CERCLA, MTCA, Puget Sound, Sediment, Superfund, environmental contamination

2022 Contaminated Sediments Conference Materials

Laura Shira – Bradford Island NPL Update & Health Risks

 

Beth Appert – Lower Willamette River Fish Consumption Outreach and Engagement

 

Commissioner Amy Schlusser – Slides

 

Jim Woolford – Managing Risks and Moving Forward

 

Andrew Timmis – Slides

 

Rob Webb – Portland Harbor Superfund Site: Remedial Action Implementation, Technical Issue – Dredging & Disposal

 

Bridgette Deshields – What Does the Portland Harbor Project Need to Succeed? Community Readiness

 

David Moore – Current Dredged Material Management Challenges

 

John Toll – Beneficial Use of Contaminated Sediments: A Literature Review for the Sediment Management Work Group

 

 

 

 

 

 

 

 

 

 

 

 

hawaii environmental justice

Environmental Justice for Native Hawaiians: Preventing Landfill Expansion on the Waiʻanae Coast

Mar. 3, 2022   /   Kassandra Kometani

Introduction

Conversations about environmental justice in the United States often center around the disproportionate impacts inflicted upon black and Hispanic communities. While these burdens are undeniably widespread and relevant, there seems to be far less awareness about the struggles of the nation’s indigenous people. In particular, Native Hawaiians have endured decades of degradation to their land, water, and air while much of their plight remains unknown to those outside of the islands. A recent story made local headlines after lawmakers passed a bill in July 2020 that would effectively block plans to expand a landfill on Oʻahu’s Waiʻanae coast. Senate Bill (SB) 2386 will prevent landfills from further encroaching on the homes of Native Hawaiians since the bill requires a half-mile buffer zone between residential areas and waste facilities. Prior to the passage of SB 2386, local zoning ordinances allowed for the disproportionate siting of hazardous waste facilities in close proximity to communities. Despite the lack of national attention, the bill is a small victory that could have implications for future advocacy initiatives and community activism that seek to achieve environmental justice for Native Hawaiians.

The full effects of SB 2386 are yet to be seen, but this paper will attempt to trace the development of the bill and highlight how it has already played a role in alleviating environmental racism on the Waiʻanae Coast. Part I will offer a brief background on the history of Hawaiian land. As with many indigenous groups, Native Hawaiians have an intimate relationship with the environment and many still depend on its sustenance today. Deep spiritual connections add another element to the environmental justice movement for Native Hawaiians since the disproportionate impacts they experience extend to their “racial identity and cultural existence.”[1]

Part II will describe the relevant federal statute and state law that shape land use in Hawaiʻi today. While the overarching state law categorizes the four million acres of land in Hawaiʻi, individual counties retain tremendous autonomy to further zone the land and dictate land use approval processes.[2]

Part III will describe the environmental justice context of the Waiʻanae Coast. A particular zoning regulation in Chapter 21 of the Revised Ordinances of Honolulu has enabled a history of discriminatory landfill siting in close proximity to residences. Some facilities, such as PVT Landfill located in the Nanakuli community on the Waiʻanae Coast, have operated just 750 feet away from homes since the 1980s. Nanakuli is home to the largest population of Native Hawaiians in the state and they end up bearing an “unequal distribution of general societal burdens on this particular area of the island.”[3] The Waiʻanae Coast is also predominately low income, so decisions to expand and continue operating landfills in the backyards of these communities are not met with strong political resistance.

Part IV will explore how local activism has helped to stop the expansion of PVT Landfill. Community involvement played a significant role in persuading local lawmakers to pass the buffer zone amendment through SB 2386 that will increase the minimum distance between waste disposal facilities and residential areas.

 

Part I. A Brief History of Hawaiian Land

Land is an integral component of Native Hawaiian culture and spiritual life.[4] Hawaiians practice a philosophy of malama ʻaina, which means to care for the land and conserve natural resources to sustain a viable livelihood.[5] Prior to the colonization of the islands, Hawaiians employed a land tenure system consisting of undivided use rights.[6] Hawaiians viewed their land as communal and shared in stark contrast with Western conceptions of privately held property.[7] As foreigners increasingly pervaded the islands throughout the 1800s, the land tenure system was undermined and replaced with a new market of private ownership.[8] Hawaiian land was confiscated, sold, and purchased by those with money.[9] This dramatic alteration in Hawaiians’ relationship with their land fell in step with the suppression of their cultural practices and ways of life.[10]

The most significant instrument that enabled the commodification of Hawaiian land was the Great Mahele (divide). In 1848, King Kamehameha III formally divided the land into two groups: one belonging to himself and the other belonging to 245 chiefs throughout the islands.[11] The king further separated his allocation of 1.6 million acres into his own Crown Lands and land to be controlled by the legislature, known as Government Lands.[12] The chiefs could obtain title to the land set aside for them by filing an appropriate claim which would then be divided amongst the common people who resided on the land.[13] While it was expected that the common people would receive a substantial share of this distribution, the unfamiliar acquisition process resulted in a meager 28,600 acres designated to commoners, less than 1 percent of Hawaiʻi.[14] Westerners living in the islands at the time capitalized on this disproportion and obtained large amounts of acreage from chiefs and Government Lands, controlling most of Hawaiʻi’s land by the end of the nineteenth century.[15]

Through this period, the Kingdom of Hawaiʻi was an internationally recognized sovereign nation that had signed multiple treaties with the U.S. and other countries.[16] However, this did not prevent an American-led coup from illegally overthrowing the Hawaiian monarchy in 1893 and establishing the Republic of Hawaiʻi.[17] In 1898, the U.S. formally accepted the annexation of Hawaiʻi and received approximately 1,800,000 acres of ceded lands.[18] By the time Hawaiʻi was added as the 50th state in 1959, Native Hawaiians had lost control of nearly all of their land.[19]

 

Part II. Regulatory Background of Hawaiʻi’s Current Land Use System

Land use in Hawaiʻi is considered the most heavily regulated of all the states.[20] The complex regulatory processes that operate today followed the breakdown of the traditional land tenure system and the assimilation of Native Hawaiian land into American possession.[21] Unfortunately, Native Hawaiians do not always benefit from the myriad of land laws and zoning regulations. This is despite the fact that when Hawaiʻi became a state, the U.S. returned between 1.4 and 1.5 million acres of land to the State government to be held in public trust.[22] The land was intended for various public uses and to supplement the Hawaiian Homes Commission Act.[23]

A. The Hawaiian Homes Commission Act

Congress enacted the Hawaiian Homes Commission Act (HHCA) in 1921 which set aside approximately 200,000 acres of the ceded land the U.S. had received in 1898 to be leased as farm lots and residences for Native Hawaiians.[24] The Act was intended to help rehabilitate Native Hawaiians and to “remedy the general ineffectiveness of all previous land distribution systems.”[25] The State of Hawaiʻi agreed to implement the provisions and requirements of the HHCA as part of its admission to the U.S. in 1959.[26] Hawaiʻi created the Department of Hawaiian Home Lands (DHHL) to administer the act and ensure the economic and social welfare of Native Hawaiians receiving homesteads.[27]

Unfortunately, the homestead program has been grossly underfunded and many Native Hawaiians applied for leases decades ago without receiving anything.[28] DHHL reported that there were 28,306 individual applicants on the waiting list for a homestead in 2018.[29] Further, much of the land designated for homesteads is of poor quality since competing interests in the sugarcane industry had lobbied to keep the best agricultural lands for themselves.[30] Native Hawaiians were left with geographically remote and arid lands that were unsuitable for productive development.[31] Over 60 percent of the 200,000 acres granted for the homestead program may never even be utilized at all for the HHCA.[32] This is due in part to the fact that more than one quarter of the land is located in areas with endangered species or protected cultural resources, and much of the acreage lacks vital infrastructure to support homes such as roads or water lines.[33] There are currently 60 Hawaiian Homestead communities throughout the five most populated islands and 9,877 individual homestead leases statewide as of June 2018.[34]

B. Hawaiʻi’s Land Use Law

Hawaiʻi passed its Land Use Law in 1961 which effectively categorized state lands in four different districts: urban, rural, conservation, and agricultural.[35] The law established a Land Use Commission (LUC) to allocate parcels of lands amongst these districts and determine the permitted uses for each.[36] The LUC has the primary responsibility of determining the spatial growth and limitations of urban sprawl throughout the islands, a more direct role than comparable commissions in other states.[37]

In conjunction with the Land Use Law, Hawaiʻi’s individual counties are responsible for further zoning the lands within the urban, rural, and agricultural districts while the state maintains control over the conservation district.[38] Although residential uses other than farm dwellings are technically prohibited in agricultural districts, all four of Hawaiʻi’s counties have permitted large-lot residential subdivisions to be constructed on these lands, including Hawaiian Homesteads.[39] For the urban districts, counties exercise exclusive authority over development through controls such as zoning or subdivision ordinances and building permit laws.[40] The urban district includes all activities or uses permitted by these local regulations.[41] Notably, the Land Use Law allows counties to issue special permits for “certain unusual and reasonable uses” that would otherwise not be permissible in the rural and agricultural districts.[42] For parcels greater than fifteen acres, the special use permits must also be approved by the LUC.[43] The relevant planning commissions consider factors such as whether the use would adversely affect surrounding property, suitability of the land, and whether the use is contrary to statutory objectives when deciding to grant a special use permit.[44]

There are multiple opportunities for public involvement in the county special use permitting process such as party intervention and input at hearings before the planning commission or the state LUC.[45] The County of Honolulu is the only county that requires the petitioner to present its plan to the appropriate neighborhood board before submitting a special use permit application.[46] The petitioner must provide written notice of the presentation to owners of all properties adjoining the proposed project location.[47] The director of Honolulu’s planning and permitting department is also required to hold a public hearing no earlier than 45 days after their acceptance of a completed application.[48]

Hawaiʻi’s Land Use Law is considered to be supplementary to local land use authority within the counties rather than a substitute.[49] A similar dynamic also applies to the interplay between Hawaiʻi’s Land Use Law and the HHCA. The HHCA grants express authorization to the DHHL to lease lands to Native Hawaiians in furtherance of the act’s objectives.[50] Where the department’s homestead plans are inconsistent with designated district uses and associated county zoning, “DHHL may preempt the State Land Use Law and county land use regulations pursuant to the Hawaiian Homes Commission Act section 204.”[51] DHHL’s preemption authority has been confirmed by Hawaiʻi’s attorney general who noted that any zoning ordinance imposing restrictions on homestead lands would be outside the scope of a county’s power.[52]

Even with the preemptive power of the DHHL, the discriminatory enforcement of certain county zoning ordinances coupled with the already unfavorable quality of homestead lands has led to poor living conditions for many Native Hawaiians throughout the state. In particular, one County of Honolulu land use ordinance has enabled the degradation of an area with a high concentration of Native Hawaiian homesteaders. The following section will address this environmental injustice situation and the associated zoning ordinance.

 

Part III. Discriminatory Landfill Siting on the Waiʻanae Coast

A. The Environmental Justice Context of Nanakuli

Nanakuli, a town situated along Oʻahu’s westward Waiʻanae Coast, is home to the oldest Hawaiian Homestead community on the island.[53] As of 2016, 6,369 homesteaders resided in Nanakuli on a total of 1,319 lots.[54] Seventy-one percent of the 851 acres of available homestead lands on Oʻahu are located on the Waiʻanae Coast, so it is no surprise that Nanakuli has a significant concentration of Native Hawaiians.[55] With approximately 9,000 Native Hawaiian residents total, Nanakuli has the highest per capita Hawaiian population both in the state and in the nation.[56] The Waiʻanae Coast is also inhabited by many other ethnic groups that fall within the federal definition of environmental justice minorities.[57] Further, the area qualifies as low-income with the percentage of residents living below the poverty level at 21.9 percent.[58] This is more than double compared to the poverty level of the rest of Oʻahu.[59]

The overrepresentation of predominantly poor and ethnic minority residents living on the Waiʻanae Coast creates a ripe setting for environmental injustices to occur.[60] Perhaps expectedly, this area of the island bears an unequal distribution of Oʻahu’s waste.[61] Eleven of Oʻahu’s eighteen sewage treatment plants, active landfills, and power plants are located along the Waiʻanae Coast.[62] This is partly due to the fact that the westward side of O’ahu is much drier than other parts of the island.[63] Since rain increases the risk of runoff from open landfills, most waste disposal facilities in the state are built on leeward coasts like Waiʻanae.[64] However, as discussed in the previous section, these second-rate, arid areas were designated for HHCA homesteads, which is now where many Native Hawaiians reside.[65] Vulnerable communities such as these lack the political power and representation to voice their opposition against targeted environmental abuses.[66] The dry conditions coupled with the demographic makeup of the Waiʻanae Coast has enabled the convenient siting of a majority of the island’s solid waste disposal facilities in this area.

There are numerous health and social impacts associated with landfill exposure near residential areas.[67] Numerous studies have revealed a higher risk of developing cancer amongst people living next to landfill sites, as well as a higher risk of birth defects.[68] Waiʻanae Coast residents living in close proximity to the Waimanalo Gulch Landfill, one of the waste disposal facilities in the area, have complained of respiratory problems due to the tons of black coal ash that are carted into the landfill each day.[69] The coal ash is a byproduct from a power generating plant located just five miles away.[70] For example, residents believe that the landfill’s emissions of ash and dust have increased the prevalence of chronic asthma suffered by children in the area.[71] Landfills can also have an adverse impact on housing values due to the potential for odor, smoke, and noise.[72] The socioeconomic impact of landfills long the Waiʻanae Coast is yet another area of concern for local residents.[73]

Native Hawaiians already experience the lowest socioeconomic status and the lowest life expectancy of all Hawaiʻi’s residents,[74] conditions that are exacerbated by the overwhelming siting of waste facilities in communities such as Nanakuli. The undeniable correlation between the disproportionate distribution of waste facilities and the overrepresentation of low-income ethnic groups on the Waiʻanae Coast “validate the existence of environmental racial injustice.”[75] While Waiʻanae Coast residents bear the brunt of impacts from an array of locally unwanted land uses, one particular landfill and the related zoning laws will be examined for purposes of this paper.

