Abstract
As sea levels rise, coastal wetlands are encountering physical barriers to inland migration in a phenomenon known as “coastal squeeze.” Specifically, wetlands are being squeezed between sea-level rise on one side and human development on the other preventing their natural ability to adapt by moving to higher ground. State and local coastal governments have legal and policy tools available to adapt to sea-level rise and limit the impacts of coastal squeeze on migrating wetlands. This article presents legal and policy tools and considerations governments could evaluate to facilitate long-term wetland conservation and migration to maximize benefits for people, the environment, and economies. This article first provides legal background on the law and federal, state, and local actors that could impact state and local decisions. This article then identifies five primary components of a comprehensive wetland migration strategy for state and local coastal governments: (1.) data; (2.) planning; (3.) voluntary land acquisitions; (4.) legal tools; and (5.) community engagement. This article also includes case study examples. Decisionmakers could potentially integrate any of these five components into existing coastal, environmental, land-use, and climate adaptation efforts to align policy objectives to protect wetlands across different programs and projects.
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Notes
It should be noted, however, that increasing wetland elevation by supplementing sediment supplies may not be a solution in all locations or over the long term where the rate of sea-level rise will outpace sediment additions. This type of strategy can allow wetlands to persist longer in place, but may not allow them to remain in perpetuity. See, e.g., Blackwater 2100 discussed infra (wetland “persistence”); see also Kirwan et al. (2010), Schile et al. (2014), Kirwan et al. (2016a).
A third possible management response is to allow wetlands to be lost. Since the focus of this article is to suggest legal and policy tools that can be used to facilitate wetland migration and conservation, that management strategy is acknowledged but will not be discussed herein.
The Clean Water Act enables the Corps to regulate the discharge of pollutants into “waters of the United States,” including those that involve the dredging or filling of wetlands or waterways. These types of activities precipitated by new development or redevelopment may require a permit from the Corps. Clean Water Act (or Federal Water Pollution Control Act), 33 U.S.C. § 1344 (2020) (“Permits for dredged or fill material”).
Under the Rivers and Harbors Act, any activity that obstructs “navigable waters” requires a permit from the Corps.
Note, this recommendation implies that, before or in tandem with collecting, analyzing, and evaluating data, state and local decisionmakers should determine wetland management objectives. While this should ideally be an iterative process between assessing and refining policy and management objectives in response to data and vice a versa, it is important to acknowledge that data should not be produced in a vacuum even though the determination of management objectives is not discussed in depth in this article. For a related, but incomplete discussion on this point, also see infra on community engagement.
Success, as in any decisionmaking process, would be determined by the metrics, outcomes, and objectives set at the outset; however, here, success can be loosely defined for areas where wetlands are reasonably capable of migrating and establishing further inland compared to their current location. Non-successful projects could include locations where sea-level rise will outpace the ability of wetlands to migrate to higher ground despite the acquisition of land or removal of structural barriers; or where significant changes in elevation (e.g., cliffs) directly abutting the coast would outright prevent wetland migration.
Information contained within this subpart is sourced from: The Conservation Fund et al. (2013) and interview notes with some of the plan’s authors, which are on file with the author of this article.
It is important to distinguish between land acquisition programs that have different objectives for either open space conservation or hazard mitigation. Some state and local governments have buyout and acquisition programs and policies for the primary purpose of acquiring land for open space or recreational purposes (e.g., parks, trails) or as working lands (e.g., agriculture, forest). This open space or natural resource management focus contrasts with programs and policies targeting lands for hazard mitigation purposes (e.g., to reduce flooding). Comprehensive approaches to facilitate wetlands migration and conservation would benefit from the development and implementation of both types of programs.
In addition to voluntarily purchasing private land outright, governments may also obtain public title to private land in the future as sea levels rise and shores migrate inland. This could affect local tax bases and state and local jurisdiction over public lands. For a discussion of how sea-level rise may affect or alter the legal boundary and distinction between public and private lands in coastal areas, see Byrne (2012).
New York City Department of Environmental Protection’s Land Acquisition Program (LAP)—designated to acquire and preserve land in the New York City watershed to protect its water supply and quality—partnered with the nonprofit Catskill Center to conduct a pilot project, the Streamside Acquisition Program (SAP), in one part of the watershed in the Schoharie Basin. Historically, some areas in the Schoharie Basin did not participate in LAP due to fears of government restrictions on rural development. As a part of SAP, municipalities in the Schoharie Basin can choose to allow the Catskill Center to voluntarily acquire stream-adjacent parcels from willing property owners. SAP restricts potential land acquisitions to these types of parcels to address local concerns about future development and create predictability in the types of land that will be purchased. SAP is funded entirely by New York City and land acquired will be owned by New York City. This project is one example of how a city can adapt its land acquisition process and work with nongovernmental partners in order to facilitate larger environmental objectives, here for a watershed. See Wisnieski (2015), Catskill Center (2019).
