Recovery Efforts and Legal Issues. Caroline Karp. Senior Lecturer Brown University

Transcription

1 Recovery Efforts and Legal Issues Caroline Karp Senior Lecturer Brown University

2 When retreat is the better part of valor: Analysis of (Some) Strategies to Incentivize Retreat from the Shore EBC/RISEP Rhode Island Chapter Program: - Extreme Weather & Climate Change: Science & Solutions in Rhode Island Feb 26, 2013 Caroline A. Karp Center for Environmental Studies Brown University 2

3 When is retreat the better part of valor? If the waves crash up against the beach, eroding dunes and destroying homes, it is not the awesome power of Mother Nature. It is the awesome power of Mother Nature as altered by the awesome power of man, who has overpowered in a century the processes that have been slowly evolving and changing of their own accord since the earth was born. B. McKibben. The End of Nature 51 (1989) Caroline A. Karp Center for Environmental Studies Brown University 3

4 2012: 11 climate disasters that cost >$1B Hurricane Sandy -- $50- $75B 4

5 We have a 100-year flood every two years now Governor A.Cuomo to President Obama "Nothing sells flood insurance like a flood Dr. R.Hartwig, President, Insurance Information Institute In spite of FEMA reqts re. mandatory flood insurance, lender responsibility + experience, Only 15 to 25% of at-risk properties in Special Flood Hazard Areas (SFHAs) in the Northeast were insured for flood losses in fall 2012 Nationally, (est) 18% of Americans in identified flood zones have flood insurance 5

6 Coast Guard House 2012 Indian Neck section of Branford Towers and CG House 2012 Waterfront condos in the Fort Trumbull section of Milford Browning cottages Matunuck, RI Pequot Road in Southport East Haven Atlantic Ave in Misquamicut Seaside, NJ area 2012 of Westerly Quonset State Airport Indian Neck section of Branford USCG Station New London 6

7 USGS Impact 4 Coastal Change Hazard Given the importance of the Ocean State s beaches to the tourism economy, the maintenance - and rebuilding, when necessary - of our beaches seems like a no-brainer. (Faulkner and Fisher Shoring up the shoreline isn't cheap 2011) Cost: $626,860 (2011USD) to replenish Narr Town Beach [= ~$10.50/yd3 X 60,000 yds 3 ]... Total damages for Sandy? $12-15B; $5-10 insured (NYT )

8 1.04 to 1.4 meters (3.4 to > 4.6 feet) by 2100 under the rapid ice melt scenario Heffner et al. Climate change & Rhode Island s coasts 2012 Freedman. Climate change and Rhde Island s coast: Where will tomorrow s shoreline be? (2008) 8

9 RIDOP. Land Use 2025: RI State Land Use Policies and Plan (2006) 9

10 Trend is not destiny R.Dubos Federal, State and local govts and private sector have adequate legal authority to address risks associated with current and future devpt in coastal Flood Hazard Areas Federal, State and local govts and private sector have the ability (and the duty) to shape the future in a way that protects public health, economic interests in the shore, functioning ecosystems and ecosystem services. 10

