Connecticut Legislature Opens the Door to Increased Armoring of Coast

Posted on August 29, 2013 by Gregory Sharp

My prior post about the impacts of Storms Irene and Sandy on Connecticut  noted some of the policy challenges presented in the storms’ aftermath for state government in Connecticut and elsewhere in the Northeast.  The tremendous destruction of property resulting from these events brought home to many coastal property owners a previously unappreciated but significant conflict between property owners’ rights and state coastal policy.

Many property owners seeking to protect their property from future storm events learned to their consternation that regulatory policies adopted in the Connecticut Coastal Management Act (“CCMA”) more than 30 years ago largely precluded those activities.  During the past year, the legislature has taken some small steps to address this conflict and armor the shorefront where developed property is at risk of flooding.

Property rights advocates were successful in substantially modifying the CCMA’s strong policy bias against the use of structural solutions to prevent damage to property from coastal flooding.  Prior to this session’s amendments, the CCMA provided that structural solutions were to be avoided in order to maintain the natural relationship between eroding and depositional coastal landforms.

The only exceptions previously allowed were for those structural solutions which were “necessary and unavoidable” for the protection of infrastructure facilities (undefined but generally construed to mean roads, bridges and other public infrastructure), cemetery or burial grounds, water-dependent uses, or inhabited structures constructed as of January 1, 1995. 

These narrow exceptions provided no avenue for protection of commercial property, unless it met the “water-dependent use” definition.  Moreover, the exceptions provided only very narrow relief for residential property, because residential use is not defined as a “water dependent use.”  In addition, the Department of Energy and Environmental Protection generally interpreted the term “inhabited structure” as applying only to the house, not accessory buildings, landscaping, etc.  As a result, homeowners were left with no ability to protect their property unless and until the house itself was in jeopardy, which in a storm scenario like Sandy came too late.

The General Assembly addressed these concerns in part by expanding the exceptions to include “commercial and residential structures and substantial appurtenances that are attached or integral thereto,” constructed as of January 1, 1995.  Structures built after the cut-off date presently have no options other than to elevate the structure.

How the DEEP will interpret these new provisions remains to be seen, but if the past is any indication, I would expect that the agency will construe them narrowly.

SECOND THOUGHTS ON SUPER-STORM SANDY

Posted on December 18, 2012 by Gregory Sharp

A prior post by Michael Rodburg described New Jersey’s coastal regulatory programs, Sandy’s impact on that state and the policy choices it now must face.  This alert will focus on Connecticut’s experience with Storm Irene and Super-storm Sandy and the challenges for government at all levels that the storms have presented.

Connecticut is known as the “land of steady habits,” but after being hit by two significant storms within a fourteen month period, many people are beginning to question the sustainability of the state’s historic coastal growth patterns and the ability of the current regulatory scheme to address the challenges that climate change is bringing to coastal states like Connecticut.

The impact on Connecticut from Sandy was not as great as the impact on New Jersey, because the storm atypically turned West as it approached Long Island, and the eye of the storm hit the New Jersey coast head on.  However, Connecticut was not spared, because Sandy’s peak easterly winds occurred during a spring high tide event.  This combination of factors pushed a record high storm surge into western Long Island Sound, which narrows as it approaches its westerly outlet through the East River separating Manhattan from Brooklyn.

Due to this constriction, the water had no where to go but up in the western Sound, and it over-topped seawalls and flooded many residential areas in Fairfield County which had not historically been subjected to flooding.  It also threatened several utility sub-stations in Bridgeport and other urban centers, which were only saved by emergency flood proofing efforts.  Sadly, for many East-facing shorefronts, Sandy flooded out structures that had just been re-built following the ravages of Irene.

Ironically, like the programs in New Jersey discussed in Michael Rodburg’s post, Connecticut has had a decades old and robust coastal regulatory program.  The first legislation in 1939 was prompted by the deadly 1938 Hurricane.  In 1969, legislation was adopted to regulate and protect tidal wetlands.  These two programs have evolved since their initial passage and now require State permits respectively for dredging, installation of structures, and placement of fill in tidal and navigable waters, and for similar regulated activities in tidal wetlands.  The legislature strengthened the coastal programs in 1979 by authorizing a comprehensive coastal zone management program which required government agencies to make permit decisions in the coastal area consistent with the goals and policies of the Coastal Management Act (“CMA”).

Despite this expansive regulatory edifice designed to provide natural resource protection, minimize armoring, and offer preferred regulatory status to water-dependent uses in the coastal area, Sandy clearly challenged the adequacy of the current scheme.  One problem is that the statutes, particularly the CMA, have come decades too late to effectively steer development away from the coast.  A second is that the CMA’s goal of encouraging only water-dependent uses to be located in the coastal area has not been followed by the 34 towns in the coastal area which have the power to determine land use patterns through zoning.

