United States
Environmental Protection
Agency
Policy, Planning,
And Evaluation
(2122)
EPA-230-R-95-900
September 1995
Anticipatory Planning For
Sea-Level Rise
Along The Coast of Maine
This report a joint effort in
cooperation with State of
Maine's State Planning Office.
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Anticipatory Planning for
Sea-Level Rise Along the Coast of Maine
Prepared by:
Marine Law Institute
University of Maine School of Law
246 Deering Ave., Portland, ME 04102
Maine State Planning Office
State House Station #38, Augusta, ME 04333
Maine Geological Survey
Department of Conservation
State House Station #22, Augusta, ME 04333
This work is a result of research sponsored by the United States Environmental Protection
Agency, Climate Change State Grant Program under grant no. CX 817509-01-0 to the Maine
State Planning Office.
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
This report made possible by the Maine State Planning Office and the U.S. Environmental
Protection Agency, State and Local Climate Change Outreach Program. Reprinted by EPA with
permission from the Maine State Planning Office.
to obtain copies of this report:
Contact: National Center for Environmental Publications and Information (NCEPI)
Fax: (513-489-8695), or Phone (513-489-8190), or
Mail: U.S. EPA/NCEPI, P.O. Box 42419, Cincinnati, OH 45242-2419
or, contact: State and Local Climate Change Outreach Program
U.S. EPA
Climate Change Division, Mail Code 2122
401 M St. SW
Washington, DC 20460
(202-260-6884)
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
ACKNOWLEDGEMENTS
This report was prepared as a State-University cooperative project by the Marine Law Institute
of the University of Maine School of Law, the Maine Geological Survey, and the Maine State
Planning Office. Preparation of the report was funded by a grant from the United States
Environmental Protection Agency's Climate Change Division to the Maine State Planning Office,
Grant Number CR 817509. The contract was supervised by David H. Keeley, Director, Maine
Coastal Program, Maine State Planning Office; by Alison Rieser, Director, Marine Law Institute,
University of Maine School of Law; and by Katherine Sibold, Office of Policy Analysis, Climate
Change Division, United States Environmental Protection Agency.
This report was written by Barbara A. Vestal, Associate Director, and Alison Rieser, Director,
Marine Law Institute, University of Maine School of Law; Joseph Kelley, Marine Geologist,
Department of Conservation, Maine Geological Survey; and Kathleen Leyden, Senior Planner, and
Michael Montagna, Economist, Maine State Planning Office. Administrative support and assistance
was provided by Beverly Bayley-Smith, Administrative Manager, Marine Law Institute. Research
assistance was provided by Janet Lynch, Research Assistant, Marine Law Institute; by law students
Jonathan Doolittle and David Brenningmeyer, University of Maine School of Law; and by Sandra
Gray, Intern, Maine State Planning Office. Assistance with case study data and mapping was
provided by Kris Sommer, Greater Portland Council of Governments, and Thomas Burns and
Melissa Gormley, Casco Bay Estuary Project.
Appreciation is due to the following individuals who provided special assistance by reviewing
early drafts of portions of the report: Francine Rudoff and Louis Sidell, Department of Economic and
Community Development, and Donald Witherill, Department of Environmental Protection.
Appreciation is also due to individuals who assisted with information about specific towns,
including: Jacki Cohen, Town Planner, Freeport; Deb Fossum, Assistant Town Planner, and Michael
Nugent, Codes Officer, Old Orchard Beach; Peter Morelli and Rich Roedner, Town Planners, Saco;
Amy Naylor, former Town Planner, Brunswick. Finally, the authors gratefully acknowledge the
review of James G. Titus, Office of Policy, Planning and Evaluation, United States Environmental
Protection Agency, and Stephen P. Leatherman, University of Maryland at College Park. While their
assistance is gratefully acknowledged, any errors or omissions remain the responsibility of the
authors.
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Anticipatory Planning for
Sea-Level Rise Along the Coast of Maine
CONTENTS
EXECUTIVE SUMMARY Summary-i
A. Projected Rates of Sea-Level Rise Summary-1
B. Planning for Sea Level Rise Summary-1
C. Sea Level Rise Scenarios for Vulnerability Assessment Summary-2
D. Study Sites for Vulnerability Assessment Summary-3
E. Findings of Mapping and Impact Assessment Summary-3
1. Sand Beaches Summary-4
2. Wetlands Summary-5
3. Eroding Bluffs Summary-5
4. Urban Engineered Waterfronts Summary-6
5. Rocky Shorelines Summary-6
6. Summary Summary-6
F. Policy Response Options Summary-6
1. Cost-Benefit Analysis of Response Strategies Summary-7
2. Responsiveness of Existing State and Federal Laws to Sea-Level Rise .. Summary-9
3. Legal Considerations for Maine's Policy Response Summary-10
4. Conclusions and Recommendations Summary-11
a. Anticipatory Action Summary-11
b. Planning and Regulatory Processes Summary-12
c. Strategic Assessments, Research and Education Summary-12
G. Endnotes Summary-13
CHAPTER ONE: PLANNING FOR SEA-LEVEL RISE i-i
A. Review What We Know about Sea-Level Trends in Maine, Global Climate
Change and Associated Impacts 1-2
1. Historical Rates of Sea-Level Rise in Maine 1-2
2. Accelerated Sea-Level Rise as a Result of Global Climate Change 1-3
3. Possible Impact of Accelerated Sea-Level Rise 1-4
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
B. Seek "No Regrets" Strategies Which Also Address Known Threats and
Recognize that Sea-Level Rise is Just One Factor Affecting Land Loss 1-5
C. Compensate for Scientific Uncertainty by Using a Range of Sea-Level Rise
Scenarios 1-7
D. Participate in Appropriate Emission Reduction Strategies 1-9
E. Assume State/Local Governments Will Have the Primary Responsibility for
Mitigation of Sea-Level Rise Impacts 1-10
F. Utilize a Process Which Incorporates Periodic Review and Updating of the
Adaptive Response Strategy 1-11
G. Endnotes 1-12
CHAPTER Two: VULNERABILITY OF MAINE SITES TO ACCELERATED
SEA-LEVEL RISE 2-1
A. Designation of Case Study Areas and Sea-Level Rise Scenarios 2-1
B. Prediction of Future Shoreline Positions 2-2
C. Assessment of Physical Changes and Natural System Responses 2-6
D. Results 2-8
1. Gilsland Farm 2-8
a. Shoreline Position 2-8
b. Impact Assessment 2-15
2. Bungunac Bluff-Wharton Point 2-18
a. Shoreline Position 2-18
b. Impact Assessment 2-18
3. WinnocksNeck 2-23
a. Shoreline Position 2-23
b. Impact Assessment 2-24
4. Old Orchard Beach 2-31
a. Shoreline Position 2-31
b. Impact Assessment 2-32
5. Pine Point 2-37
a. Shoreline Position 2-37
b. Impact Assessment 2-38
6. Other Predominant Coastal Types 2-42
a. Urban Engineered Shorelines 2-42
b. Rocky Shoreline 2-43
7. Summary/Conclusions 2-43
E. References 2-45
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
CHAPTER THREE: CASE STUDY: CAMP ELLIS/FERRY BEACH 3-1
A. Introduction 3-1
B. Shoreline Position 3-1
C. Impact Assessment 3-5
1. Upland Impacts 3-5
2. Value of Land and Structures 3-10
3. Wetland Impacts 3-10
4. Extent of Similarly Situated Land in the Region 3-10
5. Analysis 3-11
D. References 3-11
CHAPTER FOUR: COSTS AND BENEFITS OF SELECTED POLICY
RESPONSE OPTIONS 4-1
A. Setting Priorities for Adaptive Response Strategies 4-1
B. Cost-Benefit Analysis 4-3
1. Selection of Case Study Site 4-3
2. Description of Camp Ellis/Ferry Beach 4-3
a. Shoreline Positions/Impact on Built Features 4-3
b. Natural Features 4-4
c. Wetlands 4-5
d. Growth Trends and Potential for New Development in
the Case Study Area 4-5
3. Selection of Four Policy Response Options 4-6
4. Discussion of Methodology 4-7
a. Overview 4-7
b. Detailed Methodology Used to Compute the Benefit and Cost of
Each Policy Response 4-8
5. Economic Strengths and Weaknesses of Policy Response Options 4-12
C. Conclusion 4-17
D. Endnotes 4-18
CHAPTER FIVE: RESPONSIVENESS OF EXISTING STATE AND FEDERAL
LAWS TO SEA-LEVEL RISE 5-1
A. Introduction 5-1
B. Maine's Laws and Regulations Relevant to Sea-Level Rise 5-3
1. Background Law: Coastal Management Policies Act 5-3
2. Sand Beaches 5-5
a. Character of Development 5-5
b. Natural Resources Protection Act and Sand Dune
Rules 5-5
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
c. Existing Structures 5-6
d. New Construction 5-7
e. Other Laws Affecting Sand Beaches 5-9
f Opportunities to Strengthen Controls on Development 5-10
3. Salt Marshes 5-13
a. Character of Development 5-13
b. Natural Resources Protection Act 5-14
c. Mandatory Shoreland Zoning Act and Guidelines 5-15
d. Opportunities to Strengthen Controls on Development Along Salt
Marshes 5-17
4. Eroding Bluffs 5-18
a. Character of Development 5-18
b. Natural Resources Protection Act 5-18
c. Mandatory Shoreland Zoning Act 5-19
d. Site Location of Development Act 5-19
e. Opportunities to Strengthen Controls on Development Along
Eroding Bluffs 5-19
5. Engineered Urban Shoreline 5-21
a. Character of Existing Development 5-21
b. Local Comprehensive Zoning, Flood Plain, and Shoreland Zoning
Ordinances 5-22
c. Opportunities to Strengthen Controls on Development Along
Engineered Urban Shorelines 5-23
C. Federal Laws and Regulations Relevant to Sea-Level Rise 5-25
1. Coastal Zone Management Program 5-25
2. Federal Climate Change Research 5-26
3. Federal Clean Water Act 5-26
4. Coastal Barriers Resources Act of 1982 5-27
5. National Flood Insurance Program 5-27
D. Conclusion 5-31
E. Endnotes 5-32
CHAPTER Six: LEGAL CONSIDERATIONS FOR MAINE'S POLICY RESPONSE 6-1
A. Overview of Policy Response Options and Tools 6-1
B. Regulatory Options for Maine's Sea-Level Response 6-3
C. Potential Legal Challenges to the Regulatory Tools 6-4
1. Overview: Due Process and Takings Clause Challenges 6-4
2. Takings Clause Principles 6-5
a. Federal Takings Law 6-6
b. Maine Takings Law 6-8
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
3. Applications of Takings Clause Principles to Potential Sea-Level Rise
Regulations 6-8
a. Coastal Construction Setbacks 6-9
b. Rebuilding Prohibitions for Existing Structures 6-11
c. Permit Conditions Requiring Removal or Barring Future Construction
of Protective Devices 6-12
d. The Total Takings Rule and "Background" Principles of Maine
Shoreline Property Law Including the Public Trust Doctrine 6-14
4. General Precautionary Measures to Reduce the Rissks of Takings Claims 6-20
D. Potential Non-Regulatory Options for Maine 6-21
1. Overview 6-21
2. Feasibility for Maine 6-22
3. Government Informational Programs for Sea-Level Rise 6-23
E. Summary 6-23
F. Endnotes 6-24
CHAPTER SEVEN: PRELIMINARY ADAPTIVE RESPONSE STRATEGY:
CONCLUSIONS AND RECOMMENDATIONS 7-1
A. Vulnerability Assessment/Analysis of Existing Laws 7-1
1. Beaches 7-2
2. Coastal Wetlands 7-2
3. Eroding Bluffs 7-3
4. Urban Engineered Shorefronts 7-4
5. Rocky Shores 7-4
B. Toward Developing an Anticipatory Response Strategy 7-4
1. Maine's Advantages 7-4
2. Economic Cost/Benefit Analysis 7-5
3. Legal Considerations for Maine's Policy Response 7-6
C. Recommendations for Maine's Anticipatory Response Strategies 7-7
1. Underlying Recommendations 7-7
2. Specific Strategies 7-7
a. Action When the Problem Emerges 7-8
b. Anticipatory Action 7-8
c. Planning and Regulatory Policy 7-9
d. Strategic Assessments, Research and Education 7-11
D. Recommendations for Additional Research 7-12
E. Endnotes 7-13
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
APPENDICES
Appendix A: Survey of Maine's Laws and Regulations Relevant to
Management of Accelerated Sea-Level Rise A-l
Appendix B: Summary of Policy Responses of Selected States and Regions
to Projected Accelerated Sea-Level Rise and/or Continued Coastal
Erosion as a Result of Global Climate Change B-l
Appendix C: Background Information on the Casco Bay/Saco Bay Region C-l
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Tables Page
S. 1 Composite Result for Study Sites by 2.5
Environmental Setting Summary-3
1.1 Predicted Sea-Level Rise in Portland, 4.1
Maine, 2100 1-9
2.1 Projected Shoreline Changes for Casco and 4.2
Saco Bays, Maine 2-6
2.2 Range of Potential Wetland Losses for
Region 2-17 4.3
2.3 Recent Public Improvements - Old Orchard 4.4
Beach 2-36
2.4 Tentative Public and Private Improvements —
Old Orchard Beach 2-36
Figures Page 2.19
1.1 Small vertical changes in water level shift 2.20
coastlines dramatically on gently sloping 2.21
coasts but cause only minor shifts on steep 2.22
coasts 1-3
1.2 Estimates of future sea-level rise 1-4 2.23
1.3 Interactions of agents affecting land loss .. 1-6
1.4 Estimate of Future Sea Level Rise 1-8 2.24
2.1 Location of Casco and Saco Bays in relation
to New England and the Gulf of Maine ... 2-3 2.25
2.2 Map of Casco Bay with location of Study 2.26
sites enclosed by boxes 2-8
2.3 Projected shoreline change at GilslandFarm, 2.27
Falmouth, Maine 2-9 2.28
2.4 Photograph of Gilsland Farm. Site of Tra-
verse 1 2-10 2.29
2.5 Traverse 1, Gilsland Farm 2-11
2.6 Traverse 2, Gilsland Farm 2-12 3.1
2.7 Traverse 3, Gilsland Farm 2-13
2.8 Traverse 4, Gilsland Farm 2-14 3.2
2.9 Evolution of Marsh as Sea Level Rises .. 2-16
2.10 Projected shoreline change map at upper
Maquoit Bay, Maine 2-19 3.3
2.11 Traverse 1, Bungunac Bluff, Bruns-
wick, Maine 2-20
2.12 Photography of MaquoitBay shoreline. 3.4
Site of Traverse 1 2-21
2.13 Photograph of Maquoit Bay shoreline.
Site of Traverse 2 2-21 3.5
2.14 Traverse 2, Wharton Bluff, Brunswick,
Maine 2-22 3.6
2.15 Map of Scao Bay with location of study
sites enclosed by boxes 2-25 3.7
2.16 Projected shoreline change map for
Winnocks Neck 2-26 C-l
2.17 Traverse 1, Wininocks Neck 2-27
2.18 Photograph of Winnocks Neck. View C-2
toward north at Traverse 1 2-28
Page
Composite Result for Study Sites by Environ-
mental Setting 2-44
Raw Data: Camp Ellis Case Study (Aggregate
quantities used to compute cost benefit analysis . 4-12
Raw Data: Camp Ellis Case Study (Price & value
assumptions used to compute cost benefit
analysis) 4-13
Cost Benefit Analysis: Camp Ellis (Strategies) . . 4-14
Cost Benefit Analysis: Camp Ellis Summary
Table: Benefit to Cost Ratios 4-15
Photograph of Winnocks Neck. View
down road into subdivision at Traverse 2 .
Traverse 2, Winnocks Neck
Traverse 3, Winnocks Neck
Projected shoreline change map for Old
Orchard Beach
Photograph of the Old Orchard Beach area.
Aerial photography of the study area ....
Photograph of the Old Orchard Beach area.
Ground plot from near the study area ....
Traverse 1, Old Orchard Beach, Saco Bay
Projected Shoreline change map for Pine
Point, Saco Bay
Traverse 1, Pine Point, Saco Bay
Photograph of the Pine Point Area. Aerial
photography of the Pine Point area
Photograph of the Pine Point area. Ground
photograph of the study area at Pine Point
Projected shoreline change map for Camp
Ellis
Photograph of the Camp Ellis-Ferry Beach
area. Development on beach at Camp Ellis
Photograph of the Camp Ellis-Ferry Beach
area. Undeveloped back dune area at Ferry
Beach State Park
Shoreline change map of Camp Ellis com-
paring 0.5 m shoreline from this study with
USACOE predictions
Camp Ellis, Saco Maine. Settlement pat-
terns and wetlands
Camp Ellis, Saco, Maine. Sand dunes and
critical areas
Camp Ellis, Saco, Maine. Land use and
public infrastructure
Regional study area for sea-level rise
analysis
Sea-level change curve for coastal Maine
2-38
2-29
2-30
2-33
2-34
2-34
2-35
2-39
2-40
2-41
2-41
. 3-2
. 3-3
. 3-3
. 3-4
. 3-6
. 3-7
. 3-8
.C-2
. C-3
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Anticipatory Planning for
Sea-Level Rise Along the Coast of Maine
EXECUTIVE SUMMARY
A. PROJECTED RATES OF SEA-LEVEL RISE
The present configuration of Maine's coast is attributable to a rise in sea level over the past
10,000 years. Scientists have been able to verify that sea level has continued a gradual rise in all of
Maine's major coastal municipalities during at least the last fifty years.1 Geologists and climate
modelers project that this rise will continue, although there is not total agreement on the projected
rate of rise.
A continuation of the historic rate of sea-level rise of around 2 mm/year (20 cm/100 years) places
many shoreline properties in jeopardy from coastal erosion and inundation. However, several
consensus reports of the international scientific community over the last decade project an
accelerated rate of sea-level rise as a result of global climate change associated with the
greenhouse effect. For example, the Intergovernmental Panel on Climate Change (TPCC) predicts
that by the year 2100, there will be a global rise in sea level in the range of 33 to 110 cm, with a most
likely rise of 66 cm.2 If these predictions are accurate, coastal areas of Maine will face even more
extensive threats to natural and built resources than would occur with a continuation of the past rate
of sea-level rise.
B. PLANNING FOR SEA-LEVEL RISE
This report constitutes Maine's first systematic assessment of its vulnerability to a change in
shoreline position as a result of accelerated sea-level rise associated with global climate change.
Because there is still a great deal of uncertainty associated with proj ections of global climate change,
this report should be considered as merely the first cut at assessing vulnerability and identifying
options for an anticipatory response strategy. Due to the projected gradual onset, there will be time
to make some corrections as more scientific certainty is achieved. However, despite the uncertainty
and gradual onset, it is important for Maine to begin to address these issues now. As expressed by
a consensus of international coastal zone managers:
It is urgent for coastal nations to begin the process of adapting to sea level rise not because
there is an impending catastrophe, but because there are opportunities to avoid adverse
impacts by acting now, opportunities that may be lost if the process is delayed. This is also
Executive Summary Summary-1
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
consistent with good coastal zone management practice irrespective of whether climate
change occurs or not.3
While this statement is directed at coastal nations, in the United States, states have primary authority
over land use controls, are the primary entities engaged in coastal zone management, and will be
primarily responsible for mitigating physical impacts of sea-level rise. To take maximum advantage
of opportunities to avoid adverse impacts, it is important for individual states to begin now to plan
for possible sea-level rise.
This report asserts that meaningful preparations can take place now, despite scientific
uncertainty, by carefully building upon what is already known. It utilizes the following approach:
Start by identifying historic sea-level trends in Maine, by understanding global
climate change theories, and by focusing on four of the projected physical impacts
of global climate change which are most likely to be experienced in Maine: change
in shoreline position, accelerated erosion/ inundation of dunes and beaches,
inundation of wetlands and lowlands, and loss of natural coastal protection systems.
• Utilize a range of likely sea-level rise scenarios to project the change in shoreline
position and to assess vulnerability rather than limiting the analysis to a single
projection.
Seek "no regrets" strategies, which the State will not regret implementing even if
there is no acceleration in the rate of sea-level rise, and which recognize that
sea-level rise is just one factor affecting coastal land loss.
• Continue to participate in appropriate national and international emission reduction
strategies to reduce the magnitude of future impacts of global climate change,
including accelerated sea-level rise.
• As a component of natural resource, land use, and coastal zone management
responsibilities, acknowledge that State governments will have primary responsibility
for developing strategies to mitigate the impacts of accelerated sea-level rise.
C. SEA-LEVEL RISE SCENARIOS FOR VULNERABILITY ASSESSMENT
Maine's research team used a range of sea-level rise scenarios derived from national studies to
assess vulnerability to projected changes in shoreline position. This study did not make any
independent scientific judgment as to the probable predictive accuracy of those scenarios.
The United States Environmental Protection Agency and the Intergovernmental Panel on Climate
Change (TPCC) recommend that coastal zone managers evaluate impacts based on consideration of
at least a 1.0 meter rise scenario, even though the actual projections for 2100 are lower. The use of
a one meter scenario builds in a precautionary margin for error. If possible, lower scenarios should
also be evaluated to more closely approximate what scientists currently project to be most likely.
Higher scenarios can also be evaluated to project impacts beyond 2100 or to identify areas which are
at some, but slight, risk of inundation within the next century based on current projections.
Executive Summary Summary-2
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
To encompass a range of possible outcomes and to allow decision-makers to assessing different
levels of risk, Maine's researchers opted to map and evaluate the impact of shoreline change resulting
from sea levels 0.5m, 1.0m and 2.0 m greater than today, but 100 years hence. The 0.5m scenario
is close to what some scientists are projecting as likely by 2100. The 1.0 m scenario is less likely
by 2100, but may appropriately be selected as the planning standard because it acknowledges
scientific uncertainty and builds in a margin for safety should sea level rise faster than is currently
projected. The 2.0 m scenario is very unlikely to be realized by 2100, but EPA projects it will
eventually happen in the very long run and it is useful to identify sites that are at even slight risk of
inundation by 2100.
D. STUDY SITES FOR VULNERABILITY ASSESSMENT
Researchers focused on study sites within Casco Bay and Saco Bay, adj acent Maine embayments,
drawn from three types of environmental settings: salt marshes, bluffs and sand beaches.
Specifically, the sites studied were Gilsland Farm, a Maine Audubon sanctuary with bluffs and salt
marshes in Falmouth; Bungunac Bluff and Wharton Bluff, two bluff areas in Brunswick developed
with single-family residences; Winnocks Neck, an area of single-family residences in Scarborough
abutting a salt marsh; Pine Point, another residential area in Scarborough abutting an accreting
beach; central Old Orchard Beach, an intensely develop seasonal resort/commercial shorefront with
no natural dune system; and Camp Ellis, a portion of Saco with small residences immediately
adjacent to an eroding beach.
E. FINDINGS OF MAPPING AND IMPACT ASSESSMENT
Prior studies of shoreline change and coastal erosion in Maine have determined that the
components of Maine's "soft coast"—coastal sand dune systems, coastal wetlands, and coastal
eroding bluffs—face the prospect of significant coastal erosion and inundation even without
accelerated sea-level rise, just based on historic rates of change.4 For beaches and coastal wetlands,
that erosion and inundation would be exacerbated by an accelerated rate of sea-level rise associated
with global climate change. The findings of projected change in shoreline position by 2100 under
the different scenarios for these specific study sites are summarized in Table S.I.
Table S.I. Composite Result for Study Sites by Environmental Setting
Environmental Setting Sea-Level Rise Scenarios
Projected Shoreline Change, Retreat in Meters
Salt Marsh
Bluff
Beach
0.5m
3-35
15-45
50-150
1.0m
8-50
15-45
100-300
2.0m
17-100
15-45
200-600
Executive Summary Summary-3
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
1. Sand Beaches
The most profound changes as a consequence of accelerated sea-level rise will probably be
experienced by sand beaches. This is of particular concern because less than 10% of Maine's
shoreline is sand or cobble beach. Areas adjacent to Maine's scarce sand beaches tend to be more
intensely developed than inland sites. A change in shoreline position may inundate relatively
intensely developed areas immediately adjacent to the beach. Similarly, if sand dune systems are
not protected from adjacent development which would inhibit its ability to migrate inland (e.g. sea
walls or other structures), the inland movement of the shoreline might also result in the loss of the
dry sand portion of the beach and have a very significant impact on coastal tourism, recreation, and
the local economy.
While shoreline change in these beach areas is more difficult to evaluate than other environments
for many reasons, the study concluded that a shoreline retreat of hundreds of meters seems likely.
Far more observational data and modeling would be required to provide more precise projections
of future shoreline positions for sand beaches in Casco and Saco Bays. For example, there is as yet
no quantitative understanding of the volume of sand contributed by the Saco River, and this study
did not consider that sand eroded from one part of the beach would likely contribute sand to other
areas and lessen their erosion. However, noting these limitations, for purposes of planning for future
sea-level rise, this study made preliminary projections of landward movement in shoreline position
ranging from 50 to 600 meters (150 to 2,000 feet) during the next 100 years, based on a sea-level rise
ranging from .5 to 2 meters over that same period.
The site specific vulnerability assessment projected only minimal changes at Pine Point because
it is currently accreting. However, under these projections, Old Orchard Beach and Camp Ellis are
expected to experience major impacts, even at the 50 cm scenario.
Of the three sand beaches included in this analysis, the Camp Ellis/Ferry Beach case study
contained the most quantitative assessment of anticipated impacts. Under the worst case scenario,
260 acres of upland would be inundated along with more than 350 structures and public roads, utility
lines, a municipal service facility, and heavily used state and municipal recreational beaches. Under
the 100 cm scenario, 133 acres of upland currently developed with 334 structures would be
inundated. The 50 cm scenario projects 71 acres of upland currently developed with 210 structures
would be affected. The level of private investment at risk in Camp Ellis/Ferry Beach ranges from
almost $38 million to over $61 million, depending upon the sea-level rise scenario.
For central Old Orchard Beach, projections based on the 50 cm sea-level rise scenario indicate
a loss of 80 acres of upland, including beachfront development and development along Grand
Avenue landward to the railroad tracks. This area includes an amusement park, arcades, retail shops,
motels, restaurants, high density residential structures, sewer lines and a new stormwater outfall.
Since 1991, about $3.9 million has been channeled into public improvements in waterfront and
downtown areas which are potentially at risk, and other significant investments are planned in this
area as part of ongoing revitalization efforts.
Executive Summary Summary-4
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
2. Wetlands
The analysis projects that significant impacts will also be felt by tidally influenced wetlands,
with the projected landward movement in shoreline position for "fringe" wetlands along bay shores
ranging from 10 to 350 feet, depending upon the sea-level rise scenario. A change in shoreline
position along coastal wetlands is of concern because, absent appropriate planning, it may result in
a substantial loss of critical wetlands. Improved scientific understanding of wetlands over the last
two decades has resulted in a national recognition of their important ecological and natural resource
functions, including providing essential nesting and feeding habitat for waterfowl and other wildlife;
serving as habitat for many rare and endangered species; providing nursery and spawning areas for
many commercially-valued fisheries; contributing to the enhancement of water quality; and
contributing essential natural flood control services.
Many factors will affect whether a change in shoreline position will result in a loss of coastal
wetlands. Salt marshes have the ability to migrate landward in equilibrium with a sea-level rise
induced change in shoreline position if conditions are ideal.5 They can expand inland and toward
the water, and increase in elevation through accumulation of sediments and plant biomass. If
sedimentation balances submergence, they will maintain themselves. However, if sediment supply
and accretion is less than the rate of coastal submergence, the marshes will drown. The sediment
supply will be influenced by the steepness of the slope of the adjacent uplands, the composition of
adjacent uplands (e.g., whether they are bedrock), the presence of coastal engineering structures, and
the armoring of bluffs and banks (e.g., building bulkheads). Regardless of sediment supply, marshes
will be unable to migrate inland and will drown if they encounter hard upland barriers, either natural
or built.
There are more than 5,000 acres of salt marsh in the combined Casco and Saco Bay regions; they
comprise roughly 20% of the regions' coastline. It was beyond the scope of this study to conduct
expensive, site-specific studies of potential migration of coastal marshes, but researchers did utilize
regional estimates from nationwide vulnerability assessments.6 Projecting from these national
studies, researchers estimated that the Saco/Casco Bay area could lose 300 to 500 acres of coastal
wetlands if only already-developed areas were armored, and between 800 to 900 acres if all coastal
wetland shorelines were protected by bulkheads or similar armoring. These national studies suggest
50 to 250 acres of coastal wetlands could be lost in Saco and Casco Bay even if marshes are allowed
to migrate freely.
3. Eroding Bluffs
Researchers also found that eroding bluffs are vulnerable to coastal erosion, but that the rate of
erosion is driven more by coastal storms than by a rise in sea level. Shoreline retreat rates in the
range of 50 to 150 feet are projected over the next century. Coastal bluffs make up only about 3%
of the Casco/Saco Bay region, so the impacts will be more localized. In the mapped study sites,
continued shoreline erosion was found to threaten five homes situated on about 18 acres of upland.
Over the 100-year study period, roughly 200 existing homes adjacent to bluffs in the Fal-
mouth-Freeport area and on the Casco Bay islands may be threatened.
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
4. Urban Engineered Waterfronts
Based on a preliminary assessment, researchers also concluded that urban engineered
waterfronts in the study area are not likely to experience a change in shoreline position due to an
increase in sea level within the .5 to 2 meter scenarios because most structures are currently designed
to accommodate seas which are approximately 6 feet higher than current mean high tide. However,
additional research is needed to assess the probable increased geographic extent and frequency of
flooding of low-lying urban areas from storm surges. Further study may identify the need to improve
existing waterfront facilities.
5. Rocky Shorelines
Not surprisingly, rocky shorelines are not particularly vulnerable to a change in sea level. The
change in shoreline position will vary with the slope of the adjacent land, but since erosion is not
anticipated, any impacts are expected to be minimal.
6. Summary
There is already significant development in or adj acent to the areas most threatened by continued
or accelerated sea-level rise—sand beaches, coastal wetlands and eroding bluffs. Future actions,
such as continued development in these areas or construction of engineered "solutions" to "protect"
upland areas, may increase the investment at risk. These future actions may also reduce the capacity
of natural coastal systems to adjust to a change in sea level in ways which maintain critical wetland
functions or preserve valued sand beaches.
F. POLICY RESPONSE OPTIONS
The second part of the report analyzes possible adaptive response strategies the State of Maine
might adopt to mitigate the negative impacts of a change in shoreline position and associated impacts
of global climate change. Regardless of the progress made by the State, the nation and the
international community in emission reduction efforts, Maine needs to develop an adaptive response
strategy because scientists predict that even if greenhouse gas emissions were controlled
immediately, the atmospheric concentration of these gases would still increase for many years, and
the rate of sea-level rise would still accelerate during the next century. And even if those scientists
are wrong and the rate of sea-level rise does not accelerate, a continuation of sea-level rise in Maine
at observed historic rates is projected to result in significant property damage along the soft coast.
This report is not itself a formal plan. It provides background information and a set of
preliminary recommendations to facilitate the future development of a more formal plan to promote
adaptation of Maine's coastal resources to relative sea-level rise as a result of global climate change.
The report's conclusions and recommendations reflect the opinions of the members of the study
team, but do not yet represent the official position of any specific state agency. They constitute a
starting place for further discussion and policy refinement by coastal managers and decision-makers.
It should be noted that emission reduction strategies constitute a second type of response to
global climate change (e.g., multi-party agreements to limit greenhouse gas emissions, development
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of cleaner energy sources and technologies, and expansion of forested areas). The State of Maine
should also assess how it can contribute to greenhouse gas emission reduction strategies, but that
analysis is beyond the scope of this report.
This study analyzes possible adaptive response strategies from several different angles:
• the relative costs and benefits of selected preliminary response strategies for one
specific case study area (Chapter Four);
• the responsiveness of existing State and Federal laws and policies to address the
most significant negative impacts on coastal resources identified by the vulnerability
assessment (Chapter Five);
• the legal considerations for Maine's policy response including potential legal
challenges to regulatory tools (Chapter Six); and
• approaches already adopted or evaluated by other states for coastal erosion or
coastal hazard mitigation (Appendix B).
The study's conclusions and recommendations, based on the mapping, vulnerability assessment,
cost-benefit analysis, evaluation of existing State and Federal laws, and legal assessment of strategic
policy response options, are contained in Chapter Seven. The following sections briefly summarize
the findings of Chapters Four, Five, and Six, which should be consulted for a more complete dis-
cussion of assumptions and analysis.
1. Cost-Benefit Analysis of Response Strategies
The cost/benefit analysis conducted for one specific study site (Camp Ellis, Chapter Four)
concluded that it was more cost-effective to adopt a strategy to retreat from the shoreline as sea level
rises rather than a strategy to attempt to protect development and maintain the shoreline in its current
position. Four different response strategies were evaluated (two using protection and two using
rolling easements) which represent a range of possible policy options.