B. PVT Landfill and Honolulu’s Zoning Ordinance

The County of Honolulu codified its land use ordinances in Chapter 21 of the Revised Ordinances of Honolulu (ROH). Article 5 Sec. 21-5.680 pertains directly to waste disposal and processing for the island of Oʻahu.[76] The regulation states:

No waste disposal and processing facility shall be located within 1,500 feet of any zoning lot in a county, residential, apartment, apartment mixed use or resort district. When it can be determined that potential impacts will be adequately mitigated due to prevailing winds, terrain, technology or similar considerations, this distance may be reduced, provided that at no time shall the distance be less than 500 feet.[77]

This ordinance mandates a protective buffer zone of 1,500 feet between any landfill and residential area. The facility can minimize the buffer zone to a mere 500 feet if the facility is able to properly mitigate any potentially harmful impacts. Since the ordinance does not detail what would constitute adequate mitigation of potential impacts, that determination is at the discretion of the relevant permitting authorities.[78]

The PVT Landfill is one solid waste facility on Oʻahu that has capitalized on the mitigation exception included within Sec. 21-5.680. The privately-run landfill began operating in 1985 and currently maintains a 750-foot buffer zone from the nearest homes.[79] The landfill is located in the heart of Nanakuli between the Princess Kahanu and Nanakuli Hawaiian Homesteads.[80] PVT claims that its 750-foot buffer is the widest of any other landfill in Hawaiʻi.[81] The company takes steps to mitigate the migration of dust towards homes by spraying water and installing large dust screens along its property line.[82]

Despite these mitigation measures, residents have raised concerns about significant health issues due to coal dust blowing from the landfill, namely impaired respiratory conditions.[83] One gentleman’s testimony given at a Nanakuli Neighborhood Board meeting is representative of the experience of many residents when he described how his home near the PVT Landfill is coated with a dust-like substance each day.[84] The concern over the dust is more than justified since PVT Landfill accepts construction and demolition debris that can be laden with asbestos.[85] It is the only landfill on Oʻahu permitted to accept material from these types of projects and takes in approximately 42 percent of all waste generated on the island.[86] In 2019, PVT Landfill received over two million tons of waste materials such as gypsum drywall (which can break down into hydrogen sulfide gas), wood, furniture, and petroleum-contaminated soil.[87] PVT’s permit allows the landfill to accept up to 2,000 tons of debris per day and up to 500 tons of asbestos-contaminated waste per week.[88]

According to the CDC, Nanakuli residents living in the two census tracts adjacent to the PVT landfill live ten years less than the state average life expectancy of 82.[89] Nanakuli residents have high instances of illnesses commonly associated with living in close proximity to a landfill such as lung cancer and gastrointestinal issues.[90] They also blame PVT for the high rates of asthma suffered by their children.[91] Although several human health risk assessments indicate that PVT’s operations do not pose a significant risk to surrounding communities,[92] many worry that the landfill is exacerbating the public health crisis Nanakuli has been battling for decades.[93] The human health studies completed in recent years may not be an accurate barometer of the safety of the PVT landfill in light of the fact that “long-term health effects of exposure to substances present in the waste, or produced at waste disposal facilities are more difficult to measure.”[94]

Nanakuli residents are tired of bearing the externalities of an industry that primarily benefits the urban areas of Oʻahu.[95] Aside from the health impacts, residents must also endure the odors and noise generated by the landfill operations on a daily basis.[96] Community members have vehemently opposed PVT Landfill and have called for its closure for years.[97] Residents were also concerned about the potential for the landfill’s expansion, a fear that was confirmed in 2019 when PVT announced plans to expand its landfill across the street.[98

C. Senate Bill 2386: the Roadblock to PVT’s Expansion Plan

PVT put forth a proposal to expand its operations from its current 160 acres to a 180-acre parcel across the street.[99] The facility has an estimated five years of remaining capacity and needs to expand in order to continue accommodating the island’s construction and demolition waste.[100] PVT has also stressed that its designated to receive debris from storm damage, so cleanup after a major hurricane would be problematic if the landfill was unable to expand.[101] The company says the landfill is running out of space despite the fact that it recycles 80 percent of the materials it receives.[102] PVT hopes to begin using the expansion parcel within the next four years and plans to double the amount of recycling.[103]

Although PVT already owns the land intended for the expansion, the company had to submit an application to the Honolulu Planning Commission for the relocation.[104] PVT needed a special use permit since the intended use is not ordinarily permissible in the county-zoned agricultural district.[105] Further, the State LUC would need to review the city’s decision since the project exceeds the 15-acre threshold.[106] PVT officials assure the commission and public that the new landfill will comply with all relevant permits and approvals, especially since the expansion will maintain the same 750-foot buffer zone in accordance with Sec. 21-5.680.[107] However, Hawaiʻi’s legislature passed a bill in July 2020 that mandates a half-mile buffer zone between waste facilities and residences, significantly disrupting PVT’s expansion plans.[108]

Lawmakers first introduced SB 2386 to the State Legislature in January 2020.[109] Hawaiʻi senators passed the bill unanimously in early March 2020, but the onset of the coronavirus delayed the measure in the State House.[110] In July, the House passed an amended version of the bill with a 45-6 vote, followed by a 24-1 vote in the Senate.[111] SB 2386 was then enrolled to Hawaiʻi’s governor in August 2020 who would have until the end of the month to notify lawmakers of his intent to veto, otherwise allowing the bill to become law with or without his signature.[112] The bill was not on the governor’s list of intended vetoes and successfully became law on September 15, 2020.[113]

SB 2386 amends a particular subsection of the Hawaiʻi Revised Statutes (HRS) relating to waste management. The amendment reads in pertinent part that:

No person, including the State or any county, shall construct, modify, or expand a waste or disposal facility including a municipal solid waste landfill unit, any component of a municipal solid waste landfill unit, a construction and demolition landfill unit, or any component of a construction and demolition landfill unit without first establishing a buffer zone of no less than one-half mile around the waste or disposal facility.[114]

Buffer zone is defined in the subsection as the distance between the edge of the waste or waste activity and the closest residential, school, or hospital property line.[115] The amendment states that the new subsection will not apply to the continued operation of any existing waste or disposal facility.[116] However, the buffer zone mandate would be triggered if the facility’s operation required physical expansion or new or additional permitting.[117] For a company such as PVT seeking to expand its operations, the new amendment has the potential to significantly alter the feasibility of those plans.[118]

With the passage of SB 2386, PVT stated plans to withdraw its application to the Honolulu Planning Commission to relocate its landfill.[119] PVT would not be able to reapply for relocation for an entire year after withdrawing its application.[120] Company officials said that if it was unable to expand the landfill, it would need to increase disposal rates and limit the amount of waste it accepts.[121] Eventually, PVT landfill may be forced to cease its operations.[122] The closure of PVT could significantly disrupt construction projects of all sizes since it is the only designated construction and demolition landfill on the island.[123] PVT also cited concerns regarding an increase in illegal dumping and a prevention of future construction projects due to the bill.[124]

Although PVT described numerous ramifications of SB 2386 on the viability of Oʻahu’s construction projects, a report from the Mayor’s Advisory Committee on Landfill Site Selection (MACLSS) in 2012 identified eleven other suitable sites for landfills.[125] MACLSS consisted of a panel of nine community members and technical consultants who conducted a comprehensive landfill site study on O’ahu.[126] The committee developed community-based criteria that would be most important from a community’s perspective in the siting of a proposed landfill, such as effects on local roads and traffic.[127] Significantly, all eleven sites described in the report would allow for at least a half-mile buffer zone and none of the potential sites were located in Nanakuli.[128]

SB 2386 may have potential repercussions for the construction industry. Regardless, the prevention of PVT’s expansion due to the new buffer zone law marks a considerable success for achieving environmental justice in Nanakuli. The next section will delve more deeply into the passage of SB 2386 and its implications for the Native Hawaiian environmental justice movement as a whole.

 

Part IV. A Step Toward Achieving Environmental Justice on the Waiʻanae Coast

A. A Closer Look at the Passage of SB 2386

Until the enactment of SB 2386, Hawaiʻi had no state-wide buffer zone minimum.[129] Consequently, Honolulu County was able to enforce a much smaller buffer zone of 1,500 feet (or 500 feet with mitigation) through its local ordinance.[130] SB 2386 is a noteworthy piece of legislation for its implied recognition that communities living in close proximity to waste facilities needed a wider berth of protection. Then Hawaiʻi Senator Kai Kahele, who introduced the bill, believes the new buffer zone “could help to further the cause of environmental justice in rural communities with landfills, such as the Waianae Coast.”[131] Senator Kahele’s high hopes are also shared by Nanakuli residents and other supporters of the bill.[132]

SB 2386 was introduced as part of a Senate Native Hawaiian Caucus package.[133] The bill garnered testimonies of support from prominent entities such as the Office of Hawaiian Affairs, the Sierra Club of Hawaiʻi, the Association of Hawaiian Civic Clubs, and several organized labor organizations such as the Hawaiʻi State Teachers Association and United Public Workers.[134] Many of the testimonies highlighted the alarming health disparities amongst Nanakuli residents and the need to better protect them by establishing a minimum distance between waste facilities and homes.[135] The testimonies represent the understanding that “[n]o community should suffer the negative health impacts and decrease in quality of life from a waste or disposal facility, including a landfill.”[136] The collective sentiment of supporters urged lawmakers to ensure that future landfills would not be in anyone’s backyard, let alone Native Hawaiian communities.

Those testifying in opposition included PVT Landfill, the Building Industry Association, and multiple demolition companies on O’ahu.[137] PVT emphasized its critical role in supporting the construction industry and how the enactment of SB 2386 would not only preclude PVT’s much needed expansion, but eventually force the landfill to shut down.[138] This would negatively impact developers and contractors who rely on PVT to dispose of their construction and demolition debris.[139] Government officials representing the City and County of Honolulu, Maui County, and Kauai County also opposed the bill.[140] Maui County cited the economic difficulties that would be spurred by SB 2386 such as spending millions of dollars on property acquisition in order to expand its landfill facilities.[141] The counties point out that buffer zones are already heavily regulated under local land use ordinances and that a mandatory half-mile buffer would come at an “exorbitant expense” to taxpayers.[142]

The extensive testimonies submitted by advocates of Native Hawaiian environmental justice weighed strongly in support of SB 2386 which passed through the House and the Senate with very few opposing votes.[143] The bill became law despite industry concerns that projects on the island could be delayed, including the construction of Honolulu’s light rail transportation system.[144] Interestingly, several of the testimonies mentioned Hawaiʻi’s constitutional provision that guarantees a right to a “clean and healthful environment.”[145] While the interpretation of this constitutional right has been largely limited to procedural issues,[146] it seems to have been an influencing factor in the development and ultimate acceptance of SB 2386. Senator Kahele also highlighted the importance of the right to a healthy environment when describing his aspirations for the new buffer zone law.[147]

B. The Role of Community Activism

While SB 2386 was still pending in Hawaiʻi’s Legislature, Nanakuli residents were protesting the expansion of the PVT Landfill. In July 2019, members of the Nanakuli-Maʻili Neighborhood Board received information about the project’s potential environmental impacts.[148] On September 4, 2019, the board held a special meeting to hear community input and determine its position on PVT’s proposed expansion.[149] Advocates from the Association of Hawaiian Civic Clubs had submitted a petition to the board in opposition of the landfill relocation with over 5,500 signatures.[150] The following day, the Chair of the Nanakuli-Maʻili Neighborhood Board sent a letter to the Honolulu director of the Department of Planning and Permitting (DPP) who would make the final decision on PVT’s special use permit application.[151] The letter detailed how the board supports PVT’s recycling efforts, but ultimately passed a motion opposing the request for relocation.[152]

These neighborhood board meetings have been important outlets for Nanakuli residents to voice their concerns. Meetings have been attended by Hawaiian Civic Clubs, elderly residents fondly refered to as kupuna, and hundreds of other community members.[153] At one meeting regarding the PVT landfill, Nanakuli residents expressed how “they are tired of being the island’s dumping ground.”[154] Pursuant to Article 2 § 21-2.40-2(b)(2) of the Honolulu land use ordinances discussed in Part II, PVT was required to alert the neighborhood board in Nanakuli of its plan to expand the landfill.[155] This is one aspect of the county zoning laws that has played a crucial role in keeping the relevant communities informed of projects that could potentially harm their health. PVT withdrew its special use permit application before the requisite public hearing was scheduled by the DPP for September 16, 2020.[156]

Community activists were also pushing for the County of Honolulu to amend its own land use ordinance which still only requires a minimum 500-foot buffer zone for O’ahu’s waste disposal and processing facilities.[157] The Association of Hawaiian Civic Clubs adopted Resolution 20-119 which had been introduced by a Honolulu County Councilmember on May 13, 2020.[158] The resolution proposes an amendment to Sec. 21-5.680 of the ROH and advances the same buffer zone minimum of a half-mile as now mandated by SB 2386.[159] The resolution expressly recognizes that increasing the required minimum distance between residences and waste disposal facilities would mitigate the negative impacts of residing near those types of facilities.[160] Unfortunately, Resolution 20-119 was stalled after Honolulu’s City Council’s Zoning, Planning and Housing Committee removed the action from its agenda at the end of May.[161]

Waiʻanae Coast residents have sought relief from discriminatory landfill siting for years through community organizing.[162] Grassroots efforts have been essential due to the lack of action on behalf of elected officials and the reoccurring failure of proposed measures that would have granted relief.[163] In many ways, SB 2386 represents a long-awaited recognition that stricter regulations were necessary to protect the residents of the Waiʻanae Coast from the harmful impacts of waste disposal facilities. The Sierra Club of Hawaiʻi described SB 2386 as “a modest yet necessary step toward environmental justice.”[164] While complete environmental justice is still long overdue, Nanakuli community members have finally achieved one significant success through the utilization of public testimony processes.

 

Part V. Conclusion

For Native Hawaiians, environmental justice involves more than addressing discriminatory institutions and degraded health.[165] Native Hawaiian environmental justice should achieve the “reclamation and restoration of land and culture” through the “integrat[ion] of community history, political identity, and socioeconomic and cultural needs.”[166] Since environmental racism dynamics differ for indigenous groups, typical environmental justice remedies should be reworked to meet specific needs.[167] This concept of “racializing” environmental justice acknowledges the history of harm that can be traced back through Native Hawaiian land dispossession and cultural prohibitions.[168] These deeply-rooted discriminations add an additional layer to the objectives of the Native Hawaiian environmental justice movement.

The Waiʻanae Coast is still home to environmentally damaging facilities that impact the health of its low-income, minority population.[169] While SB 2386 does effectively prevent the expansion of waste disposal facilities such as PVT Landfill without an adequate buffer zone, the “potential for further mistreatment and the approval of additional waste facilities without legal means to challenge or prevent it” is an alarming reality.[170] Nanakuli residents were able to utilize procedural avenues that allowed them to testify in opposition of PVT’s expansion and urge the State of Hawaiʻi to enact SB 2386. These tools empowered the Nanakuli community and influenced the passage of a statewide law that will now protect other Native Hawaiians who also experience the same inequitable distribution of societal burdens throughout the state. As the struggle for Native Hawaiian environmental justice on the Waiʻanae Coast endures, activists and community members can continue to take advantage of preexisting public processes that allow their voices to be heard.

 

Endnotes

[1] Eric K. Yamamoto & Jen-L W. Lyman, Racializing Environmental Justice, 72 U. Colo. L. Rev. 311, 356 (2001).

[2] G. Kem Lowry Jr., Evaluating State Land Use Control: Perspectives and Hawaii Case Study, 18 Urb. L. Ann. 85, 93–94 (1980).

[3] Chasid M. Sapolu, Dumping on the Wai’anae Coast: Achieving Environmental Justice through the Hawai’i State Constitution, 11 APLPJ 204, 219 (2009).

[4] Melody Kapilialoha MacKenzie, Susan K. Serrano & Koalani Laura Kaulukukui, Environmental Justice for Indigenous Hawaiians: Reclaiming Land and Resources, 21 Nat. Resources & Entv’t 37, 37 (2007).

[5] Mililani B. Trask, Historical and Contemporary Hawaiian Self-Determination: A Native Hawaiian Perspective, 8 Ariz. J. Int’l & Comp. L. 77, 78 (1991).

[6] Id.

[7] Melody Kapilialoha MacKenzie, Susan K. Serrano & Koalani Laura Kaulukukui, Environmental Justice for Indigenous Hawaiians: Reclaiming Land and Resources, 21 Nat. Resources & Env’t 37, 37 (2007)

[8] Trask, supra note 5, at 78.

[9] Id.

[10] MacKenzie et al., supra note 7, at 37.

[11] David L. Callies, Regulating Paradise: Land Use Controls in Hawai’i 2 (2d ed. 2010).

[12] Id.

[13] Id. at 2–3.

[14] John M. Van Dyke, The Political Status of the Native Hawaiian People, 17 Yale L. & Pol’y Rev. 95, 102 (1998); Callies, supra note 11, at 4; Trask, supra note 5, at 78.

[15] Dyke, supra note 14.

[16] Id.

[17] Id.

[18] Dyke, supra note 14, at 103; Callies, supra note 11, at 3.

[19] Charles F. Wilkinson, Land Tenure in the Pacific: The Context for Native Hawaiian Land Rights, 64 Wash. L. Rev. 227, 230 (1989).

[20] Callies, supra note 11, at 1.

[21] Id. at 2.

[22] Trask, supra note 5, at 81.

[23] Id.

[24] Dyke, supra note 14, at 104.

[25] Mark A. Inciong, The Lost Trust: Native Hawaiian Beneficiaries under the Hawaiian Homes Commission Act, 8 Ariz. J. Int’l & Comp. L. 171, 175 (1991).

[26] Id. at 177.

[27] Id. at 179.

[28] Dyke, supra note 14, at 104; Inciong, supra note 22, at 171.

[29] Dep. Of Hawaiian Home Lands, Fiscal Year 2017-2018 Annual Report 58 (2019), https://dhhl.hawaii.gov/wp-content/uploads/2019/10/2018-DHHL-AnnualReport-ICROv3.pdf [hereinafter DHHL Annual Report].

[30] Dyke, supra note 14, at 104; Inciong, supra note 22, at 179.

[31] Lana Sue I. Ka’opua et al., Decolonizing Knowledge Development In Health Research: Cultural Safety Through The Lens of Hawaiian Homestead Residents, 5 J. of Indigenous Soc. Dev. 20, 24 (2017).

[32] Blaze Lovell, The Problem With Hawaiian Homestead Land? Much of it Can’t be Developed, Honolulu Civil Beat (June 12, 2019), https://www.civilbeat.org/2019/06/the-problem-with-hawaiian-homestead-land-much-of-it-cant-be-developed/.

[33] Id.

[34] Ka’opua, supra note 31, at 24; DHHL Annual Report, supra note 29, at 63.

[35] Lowry, supra note 2, at 94.

[36] Id.

[37] Id. at 96.