11 TYPOLOGY OF NON-/GOVERNMENTAL OPTIONS TO MOTIVATE RETREAT FROM SFHAs 11

12 RETREAT IS THE BETTER PART OF VALOR SOME PUBLIC/PRIVATE SECTOR OPTIONS MOST EFFECTIVE RE BEHAVIOR CHANGE AND PROTECTION OF PHS&ENVT PUBLIC SECTOR MITIGATE EMISSIONS AND BEGIN TO RETREAT. BUILD LIVING SHORELINE; ENFORCE FEMA PROHIBIT REBUILDING AND FUTURE DEVPT IN SFHAs**; ESTABLISH STATE CoBRA and ABANDON PUBLIC INFRA-STRUCTURE ESTABLISH SLR AND ELEVATION-ADJUSTED FLOOD and EROSION HAZARD OVERLAY DISTRICTS; MANDATE INSURANCE; REQUIRE CATASTROPHE BONDING; GROWTH BOUNDARY+ TDRs + PUBLIC TRUST (PT) MITIGATION BANK ADOPT CORRECTED NFIP MAPS + DISCLOSURE + RECORDING PRIVATE SECTOR OFFER MANDATORY MULTI-YEAR, RISK-BASED INSURANCE (OR DENY INSURANCE) AND MONITOR & REGULATE CONSTRUCTION BY POLICYHOLDERS. ESTABLISH PRIVATE PUBLIC TRUST MITIGATION BANK OFFER MANDATORY MULTI-YEAR INSURANCE LEAST EFFECTIVE RE BEHAVIOR CHANGE AND PROTECTION OF PHS&ENVT ALLOW REBUILDING W/ ELEVATION +/-TAX INCENTIVES and EXACTIONS, E.G., SETBACKS, ROLLING EASEMENTS EDUCATION RE CLIMATE CHANGE AND SLR HARD ARMORING AND DISASTER RELIEF; ACQUISITION OF RLPs VIA EMINENT DOMAIN OFFER VOLUNTARY INSURANCE LOANS to ENABLE REBUILDING IN CURRENT, PROJECTED A, V ZONES 12

13 Trend is not destiny: Retreat is the better part of valor I. State and local govts have the authority to take the riskiest properties in SFHAs to protect public health, safety welfare and the envt II. State, local govts have the authority to regulate or prohibit existing and future devpt in SFHAs even if regulation results in loss of all economically beneficial use based on duty to protect phs and to administer Public Trust interests for the benefit and security of all people. Aerial photo of Misquamicut Beach

14 Trend is not destiny. What if a coastal greenway or living shoreline that protects coastal property, public access, water-dependent uses, functioning ecosystems and ecosystem services was established around the perimeter of the Bay? 14 SEE MD Critical Areas Program

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16 When is retreat the better part of valor? Waterfront condos in the Fort Trumbull section of Milford Overwash and beach erosion

17 We have a 100-year flood every two years now (Governor Cuomo to President Obama ) HISTORIC SEA LEVEL RISE-Newport, RI Heffner et al. Climate change & Rhode Island s coasts

18 5 th Amendment Takings Analysis Can State, local govts regulate or prohibit devpt of property even if it results in loss of all economically beneficial use? 18

19 When retreat is the better part of valor I. Can State, local govts take at-risk and repetitive loss property? YES. II. Do State, local govts have the authority to regulate existing and future coastal devpt that is at increased risk from inundation, erosion and/or storm surge due to global warming even if regulation results in loss of all economically beneficial use? a. Require disclosure and Impose risk-based assessments, exactions, perf. bonds? YES. b. Establish and require or limit access to a State-supported flood insurance pool? YES. c. Negotiate, acquire or require setbacks, buffers from MHT, coastal features? YES. d. Limit re-building after major damage (>50%)? YES. Prohibit re-building in high risk, unbuildable area? e. Limit responsibility to repair, replace, build public infrastructure? YES. 1 9 YES. Public Trust Doctrine State duty to protect PTD interests seaward of mean high tide (MHT) - Rolling easements - Require performance bond and/or - Require rent for occupation of PT lands Prevent Public Nuisance - Mandatory setbacks, buffers - Erosion Control Easements - ID unbuildable areas

20 When retreat is the better part of valor: PDRs, Easements and Tax Incentives Rolling Easements See TX Open Beaches Act; MD Critical Areas Program; Worcester County Coastal Bays Rural Legacy Area; SC Beach Front Management Act (1998) Erosion Control, Flood Hazard Easements Zoning overlay districts +/- tax incentives 20

21 The adaptable little pink house Built Moved to Fort Trumbull Area near mouth of Thames River 1980s restored by A.Gregory 1997 Sold to S.Kelo 2005 Kelo v. City of New London 2008 Bought by A.Gregory and moved to Franklin St, New London 21