The first protection strategy analyzed (Option 1, reactive protection) involved a combination of
beach nourishment along sand beaches, maintenance of existing bulkheads and construction of new
bulkheads along wetlands to prevent inland migration. Using assumptions explained in detail in
Chapter Four, for this reactive protection strategy, the cost-benefit analysis found costs would exceed
benefits for the 0, 50, 100 and 200 cm sea-level rise scenarios. The ratio by which the costs would
exceed the benefits ranged from a low of 1.1:1 for the 0 cm rise scenario to a high of 1.6:1 for the
200 cm rise scenario. This finding is directly attributable to the fact that beach nourishment is very
expensive, and that even under a zero cm sea-level rise scenario, a substantial amount of beach
nourishment would be needed over the next century to protect the existing structures by maintaining
the current shoreline position.
The second protection strategy analyzed, Option 2, was a variation on Option 1. It differed from
Option 1 only in the addition of an initial buy-out and abandonment of the structures which are
currently most vulnerable. This buyout was coupled with the same reactive protection strategy as
under Option 1 for the remaining structures through beach nourishment and bulkheads. The distin-
guishing characteristic of this "compensated setback" strategy is that it would postpone beach
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
nourishment costs by abandoning selected structures and secure a volume of sand to protect the next
tier of structures from the encroaching shoreline. The amount of sand needed for beach nourishment
would drop to zero for a number of years, depending on the rate of sea-level rise.
Once again, costs were found to exceed benefits for the 50, 100 and 200 cm sea-level rise
scenarios. The ratio by which the costs exceeded the benefits ranged from a low of 1.1:1 for the 50
cm rise scenario to a high of 1.8:1 for the 200 cm rise scenario. Under the 50, 100 and 200 cm sea-
level rise scenarios it was estimated that the compensated setback policy would eliminate the need
for beach nourishment for 20, 10 or 5 years, respectively. There was only one case in which benefits
were found to exceed costs; Option 2 was found to provide slight net benefits (1.16) if one assumed
that there would be no rise in sea level. However, the assumption of a 0 cm rise would be
completely contrary to historic trends and recent coastal erosion mapping at this site. It is also
interesting to note that the use of the compensated setback strategy assumed in Option 2 actually
resulted in a less favorable benefit/cost ratio than the reactive protection of all structures assumed
in Option 1 for the 100 and 200 cm rise scenarios. The reason is that a more rapid sea-level rise
scenario, the savings in sand for beach nourishment provided by the compensated setback program
is quickly consumed and does not last long enough to offset the relatively high present value of pur-
chasing the properties upfront.
In contrast, the two retreat strategies assessed in Options 3 and 4 were found to be more
cost-effective, with benefits exceeding costs for all sea-level rise scenarios. Option 3 assumed
regulations would prohibit all new development within the area expected to be affected by a change
in shoreline position within the next 100 years. It also assumed that any existing development would
be subject to a "rolling easement" which would require removal of development and restoration of
the site to its natural condition as the shoreline position moves inland to affect that development.
The ratio by which the benefits exceeded costs were 1.4:1 foraSOcmrise, 1.1:1 forthe 100 cm rise,
and 1.2:1 for a 200 cm rise.
Option 4 assumed that rolling easements would apply to both existing and new development.
New development would be allowed on sites expected to be affected by projected sea-level rise but
it would have to be removed if the site becomes inundated by the sea. The ratio by which the
benefits exceeded costs were 1.7:1 for a 50 cm rise, 1.3:1 for a 100 cm rise and 1.5:1 for a 200 cm
rise, in all cases, more favorable than the Option 3 values. The distinguishing aspect between Option
3 and Option 4 is the setback policy of prohibiting all new development in the zone of anticipated
sea-level rise.
This analysis shows that on a cost-benefit basis, using the articulated assumptions, the present
value of prohibiting all new development outweighs the cost of allowing the new development to
occur and then removing it should the sea-level rise. The opportunity costs of Option 3 would be
particularly high if development is prohibited in a zone and sea-level rise does not occur or occurs
to a lesser degree than assumed by the setback policy.
This simplified cost-benefit analysis lends quantitative support to the position that the best course
of action is to retreat from the shoreline in the face of rising sea level. The underlying reason for this
is that in present value terms, it is far less costly to allow development to occur, and then remove
whatever yhose structures and components of the infrastructure which would be affected by sea-level
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rise over the next 100 years than it would be to incur the continual annual expense of beach
nourishment and bulkheading. This conclusion holds true under all studied scenarios.
While this cost-benefit analysis is specific to Camp Ellis, it has implications for similar
beachfront development in Maine. Clearly, this cost-benefit analysis does not address all type of
coastal development. For example, there might be atypical sites in Maine where the current level
of development and/or an existing heavily engineered shoreline (e.g., very valuable, high intensity
structures such as along the Portland Harbor waterfront) might justify reactive protection as a more
cost-effective strategy than retreat.
This simplified economic assessment provides policy makers with some information about costs,
economic efficiency and performance under uncertainty. In addition, policy makers need to consider
other criteria, which exceed the scope of cost-benefit analysis, including equity, political/institutional
feasibility, value to be placed on unique or critical resources, and consistency with other State goals
and laws.
2. Responsiveness of Existing State and Federal Laws to Sea-Level Rise
Researchers determined that federal programs provide some limited incentives and technical
assistance for states to engage in sea-level rise and erosion mitigation planning. For example, the
Coastal Zone Management Act has been amended to recognize rising seas as a critical area for
anticipatory planning and now provides financial assistance for programmatic changes through
enhancement Grants. Other federal research programs, such as EPA/s Climate Change program, also
provide valuable technical assistance to states. However, the federal programs are not intended to
be a comprehensive response to sea-level rise, and primary responsibility remains with the States to
engage in the requisite coastal management planning.
Researchers concluded (Chapter Five) that the policies already in place for Maine's sand dune
systems, established by the Sand Dune Rules of the Natural Resources Protection Act, form a very
solid base for an appropriate adaptation strategy. In fact, Maine's sand dune regulations have
received national recognition as an exemplary coastal erosion response strategy. The Sand Dune
Rules should be retained and enforced. Key elements include:
a prohibition on new or expanded seawalls;
• a requirement that new, large developments only be allowed on sites that will remain
stable assuming a 3-foot rise in sea level over the next century;
a requirement that new, small developments be adequately setback so that they are
not expected to be damaged by coastal erosion or a change in shoreline position over
the next century;
• a prohibition on rebuilding (unless it can meet new construction standards) if a
structure is damaged by more than 50% of the appraised market value; and
a requirement that if the shoreline recedes such that tidal lands extend to any part of
the structure (including support posts) for six months or more, then the structure shall
be removed and the site restored to natural conditions.
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
The State should avoid granting any piecemeal exceptions to specific landowners. Only minor
modifications are recommended to clarify the means of determining likely site stability when
reviewing smaller structures proposed for that area which is expected to remain stable over the next
century given a continuation of historic rates but which would be affected by an accelerated rate of
sea-level rise.
However, researchers recommend more extensive modifications to regulations applicable to salt
marshes and eroding bluffs to extend the philosophy of the Sand Dune Rules to the other compo-
nents of the soft coast. The laws governing development in these locations need to be revised to
anticipate a non-static shoreline and to protect the capacity for the shoreline to migrate landward
without compromising the functioning of the natural system.
To protect irreplaceable wetland resources and their ecological functions along the Maine coast,
this study recommends steps should be taken to protect the capacity for landward migration. The
first step should be to make a policy decision about which, if any, wetlands the State is willing to
lose when sea level rises. If it opts to continue to allow the hardening of the upland edge of wetlands
to protect certain types of land or structures (e.g., to protect land already developed to a certain
intensity), wetland migration will be precluded in those areas. To retain the other wetlands, the State
should adopt provisions, either through the Natural Resources Protection Act or mandatory minimum
provisions for shoreland zoning ordinances, to prevent the hardening of the upland edge. Specific
provisions should include setback provisions based on projected changes in the shoreline, with new,
large structure setbacks based on an assumed 100 cm rise over 100 years, and new, small structure
setbacks based on historic rates; all new development would be conditioned on retreat if actual
changes in the shoreline resulted in the interference with the natural migration of salt marsh
vegetation or tidal flows of water.
To prevent development on eroding coastal bluffs, researchers recommend that these natural
features should be incorporated into the Natural Resources Protection Act and regulations should
be adopted which would parallel the Sand Dune Rules. In addition, or in the alternative, protection
under local shoreland zoning ordinances should be substantially increased. These rules should limit
new development, preventthe construction of bluff stabilization devices designed to protect existing
structures, and would establish a retreat policy in the event of future bluff erosion.
With respect to engineered urban shorelines, researchers concluded that stronger land use
controls could help minimize damage from sea-level rise. The primary action would be to strengthen
use restrictions so that new uses would be restricted to those that require a shorefront location in
order to function, sometimes referred to as "water dependent uses." Such controls would further
other important state interests and leave property owners with numerous economically beneficial
uses.
3. Legal Considerations for Maine's Policy Response
The foregoing measures to protect sand dune systems, wetlands and eroding bluffs were the focus
of an assessment of potential legal challenges (Chapter Six). That analysis concluded that the current
standards for the protection of private property do not pose insurmountable hurdles to carefully
drawn regulatory approaches to the problem of sea-level rise. The Maine Law Court has already
upheld significant restrictions under the current Sand Dune Rules. This indicates a belief that such
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
regulations do advance a legitimate state interest and do so in a manner that does not deprive land
owners of their property rights in violation of constitutional guarantees. The terseness of the leading
State opinion, however, and the recent efforts of the federal courts to expand the protection of private
property subject to governmental regulation may encourage other land owners to mount similar
challenges to further regulation aimed at sea-level rise. In that event, the smaller the area of a parcel
that is affected by the restriction, the more likely it is to be upheld.
If Maine chooses to pursue one or more of the regulatory options outlined previously, this study
recommends that it should develop and promulgate them as soon as possible. The earlier that the
public is on notice of the likelihood of rising sea level and the policy choice of a retreat strategy, the
more likely the regulations are to withstand legal challenge. Property that is purchased after the
regulations are adopted will be bought subject to the expectations that the development restrictions
will be applied in light of sea-level rise. The promulgation of regulations that require a wetland
migration area on the upland margin or which prohibit the future construction of bulkheads that
would block such migration will help to clarify the expectations of land owners. When these
expectations are clarified, if it is necessary to carry out removal conditions or enforce revised coastal
setbacks, the effect will be a minimal disruption of settled expectations.
4. Conclusions and Recommendations
The key premises underlying the recommendation are:
THE STATE SHOULD PROTECT AND STRENGTHEN THE ABILITY OF NATURAL SYSTEMS TO
ADJUST TO CHANGES IN SHORELINE POSITION
and
THE STATE SHOULD PREVENT NEW DEVELOPMENT WHICH Is LIKELY TO INTERFERE
WITH THE ABILITY OF NATURAL SYSTEMS TO ADJUST TO CHANGES IN SHORELINE
POSITION.
In Chapter Seven, the report recommends three different types of actions: 1) concrete
anticipatory policies and design standards to guide public investment in buildings, roads and similar
infrastructure; 2) specific planning and regulatory policies; and 3) longer range strategic assessment,
research and educational actions. The specific recommendations, developed in more detail
throughout the report, are summarized as follows:
a. Anticipatory Action
1. Review all new coastal public works projects to determine if minor, cost-effective changes
can be made in design or siting to accommodate a changed shoreline position or more intense
storms;
2. Discourage an irreversible commitment of public resources for new infrastructure or
structures in areas likely to be affected by accelerated sea-level rise, except as necessary to support
continued economic viability and efficient functioning of water-dependent uses;
3. Increase the amount of publicly-owned or controlled upland area adj acent to public waterfront
access areas to allow for landward movement;
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
4. Expand coastal nature preserves and acquire key undeveloped coastal wetlands and adjacent
conservation areas to provide sufficient upland buffer areas for wetland migration;
b. Planning and Regulatory Policies
5. Halt attempts to stabilize the shoreline within or adjacent to the soft coasts and main-
tain/restore the ability for coastal sand dune systems, coastal wetlands and eroding bluffs to migrate
inland.
6. Along all soft coasts, establish setbacks for all structures (including walls and bulkheads)
based on projected shoreline position assuming a 100 cm rise in sea level over the next century to
protect the natural systems.
7. As a limited exception to #6, in those areas expected to remain stable over the next 100 years
assuming a continuation of historic sea-level rise, allow construction of new, small, easily-movable
structures (excluding seawalls or bulkheads) built at low densities adjacent to sand beaches or
marshes on the condition that they be removed if they begin to interfere with coastal processes.
8. As a limited exception to #6, allow new structures for functionally water-dependent uses
which meet certain performance standards.
9. Treat existing development within the area threatened by erosion or inundation from a
sea-level rise of 100 cm over the next century as non-conforming structures, prohibit expansion or
intensification of use, but allow ordinary maintenance and repair so long as not damaged by more
than 50% of its value. To the extent legally feasible, require the owner to remove the structure if it
is damaged by more than 50% of its value, if the structure becomes located on public land, or
becomes a public nuisance.
10. On any site unlikely to be affected by a 100 cm rise but likely to affected by a 100 to 200 cm
rise over the next century, allow new subdivision development only if it meets performance
standards for cluster development designed to minimize the costs of protection.
11. Supplement State regulatory procedures by encouraging/requiring other agencies and
municipalities to consider the probability of future increased rates of sea-level rise in making
investment, development and permitting decisions.
c. Strategic Assessments, Research and Education
12. Designate one State agency as the lead agency for monitoring issues associated with global
climate change and sea-level rise.
13. The lead State agency and cooperating State agencies should undertake additional research
to document coastal erosion and to determine how revised global or regional projects of particular
impacts of global climate change may affect Maine.
14. Undertake a substantial education effort aimed at local officials, code enforcement officers,
other State agencies, current and potential coastal landowners and the general public to focus on the
hazards of coastal erosion and inundation, possible impacts of accelerated sea-level rise, the costs
of engineered "solutions" and the benefits of conserving the soft coasts as a resilient natural system.
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15. As funding permits, undertake supplemental studies on related impacts, specifically
including the impacts of coastal flooding/storm surges and salinization/saltwater intrusion with
accelerated sea-level rise. In addition, continue to assess policy response options, particularly rolling
easements or other market-based approaches, to supplement the use of regulatory setbacks.
The study makes the most detailed recommendations with regard to modification of regulatory
strategies. However, researchers also recommend additional evaluation of policy options, including
market-based approaches such as the acquisition of rolling easements, to facilitate planning for even
longer time frames (beyond 100 years) or higher than projected sea-level rise (greater than 100 cm.
by 2100).
There are opportunities for the State to demonstrate leadership in non-regulatory spheres in
preparing for the possibility of an accelerated rate of sea-level rise. For example, it should illustrate
sound economic analysis by incorporating an awareness of sea-level rise projections into its
decisions about public works projects, capital investments, public waterfront access siting, and
acquisition of conservation areas.
State agencies should also provide leadership through the development and transfer of technical
information. Maine Geological Survey and other State agencies should continue to monitor national
global climate change projections, analyze the implications of national projections for the State of
Maine, and provide technical assistance to municipalities about coastal erosion, historic rates of
sea-level rise, and local impacts of projected accelerated rates of change.
The State should also undertake a widespread public education effort to emphasize the non-static
nature of the shoreline and the benefits to other shoreline owners, the community and the State of
protecting the ability of natural systems to adjust to changes in shoreline position. It is particularly
critical to convey information about anticipated shoreline change, coastal processes, and related
regulatory constraints to current and potential coastal landowners so that they do not harbor any
unrealistic expectations about being able to interfere with natural coastal processes.
Finally, it is important for the State to continue to be an active participant in anticipatory
planning for sea-level rise and global climate change. For example, the State should contribute to
efforts to mitigate the global and local impacts of greenhouse gasses by participating in appropriate
emission reduction efforts. Through a designated lead agency, the State should also keep abreast of
scientific developments and evolving legal tools. It should plan to revisit its adaptive response
strategy on a periodic basis, perhaps on a ten year schedule. This iterative approach will allow the
State to incorporate evolving scientific information, evaluate emerging legal tools, and refine its
approach based on the best information available at that time.
G. ENDNOTES
l. JOSEPH KELLEY, ET AL., LIVING WITH THE COAST OF MAINE (Durham, NC: Duke University
Press, 1989).
2 . INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, WORKING GROUP I, 1992IPCC
SUPPLEMENT: SCIENTIFIC ASSESSMENT OF CLIMATE CHANGE 4 (J.T. Houghton, et al., eds.,
1992).
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
3 . Appendix A: Conclusions from the 1990IPCC First Assessment Report, in GLOBAL
CLIMATE CHANGE AND THE RISING CHALLENGE OF THE SEA (L. Bijlsma, J. O'Callaghan, et al.,
eds., Rijkswaterstaat, The Netherlands, Report of the Coastal Zone Management Subgroup, IPCC
Global Response Strategies Working Group, May 1992).
4 . KELLEY, supra note 1.
5 . See discussion and references cited, Chapter 2, 2-15 to -16.
6 . T.V. Armentano, R.A. Park, and C.L. Cloonan, Impacts on coastal wetlands throughout the
United States, in GREENHOUSE EFFECT, SEA-LEVEL RISE AND COASTAL WETLANDS 87-128 (J.G.
Titus, ed., Wash., DC: EPA, 1988).
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Chapter One
PLANNING FOR SEA-LEVEL RISE
The threat of global climate change is one of the major issues confronting the world as it enters
the 21st century. We are faced with a variety of predictions that indicate that the human race cannot
continue to use up the earth's non-renewable resources at the current pace with impunity. Some
experts hypothesize that the current pattern of resource consumption has set into motion a series of
interactions which are causing global warming. One of the possible projected impacts of this
human-induced global climate change is an accelerated rise in global sea level.
A very substantial international scientific research effort has been conducted during the last
decade to try to verify the phenomenon and project the impacts of global climate change.
Meanwhile, policy makers familiar with various impact proj ections are anxious to move beyond the
problem-recognition stage to begin to develop constructive responses.
The critical issue is how best to develop specific responses when many scientific issues remain
unresolved. This report asserts that meaningful preparations can take place now, despite scientific
uncertainty, by carefully building upon what is already known. It utilizes the following approach:
at the outset, clearly identify what we know about sea-level trends in Maine,
what we know about global climate change and associated global sea- level change,
and what we believe to be the most likely impacts associated with accelerated
sea-level rise;
• seek "no regrets" strategies (which we will not regret even if there is no accelera-
tion in the rate of sea-level rise) which also address known threats and recognize
that sea-level rise is just one factor affecting land loss.
use a range of likely sea-level rise scenarios to evaluate vulnerability and develop
response strategies rather than limiting the analysis to a single projection;
• continue to participate in appropriate emission reduction strategies in an attempt
to mitigate likely impacts;
• assume that State and/or local governments will have primary responsibility for
mitigating local impacts of accelerated sea-level rise;
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
• build into the process periodic review and adjustment of anticipatory sea-level rise
response strategies.
Each step in this approach is discussed in more detail below.
A. REVIEW WHAT WE KNOW ABOUT SEA-LEVEL TRENDS IN MAINE,
GLOBAL CLIMATE CHANGE AND ASSOCIATED IMPACTS
1. Historical Rates of Sea-Level Rise in Maine
Sea level varies significantly in both its vertical and spatial position over time. Much of the
variation, such as that caused by the tides, results in no net change in the position of the shoreline.
However, geologists have recorded vertical movement of the sea between 25,000 years ago and the
present greater than 100 meters as a result of the waxing and waning of continental glaciers.1
During the last fifty years, geodesists have observed tide gauges record a rise of the sea which
has averaged 2.4 mm/yr in New England.2 The exact reasons for this rise are still uncertain, but may
be caused by melting of small glaciers,3 thermal expansion of warming sea-surface water,4 land
subsidence,5 or a combination of all of these factors.6
The Maine Geological Survey has used National Ocean Survey tide-gauge readings to estimate
that Maine's rate of sea-level rise between 1940 and 1980 ranged from 1.1 mm per year in Kittery,
to 2.3 mm per year in Portland, to 3.2 mm per year in Eastport.7 If that rate continues unchanged into
the future, it translates to increases per century of 11 cm (4 inches) in Kittery, 23 cm (9 inches) in
Portland, and 32 cm (12 inches) in Eastport. Maine's coast is currently experiencing significant local
submergence (decreased land elevation) due to lingering effects possibly caused by loading and
unloading of receding ice sheets.8 The rate of sea-level rise is supposed to be greatest in the Eastport
areabecause of more rapid land subsidence in that area;9 but this conclusion remains controversial.10
To keep this information about changes in sea-level in perspective, it is important to understand
that a vertical increase of 11 to 32 cm (4 to 12 inches) in the level of the ocean will translate to a
much larger horizontal migration of the high water line landward, depending upon the slope of the
adjacent land surface and the type of shoreline. (See Figure 1.1} At a minimum, with a one foot
rise, the shoreline will move at least as far inland as the previous one-foot topographic contour line.
On a very gently sloping coast, that contour line will be much farther inland than on a steep coast.
However, while this simple method of estimating land loss from the slope of the land surface
may be useful for sheltered estuaries or wetlands, it greatly underestimates land loss along eroding
coastal bluffs or sandy shorelines. Coastal bluffs retreat at highly variable rates, depending on
complex factors.11 Sandy shorelines are also characterized by complex migration processes which
result in land loss many times greater than the vertical rise in sea level;12 some studies have estimated
the landward movement of the shoreline per century to be in the magnitude of 100 to 300 times the
vertical rise over that same period.13 So, for example, a 23 cm (9 inch) vertical rise in sea level over
the next century along a sand beach could translate into a movement of the shoreline landward in the
magnitude of 23 to 69 meters (75 to 225 feet) per century.
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Figure 1.1. Small vertical changes in water level shift coastlines dramatically on gently sloping coasts but cause only
minor shifts on steep coasts. Source: U.S. Geological Survey, COASTS IN CRISIS, Washington, DC (1990).
2. Accelerated Sea-Level Rise as a Result of Global Climate Change
The continued rise of the sea at the present rate (discussed immediately above) poses many
problems along developed shorelines.14 However, even greater concern has been raised for the
potential impact of a still more rapid rise of the ocean than is presently occurring. Some scientists
are predicting that the rate of sea-level rise will accelerate as a result of global climate change
associated with the "greenhouse effect."15
The greenhouse effect, also referred to as global warming, is described as the presence of
increased concentrations of human-induced gases, such as carbon dioxide and methane, in the
atmosphere. These gases trap heat re-radiating from the earth's surface and raise the earth's
atmospheric temperature. This, in turn, could increase the rate of sea-level rise due to further
expansion of the sea's surface layer and glacial melting.16 Thus to accurately project sea-level rise
under conditions of global climate change, an additional increment must be added to local historical
rates to reflect a global increase in ocean volume.
Scientific knowledge about possible global climate change and the associated increase in sea
level is still at a very rudimentary stage. Recent studies tend to assume that best proj ections indicate
a rise of approximately 1 to 3 feet by 2100, while earlier studies assumed a rise of 2 to 7 feet by
2100.17 One of the more recent estimates put a "best guess" at 48 cm (approximately 1.5 feet) higher
than present by the year 2100.18 (See Figure 1.2)
Because there is still a wide range of uncertainty associated with projections of global climate
change and resulting sea-level rise, scientists cannot provide coastal managers with a single number
which represents the projected accelerated sea-level rise attributable to global warming. Instead, to
assess possible impacts, coastal planners have to use a range of scenarios designed to be broad
enough to encompass the range of likely outcomes. These scenarios are discussed in more detail in
section C of this chapter.
Chapter One
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
BEST GUESS
(AFTER WIGLEY AND RAPER, 1992)
2000 2020 2040
2060
2080 2100
YEAR
Figure 1.2. Estimates of future sea-level rise (modified from Wigley and Raper, 1992). L, M, and H refer to low,
medium and high estimates of future sea levels.
3. Possible Impacts of Accelerated Sea-Level Rise
Given projected increases in sea level due to a combination of local and global changes, the next
step of the analysis is to try to integrate possible scenarios with information about probable impacts.
It is not yet possible to make precise predictions of the magnitude and specific array of future
impacts of global warming.19 However, researchers have begun to develop lists of possible impacts,
and have begun to separate the probable from the merely possible. They have also begun to
recognize that the baseline health of the coastal zone may have significant bearing on the ability of
the region to adjust to a change in sea level.
During the last several decades, coastal regions of Maine have experienced very significant
growth in the number of residents and recreational visitors.20 This development pattern has resulted
in a variety of problems including the degradation of coastal habitats, user conflicts resulting from
spatial limitations, coastal pollution due to increasing volumes of municipal wastes and other point
and nonpoint sources of water pollution, and coastal erosion and flooding due to insufficient
allowance for natural coastal processes. Accelerated sea-level rise will tax those natural systems
which provide protection against the sea (e.g., sand dune systems, wetlands) and will accentuate
problems caused by or symptomatic of degradation of those systems.
In addition, depending upon the degree of sea-level rise and local conditions, scientists predict
that new problems will be added to those already caused by intensive use of coastal areas. These
new problems may include:
1) changes in the location of the terrestrial-aquatic boundary;
Chapter One
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Planning for Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
2) increased frequency and inland extent of flooding;
3) loss of coastal wetlands;
4) accelerated dune and beach erosion;
5) loss of significant habitat for commercially important species;
6) saltwater intrusion into groundwater; and
7) greater upstream intrusion of salt-water wedges.
In turn, these impacts on the natural environment may also:
1) destroy or undermine structures in developed areas;
2) damage the infrastructure; and
3) disrupt the local economy, particularly natural resource-dependent sectors.
The vulnerability to these possible impacts is assessed in greater detail in Chapters Two and
Three of this report.
B. SEEK "No REGRETS" STRATEGIES WHICH ALSO ADDRESS
KNOWN THREATS AND RECOGNIZE THAT SEA-LEVEL RISE
is JUST ONE FACTOR AFFECTING LAND Loss
Representatives of the United States Environmental Protection Agency, the United Nations
Environment Programme, the World Meteorological Organization, and the international Intergovern-
mental Panel on Climate Change (IPCC), assert that despite scientific uncertainty about the global
climate change, the magnitude of the potential negative impacts makes it incumbent upon govern-
ments to develop response strategies without waiting for conclusive proof of causation or complete
unanimity in the scientific community. For example, the IPCC Coastal Zone Management Subgroup
has adopted the following statement:
It is urgent for coastal nations to begin the process of adapting to sea level rise not because
there is an impending catastrophe, but because there are opportunities to avoid adverse
impacts by acting now, opportunities that may be lost if the process is delayed. This is also
consistent with good coastal zone management practice irrespective of whether climate
change occurs or not.21
Due to the scientific uncertainty about global climate change and lag time before most impacts will
be felt (if they occur at all) most of these representatives are not advocating immediate concrete steps
to armor the shoreline or otherwise get ready for a change in sea level. Rather they emphasize
relatively low-cost strategies which not only make sense to minimize any adverse impacts of
accelerated sea-level rise, but which would also make sense (e.g., which the government would not
regret taking) even if sea level does not rise at an accelerated rate. For example, these strategies may
be justified because they increase the ability to survive coastal storm events of the intensity currently
experienced with less damage or because they strengthen the resiliency of coastal resources. The
focus of this report is on identifying these types of "no regrets" strategies.
In seeking these "no regrets" strategies, it is important to recognize that there are many
interacting variables that can lead to coastal land loss. (See Figure 1.3) Projections of shoreline
Chapter One 1-5 Planning for Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
change as a result of sea-level rise caused by global climate change represent just one variable. The
local impact will depend on the interactions of all of these variables. Furthermore, even if
projections are wrong and global climate change does not cause a substantial rise in sea level, the
other factors may cause significant land loss.
SOURCES
riverine discharge
shoreline erosion
onshore transport
eolian processes
SINKS
shoreline accretion
storm washover
tidal inlets
coastal structures
eolian processes
offshore transport
resource extraction
subsurface fluid withdrawal
river basin development
maintenance dredging
beach maintenance
coastal structures
artificial passes
dune alterations
highway construction
temperature
evapotranspirotion
precipitation
COASTAL
PROCESSES
RELATIVE
SEA LEVEL
wave climate
longshore currents
riverine discharge
valley aggradation,
or incision
tides
wind
storms
tectonic subsidence
compactional subsidence
eustatic sea level changes
secular sea level changes
Figure 1.3. Interaction of agents affecting land loss. Arrows point toward the dependent variables. The number of
arrows originating from or terminating at a particular agent indicates the relative degree to independence or interaction.
For example, human activities are independent of other agents, but they affect sediment budget, coastal processes,
relative sea level conditions, and perhaps climate (from Morton [1977]).
Source: O.H. PILKEY, ET AL. COASTAL LAND Loss. (Wash., DC: American Geophysical Union, 1989) at 6.
The factors affecting land loss are identified as:
1) relative sea-level changes (including not only eustatic (world-wide) sea-level changes
which might be attributable to global climate change, but also tectonic and compactional
subsidence and oceanographic sea-level changes);
2) coastal processes (waves and currents, with highest and most intense levels of wave
and current energy affecting the coast during intense storms such as hurricanes and
northeasters);
3) alterations in the sediment budget (affecting sandy shores, with supplies from
coastal rivers interrupted by natural decreases, river containment or diversion, dam
construction);
Chapter One
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Planning for Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
4) climate (temperature and precipitation indirectly influencing land loss by affecting
decomposition of rocks, vegetated cover, and upland runoff); and
5) human activities (such as coastal construction projects, fluid production, and
resource extraction promoting alterations and imbalances in the sediment budget,
coastal processes and relative sea level).22
The multi-factored, interactive nature of the land loss process highlights two important
considerations in any anticipatory planning process:
• Coastal land loss is a natural phenomenon, perhaps increasingly exacerbated by
human activities. It does not become a "problem" until humans try to hold back
natural processes of land migration.
• Coastal land loss may result from factors other than eustatic sea-level rise attributable
to global climate change, with coastal storms and human activities which disrupt the
sediment budget being prime factors. Thus, it is important that any anticipatory plan
be responsive to these land loss factors as well.
Since these factors are so interrelated, it may be possible to develop "no regrets" strategies which
address sea-level rise, but will also minimize coastal land loss from other factors.
C. COMPENSATE FOR SCIENTIFIC UNCERTAINTY BY USING A RANGE
OF SEA-LEVEL RISE SCENARIOS
While the scientific models and current knowledge are sufficiently developed to identify a
potential problem on a global scale, they can not yet accurately predict the timing and magnitude of
sea-level rise on a local scale.23 It is thus prudent to use a range of possible scenarios to assess
vulnerability and evaluate response options.
For at least the last decade, the international research community has used an assumption of a
one meter rise in sea level over the next century to study possible impacts. During that time, specific
research projects have developed other high, medium and low scenarios, illustrated in Figure 1.2 (p.
1-4) and Figure 1.4, on the following page.
In its sea-level rise studies, the U.S. Environmental Protection Agency (EPA) has generally
continued analyzing the National Research Council's 1985 scenarios of a rise of 50, 100 and 200 cm
0/2, 1 and 2 meters) by 2100. According to the EPA, the primary reason for using the 50, 100 and
200 cm scenarios is not that it expects these precise results to unfold, but rather that they are "round
numbers" that seem to "bracket the range" and serve its goal of being a bit wider of the mark so they
cover every contingency.24 EPA asserts that the extra-high scenario (200 cm) is useful to project
what might happen in the very long run (perhaps 200 years or longer) since there is no reason to
expect the effects of global warming to stop in 2100. EPA suggests that the extra-high scenario is
also useful for identifying which areas are at any risk, even though small, of being affected by
accelerated sea-level rise over the next century to assist with siting facilities that would be severely
impacted by coastal erosion, such as a hazardous waste disposal facility.
Chapter One 1-7 Planning for Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
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NRC(1983)
• EPA 11983) Low
• IPCC (1»0) Low
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2050
YEAR
2100
Figurel.4. Estimate of future sea level rise. Source: J.G.Titas,etai.,GreenhouseEffectandSeaLevelRise: TheCost
of Holding Back the Sea 19 COASTAL MANAGEMENT 171-204 (1991) at 176.
EPA does not equate these scenarios with projections of the most likely outcomes. Recent EPA
uncertainty analyses, now cite the 50 cm scenario as the median estimate by 2100. This analysis
gives 200 cm a less than 0.5% chance of happening by the year 2100 and a 10% chance of happening
by 2200. The mid-level 100 cm scenario is given a 5% chance of happening by 2100, but a 50%
chance of happening by 2200.25
Despite these probabilities, the EPA continues to advocate that all areas examine their sensitivity
to at least the one meter rise scenario, because that builds in some precautionary room for error and
probably has the effect of extending the analysis beyond 2100. EPA has recommended that
communities add the local historical rate of sea-level change (positive or negative) attributable to
subsidence to the 50, 100 or 200 cm adjust for local conditions.