[38] Hawai’i Rural Dev. Council, Introduction to Hawai’i’s Land Classification and Management System 16 (2015), http://www.oha.org/wp-content/uploads/HRDC-LUTPManual_PRF6_FINAL.pdf [hereinafter HRDC Manual].

[39] Callies, supra note 11, at 22.

[40] Lowry, supra note 2, at 98.

[41] Id. at 95.

[42] HRDC Manual, supra note 38, at 16; Callies, supra note 11, at 25.

[43] HRDC Manual, supra note 38, at 16. Callies, supra note 11, at 25.

[44] Callies, supra note 11, at 25.

[45] HRDC Manual, supra note 38, at 56.

[46] Id.

[47] Honolulu Rev. Ord. Art 2. § 21-2.40-2(b)(2) (1990).

[48] Id. § 21-2.40-2(c)(6).

[49] Lowry, supra note 2, at 97–98.

[50] Callies, supra note 11, at 194.

[51] Dep. of Hawaiian Home Lands, Nanakuli Regional Plan 2018, at 26 (2018), https://dhhl.hawaii.gov/wp-content/uploads/2018/11/Nanakuli-RP2018-Final.pdf [hereinafter Nanakuli Regional Plan].

[52] Callies, supra note 11, at 194.

[53] Nanakuli Regional Plan, supra note 51, at 21.

[54] Id. at 25.

[55] Id.

[56] Anthony Makana Paris & Kamuela Werner, Not in Anyone’s Backyard, Ka Wai Ola (Apr. 30, 2020) https://kawaiola.news/aina/not-in-anyones-backyard/.

[57] Sapolu, supra note 3, at 220.

[58] Id.

[59] Id.

[60] Id. at 221.

[61] Kerry Kumabe, The Public’s Right of Participation: Attaining Environmental Justice in Hawai’i through Deliberative Decisionmaking, 17 Asian Am. L.J. 181, 192 (2010).

[62] Id.

[63] Claire Caulfield, How is Oahu’s Trash Impacting the Waianae Coast?, Honolulu Civil Beat (Aug. 11, 2020), https://www.civilbeat.org/2020/08/how-is-oahus-trash-impacting-the-waianae-coast/.

[64] Id.

[65] See infra Part II.A.

[66] Sapolu, supra note 3, at 227; Yamamoto & Lyman, supra note 1, at 318.

[67] Maheshi Danthurebandara et al., Environmental and Socio-Economic Impacts of Landfills, Linnaeus Eco-Tech 40, 47 (2012) https://www.researchgate.net/profile/Dirk_Nelen/publication/278738702_Environmental_and_socio-economic_impacts_of_landfills/links/58ff795345851565029f290a/Environmental-and-socio-economic-impacts-of-landfills.pdf.

[68] Id.

[69] Sapolu, supra note 3, at 223.

[70] Id. at 222.

[71] Kumabe, supra note 61, at 194.

[72] Danthurebandara et al., supra note 67.

[73] See Caulfield, supra note 63 (quoting a Nanakuli resident’s concern that no one wants to live next to a landfill).

[74] Trask, supra note 5, at 82; see Sapolu, supra note 3, at 223 (noting the “relationship between an incease in negative health effects and the pollution caused by hazardous waste facilities”).

[75] Sapolu, supra note 3, at 220–21.

[76] Honolulu Rev. Ord. Art. 5 § 21-5.680 (1990).

[77] Id.

[78] See Honolulu Rev. Ord. Art. 2 § 21-2.0 (relating to administrative procedures of land use permit approvals).

[79] Sapolu, supra note 3, at 221; Andrew Gomes, State Legislature Sides with Nanakuli Landfill Opponents, Honolulu Star-Advertiser (July 29, 2020), https://www.staradvertiser.com/2020/07/29/hawaii-news/state-legislature-sides-with-nanakuli-landfill-opponents/#story-section.

[80] Nanakuli Regional Plan, supra note 51, at 21.

[81] Gomes, supra note 79.

[82] Caulfield, supra note 63.

[83] Sapolu, supra note 3, at 224.

[84] Id. at 206.

[85] Paris & Werner, supra note 56.

[86] Gomes, supra note 79; Paris & Werner, supra note 56.

[87] Paris & Werner, supra note 56; Kumabe, supra note 61, at 192.

[88] Caulfield, supra note 63.

[89] Paris & Werner, supra note 56.

[90] Id.

[91] Kumabe, supra note 61, at 192.

[92] Caulfield, supra note 63.

[93] Paris & Werner, supra note 56.

[94] L. Giusti, A Review of Waste Management Practices and Their Impact on Human Health, 29 Waste Management 2227, 2228 (2009) http://sgpwe.izt.uam.mx/files/users/uami/citla/Lecturas_temas_selectos/review_of_waste_mngment_practices_and_human_health.pdf.

[95] Caulfield, supra note 63.

[96] Nanakuli Regional Plan, supra note 51, at 27.

[97] Kumabe, supra note 61, at 192.

[98] Kimberlee Speakman, Public Meeting to Discuss Nanakuli Landfill Expansion Plans Wednesday Night, KHON2 (Sept. 3, 2019), https://www.khon2.com/news/public-meeting-to-discuss-nanakuli-landfill-expansion-plans-wednesday-night/; see Sapolu, supra note 3, at 224 (“Community concerns include PVT becoming the last resort for the island’s waste problems, leading to an expansion of the current PVT site, and a permit to receive the municipal solid waste on top of the industrial waste already being dumped there.”).

[99] Caulfield, supra note 63.

[100] Gomes, supra note 79.

[101] Id.

[102] Speakman, supra note 98; Gomes, supra note 79.

[103] Chelsea Davis, Nanakuli Residents Are Fed Up Over Proposed Landfill Expansion, Hawaii News Now (July 16, 2019), https://www.hawaiinewsnow.com/2019/07/17/nanakuli-residents-fed-up-over-proposed-landfill-expansion/.

[104] Caulfield, supra note 63; Janis L. Magin, PVT Land to Withdraw Application For New Oahu Construction Landfill, Pacific Bus. News (Sept. 15, 2020), https://www.bizjournals.com/pacific/news/2020/09/15/pvt-land-withdraw-application-new-oahu-landfill.html.

[105] See infra Part II.B.

[106] Id.

[107] Davis, supra note 103; Gomes, supra note 79.

[108] Gomes, supra note 79.

[109] Paris & Werner, supra note 56.

[110] Gomes, supra note 79.

[111] Id.

[112] Id.

[113] Magin, supra note 104.

[114] S.B. 2386 H.D. 2, 30th Leg. (Haw. 2020).

[115] Id.

[116] Id.

[117] Id.

[118] Blaze Lovell, Hawaii Lawmakers Salvage Bills Despite Pandemic, Honolulu Civil Beat (July 10, 2020), https://www.civilbeat.org/2020/07/hawaii-lawmakers-salvage-bills-despite-pandemic/.

[119] Magin, supra note 104.

[120] Id.

[121] Magin, supra note 104; Gomes, supra note 79.

[122] Caulfield, supra note 63; Lovell, supra note 118.

[123] Magin, supra note 104; Gomes, supra note 79.

[124] Magin, supra note 104; Gomes, supra note 79.

[125] Paris & Werner, supra note 56.

[126] Id.

[127] Dep’t of Env’t Serv., Report of the Mayor’s Advisory Committee on Landfill Site Selection 1-1, 1-5 (Sept. 2012), http://www.opala.org/solid_waste/pdfs/MACLSS%20REPORT%20FINAL%20092512.pdf.

[128] Paris & Werner, supra note 56.

[129] Id.

[130] See Honolulu Rev. Ord. Art. 5 § 21-5.68.

[131] Lovell, supra note 118.

[132] See Paris & Werner, supra note 56; Gomes, supra note 79; Ferd Lewis, Bill Could Impact Aloha Stadium Demolition, Landfill Operator Says, Honolulu Star Advertiser (June 14, 2020), https://www.staradvertiser.com/2020/06/14/hawaii-news/bill-could-impact-stadium-demolition-landfill-operator-says/?HSA=18828e0774b5640881d9b804f803912b3612a748&fbclid=IwAR3Bi-rt_PPo2GB80ErSIPxAl4wuxiRkPSkqPFvONoT8JbZPtwJCHUf9s8Q.

[133] Lewis, supra note 132.

[134] Gomes, supra note 79; Paris & Werner, supra note 56.

[135] See Hearing on S.B. 2386 S.D. 2 H.D. 2, Before the H. Comm. On Fin., Leg. 30th (Haw. 2020) (statements of Democratic Party of Hawaii Labor Caucus and Prince Kuhio Hawaiian Civic Club) [hereinafter Hearing on S.B. 2386 Testimonies].

[136] Hearing on S.B. 2386 Testimonies (statement of O’ahu Council on the Association of Hawaiian Civic Clubs).

[137] See Hearing on S.B. 2386 Testimonies (statements of PVT Landfill and the Building Industry Association).

[138] Hearing on S.B. 2386 Testimonies (statement of PVT Landfill).

[139] Id.

[140] Gomes, supra note 79.

[141] Id.

[142] Hearing on S.B. 2386 Testimonies (statement of Maui County).

[143] Gomes, supra note 79.

[144] Id.

[145] Haw. Const. art. XI, § 9; Lovell, supra note 118. See Hearing on S.B. 2386 Testimonies (statements in support).

[146] Sapolu, supra note 3, at 235.

[147] Lovell, supra note 118.

[148] Davis, supra note 103.

[149] Paris & Werner, supra note 56.

[150] Id.

[151] Special Use Permit (SUP) Application File No. 2020/SUP-4 for the Relocation of the PVT Integrated Solid Waste Management Facility.

[152] Id.

[153] Paris & Werner, supra note 56.

[154] Davis, supra note 103.

[155] See infra Part II.B; see also Honolulu Rev. Ord. Art 2. § 21-2.40-2(b)(2).

[156] Magin, supra note 104.

[157] Paris & Werner, supra note 56.

[158] Paris & Werner, supra note 56; Resolution 20-119 – Landfill “Buffer Zones”, Sierra Club O’ahu Group (June 17, 2019), https://www.sierracluboahu.org/councilwatch-blog/resolution-20-119.

[159] Res. 20-119, City and Cty. of Honolulu (Haw. 2020).

[160] Id.

[161] Janis L. Magin, Honolulu Council Committee Postpones Action on to Triple Landfill Distance, Pacific Bus. News (May 22, 2020), https://www.bizjournals.com/pacific/news/2020/05/22/honolulu-committee-postpones-landfill-distance.html.

[162] Sapolu, supra note 3, at 227.

[163] Id. at 225.

[164] Carly Rizzuto, Environmental Racism and the Harms of Coal Ash, Sierra Club O’ahu Group (July 21, 2020), https://www.sierracluboahu.org/councilwatch-blog/the-harms-of-coal-ash-as-reason-to-support-a-landfill-buffer-zone.

[165] MacKenzie et al., supra note 7, at 38.

[166] Id.

[167] Yamamoto & Lyman, supra note 1, at 347.

[168] Id.

[169] Sapolu, supra note 3, at 244.

[170] Id.

 

 

clean water acts, environmental law, epa regulations

Disappearing Coastlines and Surrounding Communities: State Management and the Shift Towards Living Shorelines

Feb. 15, 2022   /   Kacey Hovden

I. Introduction

Beaches around the world are vanishing, with half predicted to be submerged in less than eight decades.[1] Under a high-carbon scenario, the United States will rank sixth globally for amount of land lost due to coastal erosion.[2] By the end of the century, the U.S. is projected to lose around thirty-six percent of its beaches, or around 2,451 miles.[3] These include some of the most popular beaches in North America, such as Miami Beach in Florida, and the iconic beaches of Santa Barbara, California.[4] Along with the U.S. coastline slipping away into the ocean, entire ecosystems, homes, and communities will fade along with it.[5]

North America’s sandy beaches are not only a source of recreation, tourism, and biological diversity, but also coastal communities’ primary form of protection from the ocean and its storms.[6] Beaches absorb energy from the ocean’s waves, serving as a natural barrier between inland communities and the sea.[7] Without these natural barriers, low-lying coastal cities are more susceptible to flooding and ultimately, total submersion into the ocean.[8] NASA predicts total submersion to occur by 2100 in New Orleans, Louisiana, with areas of the city currently sinking at a rate of two inches annually.[9] By 2050, nearly seventy-seven percent of Charleston, South Carolina, is predicted to be underwater, rendering the city a “half-drowned ghost town.”[10] As shorelines continue to erode, American coastal communities are inevitably at the mercy of storm surges, hurricanes, and waves, resulting in property damage, economic loss, and deaths.[11]

Coastal states and their communities are scrambling to formulate solutions, as the lands 94.7 million people in America live on or near continue to rapidly wash away into the ocean.[12] Traditionally, shoreline armoring – involving seawalls, bulkheads, and other hard structures meant to minimize waves’ effects when reaching shore – has been the favored approach among coastal states.[13] However, as Western Carolina University coastal geologist Rob Young has noted, because climate change fuels the ocean’s erosive nature, these solutions are only temporary.[14] These temporary proposals would only deter the inevitable,[15] and coastal states are attempting various forms of management practices and regulations in an effort to adapt to the dynamic shorelines.[16] Recently, however, states are experimenting with different strategies and shifting away from shoreline armoring, with twenty-eight states now imposing permitting criteria and restrictions on shoreline armoring structures in an attempt to discourage their use.[17] Known as “soft” coastal resiliency approaches, these strategies include retreating from the shorelines through setback requirements and relocation; adding sand and vegetation to replenish narrowing beaches; doing nothing at all; or a hybrid form of shoreline armoring and “soft” approaches.[18]

This paper examines the variety of regulatory and management approaches states may adopt to combat coastline erosion, emphasizing the “living shorelines” approach as the most effective solution because living shorelines are better for coastal communities and wildlife, more cost-effective for local and state governments, and embody the policies of the CZMA. Section II begins with an explanation of the science behind coastline erosion, the role of climate change, and the significance to coastal communities. Section III then moves to a description of the Coastal Zone Management Act (CZMA), the federal statute authorizing the National Coastal Zone Management Program (NCZMP), which guides state participation and implementation of the CZMA. Regulation approaches under the CZMA vary between states; these approaches are divided into four general categories. Part A discusses the “do-nothing” approach, analyzing Oregon and North Carolina’s policies. Part B focuses on the fundamentals of the managed retreat approach, with Maine and South Carolina as the representative states. Part C describes the tactics and options behind shoreline armoring, focusing on Florida and Alabama’s approaches and regulations. Part D concentrates on living shorelines, to which many states, such as California and New Jersey, are shifting their policies and management practices.

Section IV shifts to an analysis of local and state collaboration when implementing states’ coastal management programs, evaluating the various state approaches to state oversight and local control, as well as the exclusion of vulnerable communities’ participation in local planning. Section V analyzes the effectiveness of living shorelines in terms of socio-economic and environmental benefits. Part A focuses on the range of protection living shorelines provide coastal communities, while Part B discusses living shorelines’ benefits to wildlife. Part C analyzes the cost-effectiveness of living shorelines in comparison to shoreline armoring, and Part D emphasizes how living shorelines successfully embody the conservation and management policies of the CZMA. The paper concludes that states, and their local governments, should shift their management approaches, policies, and regulations towards the promotion of living shorelines because living shorelines are less environmentally harmful, more cost-effective, and embody the coastline protection and management goals of the CZMA, ultimately extending the longevity of coastal communities.

