Following Hurricane Sandy, coastal communities were reminded of the fragile nature of the coast. Sea level is rising – there is no question about that – whether or not it is accelerating may still be open to debate. However, the intensity and frequency of storms appears to be increasing. While many coastal communities struggle with the aftermath of Hurricane Sandy, these and other communities will need to develop and implement a strategy to maintain a sustainable beach in the near and long-term future. This strategy will not only have to take into account sea-level rise and the potential for more frequent and intense weather events, but will also need to account for a decrease in state and federal funding for shore protection projects.
In developing this strategy, coastal communities should conduct a "beach audit" to evaluate their existing shore protection program, identify objectives to reach their desired program, and general recommendations to meet these objectives. Following this beach audit, coastal communities should develop and implement a strategic plan to meet their objectives of a healthy, sustainable beach.
A beach audit will depend on unique, specific facts and issues that each beach community faces and each community's objectives. General principles that may be considered in a beach audit, however, are discussed below.
Beach Audit
Document Existing Policy and Identify Objectives
A beach audit should begin with documenting the coastal community's existing plan to address its shore protection needs and objectives. This may include the following:
- Funding sources and likelihood of continued funding;
- Authorized and past beach renourishment projects;
- Sources of sand, including quantity and quality;
- Structures, if any (entity constructed and responsibility to maintain, purpose, whether meeting purpose, adverse impacts, etc.);
- Technical reports;
- Monitoring program, if any;
- Public access policies;
- Dredging and funding of navigation channels; and
- Economic impact of the beach to the community and return to the State (e.g., tax base, jobs, sales tax, etc.).
Based on a review of the information listed above, the community should develop short-term and long-term objectives that may address, among others, funding, sand sources, monitoring, structures, targeted retreat from vulnerable areas, public access, limiting potential liability, flood protection on the ocean and sound side, avoiding conflicts with offshore oil and gas and renewable energy projects and infrastructure, and evaluating potential legal claims and defenses.
Identify Pending and Recent Legislation and Regulatory Issues
To ensure that a coastal community's beach plan is up-to-date and addresses potential concerns and opportunities, coastal communities should evaluate and monitor pending and recent legislation and regulation at the state and federal level. This includes legislation related to any federal Water Resources Development Act, disaster relief, earmarks, sea level rise, structures, dredged material quality, funding, and other issues.
Evaluate Potential Legal Challenges and Claims
Coastal communities should evaluate potential legal challenges and claims to avoid and minimize potential liability and identify other opportunities to preserve and maintain their beaches.
In evaluating potential liability of a coastal community, the analysis must start with government immunity. Local governments have traditionally been immune from liability for governmental activities. Over the past few decades, however, local government immunity has been eroded through (i) statutes waiving immunity for certain types of claims and specified functions (i.e., torts); (ii) waiver of immunity to the extent insurance coverage exists; and (iii) waiver of immunity for judicial and/or legislative functions. Because certain statutes may override a statute imposing liability and other statutes may exempt government entities from certain liabilities, an analysis of state law regarding local government immunity is appropriate.
In a number of states, statutes waive local government immunity for specified torts or specified municipal activities. For example, with respect to coastal issues, local governments have been or could be held liable for failure to enforce zoning and sand dune protection ordinances or failure to warn regarding rip currents or dangerous surf if (i) these conditions are altered as a result of human activities and (ii) the local government has knowledge of the dangerous conditions and could have taken measures to protect against the dangerous conditions.
Local governments, acting for the public, have long exercised powers that may affect individual property owners' use of their land, including the power to tax private property, take property under eminent domain (with compensation), and establish rules with the police power to enforce them. As a result, local governments may have claims filed against them in connection with beach renourishment projects or beach access (i.e., taking of private property rights). In addition, the easement agreements that they enter into with beachfront property owners to conduct beach renourishment projects may play a critical role in deciding the outcome of takings claims. By further example, beachfront property owners may claim that local ordinances regulating unattended beach equipment (i.e., "cabana ordinances") or emergency vehicle traffic on the dry sand beach constitutes a taking of private property rights. Finally, coastal communities should be aware of their ability (or inability) to order the removal of structures on the dry sand beach pursuant to either the public trust doctrine and/or their power to abate public nuisances.