In 1990, the Intergovernmental Panel on Climate Change (IPCC) reaffirmed this general
approach when it developed its best estimates of future sea-level rise. It predicted that by the year
2100 there will be a global rise in sea level in the range of 33 to 110 cm, with a most likely rise of
66 cm.26
Chapter One
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Planning for Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Other researchers have subsequently made adjustments to these sea-level rise projections based
on revised International Panel on Climate Change emissions scenarios. These revisions place the
global low-, mid- and high-level scenarios at 15 centimeters, 48 centimeters and 90 centimeters,
respectively.27
Table 1.1 summarizes historical change and various scenarios or projections, using a measured
historical rise in Portland as the base. Thus, depending on the assumptions used, sea-level rise
predictions or scenarios combining both local subsidence and global change range from a low of 24
to 59 cm, to a high of 104 to 214 cm, with a mid range of 60 to 112 cm.
Table 1.1. Predicted Sea-Level Rise in Portland, Maine, 2100
Low Mid High
Historical (Maine Geological Survey)
Local Historical (historical less eustatic rise component)
Global Sea-Level Rise Scenarios
Forecast Rise 1 (local historical plus global scenarios)
1990 IPCC Sea-Level Rise Estimate
Forecast Rise 2 (local historical plus 1990 IPCC estimate)
Adjusted IPCC After Revised Emissions
Forecast Rise 3 (local historical plus adjusted IPCC)
21 cm
9 cm
50cm
59 cm
33 cm
42 cm
15 cm
24cm
24cm
12 cm
100cm
112cm
66 cm
78cm
48cm
60 cm
26 cm
14 cm
200cm
214cm
110cm
124 cm
90cm
104cm
Source: Adapted from Maine Geological Survey, First Year Report on Hazard Mapping Project, 1993.
In mapping shoreline change based on accelerated sea-level rise scenarios, this project opted to
map scenarios of sea level of 50,100, and 200 cm above present sea level in the year 2100. This was
the equivalent of using typical global scenarios without adding an additional increment for local
change. For the low- and mid-level scenarios, it was substantially equivalent to using 1990 IPCC
projections of global change plus local change. While recognizing the importance of local change
as a factor, the project opted not to add local change to global scenarios for purposes of mapping
change in shoreline position because: 1) local historical sea-level rise varies over the study area;
2) local change is relatively small in relation to the global scenarios; and 3) adding local historical
change to the global scenarios would cause the mapped assumptions to deviate even more from
IPCC 1990 projections and later revised projections of sea-level rise based on revised emission
projections. It was felt that use of these 50, 100 and 200 cm scenarios incorporated the requisite
margin for error and worst-case scenarios that must be factored in when planning to mitigate severe
adverse coastal impacts.
D. Participate in Appropriate Emission Reduction Strategies
While the emphasis of the preceding discussion has been on adaptation strategies, the State
should not lose sight of the fact that one way to reduce the extent of sea-level rise is to reduce
emission of greenhouse gases. Clearly the problem of increased concentrations of greenhouse gases
is global in scope. International attempts are being made to negotiate reductions in emissions of
Chapter One
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
particular trace gases. While hopes are high for a joint international agreement, similar efforts
suggest that progress will probably be slow and incomplete.
But the State of Maine does not have to wait for a coordinated international response. In the
United States, a variety of state and local governments have developed their own partial emission
reduction strategies. For example, responses have included:
• comprehensive studies/plans to reduce greenhouse gas emissions and per capita
nonrenewable energy consumption;
• utility regulation strategies (e.g., choices regarding fuels, conservation initiatives,
preference to conservation, and demand-side management measures);
• building codes (e.g., requiring buyers to make conservation investments when they
purchase a house);
small scale demonstration projects (e.g., reduced energy use by state agencies,
transportation policies to reduce automotive use, efficiency investment in new
buildings);
attempts to incorporate environmental costs of nonrenewable energy sources into
prices through tax policies; and
• participation in EPA's Green Lights program to install energy efficient equipment
when it is profitable and does not compromise lighting quality.29
Admittedly, these state and local programs can only make a small incremental contribution to
reducing the global emission problem. But adaptation planning and emission reduction efforts
should both be pursued by the State.
E. ASSUME STATE/LOCAL GOVERNMENTS WILL HAVE THE PRIMARY
RESPONSIBILITY FOR MITIGATION OF SEA-LEVEL RISE IMPACTS
With emission reduction strategies, there is a misguided, but nevertheless strong, temptation to
wait for national or international bodies to adopt the laws or negotiate the treaties that will put in
place a coordinated global response. In contrast, whether it likes it or not, the State will probably
bear the burden and the responsibility to formulate the local, adaptive response to this global
problem. The impacts of global climate change will be felt locally, the costs will generally be borne
locally and, in the United States, since land use controls are generally a function of state or local
governments, the responsibility for much of the response planning will fall on those governments.30
Thus, even if state and local governments have little direct control over reducing global greenhouse
gas emissions, they will have a major responsibility for planning to adapt to potential adverse
impacts.
Chapter One 1-10 Planning for Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
F. UTILIZE A PROCESS WHICH INCORPORATES PERIODIC REVIEW
AND UPDATING OF THE ADAPTIVE RESPONSE STRATEGY
Given scientific uncertainty and rapidly evolving scientific knowledge, coastal managers are not
in a position to make decisions now about a definitive adaptive response strategy for the next
century. Rather policy decisions will have to be made now based on the best available knowledge,
with the express intent of reviewing these policies periodically (e.g., every five to ten years) as
scientists refine their predictions. It will be an iterative process.
Despite the scientific uncertainty and complexities discussed above, there are certain affirmative
statements that can be posited as a starting point for Maine's anticipatory planning for sea-level rise:
1. Despite some scientific uncertainty about causation and extent of global climate change, the
magnitude of the potential negative impacts makes it incumbent upon governments to develop
response strategies without waiting for conclusive proof of causation or unanimity in the scientific
community;
2. Even though negotiations are being conducted to reduce emissions of greenhouse gases, due
to forces already set into motion, it is essential to simultaneously develop local adaptation strategies
in preparation for potential impacts of future global climate change;
3. In coastal communities, adaptation strategies should first focus on the possible impacts of
sea-level rise associated with global climate change since that will have the most direct impact on
natural resources and human development.
4. In the United States, it is appropriate for States to take the lead in developing local sea-level
rise adaptation strategies since they will be most directly responsible for coping with the local
impacts. States already possess a range of land use, zoning, development regulation, public
investment, economic incentive, and similar tools to use in developing anticipatory strategies.
5. Due to the inherent complexities of predicting impacts of global climate change and the first,
second, and higher order impacts of relative sea-level change, and the interconnections between
those impacts, the initial analysis should be a first-cut at determining the most likely impacts and the
general magnitude of those impacts within very broad parameters. If further refinement of the
assessment of vulnerability of particular localities or resources is needed to develop adaptation
strategies, additional detailed scientific studies will be required.
6. Developing adaptive response strategies will be an iterative process that will require decisions
to be based on the best available information at the time. Anticipatory response plans should be
reviewed and updated as scientific knowledge increases, projections of magnitude of global sea-level
rise are refined, and experience with governmental response strategies increases.
7. The State should retain and improve on existing policies (supplemented as necessary by new
policies) which strengthen the State's position with regard to the known, measurable threats already
posed by a continuation of the historical rate of sea-level rise, but are also sufficiently flexible to
respond to accelerated sea-level rise, if it occurs. These "no regrets" strategies will be justified (and
the State will not regret implementing them) even if the global warming theories are incorrect and
the State does not experience any change in the rate of coastal erosion or change in shoreline position
attributable to the greenhouse effect.
Chapter One 1-11 Planning for Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
The detailed results of the mapping and vulnerability assessment components are contained in
the next two chapters. The remaining chapters explore anticipatory response options from economic
and legal perspectives.
G. ENDNOTES
1. R.G. Fairbanks, ^477,000 Year Glacio-Eustatic Sea-Level Record: Influence of Glacial Melting Rates on
the Younger Dryas Event and Deep-Ocean Circulation, 342 NATURE 637-642 (1989) and J.T. Kelley, S.M.
Dickson, D.F. Belknap & R. Stuckenrath, Sea-Level Change and the Introduction of Late Quaternary
Sediment to the Southern Maine Inner Continental Shelf, in QUATERNARY COASTS OF THE UNITED STATES,
at 23-24 (J. Wehmiller & C. Fletcher, eds., Soc. Econ. Paleo. and Mineralogists, Spec. Pap. 48, 1992).
2. S.D. Lyles, L.E. Hickman, &H.A. Debaugh, SEA-LEVEL VARIATIONS FOR THE UNITED STATES 1855-1986
(National Ocean Services, National Oceanic and Atmospheric Administration, Office of Oceanography and
Marine Assessment, Rockville, MD, 1988).
3. M.F. Meier, Contribution of Small Glaciers to Global Sea Level, 226 SCIENCE 1418-1421 (1984).
4. D. Reommich, Ocean Warming and Sea-Level Rise Along the Southwest U.S. Coast, 257 SCIENCE 373-
375 (1992).
5. D. AUBREY & K.O. EMERY, SEA LEVELS, LAND LEVELS, AND TIDE GAUGES, (New York, NY: Springer
Verlag 1990).
6. W.R Peltier, Global Sea Level and Earth Rotation, 240 SCIENCE 148-1421 (1988).
7. D.F. Belknap, B. Andersen, et al., LATE QUATERNARY SEA-LEVEL CHANGES IN MAINE, at 71-75 (Soc.
Econ. Paleo. and Mineralogists, Spec. Publ. 41, 1987).
8. W.R. Gehrels &D.F. Belknap,Neotectonic History of'Eastern Maine Evaluated'from Historic Sea-Level
Data and C-14 Dates on Salt-Marsh Peat, 21 GEOLOGY 615-618 (1993).
9. W.A. Anderson, et al., Crustal Warping in Coastal Maine, 12 GEOLOGY 677-680 (1984).
10. R. Reilinger, Reanalysis of Crustal Warping inMaine, 15 GEOLOGY 998-961 (1987); W.R. Gehrels &
D.F. Belknap, supra note 8, at 615-618.
11. HANDBOOK OF COASTAL PROCESSES AND EROSION (P.O. Komared., Boca Raton, FL: CRC Press 1983).
12. O.K. PILKEY, R.A. MORTON, J.T. KELLEY & S. PENLAND, COASTAL LAND Loss, (Wash., DC: American
Geophysical Union 1989).
13. NATIONAL RESEARCH COUNCIL, MANAGING COASTAL EROSION (Wash., DC: National Academy Press
1990).
14. W. KAUFMANN & O. PILKEY, THE BEACHES ARE MOVING: THE DROWNING OF AMERICA'S SHORELINE
(Duke Univ. Press 1983) (1979); J.T. KELLEY, A.R. KELLEY & O.H. PILKEY, LIVING WITH THE COAST OF
MAINE (Duke University Press, 1989); and O.H. Pilkey, J.T. Kelley, RA. Morton & S. Penland, supra note
Chapter One 1-12 Planning for Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
15. There are two basic indicators of global climate change: global mean temperatures and global mean sea
level. Evidence exists that global mean surface temperatures have increased by 0.3 to 0.6 ° C over the last
100 years. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, WORKING GROUP I, 1992 IPCC
SUPPLEMENT: SCIENTIFIC ASSESSMENT OF CLIMATE CHANGE 4 (J.T.Houghton,etal.,eds., 1992) [hereinafter
1992 IPCC SUPPLEMENT] . Global mean sea level is correlated with temperature and has apparently increased
by 10 to 20 cm during the last century as well. V. Gornitz, S. Lebedeff & J. Hansen, Global Sea Level Trend
in the Last Century, 215 SCIENCE 1611-1614 (1982).
One theory advanced to explain the observed global warming is that the measurable increase in greenhouse
gas concentrations during the last century has trapped solar heat. Scientists theorize that these trace gases
(such as carbon dioxide and methane) which are believed to result in large part from human activities (e.g.,
burning of fossil fuels, deforestation, certain agricultural practices) delay the escape of infrared radiation
from the earth's atmosphere. This trapped heat causes a warming of temperatures. According to this theory,
it also causes a rise in sea level due to the thermal expansion of sea-surface water and, melting of small
glaciers. M.F. Meier, Contribution of Small Glaciers to Global Sea Level, 226 SCIENCE 1418-1421 (1984);
W. Peltier, supra note 6, at 895-901.
Changes in global surface temperature and concentrations of greenhouse gases that were observed during
recent years are consistent with the greenhouse theory, but most scientists take the position that a definitive
cause/effect relationship has not yet been demonstrated. Too few and too widely dispersed temperature
observations, and sea-level measurements biased by a concentration of tide gauges in subsiding,
formerly-glaciated regions preclude definitive statements yet on the status of global climate change.
In addition while most scientists acknowledge that the greenhouse gas theory is consistent with the
evidence of global temperature changes and changes in mean sea level, most scientists agree that another
viable theory exists which also explains those temperature and sea-level rise observations: natural internal
variability. P. Stone, Global Climate Change: Causes, Evidence and Prediction in AIP CONFERENCE
PROCEEDINGS: THE WORLD AT RISK: NATURAL HAZARDS AND CLIMATE CHANGE SYMPOSIUM (Rafale Bras,
ed., Cambridge, MA: MIT Center for Global Change Science and Industrial Liaison Program, 1992)
[hereinafter THE WORLD AT RISK] and 1992 IPCC SUPPLEMENT, supra at 4. These scientists note that the
observed global warming is still within the range that could be explained by natural variations in climate
based on historical natural climate variations. Until the data proves that the observations exceed historical
variations, the greenhouse gas theory cannot be validated. It is not expected that observations which support
the theory of enhanced greenhouse effects will provide unequivocal information for at least a decade. 1992
IPCC SUPPLEMENT, supra at 4.
16. J.G. Titus, Greenhouse Effect, Sea-Level Rise and Barrier Islands, 18 COASTAL MANAGEMENT 1-20
(1990). An increase in sea level may result through one or more of the following: 1) thermal expansion of
ocean water (the same amount of water takes up more space as its temperature increases above 4° C); 2)
increased melting of mountain glaciers; 3) melting of Greenland glaciers; and 4) introduction of portions
of massive Antarctic glaciers into the ocean. W.R. Peltier, supra note 6.
17. THE POTENTIAL EFFECTS OF GLOBAL CLIMATE CHANGE ON THE UNITED STATES, (J.B. Smith & D.A.
Tirpak, eds., Wash., B.C.: Hemisphere Publishing Corporation, 1990) and J.G. Titus, The Cost of Holding
Back the Sea, 19 COASTAL MANAGEMENT 171 (1991).
18. T.M.L. Wigley & S.C.B. Raper, Implications for Climate and Sea Level of Revised IPCC Emission
Scenarios, 357 NATURE 293-300 (1992).
19. There are several reasons for a lack of precision in predicting the range and magnitude of impacts. These
include the inherent unpredictability of climate, the unpredictability of other events that could affect the
global climate (e.g., volcanic activity, solar emissions), the unpredictability of rates of increases in
Chapter One 1-13 Planning for Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
greenhouse gases which may be driving the warming (e.g., negotiated reductions in emissions, public
education altering emissions), and inherent limitations of current climate models. P.H. Stone, Forecast
Cloudy: The Limits of Global Warming Models, THE WORLD AT RISK supra note 15, at 143-149. There is
also continuing debate over the list of expected impacts. Small differences in assumptions make major
differences in projected impacts. Nevertheless, it is important to note that sea-level rise is one of the major
impacts of global climate change that is projected with a relatively high level of confidence. If the planet
is in fact experiencing human-induced global climate change, global sea-level rise is one of the most likely
impacts. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE: THE IPCC SCIENTIFIC
ASSESSMENT (J.T. Houghton, G.J. Jenkins & J.J. Ephraums, eds., Cambridge University Press, 1990). Since
it is one of the less speculative impacts, this report focuses on sea-level rise. Some other projected impacts
with potential bearing on the coastal region are mentioned in the report as well.
20. J.R. KELLEY, A.R. KELLEY & O. PILKEY, LIVING WITH THE COAST OF MAINE (Duke University Press
1989).
21. Appendix A: Conclusions from the 1990 IPCC First Assessment Report, in GLOBAL CLIMATE CHANGE
AND THE RISING CHALLENGE OF THE SEA (L. Bijlsma, J. O'Callaghan, et al., eds., Rijkswaterstaat, The
Netherlands, Report of the Coastal Zone Management Subgroup, Intergovernmental Panel on Climate
Change, Response Strategies Working Group, May 1992).
22. O.K. PILKEY, R.A. MORTON, J.T. KELLEY & S. PENLAND, supra note 12.
23. There is a significant discrepancy in the scales used by scientists and the needs of the local policy
makers. Modelers of climate change are usually working on a scale of thousands of miles. Policy makers,
in contrast, are often hoping to narrow the findings to a particular municipality, county or state. While some
scientists have attempted to use scientific methodologies to convert from a regional global circulation model
to local predictions, the effort is very complex and results can suffer from significant limitations. J.P.
Hughes, D.P. Lettenmaier & E.F. Wood, An Approach for Assessing the Sensitivity of Floods to Regional
Climate Change, in THE WORLD AT RISK, supra note 15, at 112. Even though some impacts are predicted
on a global scale, they will affect different parts of the world differently. For example, increased global
mean temperature is a change that is predictable with some degree of certainty, but the extent of the increase
is still the subject of much debate. Attempts to move from the global scale to the local scale to predict
changes in local air temperature have not been successful because local air temperatures will be affected by
changes in rainfall and wind patterns (among other things). While able to give a general indication of the
likely direction of change on a larger regional scale, global circulation models are not yet able to predict
changes in rainfall and winds with accuracy on a local scale. J.C. Pernetta & D.L. Elder, Climate, Sea Level
Rise and the Coastal Zone: Management and Planning for Global Changes, 18 OCEAN AND COASTAL
MANAGEMENT 1,136 (1992).
24. Correspondence from James G. Titus, Office of Policy, Planning and Evaluation, United States
Environmental Protection Agency, June 6, 1994, on file with the Maine State Planning Office.
25. Id.
26. E.g., a rise of 13 to 43 inches, with a most likely rise of 26 inches. 1992 IPCC SUPPLEMENT, supra note
15.
27. T.M.L. Wigley & S.C.B. Raper, supra note 18.
Chapter One 1-14 Planning for Sea-Level Rise
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
28. Historical rates based on tide gauge readings were uniformly adjusted to find "local change" by
subtracting 12 cm. This amount was subtracted to account for the portion of the historical change
attributable to a eustatic (worldwide) rise in sea level because the historical change already includes a past
rise in worldwide sea levels. The figure of 12 cm is an estimate only, based on other estimates ranging from
10 to 18 cm. Titus, supra note 24.
29. P. Wexler & S. Conbere, States Fight Global Warming, 18 EPA JOURNAL 4, 18 (Sept./Oct. 1992).
30. J. Nigg, Societal Response to Global Climate Change: Prospects for Natural Hazard Reduction, in THE
WORLD AT RISK, supra note 15, at 289.
Chapter One 1-15 Planning for Sea-Level Rise
-------
Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Chapter One 1-16 Planning for Sea-Level Rise
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Chapter Two
VULNERABILITY OF MAINE SITES TO
ACCELERATED SEA-LEVEL RISE
Based on the analysis in Chapter One, it is clear that Maine faces a strong probability of a future
with a higher-than-present level of the sea. The critical questions are:
1) how a higher sea level is likely to impact the coastal area if no steps are taken to
respond to the threat; and
2) what efforts need to be undertaken to prevent any disasters, minimize the risk, and
manage the consequences.
To assist with answering these questions, coastal managers and decision-makers need information
about the potential magnitude of the problem, and the implications of the threat for both natural and
socio-economic systems.
This information is typically developed in a study called a vulnerability assessment. It provides
decision makers with an understanding of the susceptibility of the shoreline to rising sea-level,
clarifies the need for advanced planning, and provides information for priority setting between
specific coastal areas and/or economic sectors within the State.
A. DESIGNATION OF CASE STUDY AREAS AND SEA-LEVEL RISE SCENARIOS
The first step in the vulnerability assessment was to delineate case study areas and to specify the
sea-level rise scenarios to be assumed when mapping the future position of the shoreline at
representative locations. The research team identified seven representative southern Maine study
sites in Casco and Saco Bays, adjoining estuaries along the western margin of the Gulf of Maine.
{See Figure 2.1) The two bays have differing geological histories (described in more detail in
"Setting of Study" in Appendix C) and typically have different land use patterns as well. Portland,
Maine's largest city, is located on the southwestern edge of Casco Bay. Commerce and industry
dominate its portion of the bay, with suburban residences spread out away from it. Only in the
northern portions of the bay and on the islands can one find rural development (Kelley et al., 1989a).
Representative Casco Bay study sites were: Gilsland Farm (Falmouth), Bungunac Bluff (Brunswick)
and Wharton Bluff (Brunswick).
Chapter Two 2-1 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Saco Bay is dominated by Old Orchard Beach, Maine's largest resort beach. Motels and
commercial establishments cover the former sand dunes along the central part of the main beach,
while summer residences are often set back behind sand dunes elsewhere. Similar, but less intense
development has occurred along other Saco Bay beaches as well. Along the landward margins of
the large salt marshes, residential development has begun to occur. Representative Saco Bay study
sites were Winnocks Neck (Scarborough), Pine Point (Scarborough), Old Orchard Beach, and Camp
Ellis (Saco). (For additional background on the Casco Bay/Saco Bay region, see Appendix C.)
These study sites represent three different types of environmental settings: salt marsh, bluff and
beach. A Gilsland Farm site and the Winnocks Neck study area are primarily on or adjacent to salt
marshes. A second Gilsland Farm site, Bungunac Bluff and Wharton Bluff are located on eroding
bluffs. Old Orchard Beach and Camp Ellis are located on or adjacent to sand beaches.
As discussed in Chapter One, due to scientific uncertainty about future impacts of global climate
change, the study opted to use three different sea-level rise scenarios in assessing impacts. This
study evaluated the future position of the shoreline at these representative locations in Casco and
Saco Bays using scenarios of sea level 50, 100 and 200 cm above present sea level in the year 2100.
B. PREDICTION OF FUTURE SHORELINE POSITIONS
In the next step in the vulnerability assessment, Maine Geological Survey predicted future
shoreline positions for each study site, assuming the different sea level rise scenarios. Three
different methods were employed to predict future shoreline positions in differing coastal
environments. The first method considered only simple submergence of the coast by the rising ocean
to the predicted elevations (0.5m, 1.0 m, and 2.0 m). To determine the distance from present mean
high water to the predicted levels along a traverse, the elevation was evaluated by leveling and the
distance by measuring tape. The distance from present mean high water to the predicted locations
was transferred to maps (1:24,000) which depict contemporary coastal environments (Timson, 1977).
This technique was used in low-energy areas where tidal marshes border the upland (Gilsland
Farm, Winnocks Neck). Three or more traverses were made at each study site, and three
measurements were averaged parallel to each traverse. Erosion was not observed along the
ocean-upland contact, and it was inferred that rising sea level would permit colonization of the
upland by salt marsh plants. Cores from marshes like these show a landward-thinning deposit of
peat reflecting the slow upward growth of the marsh with rising sea level (Kelley et al., 1988;
Belknap et al., 1989).
Where an eroding bluff occurred at the high-tide line, an historical analysis of the rate of bluff
retreat was made. In two locations (Bungunac and Gilsland Farm) the bluff had been resurveyed
several times in the 1980's (Smith, 1990) and these measurements of bluff retreat were used to
project the future shoreline position of the sea, assuming that the retreat rate remained constant.
Historic photographs from 1940, 1972, and 1985 were also traced onto mylar under a zoom transfer
scope, and the resulting maps digitized for comparison with the measured rates. The "long-term"
rate of retreat evaluated by remote sensing was comparable to that evaluated directly by surveying
in the "short term".
Chapter Two 2-2 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Figure 2.1. Location of Casco and Saco Bays in relation to New England and the Gulf of Maine.
Chapter Two
2-3 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
The bluffs considered by this method are retreating because waves break against them at high
tide. In a study of the factors controlling the rate of bluff retreat in Maine (Smith, 1990), bluffs in
three bays (Casco Bay, Machias Bay, Damariscotta River Estuary) with differing rates of sea-level
rise were compared. In each bay several bluffs were surveyed and evaluated, and at each bluff site,
several traverses were made. An analysis of variance (ANOVA) could not discern a difference in
the rate of bluff retreat between the three bays with differing rates of sea-level rise because there was
so much local variability at a specific site (Smith, 1990). The reason for this is that many other
factors influence the susceptibility of bluffs to erosion (orientation of the bluff, height, composition,
rate of slumped debris removal etc.). It is assumed that the bluffs will continue to retreat at their
present rates regardless of the rate or amount of sea-level rise, or even whether sea level rises.
Although one might argue that a 2 m higher-than-present level of the sea would allow waves more
time to act on already eroding bluffs, the limiting factor affecting bluff retreat appears to be the rate
of removal of eroded sediment, which would not be directly related to a higher sea-level (Kelley et
al., 1989a). Thus, only one 100 year shoreline position is shown for bluff-coasts, and it is based on
the current rate of bluff retreat.
Prediction of future shoreline positions in Saco Bay is more complex than for the other shoreline
types because the area has not behaved uniformly during the historic period. At the southern end of
the bay (Camp Ellis), erosion and accretion have each occurred in the past and have been
significantly impacted by engineering structures and dredging and spoils disposal activities at the
adjacent river mouth (Nelson, 1979, USACOE, 1992). Based on the past record of aerial
photographs and ground surveys, the United States Army Corps of Engineers has published predicted
retreat rates for the area (USACOE, 1992).
Along most of the central portion of the beach (Ferry Beach and Old Orchard) the shoreline has
fluctuated over the years across a very wide littoral zone, and few, if any, landmarks have ever been
removed by erosion despite the rise in sea level of about 0.3 m in this century (Nelson, 1979). It is
possible that this region has received sand eroded from the south in sufficient quantities to prevent
erosion. Alternatively, erosion may have claimed some of the beach, but it is more than 100 m wide,
and the amount of erosion is not quantitatively measurable (there are no vegetated sand dunes with
which to evaluate shoreline retreat).
At the northern end of the beach (Pine Point), significant accretion has occurred because of spoils
disposal and construction of a jetty (Nelson, 1979). This area is also at the depositional end of the
longshore current system of the beach, and accumulates sand lost from other places in the bay.
To project future shoreline positions in such a complex bay, a geo-historical approach was
utilized, and the long-term behavior of the beach system was evaluated. Approximately 10,000 years
ago sea level was 15 km seaward of the present coast (Kelley et al., 1992; Shipp et al., 1991). The
estimated depth of this lowstand shoreline varies from 50-65 m below present sea level, with 50 m
being a conservative figure. To reach its present location, the shoreline must have retreated at an
average rate of 1.5 m/yr (Kelley et al., 1992). The rate of sea-level rise was not constant during this
time period, but averaged 0.5 m/century, the same value as the low estimate for the next century's
rate of rise. If the system behaves as it did in the past, the beach will retreat 150 m during the next
100 years if sea level rises 0.5 m. If sea level doubles or quadruples its rate of rise to 1.0 m/yr or 2.0
m/yr, respectively, it is assumed that the retreat will double or quadruple as well. Thus, 300 meters
Chapter Two 2-4 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
of retreat are assumed if sea level rises 1.0m and 600 meters of retreat if sea level rises 2.0 m by the
year 2100.
These values are broadly in line with estimates that would result from employment of Weggel's
(1979) calculation: r = b/(d + s) x h , where r is the amount of retreat, d is the dune height, s is the
offshore depth of no-sediment motion, and h is the amount of sea-level rise. This equation
excessively generalizes a very complex beach and assumes the existence of a profile of equilibrium
that recent literature debunks (Pilkey et al., 1993, List, et al., 1991). The extreme rates of longshore
sand transport in the Old Orchard Beach system generally negate use of Bruun's (1962) two-
dimensional model on the Saco Bay system. Nevertheless, values of b from 5 to 15 km, values of
s from 10 to 50 and values of d from 1 to 5 yield retreat distances between 300 m and 600 m for
sea-level rise scenarios up to 2 m greater than present.
These estimates of beach response to rising sea level are much less precise, much more uncertain,
than predictions based on the historic retreat rates of bluffs or of land submergence. There is as yet
no quantitative understanding of the volume of sand contributed by the Saco River, and no
consideration is given here to where sand eroded from one part of the beach might go. Any change
in the role of the Saco River as a source of sand to the bay would probably be significant to the
behavior of the beaches. Similarly, a large amount of erosion from one part of the beach would
likely contribute sand to other areas and lessen their erosion. To provide more quantitative
information on future shoreline positions for Saco Bay, far more observational data and modelling
is required. For the purpose of planning for future rises in sea level, the 150 m, 300 m and 600 m
values of land retreat projected are adequate.
The detailed results of the mapping effort are discussed for each study site, beginning on page
7 of this chapter (and for Camp Ellis, on page 1 of Chapter Three). For each site, Maine Geological
Survey describes the setting and summarizes its projections of future shoreline position. The
mapping section is followed by a Maine State Planning Office assessment of physical changes and
natural system responses, as discussed in section C, below.
The Maine Geological Survey results are summarized in Table 2.1. It is important to keep these
findings in context. The rise in sea level over the past 10,000 years is responsible for the present
configuration of the Maine coast. A continuation of the historic rate of sea-level rise of around 2
mm/yr (20 cm/100 years) places many properties in jeopardy. An increase in the rate of sea-level
rise may occur, however. In this study, shoreline changes resulting from sea levels 0.5m, 1.0m, and
2.0 m greater than today, but 100 years hence, were evaluated. As described in greater detail below,
the retreat of unconsolidated bluffs is not expected to change as a result of a more rapid rise in the
sea, but such bluffs would continue to pose a threat to property even at their present rate of retreat
(up to 0.5 m/yr). Salt marshes would passively drown upland sites, but the steepness of the
bedrock-dominated coastal region will result in a much smaller area of new marsh creation
(drowning) than would occur in non-rocky regions of the United States' Coastal Plain. Beaches
would probably experience the most profound changes as a consequence of accelerated sea-level rise.
These areas are more difficult to evaluate than other environments for many reasons, but still a
retreat of hundreds of meters seems likely.
Chapter Two 2-5 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Table 2.1. Projected Shoreline Changes for Casco and Saco Bays, Maine
RETREAT DISTANCE IN METERS
Location Environmental Method
Setting
Gilsland Farm (1-3)
Gisland Farm (4)
Bungunac Bluff
Wharton Bluff
Winnocks Neck (1-3)
Camp Ellis
Camp Ellis
Old Orchard Beach
Old Orchard Beach
Pine Point
A
B
B
B
A
C
C
C
C
C
1
2
2
2
1
3
4
5
4
4
Sea-Level Rise Scenarios
0.5 1.0 2.0
3-18
15
45
26
4-35
60-100
150
18
150
+100*
8-36
15
45
26
23-50
60-100
300
18
300
50
17-75
15
45
26
33-100
60-100
600
18
600
200
Environmental Setting: A) Salt Marsh; B) Bluff; C) Beach.
Method: 1) Flooding; 2) Surveyed Rate; 3) Army Historic Photo Analysis; 4) Gee-Historical;
5) Historical Fluctuations.
* Beach Growth, Not Retreat
Location, environmental setting, methodology and retreat distance estimated for the three scenarios of future sea-level
rise. Bluffs are assumed to retreat the same distance under all scenarios as well as under a continuation of the existing
sea-level rise rate because they are already reached daily by ocean waves. We cannot accurately predict the behavior
of marshes which respond both to sea-level rise and sediment supply. Under present rates of sea-level rise: 1) Pine
Point is growing seaward because of sand introduced from erosion at Camp Ellis; 2) Old Orchard Beach is fluctuating
in shoreline position due to varying inputs of sand from Camp Ellis; and 3) Camp Ellis has been eroding at rates from
0.6 to 1.0 m per year according to an Army analysis.
C. ASSESSMENT OF PHYSICAL CHANGES AND NATURAL SYSTEM
RESPONSES
The next step in the vulnerability assessment was for the Maine State Planning Office to
inventory study area characteristics, identify relevant development factors and assess physical
changes and natural system responses given the shoreline positions predicted by Maine Geological
Survey. This portion of the analysis is not intended as a precise quantitative analysis of the
vulnerability of Maine's coastline to accelerated sea-level rise. It is more accurately characterized
Chapter Two
2-6 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
as a planning exercise to identify the types of problems Maine is likely to experience and the
potential location of these impacts. This preliminary assessment should form the basis for further
discussion and evaluation of possible actions.
