Originally Published in the Daily Journal - November 29, 2013.
In 2008, former Gov. Arnold Schwarzenegger signed an executive order calling for the development of a statewide strategy and ordered state agencies to plan for sea level rise impacts. And Oct. 14, following Gov. Jerry Brown's call to action following a series of hearings on the subject, the California Coastal Commission published its long-awaited Draft Sea-Level Rise Policy Guidance. The commission is now accepting comments at its monthly meetings through Jan. 15, 2014. Land use lawyers and their coastal zone clients will need to understand and follow this emerging "guidance" closely; a notoriously tough regulatory review process is likely to become even tougher in the context of emerging accommodation and avoidance policies.
The commission, its scientific advisors, and coastal property owners are focused on attaining the "best available science" in predictive modeling of sea level rise. The draft guidance references a set of four global sea level rise scenarios ranging from 8 inches to 6.6 feet by the year 2100. Impacts from a potential 4 to 5.5 feet of sea level rise in California's coastal zone could include flooding and inundation, coastal bluff and beach erosion, changes in sediment supply and movement, increased salt water intrusion into ground water and aquifers, and upwards of $100 billion in property damage.
Sea level rise adaptation strategies and policies must be implemented by the commission in the same manner as the Coastal Act and coastal regulations are implemented: (1) through new or updated Local Coastal Programs (LCPs); or (2) through direct application of Coastal Act provisions and regulations to Coastal Development Permit (CDP) applications. Expectations are that new commission regulations will be applied as such.
Strategies fall into three main categories: protection, accommodation and retreat. Local governments can protect developed coastal areas, or public facilities with shoreline protective devices such as seawall/bulkhead structures. These devices or "hard armoring" are permitted by the Coastal Act when necessary to serve "coastal dependent uses" or protect specified "existing structures" from erosion. However, other Coastal Act provisions come into play in permitting such protective devices and may require significant and costly mitigation for adverse impacts to shoreline sand supply. In 2008, the Court of Appeal upheld a commission-imposed mitigation fee of $5.3 million for lost recreational beach area as a condition of issuing CDPs. See Ocean Harbor House Homeowner's Association v. California Coastal Commission, 163 Cal. App. 4th 215 (2008).
Accommodation strategies are implemented through a local government's LCP and zoning or building codes to require new construction in the coastal zone be designed to mitigate adjacent public (e.g., beach areas) property damage in the event of a significant and destructive storm or tidal surge. Where a local government has authority to approve CDPs, extensive, and expensive, mitigation measures can and will be imposed to address public access or recreational losses.
The draft guidance document's retreat policies suggested for an adoption of or update of an LCP, will be the most controversial aspect of these incipient policies. "Actions to minimize" impacts identified in the LCP guidance section include:
Limiting new development in hazard areas;
Converting coastal property vulnerable to sea level rise to conservation or open space;
Adding additional development conditions including increased setbacks from bluff edges, requiring applicants to waive right to shoreline protection in the future, payment of sand loss mitigation fees.
As of 2012, more than 78 percent of LCPs are out of date; many have not been updated since the 1980s. The vast majority of California LCPs fail to address the economic or environmental impacts of sea level rise. Obsolete LCPs are not only a missed opportunity for involvement in planning by agencies and local governments, but are also a hindrance to healthy environmental and economic development. Faced with the long-term challenges of potentially significant sea level rise, out of date LCPs and plans that do not address climate change are no longer an option and are unlikely to advance forward in the commission certification process.
The LCPs are basic planning tools that local governments create and have approved by local city councils or boards of supervisors. Locally approved LCPs must then be approved by the commission to be consistent with Coastal Act policies. Once approved, an LCP is utilized by local governments and planners to guide development in the coastal zone.
LCPs establish the type and intensity of development allowed in the coastal zone. LCPs:
Are required by the Coastal Act for each coastal jurisdiction;
Must specify the kind, location, and intensity of land uses, the applicable resource protection and development policies and implementing ordinances, and must be developed with the widest opportunity for public participation;
Are developed by local governments, and, once certified by the commission, the local government assumes responsibility for issuance of most coastal development permits pursuant to the certified LCP;
Address specific land use considerations unique to the area.
There are myriad benefits to ensuring that the local government within which a lawyer's client's property is located has a current, approved LCP. Not only is the coastal permitting process more expeditious in coastal zone segments with a current, certified LCP, but the state commission retains permitting authority with the primary standard of review for CDP applications, not the city's or county's LCP, but the Coastal Act itself.
The commission's guidance provides a road map for addressing sea level rise in the context of the key Coastal Act issues. Planning and locating new development - of key interest to private applicants and their lawyers - includes an inventory and map of all land uses vulnerable to sea level rise, a controversial LCP planning program to convert properties vulnerable to sea level rise to conservation or open space, limitation on ground level habitable space, limitation on the duration of validity of building permits, and policies requiring new development to be safe from bluff retreat, waves or flood hazards without the use of any shoreline protection device.
Practitioners should expect to see expanded wildlife corridors, increased width of ESHA buffer zones, "clustered development" policies to limit incursion into sensitive coastal habitat; as well as other regulations protecting scenic resources and agriculture.
The U.S. Supreme Court takings decisions and the Coastal Act prohibit the commission and local governments from exercising their authority to process, review and condition CDP applications in a manner that will take or damage private property without just compensation.
The sea level rise guidance policies as implemented by the commission in coming years will create complex and costly legal and planning work for California's land use lawyers, planners, civil engineers, local governments and the commission itself.
In addition, the cost of determining local sea level rise and storm-surge/flooding effects including precise identification of areas and properties vulnerable to sea level rise impacts is likely to take years and involve the expenditure of hundreds of millions of public and private dollars.