal Disasters
Our cities are ill-prepared for the dangers of the next century. Fiscally, we are spending more and more to repair the damage. Long-term planning that accounts for climate change is needed to ensure that money spent today will reduce our future risk.
We have the opportunity to not only build resilience today but also prepare for the future, to build the infrastructure that will be the foundation for our cities in the next century. This will require innovation and new technologies. It will also require tough decisions. Some areas will be too vulnerable, despite our best efforts to hold back the sea. Infrastructure and homes will need to be moved away from the threat and the shore opened up to the public. The political obstacles to this strategy will be severe in many places, but consideration of them should begin now.
Ocean shorelines, with their economic resources and recreational opportunities, have long been coveted locations for development. The same proximity to the coast that makes development desirable also threatens those very structures: rising tides, eroding shores, and coastal storms all threaten property and public safety. As climate change accelerates rising sea levels and possibly worsens hurricanes and other storms, the threat posed by such hazards will increase. Ironically, development along the coasts impairs the shoreline’s natural ability to withstand these same hazards.
As a result, many coastal communities are trapped in a cycle of risk in which they are developed, devastated by a natural event or disaster, and then rebuilt and repaired only to be struck again. As a classic example, Dauphin Island, Alabama, has been substantially destroyed ten times by hurricanes in the past forty years and yet, after being destroyed once again by Hurricane Katrina, commenced rebuilding. Dedication to community and resilience in the face of adversity are traits to be admired, but government officials must balance our natural tendency to persevere against the social and economic costs and risks to personal safety posed by continual development in vulnerable locations.
Federal funding spreads the risk exposure of coastal living across a greater population, which means that individual property owners internalize less of the cost of living in such risky areas. Since 1979, Dauphin Island has received $80 million in federal funding – more than $60,000 per resident – plus an additional $72 million in federal flood insurance payouts (although Dauphin Island residents have paid only $9.3 million in premiums).
Policy makers and the public at large are becoming increasingly aware of the expenses associated with repeated coastal disasters. Hurricane Sandy in the fall of 2012 cost $65 billion. Hurricane Ike in 2008 came in at $27 billion. Hurricanes Wilma and Rita cost $16 billion each in 2005, not to mention Hurricane Katrina at $125 billion. Hurricanes Ivan and Charley cost $14 and $15 billion respectively in 2004. This list says nothing about a host of billion dollar storms in between, much less other types of disasters such as flooding and severe storms that cost billions every year (144 weather disasters over $1 billion since 1980). Nor does it capture the personal costs: the loved ones lost, the people displaced for months on end, the personal belongings and memories destroyed, the communities disrupted.
If it seems that big disasters have been occurring more frequently in recent years, it may be true. According to the National Oceanic and Atmospheric Administration, the number of natural events that inflict at least $1 billion in damage (adjusted for inflation) has risen from an average of two per year in the 1980s to more than ten per year since 2010. And the federal Columbia Center for Climate Change Law government has begun playing a larger role in disaster relief, meaning more federal funding expended at each disaster. Between 2011 and 2013, Congress spent $136 billion on disaster relief. In comparison, in 2013, the federal government spent $65.7 billion on education.
These bills are only expected to increase as climate change exacerbates weather conditions, and public expenditures for repeated disaster relief are always controversial. In the past, government has promoted coastal development to encourage economic growth and expanded tax base. Increased development and larger, more expensive infrastructure raise the cost of each disaster. The three primary options to respond to a rising sea and increased threat of hurricanes are protection, accommodation, and retreat.
Traditionally, governments and private owners have been reluctant to abandon coastal properties or to turn to flood-friendly uses. As a result, they have stressed the need for protective structures (such as seawalls and other forms of hard armoring) to defend coastal development from the sea. However, policy makers are becoming increasingly aware of the limitations and costs of hard armoring.
Rather than rely solely on coastal armoring structures, policy makers will need to turn increasingly to land use reform and a policy of managed retreat from the shorelines. These policies avoid disasters by building resilience, preventing or limiting coastal development in vulnerable locations, and reducing the impact of coastal hazards on infrastructure. Such proactive non-structural solutions are often more cost effective than coastal armoring over the long-term as they do not require ongoing maintenance, re-building, or repair.
A long-term policy of managed retreat can limit a community’s exposure to coastal hazards, save lives, and limit the expenditure of public funding on vulnerable infrastructure and response mechanisms.
Numerous legal tools already exist to assist federal, state, and local governments in managing retreat from the most vulnerable coasts. Scattered publications, toolkits, and websites describe a broad range of legal, policy, and regulatory tools. But several years ago a handbook published by the Columbia Law School Center for Climate Change Law entitled “Managed Coastal Retreat” collected examples, case studies, and lessons learned from early innovators to better inform future efforts to mitigate the risks to our coastal communities.
Each section of the Managed Coastal Retreat Handbook describes a potential tool, provides examples and information, and then presents the lessons learned for that tool. The tools described are not the only tools that can or should be used. In fact, significant innovation will likely be needed to address the novel challenges posed by climate change.