Scientists have compiled multiple lists of a myriad of possible impacts on the coastal zone
related to global climate change (Stewart, 1990, Pernetta and Elder, 1992); they vary according to
the assumptions made and the extent to which secondary impacts are included. In assessing the
vulnerability of the selected sites to the impacts of global climate change, the research team tried to
emphasize the likely over the merely possible. Following the lead of the first nationwide vulnera-
bility assessments in the United States (Titus, et al., 1991), this study attempted to consider as many
factors as possible, but concentrated on developing estimates of loss of dryland and wetlands for
three sea-level rise scenarios. Specifically, researchers focused on four physical impacts likely to
be experienced in Maine: change in shoreline position, accelerated erosion/inundation of dunes and
beaches, inundation of wetlands and lowlands, and loss of natural coastal protection systems.
The research team believes this focus was appropriate for this initial study. These four impacts
generally need to be studied prior to work on other physical changes, are more direct, and the
resulting impacts tend to be more amenable to mitigation through governmental action. Additional
studies will be required to assess the impact of other likely physical changes such as increased risk
of coastal flooding and storm surges, alteration of tidal ranges, and increased potential for saltwater
intrusion.
The following assessments describe, in as much detail as readily available information would
allow, the anticipated physical and natural systems responses to accelerated sea-level rise anticipated
in each of the six study sites in Saco and Casco Bays. Whenever possible, the assessment also
discusses potential impact for the Saco and Casco Bay region as a whole. (See also Appendix C)
An assessment of five of the six study sites is included in this chapter. The sixth site assessment,
Camp Ellis, is presented separately in Chapter Three as an example of the level of analysis that could
be developed for each location if additional staff time and a more detailed data base were available.
The State Planning Office went beyond readily available information for Camp Ellis to develop the
data necessary for a rough economic assessment of the costs and benefits of selected response strate-
gies, presented in Chapter Four.
Chapter Two 2-7 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Bungunac-Wharton
Ecoregions Q south
Figure 2.2. Map of Casco Bay with location of study sites enclosed by boxes.
D. RESULTS
1. Gilsland Farm
a. Shoreline Position
Gilsland Farm is located in western Casco Bay near the mouth of the Presumpscot River.
(Figure 2.2) Bluffs of glacial-marine sediment abut the river in the western portion of the study site,
while a salt marsh fills a small valley to the north. (Figure 2.3) The bluff rises 9 m above higher
high water and large trees and blocks of sediment are actively slumping down parts of its face.
(Figures 2.4, 2.5) The surveyed erosion rate here between 1985 and 1988 was 0.15 m/yr with a
standard deviation of 0.2 (Smith, 1990). Historic air photo analyses yield retreat rates of 0.12 m/yr
between 1940 and 1972, and 0.04 between 1972 and 1986, with standard deviations of 0.3 and 0.05,
respectively. The large standard deviations result from the episodic erosion along the face of the
bluff overtime (Sunamura, 1983). The air photos were difficult to interpret because falling trees and
Chapter Two
2-8 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
slumping blocks partially obscurred the toe of the bluff. For this reason, the surveyed value of 0.15
m/yr was extrapolated to a retreat distance of 15 m by 2100. (Table 2.1) (Figure 2.3)
Gilsland Farm, Falmouth, Maine
MHW
Presumpscot
River
0
Sources:
Maine Inland Fisheries and Wildlife
NfltionaJ Wetland Inventory Maps
Maine Atlas of Natural, Historical, and .Archaeological Features
This Map is a graphic representation and should not be used for
detailed measurement. Paint locations are approximations only.
1000
ii
SCALE IN FEET
MHW
Saltmarsh
MLW Channel
Tidal Hat
2.0m
\ 100 Year
Shoreline Position
H
M3
W3
Historic or Archaeologic
resource
Marine Habitat of National
Significance
High Value Wetland Habitat
Figure 2.3. Projected shoreline change at Gilsland Farm, Falmouth, Maine. Mapping was limited to the area
surrounding Gilsland Farm, although the surrounding area is also depicted. Coastal environments after Timson (1977).
Chapter Two
2-9 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Figure 2.4. Photograph of Gilsland Farm. Site of Traverse 1.
Although the salt marsh is also eroding in front of the bluff, to the north the marsh appears more
stable. A Spartina alterniflora marsh (low marsh) grades into wetland dominated Spartinapatens
(high marsh) followed by Typha sp., Solidago sp. (freshwater marsh), and then upland plants. The
transition from halophytes to freshwater plants was gradual, so survey traverse 2 was begun at the
contact between the wetland and a mowed field. This traverse was aligned directly up the axis of
the valley, the gentlest slope in the area. As a result, the distances to the 0.5 m, 1.0 m and 2.0 m
elevations were more than 3 times that observed in traverses 3 and 4, along the steeper western wall
of the valley. (Figures 2.3, 2.6, 2.7, 2.8) The greatest extent of submergence over dry upland is
estimated at almost 75 m up the valley axis. (Table 2.1)
Because of irregularities in the slope of the land, a range of distances to the three elevations were
observed and recorded. (Table 2.1).
Chapter Two
2-10 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
N
8-
HHW-
mowed field
with some
oak trees
bare, slump scars
toppling oak
trees
Gilsland Farm,
Falmouth, Maine
Traverse 1
5-29-85
eroding bluff
Spanina patens
0
Distance in Meters
• eroding
saltmarsh
peat
Figure 2.5. Traverse 1, Gilsland Farm. Traverse 1 is located on Figure 2.3.
Chapter Two
2-11 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
SJ3l3j\[ ui
"J^
c".S
S 5
PH^
^2 o |:
C^ f"*1
o^
Figure 2.6. Traverse 2, Gilsland Farm. Traverse 2 is located on Figure 2.3.
Chapter Two
2-12 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
NW
Gilsland Farm,
Falmouth, Maine
Traverse 3
10-1-92
•2.0
mowed farm field
shrubs, bushes
mixed Typha sp.,
g 5 Spanina sp. and
others
~ „„„.
I
20
10 0
Distance in Meters
SE
1—3
— 2
W)
I
—HHW
Figure 2.7. Traverse 3, Gilsland Farm. Traverse 3 is located on Figure 2.3.
Chapter Two
2-13 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Gilsland Farm,
N Falmouth, Maine s
Traverse 4
10-1-92
^ — 2.0
\
\
Ga
1 1
30 20
mowed field
with some trees
y
V___l n
rt 1 f\J
^v shrubs, bushes
>v Spartina sp.
\ 0.5
cigen c \
\***
N*^
\ ~^~
1
10 0
— 3
— 2
1
— 1 c
'Z
X
— HHW
distance in meters
Figure 2.8. Traverse 4, Gilsland Farm. Traverse 4 is located on Figure 2.3.
Chapter Two
2-14 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
b. Impact Assessment
1) Upland Impacts
The mapped study area at Gilsland Farm included approximately 50 acres of dryland, 25 acres
of adjacent salt marsh and a large expanse of tidal flats. Estimates of the loss of upland according
to sea-level rise scenarios are as follows:
.5 m rise 1.0m rise 2.0m. rise
Dryland Lost 3 acres 5 acres 14 acres
2) Value of Land/Structures
A quantitative analysis of the monetary value of anticipated losses at this site was not possible.
This site is unlike the others considered in this analysis in that it is not developed, and is owned and
operated by Maine Audubon as a sanctuary and field office. Gilsland Farm has extreme local,
regional, and possibly statewide significance as a recreational, educational, historic/cultural, and
pristine resource. It was selected as a study site because of its accessibility for field investigations,
and is illustrative of probable impacts on similar, developed sites.
3) Wetland Impacts
Wetland and marine habitats of high quality and national significance exist at this site, part of
a large system of wetlands and tidal flats that comprise the Presumpscot River Estuary. The US
Environmental Protection Agency (USEPA) has been a leader in studying the possible effects of sea-
level rise on salt marshes (Titus, 1987, USEPA, 1989). Drawing on those studies, researchers
understand that salt marshes adjust to sea-level rise by expanding inland and towards the water and
increasing in elevation through accumulation of sediments and plant biomass. In general, marshes
will expand when sedimentation exceeds submergence, will maintain if sedimentation balances
submergence, and will drown when sediment supply and accretion is less than the rate of coastal
submergence (Sea-level plus subsidence). Besides the natural availability of sediment, other factors
such as slope of adjacent uplands, the presence of coastal engineering structures, the armoring of
bluffs and banks limiting the amount of available sediment, and the rate of sea-level rise all affect
the ability of marshes to migrate landward to keep pace with accelerated sea-level rise. In addition,
marshes that have been fragmented by land development or otherwise degraded by human influences
will have diminished ability to migrate (U.S. Congress, Office of Technology Assessment, October
1993.) Figure 2.9 (Titus, 1986) illustrates these various scenarios of wetland change.
The USEPA has sponsored numerous studies which modelled anticipated wetland changes due
to global warming in different regions (Earth and Titus, 1984, Park et al., 1989, Titus and Greene,
1989, USEPA, 1989). In different areas of the country, studies have documented that marshes have
been able to keep pace with more gradual, historic rates of sea-level rise (e.g. 2.4 mm/yr in
Charleston, South Carolina, 1 cm/yr in Louisiana). One study (Park, et al. 1989) concluded that
many of New England's wetlands developed on poorly drained glacial tills and occur at elevations
above those that could be inundated by sea-level rise in the
Chapter Two 2-15 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Evolution of Marsh as Sea Level Rises
A 5000 Years Ago
B Today
^3
^•^IM^ , Curc.nl
Sedimentation and ^^~ s«a*«»«i
Peal Formation
C Future
Substantial Wetland Loss Where There is Vacant Upland
^"~\\ S«aT«»tl
D Future
Complete Wetland Loss Where House is Protected
in Response to Rise in Sea Level
^""^•L H fulur*
Figure 2.9. Coastal wetlands have kept pace with the slow rate of sea level rise that has characterized the last several
thousand years. Thus, the area of wetlands increased as new lands were inundated. If in the future sea level rises faster
than the ability of the wetlands to keep pace, the wetland area will decline. Construction of bulkheads or dikes to protect
developed areas would prevent new wetlands from forming inland, resulting in a total loss in some areas.
Source: Titus (1986).
next century. Researchers (Armentano and Park et al., in Titus, 1987) concluded that under a
scenario of accelerated sea-level rise of 1.4 m by 2100, the general response of New England
wetlands would be expansion into freshwater areas, or expansion onto unprotected adjacent
undeveloped lowland, dunes or beaches (especially in areas less than 3.5 m or 10 ft. in elevation).
In this modelling exercise, losses of marsh due to expansion of tidal flats were small or compensated
for by expansion of the salt marsh. In contrast under the high scenario of accelerated sea-level rise
of 2.2 m by 2100, in sheltered places with steep slopes and cliffs (such as one of Park's study sites
in Jonesport, Maine), the projected rise inundated salt marshes. In these areas, despite Maine's high
tidal range, which favors the maintenance of marshes, there is little lowland to be inundated and
colonized by marshes. A relatively low rate of accretion (2mm/yr), typical of New England salt
marshes was assumed in these studies.
Given the information discussed above, and lacking the ability to conduct expensive, site specific
studies of coastal marshes in Maine, this study assumes that (provided there are no physical
constraints to landward movement and excepting areas of steep slope), the marsh surrounding
Gilsland Farm (and other salt marshes covered in this study) will migrate inland in equilibrium with
the .5 meter and 1.0 meter levels of accelerated sea-level rise. Under the extreme case of a projected
2.0 meter rise by 2100, losses of coastal wetlands might be anticipated. However, as noted above,
Maine's coastline is more typically relatively steep and bedrock-dominated, thus, due to physical
constraints and steep slopes, it is expected that a change in shoreline position will frequently result
in a much smaller area of new marsh creation. No assumptions were made about the quality of the
habitat provided by the newly created wetlands.
Chapter Two
2-16 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
4) Extent of Similarly Situated Land in the Region
Salt marshes with associated mudflats make up more than 20% of the coastline of the larger Saco
Bay/Casco Bay region. NOAA estimates that there are 2,900 acres of salt marsh in the Saco Bay
estuary and 2,400 acres within the Casco Bay estuary (U.S. Department of Commerce, 1991).
A more accurate assessment of wetland impacts for the region would require more site specific
analysis of different slope conditions, sediment availability, and the extent of shoreline armoring,
because protection of private lands by construction of shoreline protective measures will preclude
migration and result in wetland losses. However, national studies, broken down by region, have
been prepared which may provide additional information. Titus and Greene (in USEPA, 1989)
expanding upon Park's assessment of New England wetland losses (Parketal., 1989), estimated that
between 15% and 17% of coastal wetlands could be lost if all of the shoreline was protected with
bulkheads or similar structures; similarly they estimated between 6% and 10% of New England's
coastal wetlands could be lost if only already developed shoreline areas were protected. If shorelines
are able to retreat naturally, losses would be smaller, and in certain conditions, there might be a
possible net gain of wetlands.
Using these estimates, wetland losses for the Casco and Saco Bay region, would be projected as
follows:
Table 2.2. Range* of Potential Wetland Losses for Region
Natural Migration Developed Areas Protected All Shores Protected
(1-5% loss) (6-10% loss) (15-17% loss)
Saco Bay
Casco Bay
29-145 ac.
24-120 ac.
174-290 ac.
144-240 ac.
435-493 ac.
360-408 ac.
* Range represents estimates for .5 meter, 1.0 meter, 2.0 meter sea-level rise scenarios.
5) Analysis
This site highlights the importance of protecting the ability of marshes to migrate to keep pace
with rising sea level. In developed areas, there will be pressure to harden the shoreline to protect
public and private investment. Much more research is needed on the relationship of marshes to sea-
level rise in Maine. According to a recent newsletter of the Wells Estuarine Research Reserve
(Dionne, 1993), marshes in the northeast are beginning to show signs of changes in zonation from
high marsh to low marsh, indicating impacts by changing water levels and variations in available
mud supplies.
Gilsland Farm is also one of the two mapped sites in the study area to contain eroding bluffs.
If this were a developed site, a projected bluff retreat of .15 meters per year (about .5 ft/yr) or 15
meters by 2100 (49.2 ft) would be cause for concern.
Chapter Two 2-17 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
2. Bungunac Bluff-Wharton Point
a. Shoreline Position
The coastline from Bungunac Bluff to Wharton Point forms the northwestern corner of Casco
Bay. (Figure 2.2) Bluffs of glacial-marine sediment greater than 10 m high are common at
Bungunac Bluff and decrease to a gentle slope covered by salt marsh north of Wharton Point. Where
they are exposed to waves from the southwest, the bluffs are fronted by a mudflat and are very
unstable. (Figures 2. JO, 2.11) As at Gilsland Farm, large trees and blocks of slumping debris are
common along the bluff face. (Figure 2.12) The surveyed retreat rate between 1985 and 1988
averaged 0.45 m/yr with a standard deviation of 0.16 (Smith, 1990). This compares favorably with
rates evaluated from historic photographs of 0.52 m/yr between 1940 and 1972, and 0.89 m/yr
between 1972 and 1986, with standard deviations of 0.28 and 0.58, respectively (Smith, 1990). The
predicted shoreline reflects the surveyed retreat rate of 45 m for the year 2100. (Table 2.1)
To the northeast of Bungunac Bluff, wave exposure is reduced, and a salt marsh protects bluffs
from direct wave attack. (Figures 2.10, 2.14) Here, the surveyed retreat rate was 0.26 m/yr with a
standard deviation of 0.26. In historic photographs the bluff was obscurred by shadows from
overhanging trees and no longer-term evaluation was possible (Smith, 1990). The projected retreat
distance here is 26 m. (Table 2.1)
At Wharton Point no bluff erosion is occurring, and the salt marsh is locally expanding out across
the tidal flat (Smith, 1990). (Figure 2.13) This is likely to continue into the next century because
mud eroded from eleswhere in the bay is apparently collecting at the upper end of Maquoit Bay (Hay,
1988).
b. Impact Assessment
1) Upland Impacts
The mapped study area in Maquoit Bay included about 100 acres of dryland and 25 acres of
wetland. Extensive tidal flats also occur all along this shoreline. The mapped 100 year shoreline
position results in a loss of about 18 acres of upland.
2) Value of Land/Structures
While the area affected by slumping bluffs is usually small and localized, individual property
owners can be greatly impacted by shifting shorelines. In the Bunganuc Point study area, two
properties are currently experiencing land loss. Five homes may be impacted over the study period.
Town of Brunswick 1988 assessment records value the Bunganuc Landing Road properties (five acre
lots with substantial homes) at between $140,200 to $310,100. Two properties at Wharton Point
mapped transect are valued at $199,600 and $248,500.
3) Wetland Impacts
Mudflats and wetlands in Maquoit Bay are among the most productive in the region, and are
rated of national significance with high habitat values. In Bunganuc Point, there will be slight
wetland losses, as slump material from bluffs is periodically dumped on the marshes. At Wharton
Point, marshes are growing seaward into mud flats due to transport of Maquoit Bay mud supplies
to this area.
Chapter Two 2-18 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Figure 2.10. Projected shoreline change map at upper Maquoit Bay, Maine. Coastal Environments after
Timson (1977).
Chapter Two
2-19 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
N
Oak trees on edge
lawn
Bungunac Bluff,
Brunswick, Maine
Traverse 1
6-22-87
no vegetation
slump scar
Spanina patens
Spartina aiterniflora
0 10 20
Distance in Meters
-HHW
40
Figure 2.11. Traverse 1, Bungunac Bluff, Brunswick, Maine. Traverse 1 is located on Figure 2.10.
Chapter Two
2-20 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Figure 2.12. Photograph of Maquoit Bay shoreline. Site of Traverse 1.
Figure 2.13. Photograph of Maquoit Bay shoreline. Site of Traverse 2 is located in forested area in distance.
Chapter Two
2-21 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
sw
Wharton Point Bluff,
Brunswick, Maine
Traverse 2
6-24-85
forest
NE
-3
no vegetation
slump
scar
Spartina aherniflora
Distance in Meters
Figure 2.14. Traverse 2, Wharton Bluff, Brunswick, Maine. Traverse 2 is located on Figure 2.10.
Chapter Two
2-22 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
4) Extent of Similarly Situated Land in the Region
Although bluffs make up only about 3% of the total shoreline of the region, much of the area's
suburban shoreline from the Presumpscot River in Falmouth to the Harraseeket River in Freeport
is supported by bluffs of sand or mud. Mackworth Island, Brunswick, and the Casco Bay islands
also have isolated bluff areas.
Impacts associated with eroding bluffs are confined to a smaller area than the widespread
inundation associated with the impact of rising seas on other coastal environments. Typically,
impacts will be experienced only by adjacent landowners who have built close to the bluff line.
There are no known major built features other than residences threatened by bluff erosion in the
region.
However, as many as 200 homes in the region may be affected by the range of shoreline positions
projected during the study period. Property assessment data was not gathered for the region, but the
average value of individual properties in the Bunganuc Landing area may provide a useful
comparison for the region.
5) Analysis
The Bunganuc area highlights the fact that bluff environments, while not directly affected by
rising sea level, are unstable and dynamic areas. Clearing vegetation to improve views or attempting
to stabilize the slopes with gravel or other materials increases the threat of erosion.
Relatively recent development has occurred in these areas despite the existence of local and state
land use and environmental regulations. This points to possible inadequacies in those laws, lack of
knowledge about bluff shoreline processes, the need for more data on bluff behavior, and the need
for public education about shoreline processes and slope maintenance.
It is generally not feasible to stabilize eroding bluffs; a retreat from the affected area is usually
the only solution. Homes that are currently threatened have experienced loss of usable yard space
and have moved septic systems away from the eroding bluff edge. Soft technologies such as the
planting of vegetation at the base of the bluff only slow rates of erosion. Due to the steepness of
some of these areas, hard structures, such as riprap, to protect individual properties would be
prohibitively expensive. Use of hard structures to stabilize bluffs would also have significant
environmental costs due to the interference with transfer of sediment from bluffs to coastal wetlands.
3. Winnocks Neck
a. Shoreline Position
Winnocks Neck, Scarborough is a peninsula extending into the Scarborough River salt marsh.
(Figure 2.15} The Neck is bounded by the Nonesuch River and Mill Brook to the east and west, and
by the Scarborough River to the south. (Figure 2.16) The peninsula is supported by bedrock more
than 30 m high (90 feet) which is mantled by till and glacial-marine sediment. Within the marsh
many small "islands" of glacigenic material (like Plummer Island) project above the marsh surface
and are being slowly drowned by the marsh as it grows upward with rising sea level. (Figure 2.18}
Chapter Two 2-23 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Three traverses were selected to evaluate changes in the shoreline as a consequence of future
submergence. Traverse 1 extends west from the Nonesuch Marsh and parallel to the Plummer Island
Rd. There is a distinct topographic and vegetative break from a Spartinapatens-dominated high
marsh to a freshwater marsh with Typha sp which was used as higher high water. (Figure 2.17} The
0.5 m elevation averaged 26 m from higher high water, but most of this distance was across the
freshwater marsh. (Table 2.1} The 1.0 and 2.0 elevations were relatively closer to higher high water
because the traverse steepened up a partly mowed hillside. (Figure 2.18}
Traverse 2 passes over a narrower part of the peninsula where the topographic relief was less.
(Figure 2.20} Although the distance to the 0.5 m elevation was less than at traverse 1, the land
flattened out and the distance to the 2.0 elevation was twice as far as at traverse 1. If the traverse
were extended along a road into a small subdivision, the distance to the 2.0 m elevation was greater
than if the traverse (Figure 2.19} went through the more uneven ground of the adjacent forest.
(Table 2.1}.
Traverse 3 extends up the western side of the peninsula from the Mill Brook marsh. (Figures
2.16, 2.21} There is a distinct topographic break at the landward edge of the Spartina patens salt
marsh which is considered higher high water. The upland beyond this is forested, but relatively steep
as in traverse 1. The 2.0 m elevation occurs near Sandy Point Road, and a hill with houses on it rises
on the opposite side of the road. (Table 2.1}
Because of irregularities in the slope of the land, a range of distances to the three elevations were
observed and recorded. (Table 2.1}
b. Impact Assessment
1) Upland Impacts
The mapped study area at Winnock's Neck included about 275 acres of developed upland and
adjacent salt marsh. Upland losses are projected as follows:
.5 m rise 1.0m rise 2.0m. rise
Dryland Lost 23 acres 43 acres 66 acres
Most of the area is developed with large-lot, "upscale", single family structures, whose backyards
gradually fade into the adj acent marsh. The low and medium sea-level rise scenarios would inundate
the shores at greater or lesser levels depending on the steepness of the slope. Because sea-level is
predicted to rise over a prolonged period of time, impact on these properties will also be gradual, as
the wetland-upland edge migrates inland, resulting in a net loss of usable backyard area for these
homeowners, and over time, complete conversion of the affected area to salt marsh. Under each of
the sea-level rise scenarios, the most apparent changes in shoreline position occur at the terminus
of the peninsula. The 2.0 meter rise boundary breeches the road that provides access to the end of
the peninsula. Over the very long term, Winnock's Neck will become an island surrounded by
marsh, similar to the existing pattern of small islands scattered throughout the marsh.
Chapter Two 2-24 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Figure 2.15. Map of Saco Bay with location of study sites enclosed by boxes.
Chapter Two
2-25 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Winnocks Neck,
Scarborough, Maine
WINNOCKS
NECK
unnamed
island
PLUMMER
ISLAND
SCALE IN FEET
— 20 - Contour (Feet)
0.5m
Shoreline Position
2.0m ,
Marine Habitat of National
Significance
W3 High Value Wetland Habitat
Sources:
Maine [nland Fisheries and Wildlife
National Wetland Inventory Maps
Maine Atlas of Natural, Historical, and Archaeological Features
This Map ia a graphic representation and should not be used for
detailed measurement. Point locations are approximations only.
Figure 2.16. Projected shoreline change map for Winnocks Neck. Mapping was limited to the area surrounding
Winnocks Neck, although the surrounding area is also depicted. Coastal environments after Tlmson (1977).
Chapter Two
2-26 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
SJ313IM ui
m
I
u
o
Figure 2.17. Traverse 1, Winnocks Neck. Traverse 1 is located on Figure 2.16.
Chapter Two
2-27 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
:«fe\i'v7*.jiiiir
IJ;:;- -. i%_
Figure 2.18. Photograph of Winnocks Neck. View to ward north at Traverse 1.
Figure 2.19. Photograph of Winnocks Neck. View down road into subdivision at Traverse 2.
Chapter Two
2-28 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Figure 2.20. Traverse 2, Winnocks Neck. Traverse 2 is located on Figure 2.16. The dark wavy line indicates a break
in the section. If the traverse were extended down a paved road and into a subdivision it would be farther to the 2.0m
elevation than if the traverse went through woods. Even within the woods there is considerable relief indicated by the
dashed, parallel lines.
Chapter Two
2-29 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
-------
Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Figure 2.21. Traverse 3, Winnocks Neck. Traverse 3 is located on Figure 2.16.
Chapter Two
2-30 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
2) Value of Properties
The majority of properties at risk are located at the terminus of the Winnock's Neck peninsula,
where shoreline slopes are more gradual, and a network of cul-de-sacs (not shown) wind through
developed lots. According to Scarborough assessor's records, the value of land and buildings in this
area is about $7.2 million. The assessed value of structures (excluding land) in the area ranges from
$100,000 to $180,000, while lots range in value from $78,000 to $110,000.
3) Wetland Impacts
The predominant natural feature in Winnock's Neck is the valuable marsh land surrounding the
peninsula at the confluence of the Scarborough River and the Nonesuch Rivers. Marine habitat in
this area is rated of national significance, while wetland habitats are also of high value. For a
summary of potential wetland impacts, see the discussion under the Gilsland Farm study area.
4) Extent of Similarly Situated Land in the Region
(See discussion under Gilsland Farm study area.)
5) Analysis
Winnock's Neck illustrates the dilemma of migrating marshlands. In order to allow wetlands to
survive an accelerated rise in sea-level, they must be allowed to migrate inland. This causes a
conflict in wetland edge areas that have been developed. Adjacent property owners will be tempted
to keep wetlands at bay by hardening of their shoreline.
Recent debates concerning state-mandated shoreland zoning have included disagreement over
what is considered an adequate width of protective buffer between wetlands and adjacent
development. Wetland setbacks have typically been static boundaries based on that "critical edge"
required to preserve the wetland's value for wildlife habitat. In order to preserve valuable wetlands
(for a variety of functions, habitat, flood retention, etc.) and to minimize future property losses
accruing from migrating wetlands, zoning and subdivision standards should begin to consider
wetlands as dynamic systems, with setbacks sufficient to accommodate anticipated changes in
shoreline position.
4. Old Orchard Beach
a. Shoreline Position
Old Orchard Beach is located between Saco and Scarborough on the longest unbroken stretch
of beach in Maine. (Figures 2.15, 2.22) The beach possesses a wide berm and low-tide terrace, but
most of the original sand dunes were leveled in the 19th century to construct hotels. (Figures 2.23,
2.24} Landward of the former dunes are a mixture of lowlands and higher rocky areas, and
occasionally rock outcrops are observed on the beach.
The 0.5 m, 1.0m, and 2.Om shoreline positions at 150m, 300m, and 600 m, respectively, reflect
the uneven back-barrier terrain by projecting into the swampy areas and outward at the rocky hill.
(Table 2.7) This depiction assumes that no new sand from the Saco River or elsewhere within the
system is supplied to the beach in the next century, and neglects the impact of the two 1.3 m
diameter sewage pipes under the dunes.
Chapter Two 2-31 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
In addition to the shorelines predicted on the basis of the modified historical method, a 100 year
shoreline supplied by the Town of Old Orchard Beach is depicted. It was produced as part of a
permit application to locate a stormwater pipeline beneath the beach. Since there has been no more
than 18 m of shoreline fluctuation mapped with certainty over the past century, this line is drawn 18
m landward of the high water line.
b. Impact Assessment
1) Upland Impacts
Development along Old Orchard's coast today is quite varied; high density, high rise
condominium structures are intermixed with cottage style homes, commercial establishments, and
seasonal dwellings. The mapped study area includes the heart of OOB's development district,
including The Pier, the East Grand Avenue (Route 9) business strip (motels, restaurants,
amusements), numerous Town facilities and part of the downtown area.
The mapped study area included about 270 acres of upland. Projected losses of dryland are as
follows:
.5 m rise 1.0m rise 2.0m. rise
Dryland Losses 80 acres 135 acres 169 acres
The. 5 meter scenario potentially inundates all beachfront development and Grand Avenue to the
railroad tracks. This area includes an amusement park, arcades, retail shops, motels, restaurants, and
high density residential structures. Other built features at risk under this scenario include the
network of sewer lines and the new stormwater outfall.
In addition to the development inundated by the .5 meter rise described above, the 2.0 meter rise
scenarios would threaten town facilities such as a small park, tennis court, library, public restrooms,
and parking lots. This area has been targeted for public and private improvements as part of an
ongoing community revitalization, and discussed in further detail in the following section.
Additionally, the 2.0 meter rise would also impact a small, lowlying area of moderate density
residential development to the north. Due to the small difference in the land area covered by the 1.0
and 2.0 meter scenarios, impacts associated with the 1.0 meter rise were not analyzed separately, but
most impacts identified with a 2.0 meter rise would also occur with a 1.0 meter rise.
2) Value of Land/Structures
According to information provided by the Old Orchard Planning Office, the value of land and
buildings within the mapped .5 meter inundation area is about $32.4 million. It should be kept in
mind however, that the mapped study site includes only a portion of Old Orchard's developed
shoreline. If a .5 meter sea-level rise scenario was anticipated all along Old Orchard's shoreline, the
value of potential property losses would greatly increase. For example, to the north of the mapped
study area towards Pine Point, there are 6 high-rise condominium structures containing a total of 251
units (7-8 stories high, 28-55 units each) located directly on the beachfront. A current value
assessment for these properties is $35,347,600.
Chapter Two 2-32 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
2.0
Old Orchard Beach,
Maine
M2
SCALE IN FEET
Sources:
Maine Inland Fisheries and Wildlife
National Wetland Inventory Maps
Maine Atlas of Natural, Historical, and Archaeological Features
This Map is & graphic representation and should not be lued for
detailed measurement. Paint Locations are approximations only.
- — — OOB - Town Estimate N
nnru i'o m > io°Year ^
2 o m ( Shoreline Position
High Value Wetland Habitat
Critical Areas Program.
Marine Habitat of Regional
Significance
W3
A
M2
Figure 2.22. Projected shoreline change map for Old Orchard Beach. The projections from this study are compared
with that of the Town (Timson et al., 1992).
Chapter Two
2-33 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Figure 2.23. Photograph of the Old Orchard Beach area. Aerial photography of the study area.
. - • . ..&.mffi$:^'\- '... .
, - ». ' V \«*>"; %*^i"..,w >/" • "./-..
^^- „"-»»„ *>-A ' (_ ^ SUB.,,!^^ '^If ^ ^ V " l <",*«&* J )
5l*'v' '?-1
',^1^..-
Figure 2.24. Photograph of the Old Orchard Beach area. Ground plot from near the study area.
Chapter Two
2-34 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Figure 2.25. Traverse 1, Old Orchard Beach, Saco Bay. Modified from Timson et al., 1992).
Chapter Two
2-35 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
The 2.0 meter scenario potentially impacts an additional area of mostly residential development,
assessed at $6.9 million. Because the 1.0 meter boundary was substantially similar to the 2.0 meter
boundary in high-density areas, data on assessed value of these properties was not separated from
figures gathered for the 2.0 meter analysis.
According to the Old Orchard Beach Planning Office, recent public improvements in the
waterfront and downtown area represent about $3.9 million in investment (see Table 2.3 below).
Table 2.3. Recent Public Improvements—Old Orchard Beach
Project
1. Pumping Station
2. Stormwater Outfall
3 . Tax Increment
Finance District
Improvements
Year Completed
1991/2
1993
1993
Source of Funds
Local
Local
Local, MOOT, Job
Bond
Cost
$1,100,000
$800,000
$2,000,000
TOTAL PUBLIC INVESTMENT $3,900,000
Of the public improvements listed in Table 2.3, the first two projects listed would be potentially
affected by the .5 meter sea-level rise scenario. Also at risk under this scenario, is the network of
sewer lines constructed under the dune system in the 1980's. No costs were available for the sewer
proj ect. The tax increment finance district investments listed above were completed throughout the
downtown development district. Only a portion of these improvements will be threatened by the .5
meter rise scenario.
Table 2.4. Tentative Public and Private Improvements—Old Orchard Beach
Project Anticipated Completion Possible Sources Cost
of Funds
1. Ocean Outfall/Sewer Treatment NA Local, federal $4,500,000
2. Train Station 1994/5 Federal $200,000
3. Proposed New Pier NA Private NA
4. Boardwalk 1995/6 Fed., MOOT, Local NA
5. Retail Complex NA NA NA
6. Memorial Park Improvements NA NA NA
7. Construction of New Chamber NA Private NA
Building
NA = Information not available.
Chapter Two 2-36 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Table 2.4 provides a list of tentative projects that are currently under preliminary discussion in
the Old Orchard downtown and shorefront area. Note that funding sources for these proj ects are not
secure, in some cases voter approval of bond issues will be necessary.