The flaws in the current regulatory scheme prompted some environmental groups after Irene to call for a phased “retreat from the coast,” which immediately drew fire from property rights advocates in the legislature, and a legislative Shoreline Protection Task Force was created in the 2012 legislative session to study the issues.

Aside from the property rights issues involved in a governmental strategy of retreat, a significant problem in Connecticut would be that many coastal communities have a limited industrial/commercial tax base.  As a result waterfront properties comprise a disproportionately large share of the municipal grand list.  For government to try to force property owners out, or buy them out would leave many communities with a major revenue hole.  At a time of declining state revenues and a looming budget shortfall, it will be interesting to see how Connecticut’s General Assembly reacts to the impacts of Irene and Sandy in the legislative session beginning in January of 2013.

Sandy’s Aftermath: A First Thought

Posted on November 26, 2012 by Michael Rodburg

Perhaps the most surprising aspect of Superstorm Sandy’s destruction of the Jersey Shore is that some people were taken by surprise.  For decades, a central focus of coastal zone management and waterfront development restrictions has been to protect the fragile and shifting barrier islands, wetlands, and estuaries of the 130 miles of New Jersey at the intersection of land and ocean.  New Jersey’s Coastal Areas Facilities Review Act and its Waterfront Development Act contain among the toughest limitations in the nation to control growth and development and protect an environmentally sensitive ecosystem.  Over the decades, thousands and thousands of decisions have been made by legions of bureaucrats on projects big and small regarding application of land use regulations and the terms of permits and other approvals intended to preserve dunes, reduce beach erosion, prevent flooding and avoid loss of life and property as well as protect the environment.  Sandy seems to have made a mockery of the effort in the blink of an eye.

Sandy was not a black swan event—something heretofore not even contemplated and hence, unforeseeable.  The USGS modelers and their European counterparts had it right almost from the beginning.  Scientists have modeled not only storm tracking itself with better and better forecasts and therefore more warnings, but even the severity and effects of storm events.  These models have predicted the height and location of the storm surges and the resulting erosion and flooding with reasonable accuracy.  Plug in the real time coordinates and other data, and the models told us that the waves would attack the dunes and erode them back into the sea; that storm surge would carry the sand inland and that inundation would occur once the beach and dunes had surrendered to the sea and storm.

In Sandy’s immediate aftermath, two related themes have emerged to justify rebuilding in place.  Many have advocated continuing business as usual; after all, if this was the storm of the millennium, we have a thousand years before we have to worry about a similar event occurring again.  Others have suggested that by undertaking protective measures, we humans are still capable of living anywhere we choose. We just need bigger and better sea walls, flood gates, and other barriers; let the engineers figure it all out.  Eventually, however, these views will inform a more deliberate discussion about our ability to adapt to changing climate conditions—how and where shall we choose to confront Nature and how and where will we let her do as she is wont to do.  With billions of dollars at stake, this debate will get contentious, to be sure.  Climate change and weather volatility will not be easily accommodated.  The role of government in the process—as regulator, facilitator, first responder and insurer of last resort—will come under review.  The two character Chinese pictograph for the word “crisis” consists of the characters for “danger” and “opportunity.”  The crisis that is Sandy should remind us that we should not squander the opportunity to rethink our priorities and arrive at a better way to confront this danger in the future.

South Carolina Supreme Court Allows Enforcement of Unpromulgated Rule

Posted on February 3, 2010 by Thomas Lavender, Jr.

In a unanimous decision, the S.C. Supreme Court upheld the implementation of South Carolina’s Coastal Zone Management Plan (CZMP) and finally decided the question landowners have argued for years – how could the South Carolina Department of Health and Environmental Control (SCDHEC) enforce an unpromulgated rule?[1] 

 

The developer in the Spectre case had sought a land-disturbance permit under the SCDHEC stormwater program. The agency denied the permit contending that the proposed filling of 31.76 acres of isolated freshwater wetlands on a 62.93 acre site was inconsistent with the CZMP. An appeal of the denial was taken to the State Administrative Law Court, which held that the CZMP was not enforceable because it was not a regulation promulgated pursuant to the State’s Administrative Procedures Act (APA).[2] 

 

Following the United State Supreme Court’s decision in SWANCC[3], isolated wetlands in South Carolina have been largely without protection. South Carolina has seen the introduction of several bills aimed to fill the void by expressly authorizing the regulation of impacts to isolated wetlands; however, none are pending in the current session of the General Assembly. Nonetheless, in those areas covered by the CZMP, South Carolina relied upon its authority to determine consistency with the CZMP in connection with the consideration of state permits. Isolated wetlands beyond the reach of the CZMP remain unregulated. However, numerous attacks on the validity of the CZMP have been made, but none reaching the Supreme Court until Spectre.