Definition of coastal sand dune systems under the regulations: “Coastal sand dune systems may extend into coastal wetlands.”
“Shoreline recession. If the shoreline recedes such that a coastal wetland, as defined under 38 M.R.S.A. §480-B(2), extends to any part of the structure, including support posts, but excluding seawalls, for a period of six months or more, then the approved structure along with appurtenant facilities must be removed and the site must be restored to natural conditions within one year.”
In 2013, Maine enacted An Act Regarding Reconstruction of Residential Structures on Sand Dunes, S.P. 384–L.D. 1102 (Me. 2013). This act “makes it possible for a few residential buildings to be moved forward into the frontal sand dunes,” thus making structures more susceptible to the effects of coastal erosion and sea-level rise, while also potentially blocking ecosystems from migrating inland (Surfrider Foundation 2018). On the other hand, the types of structures that can be rebuilt are limited, such as for those that predate a certain year or have not been damaged from wave activity or an ocean storm. Essentially, the 2013 act relaxes the standard by which some types of structures can be reconstructed in areas where inland migration is expected; however, Maine’s Coastal Sand Dune Rules are still a good example of progressive coastal management regulations that account for shifting habitats.
The town’s comprehensive plan states that the Resource Protection (RP) and Residential Environmentally Sensitive (RES) areas on its land-use zoning maps will constitute the Natural Resource Adaptation Action Area Overlay District “for protection of natural resources and accommodation of sea level rise within the Town of Yankeetown.” Yankeetown Comprehensive Plan Vol. II, Policy 5.2.1.1, p. 75 (adopted Mar. 3, 2009; updated with amendments adopted Apr. 25, 2016). Regulations for the RP and RES areas are defined in the Yankeetown Code of Ordinances at Chapter 18, sections 186 (18–186) and 190 (18–190), respectively. In the RP, no new development is permitted (other than for uninhabitable structures) and only educational and passive recreational activities are allowed; in addition, permitted activities must include a 50-foot (15.24-meter) buffer or “protection zone” for wetlands. In the RES, only single-family, detached dwellings are permitted at a maximum gross density of 10 acres (0.04 k2) (i.e., homes are permitted at a low density to maximize open space preservation) and must include at least two acres (0.01 k2) of “contiguous pre-development upland acres” that can allow coastal habitats to migrate inland. Like the RP, the RES also includes a 50-foot (15.24-meter) protective setback for wetlands.
The Natural Resource Adaptation Action Area (NRAAA) allows Yankeetown to preserve natural resources and plan for the inland migration of coastal ecosystems being choked to death by sea-level rise in two important ways. First, the overlay district includes a policy objective (Objective 5.2.3, Policy 5.2.3.2) for the local government to prioritize and acquire upland properties where marshes and forests can migrate in response to sea-level rise and saltwater intrusion. The town has used the plan to identify priority areas, including upland parcels adjacent to the Withlacoochee Gulf Preserve (a 413-acre [1.67-k2] parcel of undeveloped wetlands), for both fee simple and less than fee simple acquisitions based on their strategic capacity to support coastal ecosystem migration. Second, the comprehensive plan amendment requires the town to review new development in the NRAAA to promote “Sea-Level Rise Ready Infrastructure” that is compatible with ecosystem migration. As provided in Goal 5.3, the town must discourage new structures within the NRAAA that are vulnerable to sea-level rise unless those structures can be designed to permit and not obstruct coastal ecosystem migration. For instance, sea-level rise ready infrastructure could be permitted in the NRAAA if it can float, be elevated, or moved if it becomes a future barrier to ecosystem migration. Goal 5.3 balances new development with resource conservation by discouraging new structures within the NRAAA unless they can accommodate inland migration.
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Acknowledgements
The author would like to thank Georgetown Climate Center’s Executive Director Vicki Arroyo, M.P.A., J.D. and National Audubon Society’s Coastal Resilience Director Jessica Grannis, J.D., LL.M. for their editorial review and expert insight; and Isabelle Smith, J.D., LL.M. and Kate McCormick, J.D., LL.M. for their research support. The author would also like to thank Taryn Sudol, Coordinator, Chesapeake Bay Sentinel Site Cooperative, Maryland Sea Grant College Program and the other authors included in this Special Feature for their assistance and review.
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Spidalieri, K. Where the Wetlands Are—And Where They Are Going: Legal and Policy Tools for Facilitating Coastal Ecosystem Migration in Response to Sea-Level Rise. Wetlands 40, 1765–1776 (2020). https://doi.org/10.1007/s13157-020-01280-x
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DOI: https://doi.org/10.1007/s13157-020-01280-x