Of the public and private projects under discussion, listed in Table 2.4, the ocean outfall/sewer
treatment improvements, the pier, and the boardwalk would be potentially affected under the .5
meter sea-level rise scenario. Improvements associated with the downtown revitalization effort
(Depot Square Area redevelopment), including the passenger train station, infill retail development,
park improvements and new construction to house the Chamber of Commerce fall within the 1.0 and
2.0 meter sea-level rise boundaries.
3) Wetland Impacts
A series of small wetlands are just outside of the 2.0 meter rise boundary.
4) Extent of Similarly Situated Land in the Region
(See discussion under Camp Ellis/Ferry Beach, Chapter Three.)
5) Analysis
Of all the sites covered in this analysis, the potential impacts of sea-level rise in this study area
are perhaps the greatest. Given the nature of the existing development, and the reliance on beach-
related tourism, sea-level rise potentially threatens the basis of the local/regional economy and the
roots of the cultural identity of Old Orchard. The level of public and private investment here may
test the State's determination to adhere to its retreat policy and current ban on construction of
seawalls.
This site illustrates the extreme danger associated with eliminating natural protective features
and building within the sand dune system without appropriate setbacks from high hazard areas. It
also highlights the dilemma associated with allowing public investment in infrastructure in
unprotected beach environments. A sewer line was located in the sand dune system in 1980's to
serve existing and planned development—development that now appears to be threatened within the
100 year study horizon.
This site also illustrates the need for provision of reliable data concerning coastal hazards to local
and state decisionmakers, and agreement regarding what methodologies are acceptable for proj ecting
future shoreline positions. Old Orchard Beach's estimate of the 100-year shoreline position (based
on the maximum amount of shoreline fluctuation that had been mapped with certainty over the
previous century) is quite different than the shoreline position mapped for this analysis using a geo-
historical approach.
4. Pine Point
a. Shoreline Position
Pine Point is a northward-projecting spit bordering the Scarborough River inlet. (Figures 2.15,
2.26) This spit was formerly a barrier island before the railroad line closed the tidal inlet in the 19th
century (Farrell, 1972). Possibly because of sand by-passing that inlet, the Scarborough River inlet
began to narrow and fill with sand, and the COE constructed a jetty at the inlet entrance in the
Chapter Two 2-37 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
1960's. That jetty now traps sand derived from the south, and sandy spoils from the dredging of the
tidal channel have also been placed on Pine Point. For these reasons the beach has grown seaward
at a rate averaging 2.5 m/yr between 1976 and 1991. (Figure 2.26) Beach growth has been greater
near the influence of the jetty than to the south, where little growth has occurred. Because of the
growth of this beach residential development also grew since the 1960's, and the entire area is
covered with residences and commercial buildings. (Figure 2.27)
If the assumption of continued beach progradation due to an influx of sand from the south holds,
a 0.5 m rise in sea level will not result in any retreat of the shoreline, rather in a 100 m advance at
Traverse 1. Growth will be less to the south. Even a 1.0 m rise in sea level will only result in 50 m
of retreat at Traverse 1 if sand sources to the south persist. A 1.0 m rise of the sea, however, will
lead to a breach in the barrier at the southern end of Pine Point where growth is not presently
occurring. An extreme rise of the sea by 2.0 m will lead to 350 m of retreat at Traverse 1, and
complete destruction of Pine Point. A hypothetical realignment of the beach is depicted as the 2.0
m shoreline. (Figure 2.25)
b. Impact Assessment
1) Upland Impacts
The Pine Point study area included about 630 acres of land, with dryland accounting for
approximately one-half of that total, and the Scarborough Marsh accounting for the balance of the
site. Loss of dryland associated with various rates of sea-level rise at Pine Point are projected as
follows:
.5 m rise 1.0m rise 2.0 m. rise
Dryland Lost (gained) (25 acres) 83 acres 315 acres
2) Value of Land/Structures
According to the Town of Scarborough's assessor's records, the value of properties inundated in
the 1.0 meter rise scenario is estimated at roughly $32 million. In addition to properties lost, costs
associated with 1.0 meter sea-level rise would also include bridge/road improvements to maintain
access to Pine Point. At the 2.0 meter rise, the value of land and buildings at risk in the Pine Point
study area would be $50.2 million.
3) Wetland Impacts
Natural features that could potentially be affected by rising sea-level and changes in Pine Point's
shoreline position include nationally significant marine habitats, and the high value wetland habitat
associated with Scarborough Marsh. Given the study assumptions described earlier in this chapter,
Scarborough Marsh would probably not suffer any net loss immediately (assuming that the marsh
could migrate landward unimpeded). Scarborough Marsh, because of its large contiguous mass and
healthy state would probably migrate more easily than smaller, fragmented wetlands. Higher rates
of sea-level rise (i.e. 2.0 meters) could lead to wetland drowning.
Chapter Two 2-38 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
6.0--
Pine Point
20
1991
40
60 80
Distance in Meters
100
120
140
Figure 2.27. Traverse 1, Pine Point, Saco Bay. Survey line from Fink (personal communication 1992).
Chapter Two
2-39 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Figure 2.28. Photograph of the Pine Point area. Aerial photography of the Pine Point area.
->v4
;*"*™*^%tf j|jt. *
a^j^-^VX'^/if.^'V?'';'.:-•;;.•, '„.' '';'•'.':.,:.i?.-Jv ' ••-•-• -'•;' -v""- ,,-;
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%. , , i _" .. ,™^*' ' %»V , - ^r ^ ',* . '-, ,» ^ ...„, t ,\ .. , »L, ,*,
Figure 2.29. Photograph of the Pine Point area. Ground photograph of the study area at Pine Point.
Chapter Two
2-40 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
«AS
cd
\
\
\
\
1
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Figure 2.26. Projected shoreline change map for Pine Point, Saco Bay. Note that the barrier beach may be breached
by a tidal inlet at the 1.0 m projected shoreline. At the projected 2.0 m shoreline, the entire barrier is profoundly
altered, and the shape of the shoreline projection is highly speculative. Coastal environments after Timson (1977).
Chapter Two
2-41 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
-------
Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
4) Extent of Similarly Situated Land
(See discussion under Camp Ellis/Ferry Beach section of this chapter.)
5) Analysis
Since lots sizes in Pine Point have been increasing substantially due to accretion, theoretically,
there could be a corresponding change in the allowable density for those accreting lots, allowing for
redevelopment to multi-family units. Thus, the Pine Point site analysis raises the question of how
to treat areas along Maine's shoreline that are accreting in the short term, when geologists suspect
that these areas are subject to change over the long term. Maine's Sand Dune Rules attempt to deal
with this issue by requiring analysis of possible shoreline changes over a 100 year planning horizon.
5. Other Predominant Coastal Types
Two other coastal types are characteristic of portions of the shoreline of Maine, but were not
mapped for this study by Maine Geological Survey: urban engineered shorelines and rocky shores.
Expected impacts are discussed briefly, below.
a. Urban Engineered Shorelines
1) Upland Impacts
The Fore River section of the Portland waterfront was also evaluated for possible impacts of
accelerated sea-level rise, although site features were not mapped. Since the engineered shoreline
in this area is built up to 2 meters above mean high water in most locations, sea-level rise alone
probably will not affect the shoreline position along the Portland waterfront. As has been the case
in the past, property owners will probably continue to raise the height of their shoreline structures
gradually over time, or in response to crisis flooding.
2) Extent of Similarly Situated Land
Only 5% of the region's shoreline consists of urban, engineered waterfront. In the region, only
the Portland/South Portland waterfront, and a small area in South Freeport have urban, "unmovable"
shorelines.
Water dependent businesses (those that must be located on, or adjacent to oceans, bays, and
estuaries) are prevalent in this area and include fisheries, fish processors, ship builders, water
transportation support facilities and others that rely on a waterfront (or in-water) location. These
businesses and industries stand to be affected by sea-level rise in at least two ways: by changes in
the productivity of marine habitats and wetlands, and by impacts on waterfront infrastructure.
Bigford (1991) notes that typical ports with low-lying structures can expect impacts such as:
increased stress on pilings, piers, docks and elevated structures; loss of access to waterfront landings;
flooded utility lines; and loss of coastal lands for water dependent structures and uses. In Casco Bay,
Colgan (1990) estimated that more than 2000 employees worked in "coast dependent" indus-
tries/businesses, with the value of that sector's output estimated at more than $104 million.
Chapter Two 2-42 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Urban services such as sewer treatment and stormwater drainage also may be affected by rising
sea-level. In the case of sewer plants and outfalls, sea-level rise may result in inundation of plants,
transmission of untreated sewage into area waters, and may result in delays getting plants back into
operation. Every municipality in the region has outfalls that may be affected by rising sea-level.
No attempt was made to project costs of worst case property losses or costs associated with
protection strategies for urban waterfronts.
3) Analysis
Although major impacts from a change in shoreline position due to sea-level rise are not
anticipated along Portland's Fore River shoreline, the potential effects of storm surges and the
potential for increased and more widespread flooding along engineered shorelines should be
investigated. A study of potential effects of sea-level rise in Saint John, New Brunswick (Martec
Limited, 1987) found that under a 1 meter rise, what is now the 100 year floodplain would become
the 20 year floodplain. Kana, in studies of the physical impacts of sea-level rise in Charleston, South
Carolina (in Earth and Titus, 1984) concluded that a five-foot rise in sea-level would double the size
of the ten-year floodplain to the approximate size of the hundred-year floodplain unless additional
levees and seawalls were built. Similarly, Leatherman (in Earth and Titus, 1984) studied changes
in storm surge levels and inland inundation as a result of projected rates of sea-level rise in
Galveston Bay, Texas. Leatherman concluded that a .4 meter rise in sea-level by 2025 would
convert a 75-year storm into a 100-year storm. Under the high scenario of sea-level rise, flooding
associated with a 100 year storm would occur at a 10 year frequency by the year 2075, resulting in
catastrophic damage to the study area. Implications of this research for Maine's urbanized low-lying
areas should be further researched. Further studies may reveal the need to make improvements to
existing bulkheads, docks, etc. and may indicate the need for low-lying industries to floodproof
machinery.
b. Rocky Shoreline
Although not considered as a specific coastal environment type investigated in this study, rocky
shores (dotted with occasional, pocket, gravel beaches) comprise more than half of the Casco/Saco
Bay region shoreline. It is not anticipated that accelerated sea-level rise will have a significant
impact on shoreline position along rocky shores. Further study would be needed to determine the
shoreline retreat rates associated with gravel pocket beaches.
6. Summary/Conclusions
Prior studies of shoreline change and coastal erosion in Maine have determined that the
components of Maine's soft coast—coastal sand dune systems, coastal wetlands, and coastal eroding
bluffs—may experience significant coastal erosion and inundation with a continuation of the
historical rate of change. Along sand beaches and coastal wetlands, that erosion and inundation
would be exacerbated by an accelerated rate of sea-level rise associated with global climate change.
The findings of projected change in shoreline position by 2100 under the different scenarios for the
study sites, grouped by environmental setting, are summarized in Table 2.5.
Chapter Two 2-43 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Table 2.5. Composite Result for Study Sites by Environmental Setting
Environmental Setting Sea-Level Rise Scenarios
Projected Shoreline Change, Retreat in Meters
0.5m 1.0m 2.0m
Salt Marsh
Bluff
Beach
3-35
15-45
50-150
8-50
15-45
100-300
17-100
15-45
200-600
The preceding assessment of the vulnerability of selected mapped areas in Casco and Saco Bays
to accelerated sea-level rise leads to the following general observations:
• Estimates of shoreline change portrayed in this report by the three mapped scenarios
are more substantial than previous estimates, which simply projected historic rates
of sea-level rise over a 100 year period. Coastal managers need to understand and
appreciate the differences in the assumptions used in each type of projection.
The areas most threatened by accelerated sea-level rise are sand beaches and salt
marshes; eroding coastal bluffs are also faced with significant impacts from a
continuation of current erosion.
• There is already significant development in threatened areas. Population proj ections
and economic forecasts suggest that pressure for coastal development will continue.
• Existing and projected levels of public and private investment, and the value of
recreational beaches may lead to attempts at extensive "solutions" to "control" sea-
level rise.
• The extent of development in unstable areas, and the probable impacts associated
with accelerated sea-level rise in the study area, suggest that current land use and
environmental laws may be inadequate to deal with issues such as wetland migration
and eroding bluffs.
There is a need for additional study on: the potential impacts on fisheries and habitat
associated with accelerated sea-level rise, wetland migration, and storm
surges/flooding.
• There is a need for increased public education for local officials and existing and
future residents on the topic of shoreline dynamics and methods for developing and
living safely in coastal environments.
Chapter Two 2-44 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
E. REFERENCES
Armentano, T.V., Park R.A., and Cloonan, C.L. 1988. "Impacts on coastal wetlands throughout the
United States." In Greenhouse Effect, Sea-Level Rise and Coastal Wetlands. Ed. J.G. Titus, 87-128.
Washington, DC: EPA.
Barth, M.C., and Titus, J.G., eds. 1984. Greenhouse effect and sea-level rise: a challenge for this
generation. NY: Van Nostrand/Reinhold.
Belknap, D.F., Shipp, R.C., Stuckenrath, R., Kelley, J.T., and Borns, H.W. 1989. Holocene sea-level change
in coastal Maine. Maine Geological Survey Bulletin 40:85-106.
Bigford, T.E. 1991. "Sea-level rise, nearshore fisheries and the fishing industry." Coastal Management
19:417-437.
Bruun, P. 1962. "Sea-level rise as a cause of shore erosion." Journal of Waterways Harbors Division.
88:117-130.
Colgan, C. 1990. The economic value of Casco Bay. Augusta, ME: Maine Coastal Program.
Dionne, M. 1993. "Sea-level rise threatens northeast salt marshes." In The Wells Re serve/Laudholm Trust
Newsletter (Spring 1993).
Farrell, S. 1972. "Present coastal processes, recorded changes, and the post-Pleistocene geologic record of
Saco Bay, Maine." Ph.D. thesis, University of Massachusetts, Amherst.
Possum, D. Assistant Town Planner, Old Orchard Beach. Personal communication.
Hay, B. 1988. "The role of varying rates of local relative sea-level change in controlling the Holocene
sedimentologic evolution of northern Casco Bay, Maine." Masters Thesis, University of Maine, Orono.
Kelley, J.T., Belknap, D.F., Jacobson, G.L., and Jacobson, H.A. 1988. "The morphology and origin of salt
marshes along the glaciated coastline of Maine." Journal of Coastal Research 4:649-665.
Kelley, J.T., Kelley, A.R, and Pilkey, O.K. 1989. Living with the coast of Maine. Durham, NC: Duke
University Press.
Kelley, J.T., Dickson, S.M., Belknap, D.F., and Stuckenrath, R. 1992. "Sea-level change and the
introduction of late Quaternary sediment to the southern Maine inner continental shelf." Ed. J. Wehmil-
ler and C. Fletcher. Quaternary Coasts of the United States. Soc. Econ. Paleo. and Mineralogists, Spec.
Pap. 48:23-34.
Lane, P. and Associates. "Preliminary study of the possible impacts of a one-metre rise in sea-level at
Charlottetown, Prince Edward Island" for Climate Change Digest, Downsview, Ontario.
List, J.H., Jaflfe, B.E., Sallenger, A.H. 1991. "Large-scale coastal evolution of Louisiana's barrier islands."
Coastal Sediments '91 pp. 1532-1546.
Maine Department of Inland Fisheries and Wildlife. 1988. The identification and management of significant
fish and wildlife resources in southern coastal Maine. Augusta, ME.
Martec Limited. 1987. "Effects of a one-metre rise in sea-level at Saint John, New Brunswick and the lower
reaches of the Saint John River" for Climate Change Digest, Downsview, Ontario.
Naylor, A. Former Brunswick Town Planner. Personal communication.
Chapter Two 2-45 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Nelson, B. 1979. "Shoreline changes and physiography of Maine's sandy coastal beaches." Masters Thesis,
University of Maine, Orono.
Nugent, M. Codes Officer, Old Orchard Beach. Personal communication.
Park, R.A., T. Armentano, and C.L. Cloonan. 1986. "Predicting the effects of sea level rise on coastal
wetlands. " In Effects of Changes in Stratospheric Ozone and Global Climate. Vol. 4: Sea Level Rise.
Ed. J.G. Titus. Washington, DC:EPA pp. 129-152.
Park, R.A., M.S. Trehan, P.W. Mausel, and R.C. Howe. 1989. "The effects of sea level rise on U.S. coastal
wetlands. " In U. S. Environmental Protection Agency, 1989. The Potential Effects of Global Climate
Change on the United States: Appendix B: Sea-Level Rise, 1-1 - 1-55. Washington, DC: Office of
Policy, Planning and Evaluation.
Pernetta, J.C., and D.L. Elder. 1992. "Climate, sea-level rise and the coastal zone: Management and
planning for global changes." Ocean and Coastal Management 18(1): 137—142.
Pilkey, O.H., R.S. Young, S.R. Riggs, S. Smith, H. Wu, and W.D. Pilkey. 1993. "The concept of shoreface
profile of equilibrium: A critical review." Journal of Coastal Research 9:255-278.
Property assessment staff from Old Orchard Beach, Scarborough, Falmouth, and Brunswick. Personal
communication.
Rosenfeld, H. President, Scarborough Economic Development Corporation. Personal communication.
Shipp, R.C., D.F. Belknap, and J.T Kelley. 1991. "Seismic-stratigraphic and geomorphic evidence for a
post-glacial sea-level lowstand in the northern Gulf of Maine." Journal of Coastal Research 7:341-364.
Smith, R.V. 1990. "Geomorphic trends and shoreline dynamics in three Maine embayments." Masters
Thesis, 2 vols., University of Maine, Orono, Maine.
Stewart, R.W., et al. 1990. "Relative sea-level change: A critical evaluation." UNESCO Reports inMarine
Science 54.
Stokoe, P., etal. 1990. "Implications of climate change for small coastal communities in Atlantic Canada."
Climate Change Digest, CCD 90-01.
Sunamura, T. 1983. "Processes of seacliff and platform erosion." \nHandbookofCoastalProcessesand
Erosion. Ed. P.O. Komar. 233-266. Boca Raton, FL:CRC Press.
Timson, B. 1977. Coastal marine environment maps of the Maine coast. Augusta, Maine: Maine
Geological Survey, 1:24,000.
Timson, B., et al. 1992. Application of the Town of Old Orchard Beach to the Maine Department of
Environmental Protection.
Titus, J.G. 1991. "Greenhouse effect and coastal wetland policy: How Americans could abandon an area
the size of Massachusetts at minimum cost." Environmental Management 15(l):39-58.
Titus, J.G., and M.S. Greene. 1989. "An Overview of the nationwide impacts of sea level rise." In U. S.
Environmental Protection Agency. 1989. The Potential Effects of Global Climate Change on the United
States: Appendix B — Sea-Level Rise, 5-1 - 5-55. Washington, DC: Office of Policy, Planning and
Evaluation.
Titus, J.G, ed. 1987. Greenhouse effect, sea level rise and coastal wetlands. Washington, DC: U.S.
Environmental Protection Agency, Office of Policy Analysis.
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Titus, J.G. 1986. "Greenhouse effect, sea level rise, and coastal zone management." Coastal Zone
Management Journal 14(3): 147-171.
U.S. Army Corps of Engineers (USACOE). 1992. Camp Ellis Beach, Saco, Maine. Section 111
Reconnaissance Report. Waltham, MA: New England Division.
U.S. Environmental Protection Agency. 1989. The potential effects of global climate change on the United
States: Appendix B: Sea-level rise. Washington, DC: Office of Policy, Planning and Evaluation.
U.S. Congress, Office of Technology Assessment. October 1993. Preparing for an uncertain climate. Vol.
II. OTA-O-568. Washington, D.C.: U.S. GPO.
U.S. Department of Commerce, National Oceanic and Atmospheric Administration. 1991. Coastal wetlands
of the United States: An accounting of a valuable national resource. Washington, DC: National Ocean
Service, NOAA.
Weggle, J.R. 1979. A method for estimating long-term erosion rates from a long-term rise in water level.
CERC Technical Aid 97-2. Ft. Belvoir, VA: USACOE.
Chapter Two 2-47 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Chapter Two 2-48 Vulnerability of Maine Sites to Accelerated Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Chapter Three
CASE STUDY:
CAMP ELLIS/FERRY BEACH
A. INTRODUCTION
The analysis in the preceding chapter presents a rough estimate of impacts of a change in
shoreline position for several sites, using readily available information. Clearly, more quantitative
assessments of impacts would be possible given additional data or staff resources. As an illustration
of the potential for more detailed analysis, the research team opted to undertake a more quantitative
assessment of the features at risk from accelerated sea-level rise for the Camp Ellis area. This type
of more quantitative assessment was made possible by the availability of existing data on a
Geographic Information System (GIS). The information presented in this chapter serves as the
foundation for the cost-benefit analysis of alternative response strategies for Camp Ellis, presented
in Chapter Four.
B. SHORELINE POSITION
Camp Ellis is a spit which projects southward into the Saco River in the City of Saco. To the
north it becomes attached to the mainland and is called Ferry Beach. (Figures 2.15, 3.7). The area,
with the exception of a small state park, is highly developed. Residences are set back among
extensive sand dunes near Ferry Beach, but commercial structures as well as residences cover the
former dunes and crowd onto the beach at Camp Ellis (Kelley et al., 1989). (Figures 3.2, 3.3)
This area has experienced both progradation and erosion in the course of the past century.
Following the initial dredging of the Saco River, and construction of ajetty at Camp Ellis, the beach
grew seaward. This may have been a response to the placement of dredged spoils on the beach,
because in the early 20th century, the new land eroded along with many buildings and a railroad line
(USACOE, 1992).
The USACOE has predicted a retreat rate of about 1 m (3 feet) per year for that portion of Camp
Ellis lacking an integrated seawall, and 0.6 m (2 feet) per year for the area behind a massive granite
seawall fronting Surf Street (USACOE, 1992). (Figure 3.4} These predictions are based on
examination of historical maps and aerial photographs. To date the predictions have been relatively
accurate for the area lacking massive engineering structures,
Chapter Three 3-1 Case Study: Camp Ellis/Ferry Beach
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Saco, Maine
Shoreline Change
Figure 3.1. Projected shoreline change map for Camp Ellis. Mapped shorelines consider only erosion from the ocean
side, not from the Saco River side. Mapped shorelines do not consider the addition of new sand from the Saco River.
Chapter Three
3-2
Case Study: Camp Ellis/Ferry Beach
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Figure 3.2. Photograph of the Camp Ellis-Ferry Beach area. Development on beach at Camp Ellis.
' • ;v
Figure 3.3. Photograph of the Camp Ellis-Ferry Beach area. Undeveloped back dune at Ferry Beach State
Park.
Chapter Three
3-3
Case Study: Camp Ellis/Ferry Beach
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Ferry Beach
State Park
Saco, Maine
Shoreline Change
COE 100 YEAR
0.5 m
0 0.5 Km
I I I I I I
N
Figure 3.4. Shoreline change map of Camp Ellis comparing 0.5 m shoreline from this study with U.S. Army Corps of
Engineers predictions. The Army prediction is a continuation of trends up until 1955.
Chapter Three
3-4
Case Study: Camp Ellis/Ferry Beach
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
and one or more houses per year have been lost to the sea. The large seawall on Surf Street has
repeatedly been destroyed by storms also, but has been rebuilt in the same place, and so no erosion
of the land behind it has occurred. There is no longer a beach in front of the wall, however, except
at low tide (Kelley et al., 1989).
The USACOE's data do not apply to Ferry Beach, and their predictions are only shown to the end
of the Surf Street seawall. (Figure 3.4} Although the height of most of the private seawalls as well
as the Surf Street seawall is greater than 2 m above higher high water (Figure 3.5), in a dynamic
beach setting the walls are likely to be undermined or destroyed by waves in the future, and it is
reasonable to assume the beach will retreat. The 150 m, 300 m and 600 m predicted shorelines
associated with the 0.5 m, 1.0 m, and 2.0 m higher sea levels, respectively, reflect this assumption.
(Figure 3.1, Table 2.1} No consideration is given to the impact of sand redistribution as a result of
the projected sea-level rise, nor of the effect of paved roads, sewer lines and parking lots.
C. IMPACT ASSESSMENT
1. Upland Impacts
Substantial impacts are projected on natural and built features. Figures 3.6,3.7 and 3.8 show the
projected sea-level rise scenarios along with settlement patterns, land use, location of natural
features, and infrastructure. It should be noted that mapped shorelines consider only erosion from
the ocean side, not from the Saco River side. There has been insufficient study of the impact of sea-
level rise on rivers to project shoreline change along the river.
The projected .5 meter sea-level rise boundary is about 150 meters (500 ft.) landward of current
mean high water. Under this scenario, public and private properties at risk include the following:
71 acres of land developed with 210 structures
• 2.4 miles of public roads
• 2.3 miles of water lines
• 1.8 miles of sewer lines
• Municipal fire sub-station
• State Park lands
The 1.0 meter sea-level rise projection creates a new land/sea boundary about 300 meters (1,000 ft)
from current mean high water. Features at risk under this scenario include the following:
133 acres of land, developed with 334 structures
• 4.25 miles of public roads
• 3.6 miles of water lines
• 3.4 miles of sewer lines
• Fire sub-station
• State Park lands
Chapter Three 3-5 Case Study: Camp Ellis/Ferry Beach
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
500 1000
feet
Camp Ellis
Base Map With Land Use Patterns SaC°! Mm"e
Figure 3.5. Camp Ellis, Saco, Maine. Settlement patterns and wetlands.
Chapter Three
3-6
Case Study: Camp Ellis/Ferry Beach
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Sand Dunes and Critical Areas
Camp Ellis
Saco, Maine
Figure 3.6. Camp Ellis, Saco, Maine. Sand dunes and critical areas.
Chapter Three
3-7
Case Study: Camp Ellis/Ferry Beach
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Base Map With Wetlands
Camp Ellis
Saco, Maine
Figure 3.7. Camp Ellis, Saco, Maine. Land use and public infrastructure.
Chapter Three
Case Study: Camp Ellis/Ferry Beach
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
O
-O
ui
Figure 3.8. Camp Ellis, Saco, Maine. Land use and public infrastructure.
Chapter Three
3-9
Case Study: Camp Ellis/Ferry Beach
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
The 2.0 meter sea-level rise boundary is 600 meters (2,000 ft.) inland from current mean high water.
Features at risk under this scenario include:
• 260 acres of land developed with 364 structures
• 4.7 miles of public roads
• about 4 miles of water lines
• 3.6 miles of sewer lines
• Fire sub-station
State Park lands
2. Value of Land and Structures
According to City of Saco assessors records, property values in the . 5 meter rise area total about
$37.6 million. The value of properties inundated under the 1.0 meter sea-level rise scenario is
roughly $55.2 million. Under the 2.0 meter rise, the value of land and buildingsinundated reaches
about $61.3 million. The difference between the value of properties affected under the 1.0 and 2.0
meter rise is not that sizable, due to the largely undeveloped nature of the land within the 2.0 meter
band, and the presence of wetlands.
3. Wetland Impacts
Wetland acreages that may be impacted by rising sea-level in the Camp Ellis/Ferry Beach area
are as follows:
.5 meter 1.0 meter 2.0 meters
Wetland Acreages < 1 acre 21 acres 57 acres
Most of the wetlands in the Camp Ellis site are tidally influenced freshwater wetlands. All are
classified as having low, moderate or indeterminate value for habitat. It was beyond the scope of this
study to determine how freshwater wetlands might react to rising sea-level. However, it should be
noted that it is expected that they would undergo slow conversion to salt marsh, and would probably
be inundated during the 2.0 meter rise.
4. Extent of Similarly Situated Land in the Region
Roughly 10% of shoreline of the Casco and Saco Bay regions is made up of sand beaches. As
explained previously in Chapter Two, potential shoreline changes in sand beach areas of between
50-600 meters (175 ft.-2,000 ft.) can be anticipated, depending on the sea-level rise scenario being
considered.
While the mapped sites described in this and the preceeding chapter (Camp Ellis/Ferry Beach,
Old Orchard Beach and Pine Point) are the largest beaches in the study area and probably provide
the best examples of how developed beach areas may be affected, other sand beaches in the study
region may be similarly affected. Scarborough Beach, Higgins Beach, Crescent Beach and Willard
Beach, because of their moderate slopes, may experience shoreline changes similar to those mapped
for Old Orchard and Camp Ellis. The coastal lands adjacent to East End Beach and Mackworth
Chapter Three 3-10 Case Study: Camp Ellis/Ferry Beach
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Island beaches, having much steeper slopes, will experience less dramatic movement of the
shoreline.
Sand beaches also occur on Casco Bay's larger islands. Again, slope conditions on the adjacent
shoreline will help to determine the landward extent of sea-level rise in these areas.
In addition to being heavily used for public recreation, the majority of the sand beaches in the
mainland portion of the study area are developed in residential uses. Even where state park status
protects an area of sandy beach, the actual area of state ownership typically is small, and developed
areas surround park lands. Since densities of development around the region's sand beaches vary,
Camp Ellis/Ferry Beach, with its mix of high density cottages and moderate density estates may
provide a useful comparison of potential property losses.
In addition to property losses, recreational value must be considered when evaluating potential
impacts of sea-level rise on sand beaches. Using available statistics for state park usage in the region
and Colgan's (1990) estimates of the value of the recreational experience, the recreational value of
three sand beaches mapped in the study area would be between $.5 million and $4.25 million each
year. Visitor estimates at municipal beaches and privately owned areas would have to be added to
these figures to determine a total value for the region.
5. Analysis
There continues to be ongoing debate and discussion surrounding the fate of Camp Ellis.
Shorefront landowners, concerned about saving their property from the sea, have banded together
under the umbrella of" Save Our Shores." Upland owners are more concerned about the costs to the
town taxpayers of continuing to fight a losing battle with the sea. The City of Saco is currently
considering abandoning Surf Street, the street that is continually undermined during coastal storms.
Some others are concerned about the proper role for local, state, and federal agencies. Presently, the
U.S. Army Corps of Engineers is studying the possible relationship between the jetty and coastal
erosion, while the City and State are discussing a potential buyout of shorefront properties. This
controversy is illustrative of the questions other communities will face if coastal erosion accelerates.
D. REFERENCES
Colgan, C. 1990. The economic value of Casco Bay. Augusta, ME: Maine Coastal Program.
Kelley, J.T., A.R. Kelley, and O.H. Pilkey. 1989. Living with the coast of Maine. Durham, NC: Duke
University Press.
Maine Department of Inland Fisheries and Wildlife. 1988. The identification and management of significant
fish and wildlife resources in southern coastal Maine. Augusta, ME.
Maine State Planning Office, Economics Division. 1994. Population statistics for minor civil divisions and
counties.
Morelli, P. and R. Roedner, Saco Town Planners. Personal communication.
Property assessment staff from Saco. Personal communication.
Chapter Three 3-11 Case Study: Camp Ellis/Ferry Beach
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Tardiff, Arthur, Drown Realty, Saco, Maine. Personal communication.
U. S. Army Corps of Engineers, New England Division. 1992. Section 111 Reconnaissance Report, Camp
Ellis Beach, Saco, Maine, Beach Erosion Study. Waltham, MA.
Chapter Three 3-12 Case Study: Camp Ellis/Ferry Beach
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Chapter Four
COSTS AND BENEFITS OF SELECTED
POLICY RESPONSE OPTIONS
A. SETTING PRIORITIES FOR ADAPTIVE RESPONSE STRATEGIES
The preceding vulnerability assessment has identified several types of resources at risk of
negative impacts from accelerated sea-level rise. It suggests that there will be impacts on unmanaged
ecosystems and on human settlement. If sea-level rise predictions are realized, some, but clearly not
all of these impacts, are amenable to mitigation through adaption strategies.
State and local governments are faced with two choices on the timing of mitigation strategies:
1) they can wait to take any action until the consequences of sea-level rise are established or 2) they
can begin now to develop strategic responses. If they opt for inaction (either by acknowledging the
risk by choosing not to act yet or by entirely ignoring the risk), they may actually increase the risk
of loss or the magnitude of the loss. For example, if they take no action to regulate new development
in hazard areas or if they allow significant degradation of natural coastal systems, their vulnerability
to sea-level rise may increase over time. On the other hand, if state and local governments
acknowledge the threat and begin advance planning, they may be able to avoid increasing their
vulnerability, and may in fact even be able to reduce the risk of negative impacts or the magnitude
of loss in the future.
In general terms, these decisions about response strategies and mitigation will be investment
decisions, both private and public, which will be partially guided by projecting the future rate of
return on such investments. However, due to the uncertainties about the extent of global climate
change and the time frame over which impacts may become apparent, estimating the return on the
investment will require resolving (or at least making assumptions about) a series of complex issues.
