Doin’ the Dunes – Part XI

Posted on September 7, 2017 by Joseph Manko

As a response to the wreckage of property caused by Superstorm Sandy on Absecon Island, New Jersey, the municipalities that comprise the coastline – Brigantine, Atlantic City, Ventnor City and Longport – supported the construction of dunes on their beaches . . . with one exception.  The outlier, Margate City, chose to oppose the construction of dunes on its beaches and beginning in 2014, Margate went to court to prevent the New Jersey Department of Environmental Protection (DEP) and US Army Corps of Engineers (Corps) from building dunes in Margate. 

Thus ensued various challenges from Margate homeowners and ultimately the Margate City Council, leading to a rash of decisions in state and federal courts as described in my prior 10 blogs.  Earlier this year, both courts upheld the authority of the DEP and the Corps to proceed, and construction began in July – starting in the middle “municipality”:  Margate’s beaches.  (Not surprisingly, Margate described this disruption in the heart of tourist time as “payback” for its opposition.  Also not surprisingly, the DEP and Corps disputed Margate’s characterization.) 

Dune construction on Margate’s beaches has not proceeded without incident.  Since Margate is located at – or just a tad above – sea level, heavy rainfalls or tidal crests have historically caused Margate’s streets to flood, and the stormwater  and its various constituents to spill out directly to, or in outfall pipes through, the beaches and into the ocean.  Without the dunes, residents had grown accustomed to occasional resultant ponding as the stormwater percolated across and through the sand.  However, as the dunes rose, the traditional rate of percolation stopped, causing the formation of standing stormwater “lakes,” which the city has dubbed “Lake Christie.”  The standing stormwater impedes the access to the beaches and allegedly creates dermatological problems for lifeguards and people walking through.

Although Margate abandoned further litigation regarding the authority of DEP and the Corps to build dunes, Margate was drawn back to court by the outcry regarding the dunes’ failure to allow normal percolation.  Margate met with initial success:  the state court issued a temporary restraining order (TRO) on further construction until the contractor for the Corps could demonstrate a process to address the standing water.  The Corps – which was not a party to the state proceedings – then successfully moved to have the case removed to the federal district court, where the TRO was dissolved by Judge Renee Marie Bumb, the same judge who had previously ruled that the DEP and Corps had the authority to build the dune.  In her ruling, Judge Bumb held that the state court had no jurisdiction to issue a TRO against a federal agency (the Corps) and again stressed the Sandy aftermath concern for allowing resumption of the construction, subject to a series of conditions, including eliminating the current pooling and determining the manner in which recurrences of flooding would be avoided. 

As I complete this latest blog, Margate’s appeal of Judge Bumb’s decision to the Third Circuit was denied.  And I, an owner of a beachfront condo and a long time summer tourist in Margate, continue to try to remain otherwise “uninvolved” other than as a writer of blogs.  Did I know where this was headed when I wrote my first blog?  Absolutely not.  Did I know that my very persona as an environmental attorney would make me be unwillingly controversial?  Absolutely not, but it’s been interesting to observe, rather than serve as an environmental litigator so close to my “second home.” 

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.

They Were Paying Attention in Math Class

Posted on April 9, 2013 by Brian Rosenthal

Late last year, the United States Supreme Court used a mathematical hypothesis to solve a takings question involving environmental damage.  Remember the transitive property of equality?      

                                                A=C,  B=C, so A=B [and =C]

The Court summarized its opinion by noting: 

a government-induced flooding can constitute a [compensable] taking (A=C);
a temporary act can be a compensable taking  (B=C); so
a government-induced flooding even as a temporary act (A=B) may be a compensable taking [=C].

In takings analysis, flooding cases hold no special exempt footing.  Floodings need not be permanent or inevitable to result in a constitutional taking.  Seasonal, recurring flooding (similar to a repetitive flight overhead that interrupts a property’s intended use) can be a taking based on the facts and circumstances, like time and degree of interference, character of the land, reasonable investment-backed expectations and foreseeability.  See Arkansas Game and Fish Commission v. United States.

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.

Taking vs. Tort: Supreme Court's Upcoming Review of Arkansas Flooding Case

Posted on July 13, 2012 by Stephen Bruckner

The United States Supreme Court recently granted certiorari to the first environmental case it will review during the 2012-2013 term.  The case, Arkansas Game & Fish Commission v. United States, raises the question of whether flooding caused by the Army Corps of Engineers temporary increase in releases from an upstream dam constitutes a taking under the Fifth Amendment or is a potential common law tort.  The Court will examine whether physical intrusions onto private property must be permanent in order to be a taking and whether the government's intent plays a role in the analysis under the Takings Clause.

The case arises from damage to oak trees in a wildlife refuge that the Arkansas Game and Fish Commission alleges occurred due to the Corps of Engineers temporary deviations from the Clearwater Dam's 1953 water management plan.  These deviations took place between 1993 and 2000.  The Arkansas Game and Fish Commission alleged that the deviations caused increased flooding which damaged the root systems of the oak trees and killed many of them.

The United States Court of Federal Claims found that the government had engaged in an unconstitutional taking and awarded $5 million in damages to the Game and Fish Commission. 

In a split decision, the United States Court of Appeals for the Federal Circuit reversed the decision of the Court of Claims.  The Federal Circuit ruled that the Corps of Engineers' increase in upstream releases could not constitute a taking because the deviation policy was only temporary.  The court reasoned that in order to be considered a taking, flooding would have to be the result of a permanent change in the Corps of Engineers' water management plan.  The court found that, at most, the flooding created possible tort liability. In dissent, Judge Newman observed that the flooding led to permanent damage to the timber and the property in the wildlife refuge and reasoned that such permanent loss constitutes a taking under the Fifth Amendment of the Constitution.

Arkansas Game and Fish Commission's petition for certiorari was granted by the Supreme Court in April of this year, and the case is set to be argued in the Court's 2012-2013 term.