 

II. Erosion, Climate Change, & Coastal Communities

Coastal erosion is a naturally occurring process in which the rocks, soils, and sands along the coastline disappear as the ocean moves inward.[19] A number of coastal processes weather the land away over time, specifically powerful waves, storm surges, tropical storms, and rising sea levels.[20] These processes have eaten away at coastlines for centuries; in the United States, for example, eighty-six percent of East Coast beaches have experienced high levels of erosion due to rising sea levels.[21] However, climate change has intensified these erosive processes, resulting in an increased rate of coastal erosion.[22]

The United Nations Framework Convention on Climate Change defines climate change as the “. . . change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere.”[23] As ninety-seven percent of actively publishing climate scientists agree,[24] Earth’s climate is abruptly changing in response to humans’ use and resulting emissions of greenhouse gases and other particulate matters.[25] Consequentially, the increasing amount of greenhouse gases in the atmosphere is proportional to the increasing rate of coastal erosion.[26] This relatively exists because climate change increases the rate at which sea levels rise, as well as the frequency and intensity of coastal storms[27] – two of the major natural processes behind coastal erosion.[28]

With the atmosphere warming due to climate change, glaciers and ice sheets melt into the ocean, causing sea levels to rise at an unprecedented rate.[29] Ocean waters are warming as well, contributing to the rising sea levels through a process called thermal expansion.[30] Since 1880, the global mean sea level has risen by over eight inches; in 2019, researchers calculated the global mean sea level had risen nearly three and a half inches above the 1993 average.[31] The U.S. Interagency Sea Level Rise Taskforce predicts global sea levels will continue to rise, with the potential to reach 2.5 meters above 2000 levels by 2100.[32] When sea levels rise, ocean water reaches softer soils on land, causing the rate of coastline erosion to increase.[33] Rising sea levels also increase coastal storms, and its surges, on shorelines because the storms hit softer soils more susceptible to erosion.[34]

Warmer ocean and atmospheric temperatures also affect the severity of coastal storms, increasing the amount of rainfall, wind speed, and overall destruction potential of storms.[35] The warmer temperatures increase the frequency of coastal storms; for example, Atlantic hurricane activity has steadily increased since the early 1980s.[36] The increased frequency and severity of coastal storms negatively affect coastlines because storms “rapidly raise water levels and accelerate coastal currents,” resulting in what the USGS reports as “the most rapid losses of land.”[37] Ultimately, shorelines are increasingly vulnerable to erosion as sea levels rise and coastal storms become more frequent and volatile, causing coastlines and their communities to rapidly wash away into the ocean.

The increasing rate of coastal erosion is significantly affecting coastal communities through the destruction of buildings and homes, natural resources, roads and highways, and wildlife habitats.[38] In California, the USGS estimates coastal erosion will put nearly half a million people, as well as coastal property amounting to one hundred billion dollars, at risk in the next century.[39] As a result, communities contemplate the few options available: relocate or barricade. Relocating entire towns is extremely expensive; for example, in Northern Alaska, it will cost an estimated $80-130 million to relocate a coastal town of four hundred that is currently eroding away.[40] Moreover, to re-locate larger at-risk coastal cities, such as New Orleans with an estimated 390,144 residents,[41] the cost could reach billions. One option is for states and municipalities to manage their shorelines under a variety of strategies, often developed and implemented through their respective state coastal management programs under the Coastal Zone Management Act.[42]

 

III. Coastal Zone Management Act & State Implementation

The Coastal Zone Management Act (CZMA),[43] enacted in 1972, establishes the national framework for state management of coastal resources.[44] In the CZMA, Congress declared the national policy regarding coastlines, which includes the preservation, protection, development, and possible restoration of the U.S. coastal zone and its resources.[45] The national policy also encourages states to implement coastal management programs, with federal assistance, that “achieve wise use of the land and water resources of the coastal zone, giving full consideration to ecological, cultural, historic, and esthetic values, as well as the needs for compatible economic development . . .”.[46] To implement the national policy, the CZMA authorizes the National Coastal Zone Management Program (NCZMP).[47] The National Oceanic and Atmospheric Administration’s Office for Coastal Management administers the program, and state participation is voluntary.[48] The NCZMP incentivizes states to participate by providing a number of benefits, including federal grant programs and the ability to review federal actions and projects for consistency with state coastal policies.[49] There are thirty-five coastal states and territories eligible for participation in the U.S.; thirty-four currently participate in the NCZMP, with Alaska withdrawing in 2011.[50]

States choosing to participate in the NCZMP must follow certain requirements in developing their coastal management programs (CMPs).[51] At a minimum, these requirements include implementation of the national policy and its components established by the CZMA.[52] The national policy addresses coastal erosion, requiring NCZMP participants to provide for the “management of coastal development to minimize the loss of life and property caused by improper development in flood-prone, storm surge, geological hazard, and erosion-prone areas and in areas likely to be affected by or vulnerable to sea level rise, land subsidence, and saltwater intrusion, and by the destruction of natural protective features . . .”.[53] Some of the other information states must include in their CMPS are the identification of coastal zone boundaries; definitions of permissible land and water uses within the coastal zone that directly and significantly affect coastal waters; designations of areas of “particular concern”; description of a state’s plan to control uses; a definition of beach and planning process to protect coastal areas; and a description of a state’s planning process “for assessing effects of and controlling erosion,” among other requirements.[54] States have discretion to 1) determine their respective coastal zone boundaries, 2) identify significant issues, and 3) create policies to address these issues, as well as other details.[55] In developing their CMPs, states also collaborate with federal agencies, state and local agencies, industries, the public, and other interested groups.[56]

Once a state has developed its CMP, it must present the program for approval by the Secretary of Commerce to qualify for federal implementation funding.[57] The Secretary must ensure a state’s CMP follows all guidelines of the CZMA.[58] Approval by the Secretary is necessary in order for a state to become an official participant in the NCZMP, gain eligibility for federal funding, and gain some control over federal activities through the federal consistency provisions of the CZMA.[59] Through the federal consistency provisions, federal actions reasonably likely to affect any land, water use, or natural resource of a coastal zone must be consistent with the enforceable policies in participating states’ CMPs.[60]  Thus, the federal consistency provisions incentivize state participation in the program because the provisions provide states with a powerful tool to facilitate federal cooperation and compliance with state coastal management policies and practices.[61]

Upon approval, the state’s CMP becomes effective, and the state’s agencies and local governments implement it, typically through land use regulations.[62] The Secretary is required to review approved CMPs at least once every three years to evaluate states’ performances in implementing their CMPs.[63] Concerning coastline erosion, states and their local governments typically implement their CMPs following four different approaches: the 1) “do-nothing” approach,[64] 2) managed retreat or realignment, 3) shoreline armoring, or 4) living shorelines.[65] Although discussed separately here, states often incorporate a combination of these approaches into their management programs.[66]

A. The “Do-Nothing” Approach

The “do-nothing” approach is as simple as it sounds: local governments allow coastlines to flood and erode naturally, without interference or protection.[67] States typically use this approach in areas devoid of any structures.[68] States also use this approach in areas where local experts have ascertained a low erosion rate.[69] The “do-nothing” approach is considered the most environmentally-friendly and cost-effective in terms of implementing.[70] However, in developed areas, the “do-nothing” approach has proved to be the least effective response in the long-term because while long-term costs remain low, land, habitats, and property are inevitably lost- forcing entire communities to relocate.[71]

Oregon has adopted the “do-nothing” approach in its CMP through its limitations on permits for “beachfront protective structures.”[72] Goal 18 of its program specifies that local governments may issue permits for beachfront protective structures “only where development existed on January 1, 1977,” essentially prohibiting shoreline armoring for areas developed in 1977 or later.[73] North Carolina has codified similar restrictions into a statute, prohibiting all permanent erosion control structures, with very few exceptions.[74] North Carolina sets limits on temporary erosion control structures as well, authorizing the repair or replacement of such structures it only originally permitted before July 1, 1995, or if the structure is located adjacent to a designated Natural Heritage Area and can be brought into compliance with all current rules and applicable regulations.[75] Both states also implement some form of coastal erosion protection measures, especially in places where new and existing developments are at risk,[76] following the general trend of how states incorporate the do-nothing approach into their coastal management practices.[77]

B. Managed Retreat or Realignment

Managed retreat, also referred to as “managed realignment,” “resilient relocation” and “transformational adaptation,”[78] is the “strategic relocation of structures or abandonment of land to manage natural hazard risk.”[79] In practice, managed retreat involves relocation or demolishment of structures,[80] setbacks, and rolling easements.[81] With relocation, local programs often offer financial assistance or implement buy-back programs to help relocating property owners with relocation costs or compensate them for property loss.[82] State and local governments generally use buy-back programs to incentivize coastal property owners to move inward, typically buying coastal homes directly from the owners,[83] then demolishing them, or renting them out until the homes are irreparably damaged.[84]

Alternatively, governments may impose setback requirements in new development permits, requiring new development to be sited upland.[85] State legislation or municipal codes typically mandate setback requirements, establishing the setback distances in one of two ways.[86] Arbitrary setback lines are set a distinct distance from a coastal feature, like a tide-line or cliff, whereas erosion rate setbacks are based on historic or projected annual erosion rates of an area.[87] Setback requirements typically apply only to new developments;[88] meanwhile, rolling easements address both new and current properties and uses.[89] The Environmental Protection Agency (EPA) defines rolling easements as an interest in land along the shore that ensures inland migration of its boundary as the shore erodes.[90] Rolling easements involve a multitude of requirements and coastal management practices, generally including no shoreline armoring; a rolling shoreline boundary that diminishes property owners’ rights and restricts development of new structures; and provisions for public access.[91] Thus, governments may use rolling easements to require removal of property when it becomes located seaward of a rolling shoreline boundary due to erosion.[92]

Managed retreat is recognized as a more cost-effective practice than shoreline armoring, and maintains natural shoreline habitats and dynamics.[93] However, managed retreat presents a number of challenges concerning property owners’ rights, making it a difficult approach to implement.[94] Relocation, setbacks, and rolling easements can displace property owners through a total loss of their property, or diminish the property of its economic value, causing takings claims for compensation.[95] Most commonly, permanent physical occupation of private property often results in the government compensating property owners for their loss.[96] Not only does “permanent physical occupation” include actual government control of private property,[97] known as eminent domain,[98] but also when a public access easement over the property amounts to a physical occupation.[99] The Fifth Amendment’s Takings Clause provides for compensation, stating, “nor shall private property be taken for public use, without just compensation.”[100] Under just compensation, property owners typically receive the “fair market value” of their property, or what a willing buyer would pay a willing seller.[101]

If a regulation does not amount to a “permanent physical occupation,” a property owner may still bring a regulatory takings claim if a regulation deprives the owner of the property’s total economic value.[102] This places a high burden on a property owner to prove a regulation has removed all economically beneficial or productive options from his or her land- a difficult standard to meet.[103] The Lucas court recognized, however, that a regulation requiring “land to be left in its natural state” may cause property to lose all economic value, so as to render a regulatory takings claim successful.[104] For state and local governments implementing a managed retreat approach through similar regulations, this can be a nearly unaffordable option if found to have effectuated a takings.[105]

When property owners cannot outwardly prove total loss of a property’s economic value, their takings claim may still succeed if the owner can satisfy the Penn Central[106] balancing test.[107] The Penn Central test applies when a land use regulation decreases property value, but not totally.[108] Under Penn Central, the three factors courts consider are 1) the character of the government’s action; 2) the extent the regulation diminished the property’s economic value; and 3) the effect of the regulation on the owner’s reasonable investment-backed expectations.[109] Regulatory takings claims are often fruitless for landowners, as the government is typically successful in proving the regulation does not excessively infringe upon private property rights.[110] However, litigation is still time-consuming for the government, possibly delaying coastal management projects for years, while also fueling hostility between coastal property owners and the government.[111] Even when property owners are successful, compensation does not account for the social, cultural, and psychological effects of displacing owners from their homes, making managed retreat an option with much political contention.[112] Thus, the use of the managed retreat approach has been limited both because of political opposition and expenses.[113]

Some states, however, have incorporated managed retreat into their coastal management strategies. For example, in Maine, the Municipal Shoreland Zoning Act requires a seventy-five foot setback for residential development and a twenty-five foot setback for general development.[114] Further, the state permits reconstruction of buildings damaged by coastal storms only if several statutory requirements are met, including moving the building back from the beach “to the extent practicable.”[115] The state of South Carolina has adopted a forty-year managed retreat policy, establishing a baseline and setback line that are continuously moved landward every eight to ten years, based on the best available scientific and historical data.[116] The lines differ between erosion zones along the state’s coast, with the baseline established at the primary dune crest or historic shoreline, and the setback line must be no less than twenty feet landward from the baseline or at a distance forty times the average annual erosion rate of the area.[117] These lines limit construction of both development and erosion-control structures, prohibiting construction seaward of the baseline and imposing limitations on structures between the baseline and setback line.[118] Thus, while managed retreat is an effective approach with usually typically clear guidelines and procedures, its use is limited due to the often-inevitable property rights controversies and potential compensation claims.

C. Shoreline Armoring

Shoreline armoring is the use of physical structures to re-enforce coastlines against erosion.[119] These physical structures are typically hard and “immoveable,” and include structures such as seawalls, breakwaters, rock revetments, and jetties and groins.[120] Seawalls essentially stand parallel to the shoreline, intended to absorb wave energy.[121] Breakwaters are similar to seawalls, except they stand within the water in order to minimize wave impact before waves reach the shoreline.[122] Revetments, on the other hand, are walls constructed on the shoreline that slope along the shoreline’s natural contours, effectively dissipating and directing wave energy up slope.[123] Jetties are long structures designed perpendicular to the shoreline and typically adjacent to inlets, ultimately preventing sand from entering inlets.[124] Groins are also constructed perpendicular to the shoreline; although they trap and conserve sand, widening a portion of up-drift beaches.[125] These structures are usually constructed out of concrete, an expensive process requiring permits, engineering plans, and lengthy construction, resulting in tens of thousands of dollars.[126] However, these thousands of dollars can ultimately save millions of dollars of waterfront real estate because shoreline armoring effectively, in the short-term, reduces waves, storms, and flooding impacts on coastlines.[127]

Although the primary purpose of shoreline armoring is to protect coastlines from erosion, in the long-term shoreline armoring inevitably contributes to coastline erosion because the hard structures hinder the natural supply of sand and sediment to adjacent beaches.[128] Essentially, hard armoring modifies the natural inland migration of sand, creating a “fixed” shoreline that over time disappears into the ocean due to the lack of sand.[129] Ultimately, shoreline armoring accelerates coastal erosion, resulting in a reduction of available beaches for recreational use, detrimental impacts to, and consequential losses of, marine life and habitat, and economic loss to coastal communities.[130] Further, the vitality of hard-armoring structures is temporary because the absorption of wave impacts leads to cracking, tilting, sliding, and eventually, failure.[131] Despite the consequences of shoreline armoring, it has remained the predominant approach of many U.S. coastal states because property owners are more familiar and comfortable with hard armoring practices, and until recently, shoreline armoring permits were quicker and cheaper for property owners to obtain.[132] Currently, shoreline armoring exists on an estimated twelve to thirty percent of state shorelines and occupies an estimated fifty to seventy percent of urban coastlines.[133]

The state of Florida heavily relies upon shoreline armoring, with more than one hundred miles of Florida’s shorelines employing hard armoring in 2012.[134] Although Florida’s Coastal Armoring Policy recognizes the adverse effects of shoreline armoring, the state still heavily permits shoreline armoring, with increases in issued permits during active hurricane seasons.[135] Permits must meet criteria requirements, which involve an analysis of the eligibility of the development needing protection, the vulnerability of the area, possibility of loss of public access to the beach, and any significant adverse effects.[136]

Similarly, the state of Alabama, which also heavily relies upon shoreline armoring,[137] imposes permitting requirements; however, a permit applicant must submit an application to the two agencies responsible for the implementation of the Alabama CMP, as well as the US Army Corps of Engineers Mobile District.[138] In both states, shoreline armoring remains the predominant method for erosion control.[139] Ultimately, shoreline armoring remains the most common coastal management practice due to its popularity among coastal property owners,[140] although states are beginning to shift towards living shorelines as an alternative due to the realization of the temporary and erosive nature of shoreline armoring.