One issue is how to value particular outcomes when estimating economic benefits. For example,
what value should be placed on reduction of loss of life or retention of wetlands in evaluating the
return on the investment?
Another issue concerns what assumptions to use when predicting how people will respond to
impacts over time. Should analysts assume that people will continue to act as they always have (e.g.,
continued greenhouse emissions, continued attempts to build on the shoreline, etc.) until the
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
government takes action? Or will people begin to change their behavior by responding to emerging
impacts without waiting for governmental intervention?
A third issue concerns how to factor scientific uncertainty and the time lag in feeling effects into
any mitigation program. In many instances, it will not make sense to rush to implement policies or
rebuild structures to protect against the high-range rise in sea level projected for 100 years from now.
James Titus, Director of the EPA Sea Level Rise Project posits that:
[t]he need to respond today depends on the likelihood of global warming; the magnitude of
the impacts; and the potential anticipatory measures to reduce adverse impacts of sea level
rises or climate changes as expected, without imposing substantial costs if the changes do
not unfold1
He encourages state and local governments undertake today only those actions which would
significantly reduce adverse impacts of sea-level rise but would also not be ill-advised if projected
effects of global warming fail to materialize. These have been described as no regrets policies.
These actions could consist of a combination of concrete measures or physical changes (e.g.,
making siting decisions or modifying designs for current construction proj ects to incorporate features
responsive to sea-level rise projections),planning, amending regulations or "changing the rules of
the game " (e.g., adopting new land use restrictions in advance of development pressures, modifying
conventions of property ownership) and research and education (achieving more certainty in
projections and educating people to the need for response measures).2
To assist with this assessment of beneficial/"no regrets" policies, Titus has suggested the following
criteria for policy makers to consider in evaluating potential response strategies:
• Economic efficiency: Will the initiative yield benefits substantially greater than if the
resources were applied elsewhere?
• Performance under uncertainty: Is the strategy reasonable for the entire range of possible
changes in temperatures, precipitation, and sea level?
• Urgency: Would the strategy be successful if implementation were delayed 10 or 20 years?
Is the opportunity to solve the problem likely to vanish id no action is taken soon?
• Low cost: Does the strategy require minimal resources?
• Equity: Does the strategy avoid the problem of unfairly helping some at the expense of other
regions, generations, and economic classes? Does it give people ample time to adjust?
• Institutional feasibility: Is the strategy acceptable to the public? can it be implemented with
existing institutions under existing laws?
• Unique or critical resources: Would the strategy decrease the risk of losing unique
environmental or cultural resources?
• Health and safety: Would the proposed strategy decrease (or at least avoid increasing) the
risk of disease or injury?
Consistency: Does the policy support other national, state, community or private goals?
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• Private vs. public sector: Does the strategy minimize governmental interference with
decisions best made by the private sector?3
Some of these criteria such as economic efficiency, performance under uncertainty, and cost can
be evaluated in more depth using cost-benefit analysis. The balance of this chapter develops a very
rough cost-benefit analysis as an initial attempt to use this tool in setting priorities. It evaluates four
different response options as applied to one of the case study sites, Camp Ellis.
The other criteria, i.e., institutional feasibility (including legal defensibility), equity, and
consistency with other goals, so not lend themselves to a cost-benefit analysis but are critical
components on any decision about appropriate adaptation strategies for Maine. They are the focus
of the analysis in Chapters Five and Six.
B. COST-BENEFIT ANALYSIS
1. Selection of Case Study Site
In order to develop a quantitative assessment of alternative policy response options, it was
necessary to focus on one small area with relatively uniform topography for which there existed
sufficient data to allow a comparison of benefits and costs of a set of parallel response strategies.
Due to the currently available information and the apparent magnitude of the threat posed by sea-
level rise, this detailed case study focuses on a sand beach setting — Camp Ellis. Clearly, no one
response is appropriate for the entire shoreline. Responses may differ significantly, depending on
topography, level of development, land use and unique natural features. However, as a first attempt
to quantify costs and benefits in one type of setting, a sand beach site was selected due to the much
higher projected magnitude of change in shoreline position for beaches; the relative scarcity of sand
beaches in Maine; the value of the resource to the States's economy, particularly the tourism industry;
the greater magnitude of vulnerability of built resources to a change in shoreline position along the
beach, and the likelihood of forthcoming substantial policy debates concerning alternative response
strategies.
2. Description of Camp Ellis/Ferry Beach
Camp Ellis is a densely settled area within the City of Saco, developed primarily in cottage-type
year-round and seasonal single family residences. Several restaurants, a fish pier, and a few tourist-
oriented shops comprise the small waterfront business district. Ferry Beach, adj acent to Camp Ellis,
is also included in the case study area. Ferry Beach is also primarily "built out," but with larger
dwellings on bigger lots.
Camp Ellis is known for experiencing very high erosion rates, and numerous properties have
been destroyed during coastal storms. The City of Saco faces ongoing expenditures for road repairs,
maintenance and clean-up associated with coastal storms. Ferry Beach is a more stable area,
protected by a healthy dune system. The entire area is served by municipal water and sewer, and
includes a network of public roads.
a. Shoreline Positions/Impact on Built Features
Figures 3.6, 3.7 and 3.8 in Chapter Three show the projected sea-level rise scenarios along with
settlement patterns, land use, location of natural features, and infrastructure.
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
As reported in Chapter Three, for the projected .5 meter sea-level rise boundary, 150 meters (500
ft. landward) of current mean high water, public and private properties at risk include:
71 acres of land (assessed value $28.2 million);
210 structures (assessed value $9.4 million);
2.4 miles of public roads;
2.3 miles of water lines;
1.8 miles of sewer lines;
Municipal fire sub-station;
State Park lands.
The projected 1.0 meter sea-level ruse shoreline boundary, about 300 meters (1,000 ft.) from
current mean high water, puts the following features at risk:
133 acres of land, with an assessed value of $41.2 million;
334 structures, valued at $14 million;
4.25 miles of public roads;
3.6 miles of water lines;
3.4 miles of sewer lines;
Municipal Fire sub-station;
State Park lands.
the proj ected 2.0 meter sea-level rise boundary, approximately 600 meters (2,000 ft.) inland from
the current mean high water, includes the following features at risk:
260 acres of land, assessed value of $46 million;
364 structures valued at $15.3 million;
4.7 miles of public roads;
about 4 miles of water lines;
3.6 miles of sewer lines;
Municipal Fire sub-station;
State Park lands.
The difference between the value of the properties affected under 1.0 and 2.0 meter rise is not
that sizeable, due to the presence of significant wetlands and therefore the less developed nature of
the land within the 2.0 meter band.
b. Natural Features
Natural features in the Camp Ellis/Ferry Beach area (refer back to maps in Chapter Three) that
may be impacted under the three sea-level rise scenarios include:
1.) Wetlands/Ponds
• less than an acre of salt marsh under the .5 meter scenario;
slightly over 21 acres of freshwater wetlands under the 1.0 meter scenario;
• 56.5 acres of freshwater wetlands under the 2.0 meter scenario;
• 2 freshwater ponds under the 1.0 and 2.0 meter scenarios.
2) Sand Beach
Sand beach system, including Ferry Beach State Park (27,739 visitors for a two year
period from 1991-2), and numerous other public access points.
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
3) Marine Habitat
Marine habitat for shorebird feeding and roosting, seal haul-outs and nesting bird sites
(regional and national significance).
4) Other
• two registered critical areas under the 1.0 meter scenario, 4 critical areas under the 2.0
meter scenario.
c. Wetlands
The vulnerability analysis in Chapter Three identified acres of wetlands at risk in Camp
Ellis/Ferry Beach under the various sea-level rise scenarios. The majority of mapped wetlands in
the case study area are tidally influences freshwater wetlands. It was beyond the scope of this study
to determine how those wetlands might react to rising sea level. However, it is likely that they would
undergo slow conversion to salt marsh, and would probably be inundated during the 2.0 meter rise.
The first two response strategies explored in this cost-benefit analysis include consideration of
protection of developed properties from migrating wetlands through the construction of bulkheads.
Because it was uncertain what the effects on freshwater wetlands would be, the cost-benefit analysis
portrays a worst-case scenario of constructing bulkheads around the total perimeter of the case
study's wetland acreage.
d. Growth Trends and Potential for New Development in the Case Study Area
When sewer lines were extended to the Camp Ellis/Ferry Beach area in recent years, it was
speculated that the area would undergo massive redevelopment, that substandard buildings would
be replaced by higher density dwellings and that marine business zoning might spur expan-
sion/redevelopment of the existing small mixed use commercial and fishing village. Combined with
a downturn in the economy, continuous storm damage and ongoing erosion have caused people to
be cautious about making property improvements or investing in new ventures. Few properties are
selling. Of course, these earlier expectations could easily be revived in a more robust period of
sustained growth in the region's economy.
The cost-benefit analysis of different response options required an estimate of the among of new
development anticipated in the Camp Ellis/Ferry Beach over the study period (2100). While the
population of the City of Saco as a whole may grow at a rate of .7% per year (based on recent trends,
Maine State Planning Office, 1994), growth in the Camp Ellis/Ferry Beach area will be limited to
redevelopment of existing lots and subdivision of relatively small quantities of vacant land. Under
each sea-level rise boundary area, the amount of vacant land and land with potential for redevelop-
ment was analyzed in light of current zoning regulations. Vacant land and "underutilize" properties
(i.e., those that could accommodate additional units under current zoning) were targeted as areas
where new development and redevelopment (at higher densities) would be likely. Wetland areas and
state park lands were not considered as part of the available vacant land supply, but current
ownership patterns were not considered in determining whether the remaining privately held land
would be developed in the future. An allocation of area needed for new roads and parking was
considered when analyzing vacant land. Within the shorefront area having the. 5 meter sea-level rise
shoreline position as its upland boundary, between 25 and 261 new units could, at least in theory,
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
be constructed. Within the same area but with the 1.0 meter sea-level rise shorefront position as its
upland boundary, between 35 units and 317 units could be developed. Within the shorefront area
with the 2.0 meter sea-level rise shoreline position as the upland boundary, between 60 and 462 new
units could be constructed. Within each anticipatory sea-level rise boundary a midrange estimate
was assumed as the most likely level of redevelopment potential; 51, 72, and 127 units respectively
within the 0.5, 1.0, and 2.0 meter sea-level rise boundaries.
3. Selection of Four Policy Response Options
The intent of this analysis is to compare costs and benefits of the most basic alternative policy
response options. This should assist with the evaluation of the advisability of taking particular
actions at all at this time. The four options reflect specific public investments and reflect specific
public investments and regulatory/planning/"changing the rules of the game" types of responses.
Clearly different concrete measures, physical changes, nonregulatory incentives, education and
research also have a role to play in an integrated strategy. Similarly, one could easily conceive of
different public investment or regulatory strategies than the ones chosen here for comparison. By
no means are these the only policy options available, but they are illustrative of the basic cost
differences between retreat and reactive protection strategies on developed shorelines.
The following alternative policy response options were evaluated:
Option 1: Reactive Protection for both developed and underdeveloped properties.
This policy is defined as not taking specific steps ahead of time to alter the anticipated
development pattern (assuming a buildout of current trends) but then later, as sea level rises,
protecting the development that has occurred with beach nourishment along sandy beaches and
bulkheads along developed wetland shores to protect all developed land.
Option 2: Reactive Protection for both developed and underdeveloped properties,
combined with a compensated setbacks for the currently threatened structures.
This policy is defined as encouraging a modified development pattern so that a smaller area will
need to be protected through the same beach nourishment along sandy beached and same bulkheads
along developed wetland shores as in Option 1, but using an initial public buyout of selected
currently threatened properties to improve economic efficiency.
Option 3: Rolling Easements for developed properties, regulating setbacks for all
underdeveloped properties
This option assumes regulations would prohibit all new development within all of the area
expected to be affected by a change in the shoreline position within the next 100 years, with the area
varying for each scenario. In addition, any existing development would be required to retreat if
waters rise to touch the structure for six consecutive months. It is assumed this retreat requirement
would be enforced through a type of "rolling easement" which would require development removal
and restoration of the site to its natural condition as the shoreline position moves inland. No effort
would be made to hold the current shoreline position, thus all beaches and wetlands would be
allowed to migrate inland.
Option 4: Rolling Easements for both developed and undeveloped properties
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
This option, a variation of Option 3, eliminates the setback requirement for new construction and
utilizes a "rolling easement" to control the impacts of both new and existing development. New
development would be allowed in areas expected to be affected by a change in the shoreline position
within the next 100 years, both new and existing development would be required to retreat if the
building sustains damage to the extent of 50% or more of the buildings appraised value or if the
shoreline recedes so that any part of the structure is within the coastal wetland for six months or
more. Under the "rolling easement," when the structure on a site is partially inundated by a
migrating shoreline, the structure must be removed and the site must be restored to its natural
condition.
4. Discussion of Methodology
a. Overview
The general methodology applied through the quantitative portion of the economic analysis is
to determine if "the benefits to whomsoever they may accrue are in excess of the estimated costs."4
Distributional aspects of how the share of costs or benefits would be allocated among various parties
were not addressed in the quantitative analysis. The methodology used in this analysis attempts to
compute the aggregate social cost for each of the four proposed policy response strategies based on
the available data, using simple linear assumptions for the timing of events.
Comprehensive data on property values, both land and structures, in the affected area were
collected from the local town offices. These data were summarized and cumulated by sea level rise
zone (0.5, 1.0, and 2.0 meter) through the use of GIS (Geographical Information System). The
quantity of wetland loss, infrastructure loss, and new bulkheads needed under each sea-level rise
scenario were also computed and categorized within each sea-level rise zone, by the GIS.
The economic value of waterfront land at risk in the 0.5 meter sea-level rise zone is computed
using nearshore (not shoreline) land values. Nearshore land is characterized for the purpose of this
study as land in the 0.5-1.0 meter elevation band.5
All benefits and costs were converted to present value equivalents using the fiscal year 1992
interest rate for the federal water resources projects of 8.5 percent.
Table 4.1 contains the aggregate quantities that were used to compute the costs and benefits for
each aspect of a particular policy. Table 4.2 contains the price and value assumptions that were
applied to the quantities in Table 4.1 to compute the costs and benefit totals for each policy strategy,
under each sea-level rise scenario.
A fundamental assumption for computing the costs and benefit implications under each sea level
rise scenario was that sea level is assumed to rise at a constant rate through the 100 year study period
(1995-2094). In other words, it is assumed that in the 100th year the level of the sea would just reach
the total extent of rise expected under each scenario (either 50 cm, 100 cm, or 200 cm); it is also
assumed that the sea would get to that level by rising equal increments in each individual year (a
straight line estimation approach). The volume of wetlands and the value of structures and
infrastructures were assumed to be equally spread throughout each of the three sea-level rise zones.
Therefore the volume of wetland loss; the value of property and infrastructure loss; and the need to
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
construct new bulkheads were al so assumed to be spread in equal increments throughout the 100 year
period.
Because of these simplifying linear estimates and assumptions regarding the timing of natural
events the quantitative portion of this study should be viewed as a "rough analysis". No good data
were available to vary the rate of sea-level rise over the next century, and a dynamic model to
quantify the effects of a centimeter by centimeter sea-level rise was constructed. Although it is
unlikely that either the potential sea-level rise (or the damages resulting from it) will be so linear,
it is not unreasonable to make such simplifying assumptions in order to quantify and compare basic
strategies as long as such assumptions are clearly stated and held constant under each policy option.
b. Detailed Methodology Used to Compute the Benefit and Cost of Each Policy Response
Option
Option 1: This option assumed a reactive protection strategy for both the developed and the less
than fully developed lots in the study area. Policy Option 1 's response strategy is simply to use beach
nourishment to maintain the existing beach frontage and recreational usage and to protect the
remaining development by the building of bulkheads to prevent an inward migration of wetlands
whenever they are necessary.
This strategy would provide complete and equal protection to any new structures on the less than
fully developed land at no additional cost. This is because at the Camp Ellis site the only potential
for new development is the redevelopment of existing structures and underdeveloped lots, or the
development of undeveloped lots that are interspersed within the developed area. There is no
undeveloped area at Camp Ellis that would require separate or additional bulkheads or beach
nourishment beyond that which the existing development would already require if the sea-level were
to rise.
This absence of any significant area of undeveloped land in Camp Ellis is one of the limitations
in using Camp Ellis as an example for other sites that may have substantial tracts of underdeveloped
land. At sites with significant undeveloped tracts of land there could be a significant variation in the
potential future costs of a reactive protection policy based on the regulatory rules for undeveloped
land. For example, new development could be required to cluster in areas most easily defended from
rising sea level. In addition, if there were large tracts of undeveloped land, it might be possible to
develop different types of response policies for discrete coastal areas. For example, an "expensive"
protection strategy could be evaluated for already developed portions of the shoreline, but a retreat
policy could be applied to undeveloped areas. Developing a different policy for large areas of
undeveloped land could significantly affect the future amount of beach nourishment or bulkhead
construction that would be required or permissible.
In contrast, since Camp Ellis does not have large tracts of undeveloped land, further restrictions
on the development of underdeveloped land will have no impact there on the aggregate future cost
of either beach nourishment or the building of bulkheads. Under a reactive protection policy for the
developed area, the aggregate future cost for building bulkheads and applying nourishment will be
totally independent of what happens to the underdeveloped or undeveloped lots. In fact, any
development to increase the number of units within the current zoning regulations would actually
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
lower the per unit cost to protect the existing structures using a reactive protection strategy of beach
nourishment and bulkhead building.
To compute the costs of Option 1 the present value of the annual cost of adding sand,
maintaining existing bulkheads, and building new bulkheads were added to the present value of the
wetland volume that would be lost under each sea-level rise scenario over the next 100 years. The
benefit of Option 1 was computed as the present value of both the estimated recreation value6 and
property value that would be saved over the next 100 years by pursuing this strategy.
It should be noted that under each sea-level rise scenario evaluated using the policy strategy
specified by Option 1, the costs exceeded the benefits. This unappealing economic situation can be
directly attributed to the simple fact that beach nourishment is very expensive, and that even under
a zero centimeter sea-level rise scenario a substantial amount of beach nourishment will be needed
over the next century to protect the existing structures by maintaining the current shoreline. The
ratio by which the costs exceeded the benefits ranged from a low of 1.1:1 for the zero cm rise
scenario to a high of 1.6:1 for the 200 cm rise scenario.
Option 2: This option uses the same basic policy response strategy as Option 1, with the only
addition being a compensated setback program to be implemented for a number of properties that
are already being seriously threatened by sea-level rise. Since these properties are built directly on
top of the frontal dunes, in effect what this policy does is simply to move the position of the
shoreline that will be defended slightly further back to a more easily defended (and less costly)
position, given the current sea level. Otherwise this policy option utilizes the exact same techniques
as Option 1 to protect the remaining development. (Elsewhere in this study the compensated setback
program may also be referred to as an "anticipatory protection" policy.)
The compensated setback program is estimated to cost 110% of the current appraised property
values of those already threatened properties to be acquired. The 10% premium is included to give
the owners an incentive to facilitate and ease the transition of ownership from private to public
hands.
The major benefit of the compensated setback policy is that by vacating the portion of the
compensated setback policy is that by vacating the portion of the shoreline that is currently under
the most stress from sea-level rise, coastal erosion and storm surges, a volume of sand will be
provided to buffer the next tier of structures that are further setback from the encroaching shoreline.
This means that the amount of sand needed for beach nourishment to maintain the current shoreline
position will drop to zero for a number of years, depending on the rate of sea-level rise. If, contrary
to observed historical trends, sea level does not rise at all, it is estimated that the compensated
setback program would provide enough sand to eliminate the need for beach nourishment for the
entire 100 year period. Alternatively, if sea-level rises at a rate of 50, 100, or 200 cm over the 100
year period it is estimated that the compensated setback policy would only eliminate the need for
beach nourishment to protect the remaining structures and maintain the current shoreline position
for 20, 10, or 5 years, respectively.
Because of cost of sand for beach nourishment is very high, the compensated setback program
provides a savings that is large enough to substantially improve the benefit/cost ratio for a reactive
protection strategy under both the zero and fifty centimeter sea-level rise for a reactive protection
Chapter Four 4-9 Costs and Benefits of Selected Policy Response Options
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
strategy under both the zero and the fifty centimeter sea-level rise scenarios. In fact under the zero
centimeter sea-level rise scenario it changes the ratio from being less than one, to being greater than
one, which makes this scenario the only variation on a reactive protection strategy evaluated by this
study that yields abenefit/cost ratio greater than 1.0. However, itis also important to note that a zero
centimeter sea-level rise over the next century is highly unlikely, because it would be inconsistent
with projections of sea-level rise based on historical rates of change in Maine, and would be
inconsistent with Maine Geological Survey's coastal hazard mapping for Camp Ellis.7
This analysis suggests that if policy makers believe they must protect existing development and
if they are advised that a 0-50 cm sea-level rise is the most probable scenario over the next century,
the use of a compensated setback program in conjunction with a reactive protection policy can
improve the benefit/cost ratio.
However, under higher sea-level rise scenarios (100 or 200 cm) the compensated setback policy
actually reduces the benefit/cost ratio, and makes it more expensive to pursue than a pure reactive
protection policy on it's own, because of the combination of two factors. First, the upfront cost of
acquiring the most threatened properties has a high present values that is added to the cost of the
policy, while the amount of property being protected is diminished because after the buyout there
is less property to protect. Second, under a more rapid sea-level rise scenario the savings in sand for
beach nourishment provided by the compensated setback program is quickly consumed and does not
last long enough to offset the relatively high present value of purchasing the properties upfront at the
inflated values of 110%.
Option 3: Policy Option 3 establishes a rolling easement strategy8 for all current development,
and would implement a setback policy to exclude any further new development or redevelopment
from occurring in either the anticipated 50, 100, or 200 cm sea-level rise zones.
The economic cost of prohibiting the development according to a setback policy within each
band of anticipated sea-level rise are estimated based on the number of new units that could be added
by redevelopment within each band. A mid-range estimate of the redevelopment potential that
would occur by the year 2100 under the existing zoning regulations is assumed. The value of the
lost development potential within a band is then calculated using the current average per unit value
within each band, multiplied by the potential number of new units within each band. The mid-range
estimates of the number of potential new units and the average development per unit in each band
are listed in Tables 4.1 and 4.2.
The economic costs associated with the rolling easement aspect of this policy option are
calculated based on cumulative estimates for removal and relocation of all existing structures and
infrastructure components; plus the cost of site restoration within each band of the anticipated range
of sea-level rise scenarios. All values and quantities used to compute the costs and benefits are listed
in Tables 4.1, 4.2, and 4.3. As mentioned earlier all estimated for the timing of natural events (such
as the incremental rise in sea-level) as well as the distribution of the economic value of structures
and infrastructure within an anticipated zone of sea-level rise are assumed to be strictly linear, to
simplify the analysis.
The cost-benefit analysis for this policy option shows that the benefits exceed costs under the 50,
100 and 200 cm sea-level rise scenarios. For the 50 cm rise scenario the ratio the ratio is 1.41, for
Chapter Four 4-10 Costs and Benefits of Selected Policy Response Options
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
the 100 cm rise scenario the ratio if 1.14 and for the 200 cm rise scenario the ration is 1.23. The
variation in the ratios is a function of the number of structures and infrastructure components in each
zone, plus the amount of redevelopment potential in each zone. The reason the ratio falls for the 100
cm scenario, but then rises again for the 200 cm scenario is because of the disproportionately low
number of structures and minimal infrastructure components in the 200 cm band.
Option 4: Under this option the economic costs are estimated for implementing a rolling
easement policy on both existing and yet to be developed structures, exactly as they are in Option
3 for the existing structures. The same mid-range estimates used to estimate the amount of
prohibited development in each sea-level rise zone of Option 3, are used here to estimate the costs
of relocating the yet to be built structures that will eventually have to be moved.
The cost-benefit analysis for this policy option shoed that benefits exceed costs for each sea-level
rise scenario by a wider margin than in Option 3. Under the 50 cm rise scenario the ratio is 1.55.
As in Option 3, the fluctuation on the ratios is also attributable to the disproportionately low number
of structures and infrastructure components in the 200 cm band. Comparing Option 4 to Option 3it
can be inferred that using the rolling easement policy rather than a setback policy for underdeveloped
sites increases the cost-benefit ratio in all cases. Therefore, at the Camp Ellis site, given the
alternatives considered, it can be concluded that applying a rolling easement policy for both
developed and underdeveloped sites is the most economically efficient policy choice.
Chapter Four 4-11 Costs and Benefits of Selected Policy Response Options
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
5. Economic Strengths and Weaknesses of Policy Response Options
By far the single most significant cost or benefit under any of the four response options is the
cost of beach nourishment. This particular beach is currently experiencing significant erosion. At
current erosion rates the beach would require 100,000 cubic yards of sand annually to maintain the
shoreline at its current position, which computes to $700,000 annually. Under the stresses of a sea
level 200 cm higher than the current level it is estimated that it would take 8 times the current
amount, or 800,000 cubic yards of sand annually, to maintain the shoreline at its current position.
(The intervening sea-level rise scenario of 50 cm and 100 cm would require an estimated annual
200,000 and 400,000 cubic yards of sand, respectively, to maintain the shoreline at its current
position.) These assumptions for beach nourishment at these annual rates are worst-case
assumptions. It is likely that some quantity of sand would not leave the system and would remain
available to nourish the beach. But determining how much sane would remain in the system is
beyond the scope of this study.
The reason that the cost of beach nourishment far outweighs the other items in the cost-benefit
analysis is because the expense is relatively high and is increasing over time for all but the 0 cm
scenario. Only under the 0 cm rise scenario does the cost come close to the combined benefits of
protecting the recreational values of the beach and the property.
The distinguishing aspect between Option 1 (pure reactive protection) and Option 2 (reactive
protection plus compensated setbacks) is the proposed public buyout of those structures which are
currently threatened. Option 2 with compensated setbacks would be slightly more economically
efficient under a 50 or 100 cm sea-level rise scenario than Option 1, while the pure reactive
protection (Option 1) would be slightly more efficient if a 200 cm rise were to occur in the next
century. The basic reason is that the $5.6 million cost to enact the compensated setback plan is all
upfront, while the increasing costs of beach nourishment are spread out over time and therefore
reduced in present value terms. Not until the sea rises at a rate of 2 centimeters per year (under the
200 cm scenario) is the saving of beach nourishment costs in the early years, from implementing the
buyout, exceeded by the additional cost of beach nourishment that will be needed in later years.
The distinguishing aspect between Option 3 and Option 4 is the setback policy of prohibiting all
new development in the zone of anticipated sea-level rise. The analysis shows that on a cost-benefit
basis the present value of prohibiting all new development outweighs the cost of allowing the new
development to occur and then having to remove the new development should the sea-level rise,
identical to the removal requirements for existing development. The opportunity cost of this policy
(Option 3) would be particularly high if development is prohibited in either 50 cm, 100 cm, or 200
cm elevation zones, and sea-level rise does not occur or occurs to a lesser degree. The analysis
shoed that even if sea-level eventually rises to the anticipated level and requires removal of all new
development, the present value of the lost development rights today is higher than the present value
of te future removal and future site restoration costs since those would be spread over the next 100
years.
Chapter Four 4-12 Costs and Benefits of Selected Policy Response Options
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Table 4.1
RAW DATA: Camp Ellis Case Study
(aggregate guantities used to compute costs & benefits)
Strategies:
OPTION #1:
Developed Area: Reactive Protection
Undeveloped Area: Reactive Protection
costs: Beach Nourishment
Maintenance of Existing Bulkhead
Wetland loss
New Bulkheads Needed
benefits: Recreation Value
Value of Structures
Aggregate Value of Land
Economic Value of Land @ Risk
OPTION #2:
Developed Area: Compensated Setbacks &
Reactive Protection
Undeveloped Area: Reactive Protection
costs: Beach Nourishment
Cost of Modified Development
Maintenance of Existing Bulkhead
Wetland loss
New Bulkheads Needed
benefits: Recreation Value
Value of Structures
Aggregate Value of Land
Economic Value of Land @ Risk
OPTION #3:
Developed Area: Rolling Easements
Undeveloped Area: Setbacks
costs: Amount of Land at Risk
Aggregate Value of Land
Economic Value of Land @ Risk
roads at risk:
sewer lines at risk
water lines at risk
Prohibited Development
Removal of Existing Develop.
Site Restoration
benefits: Cost of Reactive Protection: Opt. #1
OPTION #4:
Developed Area: Rolling Easements
Undeveloped Area: Rolling Easements
costs: Amount of Land at Risk
Aggregate Value of Land
Economic Value of Land @ Risk
roads at risk:
sewer lines at risk
water lines at risk
Prohibited Development
Removal of Existing Develop.
Site Restoration
benefits: Cost of Reactive Protection: Opt. #1
UNITS:
(#cubic yds/yr
(# feet)
(# acres)
(# feet)
(# people/yr)
(total $'s)
(total $'s)
(total $'s)
Sea Level Rise Scenarios:
0 r.m 50 r.m 1 00 r.m
100,000
5,280
-
-
98,869
-
-
200,000
5,280
0.24
682.5
98,869
$9,419,900
$28,175,800
$14,933,174
400,000
5,280
21.32
14,362.5
98,869
$13,979,100
$41,206,000
$27,963,374
?00cm
800,000
5,280
51.65
30,574.5
98,869
$15,258,200
$46,032,900
$32,790,274
(#cubic yds/yr
(total $'s)
($/yr)
(# acres)
(# feet)
(# people/yr)
(total $'s)
(total $'s)
(total $'s)
0
$5,591,300
5,280
-
-
98,869
-
-
-
200,000-20yrs
$5,591,300
5,280
0.24
682.5
98,869
$8,146,314
$24,366,386
$12,914,185
400,000-1 Oyrs
$5,591,300
5,280
21.32
14,362.5
98,869
$12,705,514
$37,396,586
$25,944,385
800,000-5yrs
$5,591,300
5,280
51.65
30,574.5
98,869
$13,984,614
$42,223,486
$30,771 ,285
(# acres)
(total $'s)
(total $'s)
(# feet)
(# feet)
(# feet)
(# units)
(# structures)
(# sites)
-
-
-
-
-
-
-
-
-
71
$28,175,800
$14,933,174
12,778
9,617
12,201
51
210
210
133
$41,206,000
$27,963,374
22,440
17,767
19,118
72
334
334
260
$46,032,900
$32,790,274
24,922
18,951
21,105
127
364
364
(see above description of costs avoided under Option #1)
-
-
-
-
-
-
-
-
-
71
$28,175,800
$14,933,174
12,778
9,617
12,201
51
210
261
133
$41,206,000
$27,963,374
22,440
17,767
19,118
72
334
406
260
$46,032,900
$32,790,274
24,922
18,951
21,105
127
364
491
(see above description of costs avoided under Option #1)
M. Montagna, Maine State Planning Office (August 1994)
Chapter Four
4-13 Costs and Benefits of Selected Policy Response Options
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Table 4.2
RAW DATA: Camp Ellis Case Study
(PRICE & VALUE Assumptions Used to Compute Cost Benefit
Replacement of roads or utilities
Wetland mitigation
Sand for beach nourishment (upland source)
Concrete block seawall construction
Annual maintenance of seawall (estimated at 5% per year)
Average building relocation cost
Average cost of land to relocate
Average site restoration cost
Beach recreational value
(Range from Colgan study on recreational values)
low:
high:
Development Value ($/undeveloped unit):
0.5 meter zone:
1.0 meter zone:
2.0 meter zone:
FY92 interest rate for federal water resources projects
(as cited in the US Army Corps of Engineers, Camp
Ellis Beach Reconnaissance Report)
Analysis)
($/linear foot)
($/acre)
($/cubic yard)
($/linear foot)
($/linear foot)
($/structure)
($/site)
($/site)
($/person-day)
($/person-day)
($/undeveloped unit)
($/undeveloped unit)
($/undeveloped unit)
$200.0
$30,000.0
$7.0
$755.0
$37.8
$78,795.0
$52,500
$5,000
$6.00
$50.14
$44,857
$36,768
$42,637
8.5%
M. Montagna, Maine State Planning Office (August 1994)
Chapter Four 4-14 Costs and Benefits of Selected Policy Response Options
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Table 4.3
COST BENEFIT ANALYSIS:
Camv Ellis Case Studv
Strategies:
OPTION #1:
Developed Area: Reactive Protection
Undeveloped Area: Reactive Protection
costs: Beach Nourishment
Maintenance of Existing Bulkhead
Subtotal Costs:
Wetland loss
New Bulkheads Needed
TOTAL COSTS:
benefits: Recreation Value
Value of Property Protected
TOTAL BENEFITS:
OPTION #2:
Developed Area: Compensated Setbacks &
Reactive Protection
Undeveloped Area: Reactive Protection
costs: Beach Nourishment
Buyout Plan
Maintenance of Existing Bulkhead
Subtotal Costs:
Wetland loss
New Bulkheads Needed
TOTAL COSTS:
benefits: Recreation Value
Value of Property Protected
TOTAL BENEFITS:
OPTION #3:
Developed Area: Rolling Easements
Undeveloped Area: Setbacks
costs: Value of Land at Risk
Value of Infrastructure at Risk
roads:
sewers:
water:
Prohibited Development
Removal of Existing Development
Purchase of Land to Relocate
Site Restoration
TOTAL COSTS:
benefits: TOTAL BENEFITS=Cost of Opt #1
OPTION #4:
Developed Area: Rolling Easements
Undeveloped Area: Rolling Easements
costs: Value of Land at Risk
Value of Infrastructure at Risk
roads:
sewers:
water:
Removal of New Development
Removal of Existing Development
Site Restoration
TOTAL COSTS:
benefits: TOTAL BENEFITS=Cost of Opt #1
UNITS:
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
Sea Level Rise Scenarios:
0 cm.