While others academics have written about the numerous legal tools that are available to legislators and regulators to respond to coastal hazards and to conduct managed retreat, the Managed Coastal Retreat Handbook builds on those works by providing practical advice drawn from examples of locations where managed retreat has already been conducted or is ongoing. It describes legal principles and precedents that can serve as useful guides for the creation of new policies, and it identifies lessons learned and recommendations based on previous experiences.
It is important for policy makers to recognize that managed retreat has been done before– sometimes successfully and sometimes not–and that we can learn from those examples to build a more resilient coast.
Below is a compilation of the lessons learned in the Managed Coastal Retreat Handbook:
- Require planning at all levels. State mandates can improve local planning. Mandates are particularly effective when they identify clear prioritized goals, establish guidelines, and provide technical and financial support for local officials.
- Coordinate planning efforts. State and local governments need to coordinate their planning efforts and regulations. The goals at both levels need to be consistent and complementary in order to be effective.
SETBACKS AND ROLLING EASEMENTS
- Using a combination of set distances and erosion rates for setbacks can provide minimum standards for areas that lack historical erosion data while also acknowledging that erosion and sea level rise are unlikely to affect the coastline evenly and that approaches in one area may be inappropriate in another.
- Plan for change. Setbacks should be designed to account for acceleration of erosion and sea level rise due to climate change. This can be done through the use of a safety factor or by planning for routine updating of the setback distances. Updating setback numbers would, ideally, not require a state level legislative response, which could be slow and delay necessary changes.
- Act now. Setbacks should be established as soon as possible in order to set property owners’ expectations for the value of their property. Minimum lot sizes and “savings” clauses can also be used to avoid takings challenges. However, when structures are built seaward of the setback line due to a variance or permit, it should be clear that the owner takes on the financial risk and that no public funding will be provided for future relief or rebuilding.
- Combine tactics. Setbacks and rolling easements should be combined with a prohibition against coastal armoring in order to best implement a policy of managed retreat and protect the long-term health of beaches. Rolling easements must be combined with policies to prevent coastal armoring in order to be effective. Coastal armoring would both destroy the beach (thereby negating the public access purpose of the easement) and prevent the beach from rolling inland.
- Provide an enforcement mechanism to ensure that setback provisions are complied with and conduct regular evaluations to determine if the setbacks have been effective.
- Be specific and explicit in legislation. A state wishing to implement a rolling easement should explicitly create one in state legislation. The initial creation of the easement may be considered a taking and require compensation, either monetary or through an offset. However, this compensation will be far less substantial than that required to purchase a home outright, and it will also secure public beach access.
- A rolling easement could also be acquired through the use of exactions. Private owners seeking to build or expand coastal properties could be required to allow a public easement as an offset to the negative externalities of coastal development.
- Use required disclosures to inform the public about risk. Sales of coastal property should include a disclosure requirement that informs prospective purchasers of the risks they face. This may not prevent takings litigation, but it will promote awareness of the costs of coastal living, which will assist in the implementation of further policies.
PROHIBITING COASTAL ARMORING
- Take strong action. Coastal armoring has significant external costs to the long-term health of the shoreline and to public access to the coasts. A statewide prohibition or rigorous permitting requirements for coastal armoring is an effective method for preserving the coasts in those areas where feasible.
- Act quickly. Legislation and regulations should be enacted as soon as possible in order to limit the number and scope of existing structures that will be grandfathered in under the old permissive standards. Legislation should also limit, to the extent possible, the repair, rebuilding, and expansion of existing armoring. It should also transfer responsibility for funding the maintenance and replacement of existing structures to private landowners so that the costs of maintaining coastal armoring are internalized by coastal landowners.
- Use multiple tactics. Legislation, exactions, or agency policies prohibiting armoring should be coupled with setbacks, rolling easements, rebuilding restrictions and other managed retreat tools.
- Place the burden of proof on the landowner. Coastal development permits should not allow the existence of a seawall or other hard armoring to be sufficient evidence of the safety and stability of a development site. Placing the burden of proof on the landowner serves both to raise awareness with the development community and to save government resources. This will also limit harm in the case of a catastrophic event or failure of the armoring.
- Break the sea wall cycle whenever possible by preventing development that relies on the continued existence of coastal armoring. Such development will require substantial ongoing funding to repair, rebuild, and expand coastal armoring to keep it safe. Managed retreat is not only about re-locating existing communities but also about preventing new development in vulnerable areas.
- Requiring landowners to promise not to build coastal armoring in order to receive a development permit can be a powerful coastal development tool and can be used broadly to accomplish managed retreat. When exactions are used, agencies should be careful in how they spell out the legitimate government interest that is being served by the exaction and should be sure that the burden on the landowner is proportionate to the benefit to the public.
- Pursuing mitigation fees for public harms resulting from hard armoring (such as lost access to public beaches) can provide needed revenue to pursue other managed retreat policies but should be used only in combination with other regulatory policies so as to avoid the appearance of selling the coast.