D. Living Shorelines: Beach Nourishment & Restoration

Living shorelines involve a variety of “soft armor” practices to protect shorelines from erosion.[141] The concept behind living shorelines is to restore or enhance shorelines by using natural materials such as vegetation, sand, and rocks.[142] Vegetation used is primarily native to the specific coastline, typically placed along salt marshes, bays, beaches, and other coastal areas.[143] The roots essentially stabilize the shoreline, while the vegetation itself helps absorb powerful wave energy.[144] The use of sand is often referred to as beach nourishment, which generally involves adding large quantities of sand and other sediment to eroding beaches- temporarily replenishing the beach of its lost sand.[145]

Living shorelines provide a variety of benefits to beaches and their communities. Vegetation has water purification qualities, while also encouraging native wildlife into the area by providing habitat for both aquatic and terrestrial wildlife.[146] Living shorelines are also more effective long-term against erosion, as well as less expensive than shoreline armoring techniques.[147] NOAA has concluded living shorelines perform better during major storms than hard structures.[148] For example, following Hurricane Irene on the coastline of central Outer Banks, North Carolina, seventy-six percent of seawalls were damaged, with assessed damage ranging from landward erosion to seawalls’ complete collapse.[149] Meanwhile, little to no damage, including erosion, was recorded on beaches with living shorelines.[150] On average, the cost of living shorelines, depending on the technique implemented, range from $50 to $150 per linear foot, whereas seawalls generally range from $80 to $1,200 per linear foot.[151] The Deer Creek Project in North Carolina, a 200-foot living shoreline composed of bagged oyster shells, is a testament to the cost difference between living shorelines and shoreline armoring.[152] The project took only a week to implement and costed an estimated $1,000, which included the $200 general permit fee – amounting to around $12 of material per yard.[153] Seawalls in Deer Creek County, on the other hand, are estimated to cost $450 per yard.[154]

There are a range of detriments and challenges presented by living shorelines however, especially in beach nourishment projects. In general, living shorelines are a fairly new practice, meaning there is little data available on the long-term risks involved.[155] Further, governments designed shoreline stabilization permits and regulations for traditional shoreline armoring techniques, presenting difficulties in ensuring new living shoreline techniques comply with regulatory and permit requirements.[156] Beach nourishment projects are perhaps the most controversial of living shoreline practices due to the environmental harm they inflict during construction and after implemented.[157] The added sand is a limited resource, often mined from other aquatic areas and damaging those ecosystems.[158] The heavy machinery used, along with the massive amounts of sand dumped at once, often disturbs or kills native wildlife.[159] Moreover, the addition of sand to an already-eroding coastline is only a temporary solution and, as the new sand erodes, kelp beds, intertidal reefs, seagrass beds, and the creatures inhabiting these areas are smothered by the surplus of sand washing into the ocean.[160] Nevertheless, living shorelines are becoming a popular strategy for coastline management,[161] with NOAA, several non-governmental organizations, and many state and local resource management agencies advocating for their use over other strategies.[162]

The federal government and state and local agencies alike are promoting the use of living shorelines because living shorelines are a “nature-based method that is a lot less costly,” as Thomas Bostick, chief of the Army Corps of Engineers (Corps), stated in promotion of living shorelines.[163] Living shorelines not only cost less to implement and maintain,[164] but also reduce the amount of potential takings claims by allowing property owners to preserve and remain on their properties.[165] Government entities, along with environmental organizations like the American Littoral Society, also encourage the use of living shorelines due to the environmental benefits living shorelines provide.[166] Thus, both Congress and federal agencies are beginning to seek ways to influence a nationwide shift towards living shorelines. In 2017, the Corps’ authorized its first nationwide permit for living shorelines, making the permit process more efficient and competitive with shoreline armoring permits;[167] meanwhile, the House of Representatives recently passed a bill to allocate more federal funding towards living shorelines projects.[168]

Living shorelines are a popular management strategy in California, with a variety of techniques implemented so far, such as native Olympia oyster reefs, eelgrass beds, tidal wetlands revegetation, upland ecotones, sand beaches, and coastal dune restoration projects.[169] The California Coastal Conservancy, one of the three state agencies responsible for the state’s CMP development and implementation, has partnered with seventeen organizations and agencies, including NOAA, EPA, and the California Department of Fish and Wildlife, to fund and implement the San Francisco Bay Living Shorelines Project.[170] The project used a variety of living shoreline techniques in order to assist the state in “design[ing] future projects and develop[ing] best practices for managing living shorelines and submerged habitats.”[171]

New Jersey is conducting similar projects along its coastline, collectively known as the New Jersey Living Shoreline Program.[172] In an effort to simplify the implementation of the program and promote living shorelines, in 2013 the state adopted the Coastal General Permit 24, known as the Living Shorelines General Permit.[173] Among other things, approval for the permit requires minimal disturbance of surrounding ecosystems, a demonstration of improvements or maintenance of ecosystems’ values and functions, and compliance with various laws, such as the Wetlands Act of 1970.[174] Because of the multitude of benefits living shorelines provide coastal communities and wildlife, along with their effectiveness in terms of cost and durability, both states and private property owners are beginning to shift towards living shorelines as a way to protect property and communities from erosion, while restoring natural shorelines and habitats.[175]

 

IV. State-Local Collaboration

Because the CZMA affords states flexibility in designing their CMPS, so long as they follow the CZMA requirements, states vary in the ways they choose to collaborate with local governments.[176] Some states, like Alabama, retain most or all implementation of their CMP within the state government and its agencies.[177] Other states, like Washington, primarily rely upon city and county governments to implement its coastal program.[178] States like Wisconsin may even involve interest groups and tribal representatives in the promulgation and implementation of its CMP.[179] Due to the variances between states and how they choose to develop and implement their CMPs, part A focuses primarily on state governments and their agencies, while part B focuses on state government reliance on local governments and other authorities.

A. State Government Oversight & Control

The management of a state CMP rests primarily in the state itself.[180] State governments may choose to codify their CMPs into law or a network of laws.[181] For example, the state legislature of Mississippi codified the state’s CMP into state law, the Mississippi Coastal Wetlands Protection Act.[182] Maine’s CMP, on the other hand, is codified into a network of nineteen state laws.[183] In vesting authority into state agencies, a state may designate a lead agency or divide the authority among several agencies.[184] Georgia’s Department of Natural Resources, Coastal Resources Division, for example, is the lead agency responsible for the development and implementation of Georgia’s CMP,[185] whereas California relies upon three state agencies: the California Coastal Commission, the San Francisco Bay Conservation and Development Commission, and the California Coastal Conservancy.[186]

There are a number of advantages to state governments’ retaining exclusive control over their state CMPs, instead of delegating control to local governments. By state agencies’ maintaining the lead on regulatory and permitting practices under a state’s CMP, local fragmentation is essentially avoided.[187] Retaining centralized authority in the state government also alleviates funding and staffing discrepancies between local governments.[188] Further, a state CMP with exclusive control resting in the state government prevents local governments, motivated by economic development, from “gut[ting]” a state’s CMP.[189]

In practice, few coastal states maintain exclusive control over the implementation of their coastal management programs. In a survey of twenty-three “oceanfront” states, only six of the surveyed states exercise exclusive control over their CMPs through state agencies.[190] Nevertheless, even when states choose to delegate the majority of control over CMPs to local governments, they retain the power to oversee and monitor CMP implementation.[191] For example, most coastal states that grant permitting authority to local governments require state approval of local ordinances, plans, and regulations guiding local permitting practices.[192] Even when state approval is not required, as in Connecticut, local governments’ ordinances and regulations are subject to some form of state oversight, such as state agency notice and comment requirements.[193]

B. Local Government Authority & Development

In many coastal states, a state’s CMP development and implementation is divided between the state and its local governments.[194] In these states, the state maintains some control through designation of a lead agency or multiple state agencies, which typically retain responsibility for overarching policy decisions.[195] What authority and responsibilities state governments choose to delegate to local governments varies from state to state.[196] By providing local governments the ability to implement state CMPs, local governments are able to address and tailor their regulations, permitting decisions, and policies to local-specific issues and needs, while still achieving the overall goals of a state’s CMP.[197]

Some states, like Louisiana, delegate permitting authority only to local governments with a state-approved “Local Coastal Program.”[198] In Louisiana, the development of a Local Coastal Program, and thus gaining permitting authority, is voluntary, with the permitting authority limited to coastal uses of local concern.[199] Meanwhile, states like North Carolina, for example, retain permitting authority for major and general permits within the Coastal Management Division of the North Carolina Department of Environmental Quality,[200] leaving county and municipal governments with permitting authority only for minor permits.[201] Other states may divide CMP authority between the state and local governments based on geographical areas.[202] In Virginia, for example, the Virginia Marine Resources Commission retains permitting authority for development in submerged wetlands, tidal wetlands, dunes, and beaches;[203] on the other hand, counties and municipalities, through local wetland boards, set local ordinances to regulate and permit development on wetlands and dunes above the mean low water line.[204]

In addition to permitting authority, coastal states often depend upon local governments for the implementation of a state’s CMP through regulation and enforcement measures. For example, in Oregon, counties and municipalities are responsible for implementing Oregon’s CMP through land use regulations that reflect Oregon’s CMP conservation goals for estuarine resources, coastal shore lands, beaches, dunes, and ocean resources.[205] In Georgia, local governments implement Georgia’s CMP and assist in the long-term planning, economic development, and natural resource protection of Georgia’s coastline through developing local comprehensive plans, laws, and zoning ordinances, as well as collaborating with chambers of commerce and economic development authorities.[206] In implementing a state’s CMP, local governments are able to incorporate living shoreline practices into local management and regulation in a way most conducive to local-specific needs.[207] Therefore, much like the structure of the CZMA itself in providing states flexibility in order to address their respective political and geographical features, shared authority between state and local governments provides local governments with flexibility to make a state’s CMP effective.[208]

Dividing regulatory authority over a state’s CMP between local governments may still, however, present issues regarding inclusion. While the effects of climate change are global, the effects are most severe and immediate on people of color and communities in poverty.[209] These communities are considered the most “vulnerable” to climate change because they lack the resources necessary to prepare, withstand, and recover from the direct and indirect effects of climate change, while also predominantly living in areas more susceptible to natural disasters.[210] However, climate change adaptation planning often fails to take into account concerns of these vulnerable communities because these communities lack adequate representation in local and state committees,[211] and do not receive a sufficient opportunity to participate in public planning meetings.[212] Known as the climate gap, this problem extends to the development of coastal management strategies in vulnerable communities.[213] Consequently, marginalized fail to have their immediate needs met or accounted for during coastal erosion adaptation strategy development.[214]

One solution, as many geographers and anthropologists have suggested, is for state and local governments explicitly involve multiple forms of knowledge in the planning and development of adaptation strategies, which are often included in state CMPs.[215] The state of Wisconsin has done just that, establishing the Wisconsin Coastal Management Council, which partners with the Department of Administration, Bureau of Intergovernmental Relations, in order to implement Wisconsin’s CMP.[216] The Council is responsible for setting the policy direction for the state’s CMP, and is comprised of members representing a variety of interests including state agencies, local governments, tribal governments, and several general public areas.[217] As a result, more of the state’s coastal program funds have been allocated towards underrepresented communities to improve participation in and development of coastal management initiatives.[218] Ultimately, the general trend suggests most state governments collaborate with local governments in order to implement their state CMPs, as well as to determine the most effective adaptation strategies to address coastal issues, like coastline erosion.

 

V. Living Shorelines as a Viable Approach for Communities & Government

Although the structure of the CZMA affords states the flexibility and freedom to adopt whichever coastline erosion approach into their CMPs, states should primarily adopt the living shorelines approach. Living shorelines are better for coastal communities and wildlife because of the protection and environmental benefits living shorelines provide; more cost effective for local and state governments because of the less expensive materials used and living shorelines’ resiliency to wave energy; and embody the coastal conservation and management policies of the CZMA. States should adopt living shorelines into their CMPs in order to help prevent and reduce shoreline erosion, while protecting and restoring coastlines and their habitats.

A. Coastal Community Protection

As mentioned in Section II, coastal erosion affects surrounding communities in a variety of ways.[219] When shorelines wash away, the natural barriers protecting communities from storm surges and flooding vanish, leaving coastal communities vulnerable.[220] In the event of a storm surge flooding a community, homes and buildings are either damaged or completely lost.[221] If the flooding is rapid enough, lives may be lost as well, with drowning in floodwaters recorded as the leading cause of death during hurricanes and storm surges from 1963 to 2012.[222] Living shorelines serve as a natural barrier between coastal communities and storms, reducing the impact of waves and preventing major flooding.[223]

Even after seawater retreats following a storm surge, danger is still present. As the ocean encroaches on coastlines, saltwater seeps into both the ground and freshwater sources alike.[224] If coastal areas depend on groundwater wells for their source of usable water, as most do, their primary source of fresh water is no longer usable due to salt intrusion and contamination.[225] Living shorelines address and provide remedies to these issues by creating, as well as reinforcing, natural barriers against storm surges and flooding,[226] and effectively filtering out and absorbing salt and other minerals entering nearby groundwater.[227] Marshes, for example, have been recorded to remove up to eighty percent of nitrate from groundwater within five meters of shorelines, effectively improving water quality.[228]

Shoreline armoring structures, on the other hand, are less resilient to coastal storms long-term, without providing any additional protection, like filtration. Shoreline armoring structures, like sea walls, reflect wave energy.[229] As a result, the bases of these concrete structures gradually tilt seaward, allowing waves to breach and ultimately, causing the structures to collapse and leave coastal communities vulnerable.[230] Meanwhile, living shorelines disperse wave energy across the entire living shoreline structure, reducing the wave energy and subsequent damage on the living shoreline structure itself, while also serving as a natural breakwater for the coastline.[231] Even when coastal storms damage living shorelines, living shorelines typically completely recover without human intervention- sometimes reaching full recovery within a year.[232] Thus, compared to shoreline armoring, living shorelines effectively provide coastal communities with more long-term protection against both the direct and indirect effects of coastal storms.

B. Benefits to Wildlife

Concerning wildlife, the effects of coastal erosions are striking. Coastal erosion forms new coastlines, which generally produces habitat loss and fragmentation, as well as presenting new obstacles and obstructions to migration patterns.[233] Species may either experience nearly instantaneous population loss, or may slowly near extinction over time as they struggle to adapt.[234] For example, loggerhead turtles are predicted to lose forty-two percent of their current nesting beaches and their adaptation response of crowding on the remaining available beaches, will likely result in an increase in nest infections, nest destructions by competing turtles, and increased predation.[235] Saltwater intrusion will also affect wildlife and plant species alike.[236] Living shorelines, in turn, while preventing coastline erosion, also create natural habitats for coastline species.[237] Living shorelines may even rebuild lost habitats and corridors, effectively restoring species’ populations.[238] A primary example of this is the Goose Creek Tidal Wetlands Bank in Virginia, a salt marsh created to protect an adjacent coastal wetland from development and erosion.[239] After its construction, the living shoreline attracted twenty-one new species of fish, as well as invertebrates like shrimp and clams.[240]

While living shorelines provide, restore, and enhance natural habitats for coastal wildlife, shoreline armoring structures diminish, and even destroy, habitats. Shoreline armoring structures directly destroy habitats they are constructed upon, while also impeding the growth of adjacent vegetation.[241] Further, when shoreline armoring structures disrupt the natural deposit of sand and sediment onto beaches, causing beaches to gradually submerge, habitats and corridors are lost.[242] In a review compiling eighty-eight studies around the U.S. on shoreline armoring’s effects on wildlife, marine researchers concluded shoreline armoring was associated with declines in both species biodiversity and abundance.[243]  Meanwhile, living shorelines create, enhance, and prolong the existence of coastal habitats and corridors, increasing and maintaining biodiversity along coastlines.[244] For example, living shoreline projects along the Eastern U.S. coastline, as a part of the Hurricane Sandy Coastal Resilience Program, both created and restored nearly forty acres of wildlife habitat, resulting in an influx of biodiversity to the areas.[245]

C. Cost Comparison

Compared to other coastline erosion strategies, living shorelines are significantly more cost-effective, both initially and in the long-term. Although initial costs vary depending on the type of material and living shoreline developed, according to researchers for the National Wildlife Federation, the costs are overall “significantly less” than those for hard shoreline armoring structures.[246] For living shorelines created out of recycled oyster shells, which create shellfish habitat and improve water quality while reducing wave energy, the cost generally amounts to $75 per foot.[247] Sand fill runs around $15 to $20 per cubic foot, and marsh, and dune plants typically cost $2.50 to $5.50 per square yard.[248] In comparison, as noted in Section III, part D, seawalls generally range from $80 to $1,200 per linear foot.[249]

Living shorelines are also more durable than shoreline armoring, meaning fewer expenses on reinstallation or reinforcement.[250] Shoreline armoring structures are estimated to have a general lifespan of fifteen to twenty years, whereas living shorelines installed in the mid-1990s are reported to have remained “in very good condition” nearly thirty years later.[251] A report by the South Atlantic Alliance concluded that while various types of shoreline armoring, from concrete bulkheads to granite revetments, have an average lifespan between twenty to fifty years, living shorelines have an “indefinite” lifespan.[252] The difference in lifespan is primarily due to living shorelines’ resiliency to coastal storms,[253] with living shorelines requiring little to no attention, and shoreline armoring generally needing expensive repairs, following storms.[254] For example, collapsed seawalls generally increase the cost of installation for new seawalls by an average of twenty percent.[255] A survey in Fort Lauderdale, Florida, found contractors charge between $650 to $2,000 per linear foot to repair seawalls.[256] While repair costs may vary state to state, the Fort Lauderdale range is similar to the rest of the U.S. coastlines’ repair costs.[257] Meanwhile, living shorelines cost little to nothing in repairs due to their ability to repair themselves.[258]

Living shorelines effectively reduce coastal property damage as well. In a joint study conducted by the Nature Conservancy and the insurance industry, researchers found living shorelines in New York and New Jersey prevented $625 million in damage during Superstorm Sandy in 2012.[259] The study also predicted, based on economic and risk-management models that the Gulf Coast would suffer $134 billion in damage in the next twenty years; researchers concluded living shorelines could prevent nearly forty-three percent ($57.4 billion) of that damage.[260] Construction for shoreline armoring practices, on the other hand, was estimated to cost nearly as much as the damage the structures would prevent, nullifying any financial benefit.[261] Ultimately, property owners with shoreline armoring end up spending more on maintenance and repair.  For example, following Hurricane Irene in 2011 and Hurricane Arthur in 2014, North Carolina coastal property owners with seawalls spent double the price to repair property damage and four times as much for annual shoreline maintenance in comparison to property owners with living shorelines.[262]

Living shorelines also have indirect financial benefits on coastal properties by increasing coastal property value.[263] Because living shorelines are composed of natural vegetation and materials, they inherently increase the aesthetic value of a property.[264] “Aesthetics greatly affect property values and hence the tax base,” a report by the North Carolina Coastal Federation stated in its evaluation of living shoreline costs and benefits, finding living shorelines increase coastal property value.[265] The aesthetics of living shorelines indirectly benefit coastal communities as well, increasing tourism by providing more beaches for tourists to access, as well as more recreational opportunities, such as birdwatching, boating, and fishing.[266]

On the other hand, shoreline armoring provides only a temporary economic benefit to coastal property owners.[267] Individual property values typically increase initially following construction of a seawall; however, as more seawalls are constructed along a coastline, waterfront property values gradually decline.[268] Passive erosion caused by seawalls and other shoreline armoring techniques reduce the amount of beach surrounding coastal properties as well, further diminishing property value, as well as decreasing tourism.[269]  Ultimately, due to the cost of the natural resources used, their durability in storm events, their efficiency in preventing property damage, and indirect financial benefits, living shorelines are more cost-effective both upfront and in the long-term for coastal communities and their governments to implement.