Local governments should also be familiar with their obligations under the Endangered Species Act. The Endangered Species Act is intended to conserve endangered and threatened species' habitat and the endangered and threatened species themselves. As discussed below, beach renourishment and shore protection projects have the potential to impact listed species, including sea turtles, shore birds, and certain vegetation.
Whether a beach renourishment project is carried out by the U.S. Army Corps of Engineers or the local government takes the lead, incidental takes of endangered or threatened sea turtles have the potential to delay or halt a project. Moreover, if the Corps is not the lead agency and the source of sand is in federal waters (i.e., three miles or more offshore), a stand-alone Biological Opinion will be required, which will likely include additional reasonable prudent measures ("RPMs") (i.e., relocation trawling, non-lethal incidental take limits, lower lethal incidental take limits, etc.). The preparation of a stand-alone Biological Opinion and additional RPMs has the potential to delay or halt beach renourishment projects. In addition to sea turtles, the U.S. Fish & Wildlife Service may require potential piping plover habitat to be evaluated prior to conducting a beach renourishment project. As a result of recent storms, such as Hurricane Sandy, recently transported sand may now be considered piping plover habitat. Depending on the location, right whales and short-nosed and Atlantic sturgeon, as well as other listed species, may also be a concern.
In addition, there is some case law (although this is the minority position) that suggests a local government may be liable under the Endangered Species Act because an ordinance – or lack of regulation – results in a take of a listed species.
Another potential issue for coastal local governments is the Coastal Barrier Resources Act ("CBRA"). Enacted in 1982, CBRA designates undeveloped coastal barriers to be included in the Coastal Barrier Resources System ("CBRS") and restricts most federal expenditures and financial assistance, including federal flood insurance, that tend to encourage development in the CBRS. The U.S. Fish & Wildlife Service ("FWS") recently conducted a digital mapping pilot project for approximately 10 percent of the CBRS and was directed to create digital maps of the remaining CBRS. If approved by Congress, the pilot project would result in a net addition of 23,840 acres (primarily wetlands and water) and reclassification of certain areas. This could result in significant impacts to coastal local governments.
Finally, and perhaps most importantly, sand is critical to any coastal community. In addition to building the beaches and dunes, it (either nearshore, offshore or uplands) can be used as a source for beach renourishment projects. The sand, however, does not stay in one location. It is moved up and down the coast and offshore and onshore as a result of waves, currents, and wind. Structures that trap sand (jetties, groins, etc.) or alter currents (seawalls, etc.) and dredging projects that remove sand from the littoral system may result in claims for or against coastal communities.
In carrying out a beach audit, these types of claims should be analyzed.
Recommendations
In preparing a beach audit, coastal communities should identify recommendations on how they will meet their objectives. These recommendations will be specific to each beach community depending on its existing program and objectives, but may include: federal, state and local funding issues and opportunities, permitting and implementing a local beach renourishment project, regional sediment management, interlocal agreements, identifying new sand sources, methods to avoid or minimize liability, easements, endangered species issues, potential conflicts with other communities, mitigation of coastal impacts caused by third parties, avoiding regulatory delays and impediments, public relations, as well as others.
Conclusion
In the uncertain climate of state and federal funding for shore protection projects and as sea level continues to rise and the frequency and intensity of storms increase, coastal communities can no longer sit passively and solely rely on the state and federal government to design and implement shore protection projects. Coastal communities must move beyond reactionary policies and need to be proactive and identify and implement their vision for a sustainable and healthy beach. This process should start with conducting a comprehensive beach audit, which is intended to provide an overview of the coastal community's existing beach policy and ordinances and make recommendations to maintain a sustainable beach for recreation, tourism, and shore protection while avoiding pitfalls and legal disputes along the way.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.