 

SCDHEC was charged in 1976 with developing a comprehensive coastal management program that it was to enforce “in accordance with this chapter and any rules and regulations promulgated under this chapter.”[4] The statute provided that statewide hearings and public review of the CZMP would occur and the CZMP would become the “final management plan for the State’s coastal zone” upon review and approval by the Governor and General Assembly. 

 

The Court went to great lengths to distinguish the Spectre decision from its previous holdings relating to the imposition of requirements by means other than properly promulgated regulations.[5] In spite of numerous references to the necessity of SCDHEC to adopt regulations to implement its coastal program[6], the Court concluded that the “General Assembly did not believe it was meant to be an unenforceable document.” Despite the fact that the statute specifically mandated SCDHEC to adopt interim and final rules it would follow in evaluating permits, and expressly provided that such final rules must be promulgated pursuant to the APA[7], the Court concluded that the General Assembly had created a “separate and more rigorous procedure for promulgation of the CZMP.” Moreover, since SCDHEC had developed the CZMP in accordance with those specified procedures, “the plan is valid.” 

It remains unclear where the Court will stop in crafting exclusions to the APA, but it now appears that the Court is prepared to conclude that a separate process by which a policy document is developed can be deemed functionally equivalent to the APA and afford an unpromulgated rule the force and effect of law.



[1] Spectre, LLC v. South Carolina Department of Health and Environmental Control, et al., (Opinion No. 26764, February 1, 2010).

[2] S.C. Code Ann. §§ 1-23-10, et seq. (2009).

[3] Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 12 S.Ct. 675, 531 U.S. 159, 148 L.Ed.2d 576 (2001).

[4] SC Code Ann. § 48-39-80 (2009).

[5] Captain’s Quarters Motor Inn, Inc. v. South Carolina Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1992).

[6] S.C. Code Ann. §§ 48-39-50(E), (F), (I), and (R), -70(A), -80(A), and -130(B).

[7] S.C. Code Ann. § 48-39-130(B) also provided that the interim rules and regulations were not subject to the APA.

South Carolina Supreme Court Allows Enforcement of Unpromulgated Rule

Posted on February 3, 2010 by Thomas Lavender, Jr.

In a unanimous decision, the S.C. Supreme Court upheld the implementation of South Carolina’s Coastal Zone Management Plan (CZMP) and finally decided the question landowners have argued for years – how could the South Carolina Department of Health and Environmental Control (SCDHEC) enforce an unpromulgated rule?[1] 

 

The developer in the Spectre case had sought a land-disturbance permit under the SCDHEC stormwater program. The agency denied the permit contending that the proposed filling of 31.76 acres of isolated freshwater wetlands on a 62.93 acre site was inconsistent with the CZMP. An appeal of the denial was taken to the State Administrative Law Court, which held that the CZMP was not enforceable because it was not a regulation promulgated pursuant to the State’s Administrative Procedures Act (APA).[2] 

 

Following the United State Supreme Court’s decision in SWANCC[3], isolated wetlands in South Carolina have been largely without protection. South Carolina has seen the introduction of several bills aimed to fill the void by expressly authorizing the regulation of impacts to isolated wetlands; however, none are pending in the current session of the General Assembly. Nonetheless, in those areas covered by the CZMP, South Carolina relied upon its authority to determine consistency with the CZMP in connection with the consideration of state permits. Isolated wetlands beyond the reach of the CZMP remain unregulated. However, numerous attacks on the validity of the CZMP have been made, but none reaching the Supreme Court until Spectre.

 

SCDHEC was charged in 1976 with developing a comprehensive coastal management program that it was to enforce “in accordance with this chapter and any rules and regulations promulgated under this chapter.”[4] The statute provided that statewide hearings and public review of the CZMP would occur and the CZMP would become the “final management plan for the State’s coastal zone” upon review and approval by the Governor and General Assembly. 

 

The Court went to great lengths to distinguish the Spectre decision from its previous holdings relating to the imposition of requirements by means other than properly promulgated regulations.[5] In spite of numerous references to the necessity of SCDHEC to adopt regulations to implement its coastal program[6], the Court concluded that the “General Assembly did not believe it was meant to be an unenforceable document.” Despite the fact that the statute specifically mandated SCDHEC to adopt interim and final rules it would follow in evaluating permits, and expressly provided that such final rules must be promulgated pursuant to the APA[7], the Court concluded that the General Assembly had created a “separate and more rigorous procedure for promulgation of the CZMP.” Moreover, since SCDHEC had developed the CZMP in accordance with those specified procedures, “the plan is valid.” 