D. CZMA Policy Embodiment

Living shorelines also exemplify the coastal conservation and management CZMA policies established by Congress. Congress intended for the CZMA to establish an effective federal-state program that would, among other things, provide for “the protection of natural resources, including wetlands, floodplains, estuaries, beaches, dunes, barrier islands, coral reefs, and fish and wildlife and their habitat, within the coastal zone.”[270] The CZMA promotes the “management of coastal development to improve, safeguard, and restore the quality of coastal waters, and to protect natural resources and existing uses of those waters.”[271] Essentially, the CZMA prioritizes the protection and management of coastal zones and their habitats, natural resources, and water quality.[272]

Living shorelines not only protect natural resources from erosion, but also establish habitats for coastal fish and wildlife, while also improving water quality.[273] As discussed in depth throughout this section,[274] living shorelines serve as natural breakwaters, reducing wave energy as waves reach shore, protecting coastal communities and preserving wildlife habitats.[275] Living shorelines further provide, restore, and enhance coastal wildlife habitat; for example, oyster reefs provide habitat and food for shellfish, invertebrates, fish, birds, and wildlife alike.[276] In return, the shellfish and invertebrates present act as natural filtration devices, improving coastal water quality.[277] A recent study conducted by NOAA determined that living shorelines  combatted climate change by reducing carbon dioxide in the atmosphere, thereby improving coastal resilience to erosion.[278]

Shoreline armoring, even where implemented with the intentions to carry out the policies and purposes of the CZMA, ultimately fail to do so because hard armoring structures are less effective at preventing erosion and protecting coastal communities,[279] detrimental to wildlife habitats and natural resources in coastal zones,[280] and can even degrade water quality.[281] The short lifespan of shoreline armoring structures often leaves coastal communities and habitats vulnerable during coastal storms and massive flooding events. In 2018, for example, a series of sea walls along the Northeastern U.S. coast crumbled in the midst of a coastal storm.[282] The sea walls’ collapse resulted in millions of dollars in damages, and left coastal communities and habitats alike unprotected against more coastal storms days later.[283] Concerning water quality, a 2017 shoreline survey in Michigan discovered sea walls, by diminishing local wildlife and reducing sedimentation on adjacent shorelines, caused stagnation, thereby reducing water quality.[284] By failing to protect coastal communities, reducing wildlife habitats and natural resources, and degrading water quality, shoreline armoring fails to embody the conservation and management policies of the CZMA.[285] Living shorelines, however, “protect[],” “improve,” and “restore” coastal zones and their communities, habitats, natural resources, and water quality- effectuating the conservation and management policies of the CZMA.[286]

 

VI. Conclusion

With coastlines continuing to vanish into the ocean, it is clear the longevity of many coastal communities is waning. Globally, from 1984 to 2015, researchers estimated the permanent loss of coastal land due to erosion amounted to 28,000 kilometers – the equivalent to the circumference of Haiti.[287] Communities wishing to remain along the coastline, or which may not have the means to leave, are consequentially subjected to a number of hazards, ranging from increased vulnerability to storms and flooding to saltwater intrusion and contamination to their drinking water supplies.[288] Wildlife continues to vanish along coastlines as a result, too, stripping regions of the biodiversity they depend upon to survive.[289] Accordingly, states and their local governments wishing to extend the lifespan of coastlines and their communities must implement coastal management strategies that effectively reduce coastal erosion and protect shorelines from future erosion.

States should begin shifting towards a living shoreline approach because the CZMA affords states the flexibility to develop and implement coastal management plans and strategies unique to their regions’ issues and needs. The wide variety of materials states may use in constructing their living shorelines, from sand to vegetation to oyster shells,[290] provides states and their local governments with the opportunity to implement different site-specific adaptive structures. For example, states could outfit beaches with generally low wave energy action with oyster shell reefs,[291] whereas beaches with adjacent graded banks will benefit more from marsh sills.[292] Thus, overall erosion control can be more effective by employing adaptive measures that are sensitive to local conditions because states and their local governments are able to adapt living shoreline methods to what each region would benefit most from, without much of a cost difference.[293]

Coastlines are dynamic in nature, constantly moving and evolving, requiring humans, wildlife, and vegetation alike to adapt and shift with them.[294] Congress developed the CZMA in such a way as well, providing states with federal funding to manage coastlines in exchange for following overarching guidelines, while allowing states to adapt their CMPs to their specific geographic regions and needs.[295] The majority of states have followed the dynamic trend in developing and implementing their CMPs, providing for local government involvement and authority in order to account for locality-specific needs.[296] States should adopt the most dynamic approach to coastline erosion protection – living shorelines, because living shorelines are dynamic in their various forms and in their adaptability to the environment once constructed, remain resilient in storms, cost less than shoreline armoring in both implementation and maintenance, revitalize biodiverse coastal areas, and extend the longevity of coastal lifestyles in the face of a changing world.

 

Endnotes

[1] Doyle Rice, Shrinking Shores: Half the World’s Beaches Could Disappear Because of Climate Change, Study Says, USA Today (Mar. 2, 2020, 12:45 PM), https://www.usatoday.com/story/news/nation/2020/03/02/climate-change-beaches-could-disappear-by-2100/4904684002/.

[2] Stefano Valentino, New Study Forecasts Dramatic Beach Erosion along U.S. Coastline, Washington Spectator (May 2, 2020), https://washingtonspectator.org/beach-erosion-valentino/.

[3] Id.

[4] Beaches in Danger: 10 Disappearing Shorelines, Frommers, https://www.frommers.com/slideshows/825057-beaches-in-danger-10-disappearing-shorelines (last visited Feb. 5, 2021).

[5] See, e.g., Shaina Sadai & Jeff Sebo, The Coasts are Disappearing, We Need to Protect Them for Everyone, Sentient Media (Aug. 13, 2020), https://sentientmedia.org/coasts-disappearing-protect-for-everyone/ (discussing the importance of preserving both human and animal homes and lives as coastlines recede).

[6] Rice, supra note 1.

[7] Michalis I. Vousdoukas et al., Sandy Coastlines under Threat of Erosion, 10 Nature Climate Change 260, 260 (2020).

[8] Aria Bendix, 8 American Cities That Could Disappear by 2100, Business Insider (Mar. 17, 2020, 8:13 AM), https://www.businessinsider.com/american-cities-disappear-sea-level-rise-2100-2019-3.

[9] Sean Breslin, New NASA Maps Show Just How Fast New Orleans is Sinking, Weather Channel (May 20, 2016), https://weather.com/news/climate/news/nasa-maps-new-orleans-sinking.

[10] Lindsay Koob, Under the Sea, Charleston City Paper (Sep. 12, 2007, 4:00 AM), https://www.charlestoncitypaper.com/story/under-the-sea?oid=1111416.

[11] Bendix, supra note 8.

[12] Darryl Cohen, About 60.2M Live in Areas Most Vulnerable to Hurricanes, US Census Bureau (July 15, 2019), https://www.census.gov/library/stories/2019/07/millions-of-americans-live-coastline-regions.html#:~:text=About%2094.7%20million%20people%2C%20or,a%2015.3%25%20growth%20since%202000.

[13] Eric Moorman et al., States Shift from Seawalls to Living Shorelines, Bloomberg BNA Environment & Energy Report (July 10, 2019), https://www.pillsburylaw.com/print/content/25687/states-shift-from-seawalls-to-living-shorelines.pdf.

[14] Meghan Keneally & Evan Simon, Disappearing Beaches: a Line in the Sand, ABC News, https://abcnews.go.com/US/deepdive/disappearing-beaches-sea-level-rise-39427567 (last visited Feb. 5, 2021).

[15] Id.

[16] Valentino, supra note 2.

[17] Id.

[18] Id.

[19] Coastal Erosion, U.S. Climate Resilience Toolkit, https://toolkit.climate.gov/topics/coastal-flood-risk/coastal-erosion (last visited Feb. 2, 2021).

[20] Id.

[21] Valentino, supra note 2.

[22] Coastal Erosion, supra note 19.

[23] United Nations Framework Convention on Climate Change, United Nations 1, 7 (1992).

[24] John Cook et al., Consensus on Consensus: a Synthesis of Consensus Estimates on Human-Caused Global Warming, 11 Env’t. Research Letters 1, 6 (2016).

[25] Scientific Consensus: Earth’s Climate is Warming, NASA, https://climate.nasa.gov/scientific-consensus/#* (last updated Feb. 9, 2021).

[26] Valentino, supra note 2.

[27] Ove Hoegh-Guldberg1 & John F. Bruno, The Impact of Climate Change on the World’s Marine Ecosystems, 328 Science 1523, 1523 (2010).

[28] Coastal Erosion, supra note 19.

[29] Rebecca Lindsey, Climate Change: Global Sea Level, NOAA (Jan. 25, 2021), https://www.climate.gov/news-features/understanding-climate/climate-change-global-sea-level.

[30] Id.

[31] Id.

[32] William V. Sweet et al., Executive Summary in Global and Regional Sea Level Rise Scenarios for the United States, at vi (Jan. 2017), https://tidesandcurrents.noaa.gov/publications/techrpt83_Global_and_Regional_SLR_Scenarios_for_the_US_final.pdf.

[33] Hector Campbell, The Effects of Erosion and Sea Level Rise on the Coastal Villages of Newtok and Kivalina, Sciencebuzz Symposium (2018), https://www.sciencebuzz.com/the-effects-of-erosion-and-sea-level-rise-on-the-coastal-villages-of-newtok-and-kivalina/.

[34] Donald Scavia et al., Climate Change Impacts on U.S. Coastal and Marine Ecosystems, 25 Estuaries 149, 151 (2002).

[35] Global Warming and Hurricanes: An Overview of Current Research Results, Geophysical Fluid Dynamics Laboratory, https://www.gfdl.noaa.gov/global-warming-and-hurricanes/ (last revised Sept. 23, 2020).

[36] Lynne M. Carter et al., Southeast and the Caribbean, in Climate Change Impacts in the United States: The Third National Climate Assessment 396, 398 (Jerry M. Melillo et al. eds., 2014).

[37] Robert A. Morton, Introduction to An Overview of Coastal Land Loss: With Emphasis on the Southeastern United States: USGS Open File Report 03-337, https://pubs.usgs.gov/of/2003/of03-337/waves.html (last visited Mar. 18, 2021).

[38] Section 5.2: Coastal Erosion & Sea Level Rise, in State of New Jersey 2019 All-Hazard Mitigation Plan 2 (2019).

[39] Coastal Climate Impacts, USGS, https://www.usgs.gov/centers/pcmsc/science/coastal-climate-impacts?qt-science_center_objects=0#qt-science_center_objects (last visited Feb. 2, 2021).

[40] Campbell, supra note 33.

[41] Quick Facts: New Orleans City, Louisiana, U.S. Census Bureau (2019), https://www.census.gov/quickfacts/neworleanscitylouisiana.

[42] CZMA Overview, NOAA Office for Coastal Management 1, 12 (n.d.).

[43] Coastal Zone Management Act (CZMA), 16 U.S.C. §§ 1451 et seq. (1972).

[44] Coastal Zone Management Act (CZMA): Overview and Issues for Congress, Congressional Research Service (Jan. 15, 2019), https://fas.org/sgp/crs/misc/R45460.pdf.

[45] 16 U.S.C § 1452.

[46] Id. (2).

[47] Id.

[48] The National Coastal Zone Management Program, NOAA Office for Coastal Management, https://coast.noaa.gov/czm/ (last visited Feb. 4, 2021).

[49] Eva Lipiec, Coastal Zone Management Act (CZMA): Overview and Issues for Congress, Congressional Research Service 3, https://www.everycrsreport.com/files/20190115_R45460_1d6c78e274d50e6b7b2b87c895f419945e4c43cb.pdf (last updated Jan. 15, 2019).

[50] Id.

[51] 16 U.S.C. 1455(d); Lipiec, supra note 49, at 2.

[52] 16 U.S.C § 1452(2).

[53] Id. (2)(B).

[54] 16 U.S.C § 1455(D)(2).

[55] Lipiec, supra note 49, at 2.

[56] CZMA Federal Consistency Overview, OCM 3 (Feb. 24, 2020).

[57] 16 U.S.C § 1454; Lipiec, supra note 49, at 3.

[58] 16 U.S.C § 1455(d).

[59] Id.; § 1455; Lipiec, supra note 49, at 3–4.

[60] Coastal Zone Management Act, BOEM, https://www.boem.gov/environment/environmental-assessment/coastal-zone-management-act#:~:text=What%20is%20%22Federal%20Consistency%22%3F,federally%2Dapproved%20coastal%20management%20program (last visited Apr. 10, 2021).

[61] Id.

[62] Id. at 2.

[63] 15 C.F.R. § 923.132 (1992).

[64] Alex Jackson, Coastal Management, Geography AS Notes, https://geographyas.info/coasts/coastal-management/#:~:text=Do%20nothing%20%2D%20The%20easy%20option,to%20the%20government)%20to%20protect (last updated July 6, 2014).

[65] Moorman et al., supra note 13.

[66] Committee on Mitigating Shore Erosion Along Sheltered Coasts, Mitigating Shore Erosion Along Sheltered Coasts, Nat’l. Acad. of Sciences 44 (2007).

[67] Jackson, supra note 64.

[68] Id.

[69] Do Nothing, University of Connecticut, https://beachduneguide.uconn.edu/do-nothing/# (last visited Feb. 19, 2021).

[70] Id.

[71] Ellen M. Douglas et al., Coastal Flooding, Climate Change and Environmental Justice: Identifying Obstacles and Incentives for Adaptation in Two Metropolitan Boston Massachusetts Communities, 17 Mitig. Adapt. Strategy Glob. Change 537, 542 (2012); Physical Management: Coastal Defenses, Geography Site (Nov. 30, 2008), http://www.geography-site.co.uk/pages/physical/coastal/defences.html; Campbell, supra note 33.

[72] Or. Dep’t. of Land Conservation & Dev., Oregon’s Statewide Planning Goals and Guidelines: Goal 18 Beaches and Dunes 2, https://www.oregon.gov/lcd/OP/Documents/goal18.pdf, (last visited Mar. 13, 2021).

[73] Id.

[74] N.C. Ann. Stat. § 113A-115.1(b) (2015).

[75] Id. (c1).

[76] See, e.g., Meg Gardner, Analysis of Shoreline Armoring & Erosion Policies: Along the Oregon Coast, Or. DLCD 7 (Apr. 30, 2015), http://www.beachapedia.org/images/7/78/FINAL_Shoreline_Armoring_Policy_Analysis_Report_April2015.pdf (noting the use of living shorelines to protect popular beaches, like Cannon Beach, from erosion); Brad Rich, Renourishment Project Moves to Phase 3, Coastal Review Online (June 29, 2020), https://www.coastalreview.org/2020/06/renourishment-project-moves-to-phase-3/ (discussing a beach renourishment project along the North Carolina coast).