$8,232,935
$2,347,374
$10,580,310
-
-
$10,580,310
$6,976,989
$2,864,247
$9,841,236
50cm.
$9,199,159
$2,347,374
$115,465,33
$847
$67,036
$11,614,416
$9,976,989
$2,864,247
$9,841,236
100cm.
$11,131,606
$2,347,374
$13,478,981
$75,226
$1,410,696
$14,964,903
$6,976,989
$4,932,995
$11,909,985
200cm.
$14,996,501
$2,347,374
$17,343,876
$182,242
$3,003,052
$20,529,170
$6,976,989
$5,651,142
$12,628,132
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
$0
$5,591,300
$2,347,374
$9,938,674
-
-
$7,938,674
$6,976,989
$2,266,418
$9,243,407
$1,845,764
$5,591,300
$2,347,374
$9,784,439
$847
$67,036
$9,852,321
$6,976,989
$2,266,418
$9,243,407
$5,076,322
$5,591,300
$2,347,374$
$13,014,996
$75,226
$1,410,696
$14,500,918
$6,976,989$
$4,335,167
$11,312,156
$10,253,968
$5,591,300
$2,347,374
$18,192,643
$182,242
$3,003,052
$21,377,937
$6,976,989
$5,053,314
$12,030,303
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
$1,756,341 $3,288,866 1 $3,856,574
-
-
-
-
-
-
-
-
-
$300,573
$226,218
$287,000
$2,287,690
$1,946,142
$1,296,687
$123,494
$8,224,145
$11,614,416
$527,849
$417,927
$449,706
$3,059,813
$3,095,293
$2,062,350
$196,414
$13,098,219
$14,964,903
$586,232
$445,778
$496,375
$5,404,829
$3,373,313
$2,247,591
$214,056
$16,624,750
$20,529,170
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
(total $'s)
$1,756,341 $3,288,866 1 $3,856,574
-
-
-
-
-
-
-
-
-
$300,573
$226,218
$287,000
$472,635
$1,946,142
$1,611,597
$153,485
$6,753,991
$11,614,416
$527,849
$417,927
$449,706
$667,249
$3,095,293
$2,506,929
$238,755
$11,192,575
$14,964,903
$586,232
$445,778
$496,375
$1,176,953
$3,373,313
$3,031,778
$288,741
$13,255,745
$20,529,170
M. Montagna, Maine State Planning Office (August 1994)
Chapter Four
4-15 Costs and Benefits of Selected Policy Response Options
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Table 4. 4
COST BENEFIT ANALYSIS:
Camp Ellis Case Study
Strategies:
OPTION #1:
Developed Area: Reactive Protection
Undeveloped Area: Reactive Protection
costs:
benefits
ratio B/C:
OPTION #2:
Developed Area: Compensated Setbacks &
Reactive Protection
Undeveloped Area: Reactive Protection
costs:
benefits
ratio B/C:
OPTION #3:
Developed Area: Rolling Easements
Undeveloped Area: Setbacks
costs:
benefits
ratio B/C:
OPTION #4:
Developed Area: Rolling Easements
Undeveloped Area: Rolling Easements
costs:
benefits
ratio B/C:
sea Level Kise scenarios:
0 r.m \ 50 cm 100 cm
$10,580,310 $11,614,416
$14,964,903
?00 cm
$20,529,170
$9,841,236 $9,841,236
$11,909,985
$12,628,132
0.93 0.85
0.80
0.62
$7,938,674 1 $9,852,321
$14,500,918
$21,377,937
$9,243,407 1 $9,243,407 1 $11,312,156
$12,030,309
1.16 0.94
0.78
0.56
$8,224,145
$13,098,219
$16,624,750
$11,614,416
$14,964,903
$20,529,170
1.41
1.14
1.23
$6,753,991
$11,192,575
$13,255,745
$11,614,416
$14,964,903
$20,529,170
1.72
1.34
1.55
M. Montagna, Maine State Planning Office (August 1994)
Chapter Four
4-16 Costs and Benefits of Selected Policy Response Options
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
C. CONCLUSION
Because the volume of sand needed for beach nourishment at Camp Ellis is a significant factor
in determining both the costs of Options 1 and 2 and conversely the benefits of Options 3 and 4, any
variation in this price would significantly affect the Benefit/Cost Ratios in Table 4.4. Any increase
in the cost of sand would increase the overall favorability of Options 3 and 4, while a decrease in the
cost of sand would make either pursuing Option 1 or 2 more economically favorable than they
currently appear.
The other significant assumption worth questioning is the annual interest rate of 8.5% used to
compute the present value of pursuing each strategy over the 100 year time period. Because the
amount of beach nourishment that is required to maintain the shoreline at its current position is
increasing over time (for all but the 0 cm scenario) and the incremental amount of property that is
being threatened with each 1 cm rise in sea level is constant, any change in the interest rate will not
be neutral to its effect on the relative difference between costs and benefits. If a lower interest rate
was assumed it would make the benefit/cost ratio of either of the rolling easement strategies (Options
3 and 4) look even more favorable. Meanwhile if a higher interest rate were assumed in the analysis
it would increase the benefit/cost ratio for the two reactive protection strategies (Options 1 and 2)
and call into question whether that basic strategy is more economically efficient in the long-run.
Option 4 (rolling easements for both developed and undeveloped properties) comes out the most
favorable in terms of a benefit to cost ratio under each of the three sea-level rise scenarios. (See
Table 4.4} Therefore if sea level is expected to rise, the conclusion of this quantitative analysis (in
terms of economic efficiency) would be to support Option 4 over the three alternative strategies
based on the assumptions stated in this overview.
The underlying reason for this is that in present value terms it is far less costly to remove
whatever structures and infrastructure would be affected as a result of sea-level rise over the next 100
years, than it would be to incur the continual annual expense of beach nourishment. This conclusion
holds true even under both high and low sea-level rise scenarios. Similarly, the opportunity cost
associated with keeping land undeveloped or less than fully developed (Option 3) even when it is
not yet threatened, exceeds the cost of having to remove new development when the time comes.
This is because the value of an upfront loss of development rights exceeds the present value of future
removal costs that would be spread out over the next century.
While the general conclusion favors Option 4, it should be noted that there are risks associated
with Option 4 which are not reflected in this analysis. It assumes the only costs associated with the
removal are the costs of purchasing relocation land, physically moving the structure, and restoring
the site. However, if development is allowed, it is unrealistic to assume that not matter how much
prior notice is given of the impending retreat requirement, people will not willingly abandon that
new development without trying to change the retreat policy. The amount of effort expended to try
to reverse the policy is likely to be in some proportion to the value of the development facing
removal. If there is a failure of political will to enforce the rolling easement policy, the community
may incur costs similar to, or even exceeding, those for reactive protection. This is because the
protection costs could be higher than those reflected in the analysis if the community delays in
committing to a protection strategy until after the failure of the retreatment after the failure of the
retreat strategy. If a genuine commitment to follow through with Option 4's retreat requirements is
Chapter Four 4-17 Costs and Benefits of Selected Policy Response Options
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
lacking, Option 3 could be more favorable. Alternatively, other variations on these retreat strategies
are possible. For example, a strategy could limit new development in the threatened area to only
small, movable structures. This might minimize the risk of backsliding when it comes time to
enforce the removal requirements, while at the same time reducing the opportunity costs that would
have been incurred with a total prohibition on all development in threatened areas.
D. ENDNOTES
1. Titus, James G., Strategies for Adapting to the Greenhouse Effect., APA JOURNAL, Summer
1990, at 311 (emphasis added).
2. Mat 315-321.
3 . Adapted from id. at 313.
4 . United States Code (Flood Control Act of June 22, 1936), 1940 ed. (Washington, D.C.: U.S.
Government Printing Office) at 2964.
5 . Reconnaissance Report (Camp Ellis Beach, Saco, Maine), U. S. Army Corps of Engineers, Mary
1992.
6 . Colgan, Charles S. and Frances Lake, 1992. "The Economic Value of Casco Bay" prepared for
the Maine Coastal Program by the Edmund S. Muskie Institute for Public Affairs, University of
Southern Maine. Maine State Planning Office, Augusta, Maine.
7 . Stephen M. Dickson, Shoreline Erosion Management Project - Phase I, Project Completion
Report, Maine Geological Survey, July 1983, at 8.
8 . Titus, James G. 1991. Greenhouse Effect and Coastal Wetland Policy: How Americans Could
Abandon and Area the Size of Massachusetts at Minimum Cost." 15 ENVIRONMENTAL
MANAGEMENT 1, at 39-58.
Chapter Four 4-18 Costs and Benefits of Selected Policy Response Options
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Chapter Five
RESPONSIVENESS OF EXISTING STATE
AND FEDERAL LAWS TO
SEA-LEVEL RISE
A. INTRODUCTION
The vulnerability assessment (Chapters Two and Three) concluded that the areas most threatened
by the prospect of accelerated sea-level rise are sand beaches and salt marshes. Eroding coastal
bluffs are also faced with significant impacts from a continuation of current erosion.
In some of the mapped sites, substantial development is already located in threatened areas. For
example, in central Old Orchard Beach, a rise of 50 cm by 2100 would inundate all of the
commercial development on both sides of Route 9, back to the railroad tracks. In Camp Ellis, a
similar rise in sea level would inundate 71 acres of land already developed with 210 structures.
In these intensely developed areas there is no question that private investment is on a collision
course with coastal erosion and inundation. Public investments (e.g., roads, sewer systems and
public open space), coastal beach-based recreation and tourism (e.g., sand beaches and public
shoreline access areas), and marine resource industries (e.g., critical wetland habitat for commer-
cially valuable species, commercial water dependent uses and commercial access to public waters)
may also be heavily impacted by sea-level rise.
Governmental policies, laws and regulations will be instrumental in determining to what extent
new public investment and new private development will take place in areas projected to be subject
to coastal erosion and inundation as a result of sea-level rise. They will also establish the rules for
treatment of existing development as the development is threatened by a change in shoreline position
and as that same development threatens to interfere with natural coastal processes. This chapter
analyzes existing state and federal laws to evaluate the extent to which they are already prepared to
minimize adverse impacts of accelerated sea-level rise, and the extent to which they can be modified
to respond to an anticipated change in shoreline position.
In evaluating existing laws and policies, this chapter posits that a retreat strategy is generally
preferable to a protection strategy. Where the coastal processes and land development are on a
collision course, the preferable option will be for the land development to move back from the
Chapter Five 5-1 Responsiveness of Existing State and Federal Laws
-------
Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
shoreline. Only in very limited circumstances (e.g., the commercial port area of the Portland/South
Portland harbor) might it make economic sense to deviate from this policy; in limited areas the
already disturbed character of the shoreline and the nature and intensity of the threatened
development might justify protective engineered solutions, such as seawalls, to keep the shoreline
from migrating.
The very simplified cost/benefit analysis of alternative policy response options for one
developed, extremely vulnerable site (Camp Ellis, Chapter Four) supports preference for a retreat
strategy. It found that the relative costs and benefits of protection and retreat favor the latter in that
setting.
Similarly, a survey of innovative policy responses to sea-level rise and coastal erosion in selected
coastal states (See Appendix B) verified that these states are beginning to embrace a retreat strategy
as well, at least as a strategic response to a continuation of historical patterns of shoreline change.
While these state approaches vary significantly in detail and in the extent to which they have been
able to translate broad policy goals into implementing laws, there are notable shared themes that
Maine's policies should also embrace as guiding principles:
1. Respect the dynamic nature of coastal systems;
2. Strive to preserve/enhance the resiliency of natural systems;
3. Acknowledge as underlying premises that the public should not be subsidizing private
development in hazard areas and that private development in hazard areas can constitute
a public nuisance;
4. To maximize political acceptance, build on and strengthen existing coastal policies rather
than developing a separate set of sea-level rise policies;
5. Utilize state or regional oversight of local decisions regulating coastal development to
facilitate integrated management of coastal systems and to better reflect the state-wide
interests in this public resource;
6. Develop an integrated approach to control impacts on beaches, eroding bluffs and
migrating wetlands recognizing that they are parts of an interconnected natural system;
7. Acknowledge that no one technique will be sufficient for the entire shoreline; incorporate
sufficient flexibility to respond to differences in coastal topography, varying intensity of
development, and land use (e.g., water dependent uses);
8. Utilize coastal setback requirements to minimize new development in hazardous
coastal areas;
9. Supplement coastal setbacks with a variety of additional regulatory, tax, acqui-sition and
planning strategies.
These premises inform the following analysis of Maine's laws and regulations.
Chapter Five 5-2 Responsiveness of Existing State and Federal Laws
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
B. MAINE'S LAWS AND REGULATIONS RELEVANT TO SEA-LEVEL RISE
The laws and regulations currently in place in Maine constitute the State's de facto response to
the threat of sea-level rise. A few of the laws specifically anticipate the possibility of sea-level rise;
other laws address a range of possible coastal hazards which could include sea-level rise. The laws
and regulations with primary impact are summarized in Appendix A, with specific focus on their
relevance to possible sea-level rise. It may be consulted for more detailed discussion of each law.
The analysis in this chapter draws upon that review to identify strengths and weaknesses in existing
laws.
This chapter first reviews the general laws and policies which provide the mandate or enabling
legislation to plan for sea-level rise. Then, because the regulatory needs are different for each type
of coastline (sand beach, marsh/flat, bluff, and engineered shoreline) this chapter analyzes the
specific portions of existing laws and regulations most likely to influence development along each
type of shoreline.
1. Background Law: Coastal Management Policies Act
The 1986 Coastal Management Policies Act1 is a statement of policies to guide the State in
balancing competing coastal uses. The Act establishes nine policies and directs that state, local, and
certain federal agencies with responsibility for regulating, planning, developing, or managing coastal
resources conduct their activities in a way which is consistent with the nine policies.
The policy relating most directly to sea-level rise is Policy Four which states:
Hazard area development. Discourage growth and new development in coastal areas
where, because of coastal storms, flooding, landslides or sea-level rise, it is hazardous to
human health and safety[.] (emphasis added)
The accompanying illustrative Guidelines2 express the rationale for the policy, noting that coastal
floodplains, sand dunes, and wetlands in their natural state provide storm protection and support a
variety of important plants and wildlife. Citing the extensive damage to natural and man-made
features visited by coastal storms and the direct and indirect costs to governments of repairing this
damage, the Guidelines establish the objective of discouraging development and redevelopment in
areas that present threats to public safety or that threaten property damage which will be costly to
public entities.
The Guidelines recommend that affected agencies govern themselves in accordance with the
following policies:
• Government agency decisions will not support new infrastructure or related facilities in
hazardous areas;
• Public funds available for improvements, renovations, or repair to existing infrastructure
or other public facilities in hazard areas will give priority to their relocation out of
hazardous areas.
• Government agencies will require new and modified structures/facilities to be adequately
setback to protect them from erosion for 100 years.
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
• Government agencies will include scientific projections of sea-level rise in regulatory
and management decisions affecting the shoreline.3
The Coastal Management Policy Act does not contain any provisions providing sanctions for
violating the Act. By Executive Order, state agencies were directed to examine all their programs
affecting the coast and to incorporate changes to make them consistent with the Policies before
December 31, 1987. This Order was tackled with varying levels of agency enthusiasm and
resources, resulting in uneven and unsystematic responses. It is fair to say that the December 31,
1987 goal was not met, but work is continuing on an incremental basis in some agencies to bring the
State closer to the goals expressed in the Coastal Policies.4
As mentioned, the Act also encouraged federal and local agencies to review their programs for
compliance with these Coastal Management Policies, but without establishing any deadlines. For
municipalities, the primary land use regulatory entity in Maine, these policies were eventually given
greater relevance through provisions in the Growth Management Act5 and the Shoreland Zoning
Act,6 both of which require the resulting comprehensive plans, comprehensive land use ordinances,
and shoreland zoning ordinances adopted by coastal municipalities to "address" the Coastal
Management Policies. Coastal Policy Four may be furthered through voluntary comprehensive
planning efforts, through state review of local plans for compliance with the Coastal Policies as a
condition of awarding implementation grants, through continuing state technical assistance, through
state consistency certification for preference for certain funds, and through the long-range restriction
that a municipality will not be able to enforce any local land use ordinances (beyond the minimum
shoreland zoning requirements) if it has not adopted a comprehensive plan which is consistent with
the Act (including furthering its goals and the Coastal Management Policies) by 1998 or 2003.
The possibilities for encouraging municipal compliance under the Shoreland Zoning Act, as
currently enforced, are more limited. While the Act recites that each coastal municipality is required
to address all of the coastal management policies in its shoreland zoning ordinance, assessing
compliance with these policies has not been a high-priority on the part of municipalities or the
Department of Environmental Protection. If a municipality meets the minimum Guidelines for
Shoreland Zoning Ordinances, it is not independently evaluated to ascertain whether it has addressed
the coastal management policies.
In summary, Coastal Management Policy Four and the associated Guidance provisions appear
to be sound policy statements as far as they go, but they provide just the merest shadow of an outline
for a comprehensive, enforceable strategy. The policy statements and guidelines are very general.
They do not shed any light on the weight to be accorded hazards posed by storm-driven erosion, local
subsidence, and the threat of sea-level rise as a result of global climate change. Finally, the Act
relies on essentially voluntary implementation by affected local, state, and federal agencies. Policy
Four of the Coastal Management Policies Act is probably most important as an expression of public
purpose which can be invoked by various governmental entities as they adopt statutes, rules, and
ordinances which flesh out a detailed response strategy.
The following sections explore in more detail how existing laws currently address the Policy
Four goal of discouraging growth and new development in coastal areas where, because of sea-level
rise, that type of growth and new development would be hazardous to human health and safety.
Chapter Five 5-4 Responsiveness of Existing State and Federal Laws
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
2. Sand Beaches
a. Character of Development
Sand beaches in Maine are primarily located in the southern part of the state in the Saco Bay and
Wells embayments. The northern beaches are more typically composed of cobble. Statewide,
beaches (both sand and cobble) constitute only about 10% of the 3,300 mile tidal shoreline.
Many of the southern beach areas first developed as summer resorts. During this century,
development spread to cover almost every available space on large beaches and much of the area
adjacent to smaller, frequently less stable strandlines as well.7 These communities of seasonal single
family residences are increasingly seeing summer homes converted for year-round residences.
While most of the land adjacent to these southern beaches is already developed to some extent,
absent governmental restrictions on the location and intensity of new development, pressure is
building for a new generation of higher intensity development on land currently occupied by
lower-intensity uses. For example, summer camps have been bought and razed to make way for
larger year-round homes. And developers contemplating high-rise residences eye sites currently
occupied by small businesses and old motels. Whether this type of development will actually come
to pass depends primarily upon economic conditions and upon the limits imposed by state and local
land use regulations, including whether the review authorities will have the political will to enforce
those restrictions.
As discussed in more detail in Chapter Two, the mapping of selected areas for this proj ect using
50, 100 and 200 cm scenarios projected that the shoreline along sand beaches would move in the
magnitude of 50-150 meters (150-500 feet) landward over the next 100 years assuming a 50 cm (1.6
foot) rise in sea level; 100-300 meters (300-1,000 feet) landward over the next 100 years assuming
a 100 cm (3.3 foot) rise in sea level; and 200-600 meters (650-2,000 feet) landward over the next 100
years assuming a 200 cm (6.5 foot) rise in sea level. The 50 cm scenario by the year 2100 is the most
likely of the three scenarios, but hazard mitigation planning theory suggests that it makes sense to
evaluate the higher scenarios as well.
b. Natural Resources Protection Act and Sand Dune Rules
The primary law controlling development in sand beach areas is the Natural Resources Protection
Act (NRPA)8 as further fleshed out in the Coastal Sand Dune Rules.9 The NRPA requires that all
proposed construction affecting critical natural resources meet various standards prior to receiving
a permit. The Rules further articulate the standards and other requirements a proposal must meet
to be deemed in compliance with NRPA. Together the statute and rules establish policies which
prohibit new construction in certain portions of the sand dune system, restrict the intensity of
development where it is not prohibited, and require mobility or retreat for new and existing structures
in the face of migrating coastal systems.
The Sand Dune Rules articulate the basis for these policies, noting that there is evidence that sea
level is currently rising, that "theories have been developed which predict this rise to accelerate in
the future,"10 and that any rise will increase the "rate of shoreline erosion and flooding, and the risk
of damage to coastal property."11 The rules further state:
The extent to which sea level will change in the future is uncertain. However, under any
scenario of increasing sea level, the extensive development of sand dune areas and the
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
construction of structures which are not practical to move increase the risk of harm, both to
the sand dune system and to the structures themselves.
Therefore, in order to protect the natural supply and movement of sand, and to prevent creation of
flood hazards, the Board will evaluate proposed developments with consideration given to future
sea-level rise and will impose restrictions on the density and location of development, and on the size
of structures.12
A permit is generally required for any construction, repair, or alteration of any permanent
structure in a coastal sand dune system (defined to include beach berms, frontal dunes, dune ridges,
back dunes,13 and other sand areas deposited by wave or wind action).14 An applicant is required to
demonstrate that the proposed action meets statutory standards for review, which for activities on
or adj acent to a sand dune require that the activity "not unreasonably interfere with the natural supply
or movement of sand within or to the sand dune system or unreasonably increase the erosion hazard
to the sand dune system."15
Additional minimum standards are articulated in the Rules which must be satisfied before a
permit will issue, including:
Projects shall not be permitted if, within 100 years, the project may reasonably be expected
to be damaged as a result of changes in the shoreline.16
The Rules are extensive and complex, but generally establish two sets of restrictions—one
applicable to existing structures and the other applicable to new structures. Buildings which have
been damaged to greater than 50% of their appraised value due to an ocean storm cannot be
reconstructed or replaced and additions to existing structures are not allowed unless they can meet
the requirements for new structures.
c. Existing Structures
No State permit is required for the maintenance and minor repair of existing structures above the
high water line causing no additional intrusion into a sand dune. But a State permit is required for:
• The restoration or replacement of a building which is damaged to greater than 50% of the
building's appraised market value by an ocean storm;
• The repair of a seawall if the repair cannot be done with hand tools, or if there will be any
increase in dimensions, or if the building behind the seawall has been severely damaged by
an ocean storm and the damage exceeds 50% of the building's appraised value;
• Any repair, rehabilitation, or other improvement of a building, the cost of which exceeds
50% of the appraised market value of the building before the start of construction;
• Any work done to enlarge an existing building; and
• Reconstruction or replacement of an existing building.
The owner of a structure damaged by a coastal storm or coastal erosion will be unable to rebuild
either the structure or any seawall in front of it without a permit if the structure is damaged by more
than 50% of its value. In applying these regulations, no distinction is made based on the source of
the damage, such as whether it was caused by a 100-year storm, a 5-year storm, or gradual erosion.
Chapter Five 5-6 Responsiveness of Existing State and Federal Laws
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
To rebuild, the owner must apply for a permit within one year of the damage, and must meet all of
the standards for new buildings (except maximum size and view protection provisions). It is
unlikely that such a permit to rebuild would be granted since the extent of the recent damage would
make it difficult for the applicant to satisfy the minimum standards, including the standard requiring
no unreasonable interference with the natural supply or movement of sand within or to the sand dune
system. It might also be considered a flood hazard to itself.
However, until damaged to 50% of its value, existing structures can be maintained, repaired (if
the repairs are not so extensive that they actually enlarge, reconstruct or replace the structure), and
improved. As written, the allowed "improvement" is rather broad. It can cost up to half of the
appraised value of the existing building prior to the start of construction and (except in V-zones) may
involve the construction of a second story or dormers.
In summary, these provisions allow existing buildings to not only remain in beach areas which
are threatened by sea-level rise, but also in some cases, to be enlarged within the existing footprint
(second story, dormers). Substantial improvements can be made until a building is damaged by more
than 50% of its value. However, at that point, a permit is required for repairs or rebuilding and a
structure cannot be rebuilt unless it can meet the standards for new construction (see below). It is
unlikely that an applicant would be able to secure such a permit; the owner of the damaged property
would be required to abandon it and retreat to less vulnerable land.
To date, the provisions prohibiting rebuilding if a structure has been damaged by more than 50%
of its value have been applied in numerous instances, with only one litigated challenge to the no
rebuilding provision. That case involved an after-the-fact permit application (permit applied for after
the seasonal cottage was already substantially built) for a post-erosion damage replacement structure
at Popham Beach. The Maine Supreme Court upheld the BEP's denial of a sand dune permit, finding
that it was supported by substantial evidence. One of the BEP's grounds for denial was that the
applicants had failed to meet their burden to show that the proj ect would not reasonably be expected
to be damaged within 100 years as a result of changes in the shoreline.17 The applicants subsequently
claimed that denial of a sand dune permit constituted a regulatory taking of property without
compensation in violation of the Maine Constitution. The Maine Supreme Court held that no taking
had occurred because "beneficial and valuable uses of their property remain."18
d. New Construction
The standards for new construction in or on a coastal sand dune system are similarly rigorous.
They limit areas and types of structures. New structures are prohibited in V-zones (velocity zones
or that portion of the land that would be inundated by wave surges superimposed on a flood) and on
or seaward of frontal dunes.
The Maine Supreme Court has been asked to rule on this provision twice. In one case, it upheld
the BEP denial of an after-the-fact permit and denial of a variance to build a house addition on
Hunnewell Beach in Phippsburg because it was on a frontal dune.19 A second case involved denial
of a permit to build a new residence on a narrow sand dune between a salt marsh and the ocean on
the only remaining vacant lot in Horseshoe Cove, Biddeford.20 Again, accepting Maine Geological
Survey's determination that the house would be located on a frontal sand dune, the Supreme Court
found that the evidence in the record amply supported the Board's denial of the initial application
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
and of the variance request. The Court did not, however, reach the applicants' claim that denial of
a permit would constitute a regulatory taking under the Maine and United States Constitutions.21
New seawalls are prohibited outright, regardless of whether they would be in front of new or
existing structures. Property owners have sought relief from this provision through special legislative
amendment twice. In one instance in 1987, a few Pine Point property owners succeeded in obtaining
an amendment to allow permits to issue for bulkheads along the Scarborough River from the jetty
to the town landing. The resulting permits are, however, subject to the requirements that the
applicants maintain the bulkheads and also repair any damage to the frontal sand dune between the
end of the bulkhead and the town landing.22 But in 1994, a similar request for legislative amendment
by Biddeford property owners was defeated in committee; committee members expressed their
determination to maintain the integrity of the Sand Dune Rules by refusing to grant piecemeal
exceptions.
In areas where development is not prohibited outright, its intensity is restricted. Developed areas
(including driveways, parking, lawns, septic systems, buildings, etc.) are limited to 40% of the site,
and no more than 20% of the lot may be covered by buildings.
For larger buildings, the rules establish a more stringent criterion by specifically requiring the
permit reviewer to assume that sea level will rise 3 feet over the next 100 years. Specifically, no new
building may be more than 3 5 feet in height or have a footprint of more than 2,500 square feet unless
the applicant "demonstrates by clear and convincing evidence that the site will remain stable after
allowing for a three foot rise in sea level over 100 years" (emphasis added). This is the only provi-
sion in the Rules which makes any express assumption of a particular rate of sea-level rise over a
specific period of years. The applicant may not rely on the existence of a seawall as evidence of site
stability. The applicant may not propose to build a seawall or engage in beach nourishment as a
means of stabilizing the site.
In addition to these restrictions on intensity of development, as with existing structures, the
regulations establish a policy of retreat if sea level rises. All new, reconstructed, or replacement
structures approved after the effective date of the rules23 are subject to the following conditions:
1) No seawall shall be constructed or expanded on the property.
2) If the shoreline recedes such that the coastal wetland ... [including tidal and subtidal
lands] extends to any part of the structure, including support posts, for a period of six
months or more, then the approved structure, along with appurtenant facilities, shall be
removed and the site shall be restored to natural conditions within one year.
3) Any debris or other remains from damaged structures on the property shall be removed from
the sand dune system.
4) No structure shall be relocated within the sand dune system without approval of the
Maine Department of Environmental Protection.
These rules are justified within the text of the Rules by findings by the Department of Environmental
Protection that sea level is rising, seawalls interfere with the supply and movement of sand and
accelerate erosion, and structures in a coastal wetland interfere with the natural supply and
movement of sand and create an unreasonable flood hazard.
Chapter Five 5-8 Responsiveness of Existing State and Federal Laws
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
These Rules effectively prohibit the strategy of building "floodproofed" structures on pilings with
the intent to maintain the structure after the beach has eroded out from under it. These retreat
conditions maintain flexibility on when they will kick in; if sea level rises more quickly than
anticipated they will require retreat sooner than 100 years, but if the rate of rise is less than proj ected,
they will allow the structure to remain longer.
This policy of retreat is enforceable against these new, reconstructed and replaced structures
through express conditions of approval. In addition, the Rules state that the Department will record
sand dune orders containing any of these conditions with the Registry of Deeds. If this is done, it
puts all subsequent owners on notice of these conditions prior to any purchase of the property.
In summary, pursuant to these rules (which only control development along less than 10% of the
State's shoreline) new construction in or adj acent to sand dune systems is tightly regulated, and those
new, reconstructed, or replacement structures which are allowed are subject to retreat requirements
if the shoreline recedes so that any part of the structure is affected by tidal waters for 6 months or
more. Similarly, once constructed, if they are damaged by a coastal storm by more than 50%, they
would probably be unable to rebuild.
The provision dealing with construction of larger structures requires reviewers to evaluate site
stability assuming that sea level will rise 3 feet over the next 100 years. For smaller structures,
assessment of site stability must be made on a case-by-case basis guided by the policy that projects
will not be permitted if, within 100 years, the project may reasonably be expected to be damaged as
a result of changes in the shoreline.24 No rate of change is specified; typically the DEP and BEP
have considered a continuation of the historical rate of change rather than an accelerated rate of
change as a result of global climate change. The Rules use an accelerated rate (3 feet over 100 years)
for reviewing larger structures but an historical rate for reviewing smaller structures based on the
assumption that the smaller structures are movable, and would be moved if threatened by coastal
erosion.
e. Other Laws Affecting Sand Beaches
Development on or along sand beaches is also controlled by several other land development
regulations which are general in focus, including the Mandatory Shoreland Zoning Act and corre-
sponding local shoreland zoning ordinances,25 the Site Location of Development Act if the proposed
development exceeds certain size/intensity thresholds,26 the Subdivision Law,27 and the State
Floodplain Management Program.28 They are much less detailed than the NRPA Sand Dune Rules,
but do add a few specific setback requirements and review standards which might supplement the
Rules in particular instances.
In addition, the State's Coastal Barrier Resources System Act29 prohibits the expenditure of state
funds or the granting of state financial assistance for development activities within the designated
coastal barrier resource system.30 Proscribed development activities include construction or purchase
of structures, construction of roads, airports, boat-landing facilities, bridges or causeways, and
erosion prevention projects.
Maine's statute and the parallel federal law are designed to protect and conserve coastal barriers
and the adjacent wetlands, marshes, estuaries, inlets, and nearshore waters by discouraging
Chapter Five 5-9 Responsiveness of Existing State and Federal Laws
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
development on and adjacent to those barriers. To date, only a small fraction of Maine's
undeveloped areas (e.g., 32 coves, beaches, islands, points) are designated for inclusion in the coastal
barrier system. This law provides limited, though important, protection for these undeveloped areas
by prohibiting expenditure of state funds in support of development. It does not restrict private
investment.
/ Opportunities to Strengthen Controls on Development
One of the problems with the sand dune permitting system as currently administered is that it
requires an individual assessment of site stability, potential interference with the natural supply or
movement of sand, and erosion hazard for each application. Advanced designations are currently
used only to designate locations of frontal dunes, back dunes, and flood hazard zones through
computerized sand dune maps which have been prepared for certain areas of sand dune systems in
southern Maine.31 While the designation of these maps as "best available information" for purposes
of establishing these existing zones is important to rule out certain types of development in specific
areas, they address only part of the issue. These maps show only existing conditions; they do not
project hazards posed by beach erosion, by formation or migration of inlet and marsh channels, by
engineered shorelines, or by sea-level rise.