It remains unclear where the Court will stop in crafting exclusions to the APA, but it now appears that the Court is prepared to conclude that a separate process by which a policy document is developed can be deemed functionally equivalent to the APA and afford an unpromulgated rule the force and effect of law.



[1] Spectre, LLC v. South Carolina Department of Health and Environmental Control, et al., (Opinion No. 26764, February 1, 2010).

[2] S.C. Code Ann. §§ 1-23-10, et seq. (2009).

[3] Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 12 S.Ct. 675, 531 U.S. 159, 148 L.Ed.2d 576 (2001).

[4] SC Code Ann. § 48-39-80 (2009).

[5] Captain’s Quarters Motor Inn, Inc. v. South Carolina Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1992).

[6] S.C. Code Ann. §§ 48-39-50(E), (F), (I), and (R), -70(A), -80(A), and -130(B).

[7] S.C. Code Ann. § 48-39-130(B) also provided that the interim rules and regulations were not subject to the APA.

South Carolina Supreme Court Allows Enforcement of Unpromulgated Rule

Posted on February 3, 2010 by Thomas Lavender, Jr.

In a unanimous decision, the S.C. Supreme Court upheld the implementation of South Carolina’s Coastal Zone Management Plan (CZMP) and finally decided the question landowners have argued for years – how could the South Carolina Department of Health and Environmental Control (SCDHEC) enforce an unpromulgated rule?[1] 

 

The developer in the Spectre case had sought a land-disturbance permit under the SCDHEC stormwater program. The agency denied the permit contending that the proposed filling of 31.76 acres of isolated freshwater wetlands on a 62.93 acre site was inconsistent with the CZMP. An appeal of the denial was taken to the State Administrative Law Court, which held that the CZMP was not enforceable because it was not a regulation promulgated pursuant to the State’s Administrative Procedures Act (APA).[2] 

 

Following the United State Supreme Court’s decision in SWANCC[3], isolated wetlands in South Carolina have been largely without protection. South Carolina has seen the introduction of several bills aimed to fill the void by expressly authorizing the regulation of impacts to isolated wetlands; however, none are pending in the current session of the General Assembly. Nonetheless, in those areas covered by the CZMP, South Carolina relied upon its authority to determine consistency with the CZMP in connection with the consideration of state permits. Isolated wetlands beyond the reach of the CZMP remain unregulated. However, numerous attacks on the validity of the CZMP have been made, but none reaching the Supreme Court until Spectre.

 

SCDHEC was charged in 1976 with developing a comprehensive coastal management program that it was to enforce “in accordance with this chapter and any rules and regulations promulgated under this chapter.”[4] The statute provided that statewide hearings and public review of the CZMP would occur and the CZMP would become the “final management plan for the State’s coastal zone” upon review and approval by the Governor and General Assembly. 

 

The Court went to great lengths to distinguish the Spectre decision from its previous holdings relating to the imposition of requirements by means other than properly promulgated regulations.[5] In spite of numerous references to the necessity of SCDHEC to adopt regulations to implement its coastal program[6], the Court concluded that the “General Assembly did not believe it was meant to be an unenforceable document.” Despite the fact that the statute specifically mandated SCDHEC to adopt interim and final rules it would follow in evaluating permits, and expressly provided that such final rules must be promulgated pursuant to the APA[7], the Court concluded that the General Assembly had created a “separate and more rigorous procedure for promulgation of the CZMP.” Moreover, since SCDHEC had developed the CZMP in accordance with those specified procedures, “the plan is valid.” 

It remains unclear where the Court will stop in crafting exclusions to the APA, but it now appears that the Court is prepared to conclude that a separate process by which a policy document is developed can be deemed functionally equivalent to the APA and afford an unpromulgated rule the force and effect of law.



[1] Spectre, LLC v. South Carolina Department of Health and Environmental Control, et al., (Opinion No. 26764, February 1, 2010).

[2] S.C. Code Ann. §§ 1-23-10, et seq. (2009).

[3] Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 12 S.Ct. 675, 531 U.S. 159, 148 L.Ed.2d 576 (2001).

[4] SC Code Ann. § 48-39-80 (2009).

[5] Captain’s Quarters Motor Inn, Inc. v. South Carolina Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1992).

[6] S.C. Code Ann. §§ 48-39-50(E), (F), (I), and (R), -70(A), -80(A), and -130(B).

[7] S.C. Code Ann. § 48-39-130(B) also provided that the interim rules and regulations were not subject to the APA.