- When coastal armoring has proven ineffective, been substantially damaged by storms, or encroached on public lands governments can take this opportunity to require the removal of existing structures.
- Implement building restrictions and zoning decisions as soon as possible. These actions will only affect structures built after the regulations are put in place, so to avoid having buildings grandfathered in under old regulations, these need to be put in place promptly.
- Draft building and rebuilding requirements with future hazards in mind as well as current hazards. Sea level rise and climate change are likely to exacerbate the risks faced by coastal communities. Buildings in some A zones will soon have to face V zone-like hazards, so regulations should require buildings in A zones to comply with all V zone requirements. Consider implementing regulations not only for the 1 in 100 year flood but also for the 1 in 500 year flood.
- Prohibit repetitive repairs. Limit the number of times a building may be severely damaged by coastal events before it has to be removed entirely. This is an excellent way to prevent the costly public expenditures that will be required by repetitive losses along the coasts. Stating these requirements explicitly in advance of a disaster will put the community on notice.
- Educate the public about the risks associated with coastal living and the ways in which building restrictions address those risks. Conduct education campaigns when and where possibly. Partner with scientists and policy experts from universities, environmental groups, and other advocacy organizations.
- Place the burden of proof on the private property owner. This will both require the property owner to educate him or herself about the risks facing the property and will reduce the resource burdens on government agencies.
- Coordinate zoning, building restrictions, setbacks, easements and other coastal management tools within a coherent coastal management plan to ensure that all tools are working towards complementary goals.
- Coordinate federal, state, and local building and rebuilding requirements to the extent possible. Conduct this review and coordination before a disaster so that property owners will be able to begin repairs as soon as possible after a disaster.
- Relocation is key. Municipalities and states considering a buyout program must consider where they want development to occur, identify those areas, and build in elements of their buyout program that assist homeowners in relocating to those desired areas. Some ways to do this are providing incentives for relocation within the district, providing assistance for down payments for low-income residents, and identifying areas of safe growth in a development plan. Areas for targeted development should be identified well in advance of a disaster. And new housing should be priced to be equally or less expensive than the housing that was acquired.
- Incentivize homeowners to remain nearby. This will not only assist in maintaining the tax base but also retain a greater sense of community. Government agencies can do this by offering bonus payments for homeowners to relocate nearby or by developing new housing areas.
- Move quickly. Buyout programs are most successful when initiated immediately after a natural disaster. Plans should be made and put in place in advance so that they can be implemented quickly after a disaster. Placing deadlines on accepting offers can be an effective measure to make homeowners make a decision. Staff should be dedicate staff to process applications quickly.
- Identify priority homes based on greatest vulnerability. Repetitive loss areas are particularly cost-effective areas for buyout programs.
- Make homeowners aware of the benefits of acquisition. This is true for both conservation easements and buyout programs. Conduct a targeted information campaign to educate homeowners on the dangers and costs associated with remaining in a vulnerable area.
- Keep the program cost effective. Place a cap on the amount offered for homes or easements. Use a standard formula to determine property value in order to avoid long negotiation periods and hold-outs.
- Create floodplains. Attempt to buy large continuous areas of land in order to create floodplains that can act as barriers to future flooding. Return to areas after the fact and offer programs targeted at ‘orphan houses.’ Offer incentives for neighborhoods to move as a complete block. Target small locations: a program does not need to be large to be successful.
- Take the opportunity to invest in improvements. When buying properties, consider public spaces that would most improve the community. When rebuilding in safer locations, consider new building codes, solar power, and other design changes that would make those areas more desirable and resilient.
- Publicity and transparency are key. Working with NGOs can increase flexibility of programs, and working with the public builds trust and allows the community to have a voice in how the acquired land is used.
- Consider a combination of options such as acquisition through eminent domain coupled with the use of a conditional lease in order to lower costs. However, recognize that this path will provide protection only against the future harms of sea level rise and not against coastal storms that are affecting coastal properties even today.
- Be flexible and creative. Conservation easements can be designed to adapt to everyone’s needs, making them more beneficial to landowners while still achieving the buffer needs.
*NB* Originally published in October 2013, the Handbook is still an immensely valuable compendium of information, examples, tactics, strategy and theory. Some of the FEMA information was made obsolete by upgrades to floodplain requirements during the Obama administration. However, these sections have some renewed relevance as a result of the Trump administration’s repeal of those upgrades. In the wake of recent back-to-back hurricane disasters, in Harvey and Irma, the Trump administration is reportedly reconsidering lowering floodplain building requirements and study.
© 2013 Columbia Center for Climate Change Law, Columbia Law School
The Columbia Center for Climate Change Law (CCCL) develops legal techniques to fight climate change, trains law students and lawyers in their use, and provides the legal profession and the
public with up-to-date resources on key topics in climate law and regulation. It works closely with the scientists at Columbia University's Earth Institute and with a wide range of governmental, nongovernmental and academic organizations.
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