[77] See generally Jackson, supra note 64 (describing the use of the do-nothing approach as a site-specific determination, rather than a sweeping policy for a state’s coastline).

[78] Managed Retreat, Beachapedia, http://www.beachapedia.org/Managed_Retreat (last updated Oct. 10, 2019).

[79] Miyuki Hino et al., Managed Retreat as a Response to Natural Hazard Risk, Nature Climate Change 364, 364 (Mar. 27, 2017).

[80] Managed Retreat, supra note 78.

[81] Rolling Easement, Wetlands Watch, https://wetlandswatch.org/rolling-easement (last visited Feb. 19, 2021) (a rolling easement is an easement that moves upland as coastlines move inward due to sea level rise and erosion).

[82] Managed Retreat, supra note 78.

[83] Id.

[84] California Coastal Commission to Recommend Eminent Domain to Combat Sea-Level Rise?, Nossaman LLP (Jan. 8, 2019),  https://www.jdsupra.com/legalnews/california-coastal-commission-to-30729/.

[85] Anne Siders, Managed Coastal Retreat, CCL 6 (2013).

[86] Id. at 44.

[87] Id. at 44–45.

[88] Id. at 44 (noting how setbacks, by requiring siting buildings on the upland portions of coastal property lots, protect new development from slow-onset sea level rise and shore erosion).

[89] Rolling Easement, supra note 81.

[90] James G. Titus, Rolling Easements, US EPA 48 (2010).

[91] Id. at 14.

[92] Id. at 15; Some states, like Texas, do not recognize rolling easements for public use, however. Severance v. Patterson, 370 S.W.3d 705, 724 (Tex. 2012) (holding that although a public beachfront easement is dynamic in cases of gradual erosion, a public easement “does not roll under Texas law” following an avulsive event, like a coastal storm).

[93] Managed Retreat, supra note 78.

[94] Id.

[95] Id.; Siders, supra note 85, at 16.

[96] Siders, supra note 85, at 13.

[97] Id.

[98] Takings 101, 7 The SandBar 1, 1 (2008).

[99] Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434–435 (1982).

[100] U.S. Const. amend. V.

[101] United States v. Miller, 317 U.S. 369, 374 (1943).

[102] Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1029 (1992).

[103] Id. at 1018; Takings, Georgetown Climate Center, https://www.georgetownclimate.org/adaptation/toolkits/managed-retreat-toolkit/takings.html (last visited Feb. 27, 2021) (emphasis added).

[104] Lucas, 505 U.S. at 1018.

[105] See Mark Nevitt, Climate Adaptation Strategies: How Do We “Manage” Managed Retreat?, Kleinman Center for Energy Policy (Aug. 25, 2020), https://kleinmanenergy.upenn.edu/research/publications/climate-adaptation-strategies-how-do-we-manage-managed-retreat/ (noting local and state governments often do not have the funds to compensate each land owner a managed retreat regulation affects).

[106] Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978).

[107] Id. at 124–125.

[108] Takings 101, supra note 98.

[109] Penn Central, 438 U.S. at 124–125.

[110] Peter Byrne & Jessica Grannis, Chapter Nine: Coastal Retreat Measures, in The Law of Adaptation to Climate Change: U.S. and International Aspects 276 (Michael B. Gerrard & Katrina Fischer Kuh eds., 2012).

[111] Sam Gross, Managed Retreat and the Life Estate: A Practical Path Forward for Coastal Communities, Virginia Coastal Policy Center 1, 9 (2019), https://www.law.wm.edu/academics/programs/jd/electives/clinics/vacoastal/reports/managedretreat.final.pdf.

[112] Hino, et al., supra note 79, at 364.

[113] Id; Anne R. Siders, Managed Retreat in the U.S., 1 One Earth 216. 216 (2019) (out of the estimated 49 million housing units on U.S. coastlines, only about 40,000 properties have been acquired by the Federal Emergency Management Agency for managed retreat).

[114] State of the Beach/State Reports/ME/Erosion Response, Beachapedia, http://www.beachapedia.org/State_of_the_Beach/State_Reports/ME/Erosion_Response (last visited Mar. 13, 2021); 06-096-1000 Me. Code. R. § 15 (2018).

[115] 06-096-355 Me. Code. R.  § 6 (2018).

[116]  SC Code § 48-39-280 et seq. (2012).

[117] Id. (A)(1); (B).

[118] Adapting to Shoreline Change: A Foundation for Improved Mgm’t. and Planning in South Carolina, South Carolina Dep’t. of Health and Env’t. Control (Apr. 2010), https://scdhec.gov/sites/default/files/Library/CR-009823.pdf.

[119] What is Shoreline Armoring?, NOAA, https://oceanservice.noaa.gov/facts/shoreline-armoring.html (last visited Feb. 27, 2021).

[120] Shoreline Structures, Beachapedia, http://www.beachapedia.org/Shoreline_Structures#:~:text=%22Shoreline%20hardening%2C%20or%20hard%20stabilization,run%20parallel%20to%20the%20beach (last updated Sept. 1, 2020).

[121] 2010 Coastal Habitat Protection Plan, North Carolina 361 (2011).

[122] Id.

[123] Revetments, CTCN, https://www.ctc-n.org/technologies/revetments (last visited Apr. 8, 2021).

[124] Groins and Jetties, NPS (Apr. 5, 2019), https://www.nps.gov/articles/groins-and-jetties.htm.

[125] Id.

[126] Hard Armor, Shore Friendly, http://www.shorefriendly.org/your-options/hard-armor/ (last visited Feb. 27, 2021).

[127] James F. O’Connell, Shoreline Armoring Impacts and Management Along the Shores of Massachusetts and Kauai, Hawaii, in Puget Sound Shorelines and the Impacts of Armoring – Proceedings of a State of the Science Workshop 65 (Hugh Shipman et al., eds., 2010).

[128] Id. at 70; Hard Armor, supra note 126.

[129] Regents of Univ. of Calif., Coastal Armoring, Explore Beaches, https://explorebeaches.msi.ucsb.edu/beach-health/coastal-armoring (last visited Feb. 27, 2021).

[130] Id.

[131] Hard Armor, supra note 126.

[132] Hard Armoring, Wetlands Watch,  https://wetlandswatch.org/hard-armoring (last visited Apr. 18, 2021); Erika Bolstad, “Living Shorelines” Will Get Fast Track to Combat Sea Level Rise, Scientific American (July 6, 2015), https://www.scientificamerican.com/article/living-shorelines-will-get-fast-track-to-combat-sea-level-rise/.

[133] Jenifer E. Dugan et al., Generalizing Ecological Effects of Shoreline Armoring Across Soft Sediment Environments, 41 Estuaries and Coasts 180, 181 (2018).

[134] Eric Staats & Ryan Mills, Shrinking Shores: How Florida Leaders are Failing the State’s Famous Beaches, Naples Daily News (June 29, 2017 10:39 AM), https://www.naplesnews.com/story/news/special-reports/2016/11/11/shrinking-shores-how-florida-leaders-failing-states-famous-beaches/92052156/.

[135] Coastal Armoring Policy and Guidelines, Fl. Dep’t. of Env’t. Protection (Feb. 9, 2016), https://floridadep.gov/sites/default/files/CoastalArmoringPolicy_0.pdf; see, e.g., Florida Shoreline Structures, Beachapedia, http://www.beachapedia.org/State_of_the_Beach/State_Reports/FL/Shoreline_Structures (last modified Jan. 12, 2017) (noting an increase in armoring permits following the 2004 and 2005 active hurricane seasons).

[136] Fla. Admin. Code R. 62B-33.0051 et seq. (2008).

[137] See, e.g., Chris A. Boyd & Niki L. Pace, Coastal Alabama Living Shorelines Policies, Rules and Model Ordinance Manual 9 (n.d.) (an Alabama Geological Survey conducted between 2009-2012 estimated 223 miles of Alabama’s shorelines were armored with hard structures).

[138] Id. at 18.

[139] Id.; Staats & Mills, supra note 134.

[140] Bolstad, supra note 132.

[141] Univ. of Mass. Amherst, Restore and Protect Natural Shorelines: Use Living Shoreline Techniques, Climate Action Tool (2017), https://climateactiontool.org/content/restore-and-protect-natural-shorelines-use-living-shoreline-techniques#:~:text=Living%20shorelines%20refer%20to%20a,other%20natural%20or%20organic%20materials.

[142] Id.

[143] Id.

[144] Id.

[145] Regents of Univ. of Calif., Beach Nourishment, Explore Beaches, https://explorebeaches.msi.ucsb.edu/beach-health/beach-nourishment (last visited Mar. 5, 2021); Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 560 U.S. 702, 709 (2010).

[146] Understanding Living Shorelines, NOAA, https://www.fisheries.noaa.gov/insight/understanding-living-shorelines (last visited Mar. 5, 2021); Univ. of Mass. Amherst, supra note 141.

[147] Understanding Living Shorelines, supra note 146.

[148] Id.

[149] Rachel K. Gittman et al., Marshes With and Without Sills Protect Estuarine Shorelines from Erosion Better Than Bulkheads during a Category 1 Hurricane, 102 Ocean & Coastal Management 94, 98–100 (2014).

[150] Id.

[151] Living Shorelines, Naturally Resilient Communities, http://nrcsolutions.org/living-shorelines/ (last visited Mar. 5, 2021).

[152] Trista Talton, Living Shorelines: Better than Bulkheads, Coastal Review Online (Feb. 8, 2016), https://coastalreview.org/2016/02/12896/.

[153] Id.

[154] Id.

[155] Natural and Structural Measures for Shoreline Stabilization, USACE (2015), https://coast.noaa.gov/data/digitalcoast/pdf/living-shoreline.pdf.

[156] Id.

[157] Regents of Univ. of Calif., supra note 145.

[158] Id.

[159] Id.

[160] Id.

[161] Moorman et al., supra note 13.

[162] Guidance for the Successful Use of Living Shorelines, National Centers for Coastal Ocean Science (2017), https://coastalscience.noaa.gov/project/guidance-living-shorelines/.

[163] Bolstad, supra note 132; Natural and Structural Measures for Shoreline Stabilization, USACE 2–4 (2015), https://coast.noaa.gov/data/digitalcoast/pdf/living-shoreline.pdf (USACE/NOAA report found the most expensive living shorelines may cost up to $1000-$2000 per linear foot to construct and up to $100 per year to maintain, while shoreline armoring generally cost up to $10,000 per linear foot to construct and up to $500 per year to maintain).

[164] Understanding Living Shorelines, supra note 146 (implementation costs for living shorelines are generally cheaper than shoreline armoring because green materials, like vegetation, are less expensive than hard materials, like concrete; maintenance costs are generally lower as well because living shorelines grow over time and can naturally recover from storm and flooding events).

[165] Living Shorelines, Georgetown Climate Center, https://www.georgetownclimate.org/adaptation/toolkits/managed-retreat-toolkit/living-shorelines.html (last visited Apr. 18, 2021).

[166] Justin Aciello, House Passes Bill That Would Create Federal Grant Program to Support “Living Shorelines,” WHYY (Dec. 11, 2019), https://whyy.org/articles/house-passes-bill-that-would-create-federal-grant-program-to-support-living-shorelines/, (executive director of the American Littoral Society describing how living shorelines restore shorelines and habitats, while protecting communities); Bolstad, supra note 132 (Bolstick noting the Corps’ preference towards living shorelines because living shorelines “help[] us in our environmental focus”).

[167] Trista Talton, Corps Eases Living Shoreline Permit Process, Coastal Review Online (Jan. 12, 2017), https://www.coastalreview.org/2017/01/corps-eases-living-shoreline-permit-process/; Bolstad, supra note 132 (shortening the living shorelines permit process to 45 days, rather than the previous 215 days, which gave shoreline armoring a competitive edge over living shorelines in the past).

[168] Auciello, supra note 166 (the bill would provide $50 million in federal funding to state and local governments and organizations seeking to develop living shorelines).

[169] Living Shorelines for Coastal Protection in Southern California, Conservation Biology Institute, https://scwrp.databasin.org/pages/living-shorelines/ (last visited Mar. 13, 2021).

[170] San Francisco Bay Living Shorelines Project, California Coastal Conservancy, https://scc.ca.gov/climate-change/climate-ready-program/san-francisco-bay-living-shorelines-project/ (last visited Mar. 13, 2021).

[171] Id.

[172] NJ Living Shorelines Projects, New Jersey Dep’t. of Env’t. Protection, https://njdep.maps.arcgis.com/apps/MapJournal/index.html?appid=049f4937cbdd437bb496a7aea94acd35&folderid=f4686d3c9a7048efb7a1dd8d877eb3f6 (last visited Mar. 13, 2021).

[173] John K. Miller et al., Living Shorelines Engineering Guidelines 7, https://www.nj.gov/dep/cmp/docs/living-shorelines-engineering-guidelines-final.pdf (last revised Feb. 2016).

[174] N.J. Admin. Code § 7:7-6.24 et seq. (2015).

[175] Building Coastal Resilience through Living Shorelines, NOAA Restoration Center (2019), https://www.habitatblueprint.noaa.gov/wp-content/uploads/2019/10/Fact-Sheet-2019-Living-Shorelines.pdf (as of 2019, the NOAA Restoration Center has supported more than 140 living shorelines around the U.S., noting living shorelines are gaining “national traction”).

[176] Lipiec, supra note 49, at 3.

[177] Coastal Zone Management Programs, OCM, https://www.coast.noaa.gov/czm/mystate/ (last reviewed Mar. 9, 2021) .

[178] Id.

[179] Id.

[180]16 U.S.C. § 1455.

[181] See generally, Coastal Zone Management Programs, supra note 177 (detailing the variety of ways in which states may choose to maintain CMP responsibility within the state government itself).

[182] Id.; MS Code § 57-15-6 (2013).

[183] Coastal Zone Management Programs, supra note 177.

[184] Id.

[185] Georgia Coastal Management Program, Georgia DNR, https://coastalgadnr.org/CoastalManagement (last visited Mar. 9, 2021).

[186] Final Evaluation Findings: California Coastal Management Program, OCM 1 (2019), https://coast.noaa.gov/data/czm/media/california-cmp.pdf.

[187] See generally Dave Owen, Cooperative Federalism, 9 UC Irvine L. Rev. 177, 198 (2018) (arguing “delegating authority to local governments means delegating authority into particularly complex and fragmented institutional terrains”).

[188] Id. at 199.

[189] See generally id. at 202 (noting a local government’s ability to gut state regulatory programs to further the local government’s particular interests or political ideologies).

[190] William R. Rath et al., Oceanfront State Coastal Management Programs 2 (2018).

[191] See generally, Coastal Zone Management Programs, supra note 177 (noting states with lead agencies that oversee collaboration and partnerships with local governments).

[192] Rath et al, supra note 190, at 5.

[193] Id.

[194] Id.

[195] See generally, id. at 7–15 (comparing various ways in which coastal states share CMP regulatory authority with their local governments).

[196] Id.

[197] See generally, About the National Coastal Zone Management Program, OCM, https://coast.noaa.gov/czm/about/ (last reviewed Mar. 10, 2021) (discussing the need for flexibility “to design programs that best address local challenges and work within state and local laws and regulations” in order to strengthen the ability of states to address coastal issues).

[198] La. Stat. Ann. § 49:214.28 (2017).

[199] Local Coastal Management Programs, La. Dep’t. of Nat. Res., http://www.dnr.louisiana.gov/index.cfm?md=pagebuilder&tmp=home&pid=111&pnid=192&nid=194 (last visited Mar. 10, 2021).

[200]N.C. Gen. Stat. §§ 113A-118.1, 113A-119; 15A N.C. Admin. Code 7J.0202

[201] N.C. Gen. Stat §§ 113A-121; 15A N.C. Admin. Code 7J.0202 (2018).

[202] Rath et al., supra note 190, at 15.

[203] Va Code Ann. §§ 28.2-101, 1204, 1306, 1406 (West 2017)

[204] Va Code Ann. §§ 28.2-1302, 1303, 1403 (West 2017).

[205] Or. Land Conservation and Dev. Comm’n., Oregon Coastal Management Program 7, 12–16 (1987).

[206] GA DNR Coastal Res. Div., Chapter One: Overview of the Georgia Coastal Management Program in GCMP Final Environmental Impact Statement 12 (1997).

[207] About the National Coastal Zone Management Program, supra note 197.

[208] See generally, Rath et al, supra note 190, at 2 (noting the unique feature of the CZMA is to afford states flexibility to address unique features and issues, which makes the CZMA more effective overall).

[209] Seth B. Shonkoff et al., The Climate Gap: Environmental Health and Equity Implications of Climate Change and Mitigation Policies in California – A Review of the Literature, 109 Climate Change 485, 486 (2011).

[210] Id.

[211] Dean Hardy et al., Racial Coastal Formation: the Environmental Injustice of Colorblind Adaptation Planning for Sea-level Rise, 87 Geoforum  62, 63 (2017). Without adequate representation in local and state committees, vulnerable communities are left with little protection provided for them. Tracy Fernandez Rysavy & André Floyd, People of Color are on the Front Lines of the Climate Crisis, Green America, https://www.greenamerica.org/climate-justice-all/people-color-are-front-lines-climate-crisis (last visited Apr. 18, 2021) (describing how, following Hurricane Betsy in 1965, local levee boards distributed federal funds for levee construction and maintenance unequally towards predominantly white communities. As a result, white communities had stronger levees than other communities in the area, with white communities’ levees ultimately withstanding Hurricane Katrina in 2005. Meanwhile, over eighty percent of homes lost in 2005 Hurricane Katrina belonged to Black residents).

[212] See, e.g., Hardy et al., supra note 211, at 69 (a study revealed white communities’ interests received priority in scientific and public meetings regarding climate change and sea level rise, despite white communities making up only fifty-six percent of Georgia’s coastal population).

[213] Id. at 63.

[214] Id.; Jacqueline D. Lau et al., Environmental Justice in Coastal Systems: Perspectives from Communities Confronting Change, 66 Global Environmental 1, 8 (2021).

[215] Hardy et al., supra note 211, at 69; see generally, Coastal Zone Management Programs, supra note 177 (summarizing different state CMPs, some of which address planning around arising coastal issues).

[216] Id.

[217] Wisconsin Coastal Management Council, Wisconsin Coastal Mgm’t. Program, https://doa.wi.gov/Pages/LocalGovtsGrants/CoastalAdvisoryCouncil.aspx (last visited Mar. 10, 2021).

[218] Final Evaluation Findings: Wisconsin Coastal Management Program, OCM 13–14 (2018), https://coast.noaa.gov/data/czm/media/WisconsinCMP.pdf.

[219] See supra Section II.

[220] Heather Weitzner, Effects of Erosion and Accretion on Coastal Landforms, New York Sea Grant 1 (Feb. 2016), https://seagrant.sunysb.edu/glcoastal/pdfs/CoastalLandforms.pdf.

[221] Storm Surge Overview, Nat’l. Hurricane Center & Central Pacific Hurricane Center, https://www.nhc.noaa.gov/surge/ (last visited Mar. 12, 2021).

[222] Coastal Flooding, Climate Change, and Your Health, CDC 12 (Nov. 2017), https://www.cdc.gov/climateandhealth/pubs/CoastalFloodingClimateChangeandYourHealth-508.pdf (estimated 2,544 persons).

[223] Living Shorelines, supra note 165.

[224] Richard B. Alley et al., Ice-Sheet and Sea-Level Changes, 310 Science 456, 456 (2005).

[225] Id.

[226] Coastal Resiliency, EPA, https://www.epa.gov/green-infrastructure/coastal-resiliency (last visited Mar. 12, 2021).

[227] Living Shorelines, Florida Dep’t. of Env’t. Protection, https://floridadep.gov/rcp/rcp/content/living-shorelines (last modified June 8, 2020, 11:41 AM).

[228] Donna Marie Bilkovic et al., The Role of Living Shorelines as Estuarine Habitat Conservation Strategies, 44 Coastal Management 161, 165 (2016).

[229] Rowan Jacobsen, As Coastal Flooding Surges, ‘Living Shorelines’ Seen as the Answer, Food & Environment Reporting Network (Mar. 19, 2019), https://thefern.org/2019/03/as-coastal-flooding-surges-living-shorelines-seen-as-savior/ (emphasis added).

[230] Id.

[231] Restore and Protect Natural Shorelines: Use Living Shoreline Techniques, Mass. Wildlife Climate Action Tool, https://climateactiontool.org/content/restore-and-protect-natural-shorelines-use-living-shoreline-techniques  (last visited April 18, 2021) (emphasis added).

[232] See Jacobsen, supra note 229 (research study recorded living shorelines that had lost one third of their vegetation in Hurricane Irene fully recovered within a year).

[233] See generally Chris Dinesen Rogers, Erosion Effects on Ecosystem, Sciencing, https://sciencing.com/about-6085011-erosion-effects-ecosystem.html (last updated Nov. 22, 2019) (discussing habitat loss and effects on wildlife due to erosion); Patty Glick et al., Executive Summary in Sea-Level Rise and Coastal Habitats in the Pacific Northwest, at v (2007), https://www.nwf.org/~/media/PDFs/Water/200707_PacificNWSeaLevelRise_Report.ashx (briefly discussing coastal erosion impacts to migratory species).

[234] See generally id. (noting some species may be able to respond to habitat loss or disruption, but others will not).

[235] Deadly Waters: How Rising Seas Threaten 233 Endangered Species, Center for Bio. Div. 6 (Dec. 2013), https://www.biologicaldiversity.org/campaigns/sea-level_rise/pdfs/Sea_Level_Rise_Report_2013_web.pdf.

[236] Id. at 2.

[237] Id. at 3.

[238] See, e.g., ABT Associates, Eval. of Hurricane Sandy Coastal Resilience Program 18 (Sept. 13, 2019), https://www.nfwf.org/sites/default/files/results/evaluationreports/Documents/hurricane-sandy-final-report-case-studies.pdf (discussing how living shorelines and restoration projects benefitted key coastal species, including migratory and resident fish, birds, and mammals).

[239] Morgan Stanley, Living Shoreline, Nat. Geo., https://www.nationalgeographic.org/encyclopedia/living-shoreline/ (last visited Mar. 12, 2021).

[240] Id.

[241] Understanding Living Shorelines, supra note 146.

[242] Doris Small, Shoreline Armoring, Vital Signs, https://www.vitalsigns.pugetsoundinfo.wa.gov/VitalSign/Detail/16 (last updated Feb. 11, 2021).

[243] Dugan et al., supra note 133, at 181 (the majority of reviewed studies were conducted along the Atlantic, Pacific, and Gulf coasts).

[244] Understanding Living Shorelines, supra note 146.

[245] ABT Associates, Case Study: Cost Effectiveness of Reducing Coastal Erosion Through Living Shorelines in the Hurricane Sandy Coastal Resilience Program 7 (2019), https://www.nfwf.org/sites/default/files/hurricanesandy/Documents/hurricane-sandy-living-shoreline-case-study.pdf.

[246] Emily J. Powell et al., A Review of Coastal Management Approaches to Support the Integration of Ecological and Human Community Planning for Climate Change, 23 J. Of Coastal Conservation 1, 12 (2019).

[247] Jennifer Allen, Living Shoreline Cost Depends on Site, Size, Coastal Review Online (Dec. 17, 2019), https://www.coastalreview.org/2019/12/affordability-key-in-pricing-living-shorelines/.

[248] Tom Herder, Living Shorelines: A Guide for Alabama Property Owners, Ala. Dept. of Nat. Res. and Mobile Bay Nat’l. Estuary Program 19 (2014), http://www.mobilebaynep.com/images/uploads/library/Living_Shorelines-10_30_14-Proof.pdf.

[249] Living Shorelines, supra note 165.

[250] Herder, supra note 248, at 5.

[251] Id. at 4; Trista Talton, Evidence Mounts of Shorelines’ Success, Coastal Review Online (Feb. 9, 2016), https://www.coastalreview.org/2016/02/12920/.

[252] The Costs of Shoreline Stabilization, South Atlantic Alliance (April 17, 2016), http://southatlanticalliance.org/wp-content/uploads/2016/04/17-Hoffman-The-Costs-of-Shoreline-Stabilization.pdf.

[253] See Allen, supra note 247 (discussing living shorelines sustaining only minor damage through two hurricanes in North Carolina); Herder, supra note 248, at 5 (stating living shorelines have been recorded to “perform as they did pre-storm”); Talton, supra note 251 (noting researchers’ evidence of living shorelines recovering quickly from storms without human intervention).

[254] Allen, supra note 247.

[255] Bulkhead Repair, Marine Clean Safety & Prevention, http://www.marineclean.com/Bulkhead%20Repair/ (last visited May 26, 2021).

[256] How Much Does It Cost to Repair a Seawall?, Reliable Counter (Oct. 31, 2019), https://www.reliablecounter.com/blog/how-much-does-it-cost-to-repair-a-seawall/#:~:text=The%20cost%20of%20seawall%20repair%20or%20installation%20varies,the%20seawall%20and%20the%20depth%20of%20the%20waterway..

[257] Id.

[258] See Univ. of Mass. Amherst, supra note 141 (discussing living shorelines’ capacity for self-repair following disturbances like coastal storms).

[259] Jacobsen, supra note 229.

[260] Id.

[261] Id.

[262] Carter S. Smith et al., Hurricane Damage Along Natural and Hardened Estuarine Shorelines: Using Homeowner Experiences to Promote Nature-Based Coastal Protection, 81 Marine Policy 350, 353–355 (2017).

[263] Living Shorelines Initiative, Northern Neck Planning District Commission, http://www.northernneck.us/living-shorelines-initiative/ (last visited May 26, 2021).

[264] Brad Rich, Report Cites Benefits of Living Shorelines, Coastal Review Online (July 27, 2015), https://coastalreview.org/2015/07/report-cites-benefits-of-living-shorelines/.

[265] Id.

[266] See Living Shorelines Along the Georgia Coast: A Summary Report of the First Living Shorelines Projects in Georgia, Georgia Dep’t. of Natural Resources 5–6 (2013), https://gadnr.org/sites/default/files/crd/CZM/Wetlands-LS/LivingShorelinesAlongtheGeorgiaCoast.pdf (noting the aesthetic value provided by living shorelines has helped bring $1.9 billion to coastal Georgia’s tourism industry annually).

[267] Travis O. Brandon, Nationwide Permit 13, Shoreline Armoring, and the Important Role of the U.S. Army Corps of Engineers in Coastal Climate Change Adaptation, 46 Env’t. Law 537, 553–554 (2016).

[268] Id.

[269] Arian Brucal & John Lynham, Coastal Armoring and Sinking Property Values: The Case of Seawalls in California, 23 Env’t. Economics and Policy Studies 55, 56 (2021).

[270] 16 U.S.C. § 1452(2)(A).

[271] Id. at (2)(C).

[272] See generally Coastal Zone Management Act, OCM, https://coast.noaa.gov/czm/act/ (last visited May 25, 2021) (noting the goal of the CZMA is to “preserve, protect, develop, and where possible, to restore or enhance the resources of the nation’s coastal zone”).

[273] Living Shorelines, supra note 165.

[274] See supra, Section V.

[275] Restore and Protect Natural Shorelines: Use Living Shoreline Techniques, supra note 231.

[276] Three Living Shorelines Creating Habitat, Protecting the Gulf Coast, NOAA (July 30, 2019), https://www.fisheries.noaa.gov/feature-story/three-living-shorelines-creating-habitat-protecting-gulf-coast.

[277] Id.

[278] Ben Sherman, NOAA Study Finds “Living Shorelines” Can Lessen Climate Change’s Effects, NOAA (Dec. 16, 2015), https://www.noaa.gov/media-release/noaa-study-finds-living-shorelines-can-lessen-climate-change-s-effects (the study focused on 124 living shorelines in North Carolina, finding the salt marsh shorelines stored enough carbon to offset 64 metric tons of carbon dioxide per year – the equivalent of burning 7,500 gallons of gasoline. The study concluded that converting just ten percent of North Carolina’s coastline to living shorelines would result in an additional offset of 870 metric tons annually – the equivalent of burning more than 100,000 gallons of gasoline).

[279] See supra Section V.A.

[280] See supra Section V.B.

[281] Sea Walls’ Impact on Water Quality, Glen Lake Ass’n. (Nov. 12, 2020), https://www.glenlakeassociation.org/sea-walls-impact-on-water-quality/.

[282] Emily Sweeney, Coastal Communities Rush to Repair Damaged Sea Walls Before Next Nor’easter, Boston Globe (Mar. 6, 2018, 3:05 PM), https://www.bostonglobe.com/metro/2018/03/06/coastal-communities-rush-repair-damaged-seawalls-before-next-nor-easter/CFwJDaHAbLPIi3KCRIdhxN/story.html.

[283] Id.

[284] Sea Walls’ Impact on Water Quality, supra note 281.

[285] See generally id.; see supra section V.A; see supra Section V.B; Sweeney, supra note 282.

[286] 16 U.S.C. § 1452(2)(A); Id. (2)(C).

[287] Lorenzo Mentaschi et al., Global Long-Term Observations of Coastal Erosion and Accretion, 8 Scientific Reports 1, 2 (2018).

[288] Weitzner, supra note 220, at 1; Alley et al., supra note 224, at 456.

[289] Nickolai Shadrin, Coupling of Shoreline Erosion and Biodiversity Loss: Examples from the Black Sea, 3 Int’l. J. of Marine Science 352, 352 (2013).

[290] Univ. of Mass. Amherst, supra note 141.

[291] Living Shorelines: Design Options – Oyster Reefs, Center for Coastal Resources Mgm’t. (2017), http://ccrm.vims.edu/livingshorelines/design_options/oyster_reef.html#:~:text=Restoration%20of%20the%20native%20oyster,structures%20to%20increase%20habitat%20diversity.

[292] Living Shorelines: Design Options – Marsh Sill with Planted Marsh, Center for Coastal Resources Mg’mt. (2017), http://ccrm.vims.edu/livingshorelines/design_options/marsh_sill_planted.html.

[293] See generally Emily J. Powell et al., supra note 246, at 12 (comparing the costs of various living shoreline materials against shoreline armoring structures).

[294] See generally, World of Change: Coastline Change, NASA Earth Observatory, https://earthobservatory.nasa.gov/world-of-change/CapeCod (last visited Mar. 18, 2021).

[295] Lipiec, supra note 49, at 2–3.

[296] Rath et al, supra note 190, at 5.

Zap the Sleeping Giant: Revamping Order 1000 to Facilitate Decarbonization Across the Western United States

Feb. 3, 2022   /   Benjamin Criswell

 

Synopsis

Across the United States, public policies with ambitious decarbonization requirements affect electricity systems spanning various jurisdictions and geographies. In 2011, the Federal Energy Regulatory Commission issued Order 1000, recognizing the importance of incorporating federal, state, and local public policy requirements into regional and interregional transmission planning and coordination. Alas, Order 1000 has failed to reconcile electricity grid balkanization across the western United States. This failure threatens to thwart decarbonization efforts, expose electricity customers to unfair rates, and undercut grid reliability. But even without new federal legislation, the Commission could revamp Order 1000 and leverage existing statutory mechanisms to facilitate the creation of transmission systems sufficient to comport with decarbonization goals and other public policy requirements.

You can read the full Comment here.

 

Additional Thoughts

This was a difficult paper to write because the world of electricity is rapidly evolving. As I note in the Forward, during the editing and publishing of this Comment, the United States enacted legislation and initiated a rulemaking process set to transform the development and management of the electricity grid. Further, CAISO (the grid administrator in California) released its first-ever “20-year Transmission Outlook.”  NorthernGrid, a recently-formed transmission planning region combining former members of ColumbiaGrid and NTTG (including Bonneville Power Administration), published its most recent Regional Transmission Plan. The Northwest Power and Conservation Council is nearing completion of its Eighth Power Plan. And the Northwest Power Pool continues developing its Western Resource Adequacy Program.

The Western Interconnection is at a critical and exciting moment. Policymakers continue to recognize the decarbonization imperative and accordingly plan for a grid that will feature greater contributions from wind, solar, batteries, and other technologies that reduce carbon emissions associated with our electricity systems. As regional and interregional plans take shape, stakeholders, regulators, and lawmakers must ensure the resulting monumental investments are prudent and compatible with a clean energy future.

New Issue of Environmental Law (Vol. 51, Iss. 4)

Feb. 2, 2022   /   Online Journal Editors

 

Check out Volume 51, Issue 4 of Environmental Law! You can see the Table of Contents here, and you can access the full articles here.

This Issue features writing from a variety of practitioners, academics, students, and more. Topics include coal plant closures, corporate governance, sustainable investment, animal agriculture, electricity transmission planning, climate change, carbon capture and storage, and even a constitutional right to fish!

 

 

willamette river cleanup water quality law

Superfund Conference 2022 Resources

Jan. 26, 2021   /   Benjamin Criswell & Holly Duncan

EPA Resources

 

Oregon Resources

 

General Resources