The Maine Coastal Program has identified the need to refine the regulations so that the State
makes more advanced judgments about where development should be prohibited based on
proj ections of future hazards. In theory, the advanced designation of hazard areas will not only guide
private investment decisions and lend consistency to permitting decisions under NRPA, but will also
be useful to guide government agencies in making public infrastructure decisions and will provide
important information about natural geologic processes to municipalities for integration into their
comprehensive plans and land use regulations.
To accomplish this end, the Maine Geological Survey (MGS) and the Department of Economic
and Community Development (DECD) are currently involved in a two-phase Shoreline Erosion
Management Project to enhance the sand dune maps so they convey more information about
historical shoreline change and the vulnerability to future shoreline retreat. The first phase of the
project is to calculate shoreline change rates for three priority hazard areas based on change in
shoreline position over time. The second phase will expand the coverage of "coastal hazard maps"
to include approximately 30 additional beach systems throughout the state. A Geographic
Information System (GIS) system will allow these maps to display information about the existing
built environment, locations of frontal and back dunes, past shoreline changes, wave washover and
flood zones, erosion rates for selected points, and a shoreline hazard rating. The MGS GIS is able
to display information about shoreline change in great detail, since the grid size can be as small as
one square meter.
Completing the measurement of historical erosion and developing these increasingly detailed
maps of coastal hazards along beach systems throughout the state will give the State the ability to
consider adopting different setback lines for each beach or segment of beach based on historical
average annual erosion rates. These setbacks could vary based on local historical shoreline
change/erosion rates. These area-specific setback lines would reflect significant differences which
occur along the coast based on different types of beach systems (type of shoreline (sheltered or
exposed), composition (sand to cobbles), off-shore profile, and other relevant characteristics).
Chapter Five 5-10 Responsiveness of Existing State and Federal Laws
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
The preliminary assessment of policy directions suggests that this information could be used to
establish setback distances based on the erosion rate of a particular beach or beach segment using
a setback line based on 100 times the historical average annual rate. These maps would give much
more explicit guidance in applying the policy already articulated in the Sand Dune Regulations that
"projects shall not be permitted if, within 100 years, the project may reasonably be expected to be
damaged as a result of changes in the shoreline."32
This 100-year policy would place Maine in the forefront of states with state-imposed setback
requirements. Several other states use variations on a 30-year/60-year standard for small and large
structures.33 This lower standard has been criticized as being too low to reflect the life expectancy
of modern structures.34 The National Research Council Committee on Coastal Erosion Zone
Management in its 1990 report recommended that state and local erosion management programs
should be encouraged to adopt stricter erosion standards such as a 50-year/l00-year standard for
small and large structures.35 Maine's adoption of a 100-year setback standard for all buildings would
be consistent with this recommendation.36
However, it should be noted that while substantial public benefits should be expected from
enforcing setbacks based on a 100-year erosion projection based on historical erosion rates, these
setback lines may still significantly underestimate the area vulnerable to coastal erosion. These new
setback maps would determine the mandatory setback from erosion-prone shorelines by assuming
that the past average annual erosion rate will continue unchanged into the future. The problem with
using historical rates is that it makes no allowance for forecasts of global climate change.
Maine Geological Survey, based on tide gauge readings over fifty years and assuming a
continuation of the historical rate of change, predicts that seas in Portland will be 21 to 26 centime-
ters higher in 2100.37 Sea level increases based on this historical tide gauge data are projected to be
slightly higher in Eastport (27-31 cm) and slightly lower in Kittery (11 cm). Establishing setback
lines based on an assumption of a continuation of past erosion rates incorporates an assumption of
a continuation of the historical rate of sea level change as well.
However, more recent forecasts of global sea-level rise based on revised International Panel on
Climate Change emissions scenarios place the global low-, mid-, and high-level forecasts at 15 cm,
48 cm, and 90 cm respectively.38 Those numbers have to be increased to reflect local subsidence
(based on historical change less historical global rise of approximately 12 cm per century) to project
total sea-level change in the local area. Using the revised forecasts, this would result in a forecast
rise in Portland by the year 2100 of 24 cm (low), 60 cm (mid), and 104 cm (high). If these scenarios
for accelerated global sea-level rise are borne out, the resulting increase in locally-experienced
sea-level rise will be approximately 14% (low), 150% (mid), or 300% (high) greater than the
increase in sea level assumed by projecting a continuation of historical rates.
In the phase I completion report for the Shoreline Erosion Management Project, the Maine
Geological Survey discusses the possibility of global sea-level rise as a result of global warming, and
acknowledges that "erosion rates determined in this study are possibly conservative when calculating
future beach changes."39 The basis for this conclusion is that "it is quite likely that an acceleration
in the rate of sea level rise will cause an increase in the erosion rates."
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
In summary, the Shoreline Erosion Management Project assumes a continuation of an historical
rate of change without projecting a future, accelerated rate of erosion based on accelerated sea-level
rise as a result of global climate change. Thus, the State must still confront the policy issue of how
to integrate projections of accelerated sea-level rise into any revised coastal hazard mitigation
strategy. Due to the scientific uncertainties currently surrounding those global change projections,
the State may be justifiably apprehensive about basing mandatory setback requirements for all
development on projections of historical erosion plus erosion anticipated as a result of accelerated
sea-level rise due to global climate change. However, the State should consider using more stringent
setback requirements which include assumptions about an accelerated rate of sea-level rise in certain
conditions.
For example, the State could further articulate a two-tiered system, similar to the one it uses now,
in which some uses are subj ect to a setback based on 100 times the historical annual average erosion
rate for that beach and other uses are subject to a setback based on projections assuming a specified
accelerated rise in sea level (e.g., a rise of 3 feet or 100 cm over 100 years). The Sand Dune
Regulations as currently applied make this distinction with regard to small and large new
development; for all development, the Rules direct that no permit shall be granted if, within 100
years, the proj ect may reasonably be expected to be damaged as a result of changes in the shoreline.40
For small development, while the means of measurement is not specified, 100 years of stability is
assessed using a projected continuation of historical rates. In contrast, the Rules specifically state
that 100 years of stability for larger projects is to be assessed assuming a rise in sea level of 3 feet
over the 100 years. It would be a good idea to make this distinction more explicit if that is what is
intended. With the completion of the maps being developed under the Erosion Management Proj ect,
setback requirements for smaller structures could be designated in advance, based on historical
change. For larger development, the regulations could continue to contain a setback requirement
which requires applicants to assume a 3-foot rise in sea-level over the next 100 years.41
Another variation on this system would be to designate particular favored uses (such as
water-dependent uses or uses supportive of commercial water-dependent uses) which would be
subject to setbacks ranging from 0 feet (if functionally required) to rates based on historical change.
The less favored uses (such as non-water dependent commercial and residential structures) would
be subject to the requirement that they show the site will be stable assuming a specified accelerated
rate of change (e.g., 3 feet over 100 years).
In proposing these setbacks as a component of an anticipatory sea-level rise response strategy,
it is assumed that it is rational to continue use of current setback requirements, which are based on
100 times an historical or accelerated sea-level rise rate (using the mid-level 100 cm or approxi-
mately 3 foot scenario), particularly since they have been in place for more than a decade. Many
current owners of shoreline property, particularly those purchasing during the boom years of the
mid-1980s, have assumed ownership with no investment backed expectation of being able to build
closer than these setbacks.
However, as yet unresolved Maine litigation may hold that even though the BEP has the power
to deny sand dune permits and variances on frontal dunes and forward of these setback lines, the
application in a particular fact situations may constitute a taking of private property requiring
compensation.42 This possibility is discussed in more detail in the following chapter.
Chapter Five 5-12 Responsiveness of Existing State and Federal Laws
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
In evaluating the appropriateness of using setback provisions which incorporate assumptions
about accelerated sea-level rise, decision-makers should be cognizant of the EPA's uncertainty
analysis. According to EPA, a rise of at least 100 cm has a 5% chance by 2100 and 50% chance by
2200. Assuming these EPA projections are correct, using a setback based on a 3 foot/100 cm rise
scenario for larger structures would mean that the State would have a 95% probability of successfully
keeping large new structures from interfering with coastal processes for the next 100 years. At the
same time, given the uncertainty, it also means that there is a 50% probability that those large
structures would not have been affected by a change in shoreline position for 150 to 200 years and
could in fact have been built closer to the shoreline with no innundation by 2100.
Policy makers must balance the risk of harm to structures and the natural systems against the
chance that they will unnecessarily restrict the use of the property. Factors supporting a cautious
approach for larger structures (i.e., establishing setbacks using a 100 cm rather than 50 cm or
historical rate assumption) include: 1) the lack of mobility of large structures, 2) the probable
continued ability to make some economic use of the site through temporary or smaller more mobile
structures, 3) environmental justifications for keeping intense development back from the shoreline,
and 4) the possibility of adverse shoreline effects from global climate change separate from a change
in shoreline position such as storm surges and an increase in the frequency or intensity of hurricanes
in Maine.43 Conversely, it may be acceptable to use a setback based on a continuation of historical
rates of rise for small structures since they are relatively mobile if the sea rises faster than expected.
However, it is critical that property owners fully understand that they will be required to move if
threatened by a change in shoreline position so that expectation can be built into the property's
purchase price and so they have no claim that they should be able to protect their investment by
engineered means.
Since the eroding shoreline is a very dynamic system and since some of the scientific uncertainty
about global climate change might be reduced over the next decade, any setback regulations should
be established in such a way that coastal hazard maps establish a mandatory minimum setback, but
do not preclude the State from requiring a greater setback if new information justifies it. This new
evidence may include evolving geologic information, evidence of recent storm damage or flooding,
and information about changes in tidal inlets, as well as new information about global climate
change.
So long as the requirements for removal of new, reconstructed, and replaced structures remain
in place and the State retains the institutional will to enforce those requirements, the policy of retreat
in the face of sea-level rise will be implemented, regardless of whether there are any mandatory
setback requirements. However, incorporating mandatory setback requirements in addition to the
retreat requirements will help minimize the amount of private economic loss due to unwise
development decisions and will reduce the number of individuals with economic incentives to bring
political pressure to bear to weaken the retreat policy.
3. Salt Marshes
a. Character of Development
The southwest coastal compartment of Maine (from the New Hampshire border to Cape
Elizabeth) constitutes approximately nine percent (9%) of the State's total shoreline; approximately
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65% of this shoreline is salt marsh. Similarly in the 31% of coastal shoreline in the area from Cape
Elizabeth to Port Clyde, approximately 26% of the shoreline is salt marsh. Along the remaining 60%
of the shoreline to the north, salt marsh shoreline is much less prevalent, constituting approximately
10% of the tidal shoreline.44
Historically, recreational tourism and summer home shoreline development has tended to
concentrate along beaches and on scenic rocky promontories overlooking the sea. Development
along marsh areas has not been as intense nor has it been as driven by seasonal or out-of-state users.
As described in Chapter Two, the mapping of selected areas using three scenarios proj ected that
the shoreline along salt marshes would move in the magnitude of 3 -3 5 meters (10-125 feet) landward
over the next 100 years assuming a 50 cm (1.6 feet) rise in sea level; 8-50 meters (25-175 feet)
landward over the next 100 years assuming a 100 cm (3.3 foot) rise in sea level; and 17-100 meters
(50-325 feet) landward over the next 100 years assuming a 200 cm (6.5 foot) rise in sea level.
Structures and infrastructure are usually not the most vulnerable resources of concern in this type
of setting since salt marshes are not usually the site of intensive development. The focus is instead
on the values and functions of the salt marsh wetlands as critical habitat for birds, including
migratory waterfowl, and endangered species; as spawning grounds and nursery areas for
commercially valuable fish and shellfish; as a filter for removing pollutants and preserving water
quality; as a flood water retention and flow reduction mechanism; and as a buffer protecting upland
areas from erosion by absorbing and dissipating wave impacts. To continue to serve this function,
it is critical that salt marshes be able to migrate inland with the change in shoreline position.
b. Natural Resources Protection Act
Unlike sand beaches, for salt marshes, there is no single law which takes precedence over all
others in managing the conditions under which development on or adjacent to it will be allowed or
removed. Several different State laws and local ordinances all have a role to play in placing
restrictions on development.
The Natural Resources Protection Act45 is designed to protect many of the State's resources,
including coastal wetlands, from degradation. A NRPA permit is required for any regulated activity
in, on, over, or adjacent to any coastal wetland. Coastal wetlands are defined to include all tidal and
subtidal lands, all areas with vegetation present that is tolerant of salt water and occurs primarily in
a salt water or estuarine habitat, and any marsh, swamp, bog, or other contiguous lowland subject
to tidal action during the maximum spring tide level.46 This definition allows for the regulated area
to fluctuate as the shoreline changes in response to global climate change or land subsidence.
The standards of review most applicable to proposed development in salt marsh areas try to
minimize loss of the critical beneficial functions generally associated with these coastal wetlands
such as wildlife habitat and flood protection. Specifically they include:
• Soil erosion. The activity will not cause unreasonable erosion of soil or sediment nor
unreasonably inhibit the natural transfer of soil from the terrestrial to the marine or
freshwater environment.
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• Harm to habitats; fisheries. The activity will not unreasonably harm any significant
wildlife habitat,... aquatic habitat,... estuarine or marine fisheries or other aquatic life....
• Interfere with natural water flow. The activity will not unreasonably interfere with the
natural flow of any surface or subsurface waters.
• Flooding. The activity will not unreasonably cause or increase the flooding of the
alteration area or adjacent properties.47
The State has promulgated Wetlands Protection Rules to ensure that the NRPA standards are met
by applicants proposing regulated activities in, on, over, or adjacent to a coastal wetland.48 The
Rules establish a wetland classification system (with coastal wetlands defined as Class I, and
wetlands located within 250 feet of coastal wetlands defined as Class II) and detail standards for
avoidance of loss in wetland area, functions and values. They discuss "no practicable alternatives,"
compensation, mitigation banking, and "no unreasonable impact" criteria. However, unlike the Sand
Dune Rules, they assume a relatively fixed shoreline position. No specific provisions are included
to require an applicant to demonstrate that the site will remain stable over a long period of time, nor
are there any requirements for retreat or removal of any structures that might be affected by a change
in shoreline position.
The DEP has promulgated regulations describing the BEP's scope of review under the Soil
Erosion Standard. The only regulation that might be of use in prohibiting structures that would
prevent the landward migration of wetlands is a statement that in or on "coastal banks" a proposed
activity may not unreasonably affect the supply of sediment from the bank to coastal beaches or other
land subject to tidal action.49 However, this provision has not historically been used to prevent the
construction of seawalls or similar structures on or adjacentto non-sand coastal wetlands. Similarly,
regulations elaborating on the scope of considerations under the harm to wildlife and fisheries and
interference with natural flow of waters standards may be broad enough to embrace considerations
of allowing landward migration of coastal wetlands, but do not contain express statements of that
as a goal.
c. Mandatory Shoreland Zoning Act and Guidelines
The Mandatory Shoreline Zoning Act50 requires all municipalities to adopt zoning and land use
control ordinances applicable to the "shoreland area" within its boundaries which are no less
restrictive than minimum guidelines adopted by the Board of Environmental Protection. The
shoreland area is defined to include those areas within 250 feet of any saltwater body or within 250
feet of the upland edge of a coastal wetland [10 acres or more, as defined].51 Among other purposes,
the Shoreland Zoning Act was designed to protect against unwise development in that area; to
protect buildings and lands from flooding and accelerated erosion; to control building sites,
placement of structures, and land uses; to conserve shore cover; and to anticipate and respond to the
impacts of development in shoreland areas.
While not specifically crafted in response to anticipated accelerated sea-level rise, the Act
contains water setback requirements with the potential to minimize the impacts of a change in
shoreline position. The Guidelines52 prohibit the construction of any new principal or accessory
structure or any substantial expansion of an existing structure within the shoreland zone unless that
structure is set back 100 feet from the normal high-water line of great ponds and rivers, and 75 feet
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from the normal high-water line of other water bodies, tributary streams, or the upland edge of a
wetland. In addition, there is essentially a 250 foot setback from the upland edge of a salt marsh or
salt meadow wetland if the area is zoned Resource Protection; a Resource Protection designation is
generally required in undeveloped areas if the area was rated moderate or high value by Inland
Fisheries and Wildlife as of January 1, 1973.
There are, however, setback exceptions. A General Development District (or its equivalent,
allowing intensive commercial, industrial, and/or recreational use) requires a 25 foot setback. There
is no setback requirement in a Commercial Fisheries/Maritime Activities District (allowing
functionally water-dependent uses). Thus adjacent to the upland edge of a marsh, the minimum
setback requirements could range from 0 feet (for an unlikely water-dependent use in a marsh) to 25
feet for a relatively intense commercial or industrial use to 75 feet for a residential use to 250 feet
in undeveloped Resource Protection Areas.
The Guidelines establish performance standards for piers, docks, wharfs, bridges, and other
structures and uses extending over or beyond the normal high-water line of a water body or within
a wetland. The Guidelines do not, however, establish performance standards for structures adjacent
to but not currently in a wetland. This means there are no prohibitions in the mandatory minimum
standards which would prevent a landowner from constructing a wall or other structure immediately
outside a wetland to prevent the landward migration of a salt marsh as sea level rises.
Thus, while the Shoreland Zoning Act addresses the threat of accelerated sea-level rise to some
extent by attempting to protect undeveloped land from development that would interfere with natural
coastal processes, it fails to include provisions that anticipate a significant change in shoreline
position. For example, the building setbacks were developed assuming a fixed shoreline position,
based on how far development should be removed from wetlands to minimize the negative impacts
of development on wetland values and functions.
In fact, given the projected rates of change for the different scenarios, except in Resource
Protection Areas, the mandatory minimum setbacks fail in two major regards: 1) since they fail to
build in a margin for a change in shoreline position, they establish an inadequate buffer to protect
wetland values and functions in the long term; and 2) in the more vulnerable salt marsh areas, they
also fail to require structures to be set back from the upland edge of a wetland a sufficient distance
to protect those structures from being overtaken by a marsh migrating inland with the change in
shoreline position. For example, for the more vulnerable of the sample salt marsh sites, this study
projects a landward movement of 35 meters or 115 feet over 100 years given a 50 cm rise; this
exceeds the general minimum setback requirement by 40 feet, the General Development Setback by
90 feet, and the Commercial Fisheries/Maritime Activities District by 115 feet.
Continued use of inadequate setback requirements, the absence of any prohibition on
construction of barriers to salt marsh migration, and the absence of any requirements for removal of
structures impacted by migrating marshes sets up a situation where it is almost inevitable that
landowners will try to halt the landward migration of marshes through the construction of physical
barriers. If this is allowed, it will result in the loss of salt marsh wetlands as the seaward edge moves
inland in response to sea-level rise and the landward edge is prevented from migrating.
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d. Opportunities to Strengthen Controls on Development Along Salt Marshes
The migration of a marsh toward the upland is much less dramatic than the approach of the sea
up a sand beach. The type of structure likely to be threatened in each situation is different too, with
higher-intensity development more likely along sand beaches. In addition, the functions valued by
the public vary. Sand beaches have significant economic, aesthetic, and recreational value; they
attract high density development and anchor the Southern Maine tourism industry. Salt marsh
wetlands make their contribution, but in a much less visible way; they serve as critical habitat for
commercially valuable fish and shellfish, provide a different type of recreational opportunities,
reduce the costs of maintaining water quality, and provide valuable flood and erosion control.
As discussed in the last section, Maine has already adopted a policy of mobility and retreat to
protect sand beaches against a change in shoreline position; regulations applicable to new and
replacement structures are designed to allow the beach to maintain itself by requiring removal of
human impediments to allow a continuation of natural processes. However, the State has yet to
explicitly evaluate extension of a policy of mobility or retreat for the salt marsh environment. The
State should address the same retreat issue with regard to salt marshes. Without new parallel policies
prevent bulkheads or other structures which interfere with wetland migration, a rise in sea level will
result in a decrease in important salt marsh wetlands.
The State could use a couple of different approaches. One approach would be to strengthen the
requirements under the Shoreland Zoning Act to expand the areas subj ect to the Resource Protection
District prohibition on development within 250 feet of the upland edge of designated coastal
wetlands. The State would need to review the sufficiency of the 1973 Inland Fish and Wildlife maps
designating moderate and high value wetlands in coastal areas and update those maps if necessary.
In addition, it would need to evaluate the exemptions allowing towns to opt for non-Resource
Protection designations even in mapped moderate and high value wetland areas, and the provisions
allowing special exceptions in Resource Protection Districts to determine whether this approach is
likely to succeed.
A second approach would be to amend the Natural Resources Protection Act to broaden the
jurisdiction to require a permit for activities on land adjacent to any coastal wetland that might
interfere with the projected natural migration of that wetland, assuming a specified rise in sea level.
This would expand the Act so it would not only protect against wetland degradation from material
or soil washing into wetlands, but would also protect against wetland loss occasioned by precluding
wetlands from migrating landward in equilibrium with rising sea level.
The State would need to promulgate detailed regulations designed to prevent the hardening of
the upland edge. These regulations could be modeled after the Sand Dune Rules and the
amendments to those rules discussed above. They could include a prohibition on hard structures
designed to limit the landward migration of salt marshes, an increase in the minimum setback from
the upland edge of a salt marsh based on projected rates of change in shoreline position, a
requirement that more intensive development be required to prove site stability and adequate
buffering given a projected 100 cm rise in sea level over 100 years, and a requirement that all new
construction and replacement structures be removed if the shoreline changes so that they are
substantially interfering with natural marsh migration processes.
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As part of this process, the State will need to make a conscious decision about whether all areas
should be subject to the requirements that they facilitate marsh migration, or whether distinctions
should be made between particular areas. For example, the State might decide that shoreline in areas
already developed to a certain intensity or already developed for a particular type of use need not be
maintained in an unhardened state. Or it might make distinctions based on the slope of the adjacent
land in its natural state; if the slope is already relatively steep so that the wetland would probably not
be able to migrate without substantial loss of area, that might argue in favor of allowing hardening
of the upland edge. These options decisions would have to be studied in greater detail before State
policy makers can decide what proportion of the salt marsh shoreline should be kept in an
unengineered state.
4. Eroding Bluffs
a. Character of Development
Maine's shoreline includes ledge areas, which increase from approximately 3% to 24% of the
shoreline as one moves northeast.53 These ledge areas consist of both stable bedrock promontories
and high bluffs of landslide-prone Ice Age mud. The bedrock promontories were generally built on
first. As those prime sites have been developed, construction has spread to other areas such as
eroding coastal bluffs of glacial sediment.54 In some areas, these bluffs are eroding at a rate of one
to three feet per year.55 When the erosion is unimpeded, these coastal bluffs serve as a source of sand
for beaches, particularly in areas lacking a maj or river to bring sediment from upstream, and a source
of mud for salt marsh formation.
Unlike marsh and sand beach erosion, the erosion of most coastal bluffs is driven primarily by
coastal storms rather than by any change in sea level, so projections of a change in shoreline position
over the next 100 years are the same regardless of the sea-level rise scenario. And also unlike marsh
and beach erosion, bluff erosion tends to be periodic, with maj or slumping events occurring at longer
intervals rather than a small amount of erosion each year.
b. Natural Resource Protection Act
Like development in salt marsh areas, bluff development is not regulated by any single law.
Development on bluffs generally falls outside the Natural Resources Protection Act (NRPA)56 unless
it is a mapped significant wildlife habitat area, or is deemed to be on land adjacent to a coastal
wetland and the proposed activity would operate in such a manner that material or soil may be
washed into the coastal wetland. While there are soil erosion standards which conceivably could be
applicable if triggered, eroding bluffs in themselves are not a targeted natural resource.
It would be consistent with the philosophy of NRPA to amend the Act to include eroding bluffs
as a protected natural resource. That Act is designed to regulate activities which might result in
environmental degradation due to activities in, on or over a protected natural resource or due to
material or soil being washed into protected natural resources from activities on adjacent land.
Development on or adjacent to eroding bluffs increases the risk of harm to the bluff and to other
protected natural resources such as sand beaches. For example activities such as lawn watering and
use of septic systems may hasten the erosion and degrade the bluff and shoreline area if erosion
causes system failure.
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A related activity, and one that is regulated by NRPA, is that property owners who have invested
in development on bluffs may try to build structures to halt the process of erosion, to the detriment
of the sand beach or marsh which was to be nourished by the eroded bluff materials. The NRPA soil
erosion and habitat standards would be relevant, as well as the Soil Erosion Standard for activities
to affect "coastal banks," which requires that a proposed activity may not unreasonably affect the
supply of sediment from the bank to coastal beaches or other land subject to tidal action.57 As with
coastal wetlands, regulations concerning harm to wildlife and fisheries and interference with natural
flow of waters standards may also be applicable.
c. Mandatory Shoreland Zoning Act
Development on coastal bluffs will be controlled to a limited extent by the Mandatory Shoreland
Zoning Act.58 These bluffs are within 250 feet of the upland edge of a coastal wetland, thus would
be included in the shoreland area. The minimum Guidelines require any permitted development to
be set back at least 75 feet from the upland edge of that wetland. In addition, the minimum
Guidelines direct the community to include lands "adjacent to tidal waters which are subject to
severe erosion or mass movement, such as steep coastal bluffs" in a resource protection district. If
zoned for resource protection, only non-intensive uses would be allowed; principal structures for
residential, commercial, industrial, governmental, and institutional uses would be precluded.
However, these areas will not always be placed in Resource Protection Districts. Under current law,
even if coastal bluffs meet the criteria for resource protection designation, a municipality can opt to
forego that designation if they are currently developed or meet the criteria for Limited Commercial,
General Development, or Commercial Fisheries/Maritime Activities District designation.
Additionally, a municipality may opt to grant special exceptions to allow residential development
on a lot in a Resource Protection District which could not accommodate development anywhere else
on the lot.
d. Site Location of Development Act
A third law that might play a minor role in controlling development on eroding bluffs is the Site
Location of Development Act.59 It includes a soil standard which states that the development must
be "built on soil types which are suitable to the nature of the undertaking and will not cause
unreasonable erosion of soil or sediment nor inhibit the natural transfer of soil." However, this Act
applies only to larger developments and there are no more detailed rules or regulations which directly
relate the general standard to eroding bluffs.
e. Opportunities to Strengthen Controls on Development Along Eroding Bluffs
The type of development most likely to be located on eroding coastal bluffs is single family
residences. The Site Location of Development Act will not apply to this type of development. As
the laws are currently written, the major burden for preventing unwise construction falls on the
Shoreland Zoning Act, as enforced by individual municipalities through their Shoreland Zoning
Ordinances.
There are several problems with relying on the Shoreland Zoning Act as the primary defense
against development on unstable bluffs. First, the Act has always been plagued by compliance
problems. These problems may be inherent in the intergovernmental division of responsibilities
incorporated in the Act. The State promulgates mandatory minimum guidelines; each individual
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
municipality is responsible for adopting an ordinance which is consistent with the guidelines and for
enforcing that ordinance. It has not been uncommon for municipal boards to view these
requirements as unnecessary obstacles imposed on local landowners by the State rather than as part
of a comprehensive effort to protect shoreland resources and prevent unwise development.
However, local acceptance and enforcement might be growing as a result of improvements in
training and certification of local code enforcement officers. If shoreland zoning is going to be relied
on as the primary strategy for bluff erosion, a major public education effort on erosion and sea-level
rise would be required to increase local acceptance of shoreland zoning provisions designed to
mitigate those impacts.
Second, as written, a shoreland zoning ordinance will not be effective to prevent against unwise
bluff development unless that area is designated for resource protection and unless the municipality
does not grant special exceptions to allow single family development.60 Municipalities are often
reluctant to place land in a resource protection designation, and are frequently sympathetic to
variance, special exception, or rezoning requests to allow more intensive use of this land.
Finally, if a municipality does not designate eroding bluffs as resource protection, as currently
written, the remaining standards will probably be insufficient to require that development which does
occur is setback a sufficient distance to protect it over its useful life. Depending on the particular
bluff composition and its orientation, this study projects landward movement of the shoreline of
approximately 15 to 45 meters (50 to 150 feet) over 100 years. Other studies have estimated that
Maine's coastal bluffs are eroding approximately 1 to 3 feet per year, or 100 to 3 00 feet over the next
100 years, if the rate stays constant.61 Thus, the State minimum mandatory setback of 75 feet from
the upland edge of a coastal wetland is unlikely to be sufficient to protect the structure over its useful
life.
If development is allowed, as the bluff erodes, there will be increasing pressure to invest in
public or private bluff stabilization efforts. By definition, those stabilization efforts will interfere
with the transfer of sediment from the terrestrial to the marine environment. Eroding coastal bluffs
are a major source of mud for the regions mud flats and salt marshes, and can be a local source for
beach sand.62 Current NRPA standards could be applied, but historically have not resulted in denial
of permits for that type of bluff stabilization. However, both bluff stabilization structures and
individual seawalls along sand beaches raise the same specter of interference with natural processes.
This suggests that bluff stabilization structures should be regulated to the same extent as sea walls.
One approach to increase control over development on eroding bluffs is to encourage individual
municipalities to amend their shoreland zoning ordinances to address the issue. Municipalities are
free to adopt shoreland zoning provisions which are more stringent than the state minimum
guidelines.
The Department of Economic and Community Development is in the process of drafting model
performance standards for erosion prone coastal areas (beaches and eroding bluffs) designed to be
incorporated into municipal shoreland zoning ordinances. These performance standards would apply
throughout the shoreland zone, thus would extend protections to bluffs not already included in a
resource protection district. The current draft proposes to use a formula to increase the setback
beyond the normal 75 feet in areas eroding more than one foot per year; the additional setback
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increment would be determined by the average annual recession rate times the structure's assumed
life span.
This type of formula would be a significant improvement since it would apply throughout the
zone and would tie setbacks to erosion rates. It does, however, anticipate the use of erosion rate data
for particular coastal areas which is not yet available from state agencies. Until funds are available
for Maine Geological Survey to develop that data for the entire state, the municipality would have
to work with its own geologist or Maine Geological Survey to develop that data for each application.
The other limiting factor is that without amendment of the Shoreland Zoning Act, municipal
adoption of these performance standards is completely voluntary.
The State should also evaluate a second approach: bringing eroding bluffs under more direct
State control by amending NRPA to include eroding bluffs as a resource to be protected by the Act.
This action could be taken alone or in concert with encouraging municipalities to amend their
shoreland zoning ordinances as discussed above
Amending NRPA to include eroding bluffs as a protected natural resource offers the advantage
of unifying direct state regulation over all of the maj or components of the" soft coast": sand beaches,
salt marshes and eroding bluffs. By expanding the geographic reach of NRPA, it facilitates review
of proposed activity based on its impact on the entire interconnected coastal system. This change
should also promote consistency in underlying management policies. In addition, this approach
would not have to rely on voluntary local action.
If eroding bluffs are expressly incorporated into NRPA as a protected natural resource, the State
could then develop a set of rules parallel to the Sand Dune Rules to elaborate on the soil erosion
standard (which mandates that the activity not inhibit the natural transfer of soil from the terrestrial
to the marine environment) in the coastal bluff context. The new Rules could establish new setback
requirements and a new retreat policy which would put applicants on notice that future bluff erosion
would require that new and rebuilt structures be moved. These Rules would also serve to educate
the public and municipalities about the fluid nature of this type of land form. Increased awareness
alone might be sufficient to deter some coastal construction in this type of hazard area.
A third variation on this approach might be to allow waivers of the setback requirements for
small structures with well located septic systems provided that the applicant agrees to a condition,
memorialized as a recorded deed restriction putting all future owners on notice, that the structure
could not be protected by engineered bank stabilization efforts and that it would have to be removed
if any part of the structure was within a certain distance of the edge of the bluff.
5. Engineered Urban Shoreline
a. Character of Existing Development
A fourth distinct type of shoreline consists of engineered urban shoreline. Maine does not have
much as measured in miles of shorefront. But the extensively engineered portions of harbors, such
as the Portland/South Portland inner harbor, are of critical importance to the economic functioning
of the region.
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The engineered shoreline in this part of the harbor consists of a series of established finger piers,
docks, wharfs, seawalls, bridges, and similar structures. These structures were first established,
largely on filled land, more than a century ago, and have evolved over time as grandfathered
structures, generally free of particular performance standards or new regulations controlling their
location or environmental impact. While subject to significant variation from parcel to parcel,
according to observations of the Maine Geological Survey, they are generally designed to
accommodate seas which are approximately six feet higher than current mean high tide. This means
that even given a projected rise in sea level of 200 cm over the next 100 years, the shoreline position
will remain in its current location along this urban engineered portion of the shoreline.
However, these structures have not been engineered to accommodate higher water levels as a
means of advanced planning for sea-level rise. To the contrary, the extra increment above mean high
tide is required to protect uplands from most storm events. Even this added increment is
occasionally insufficient in extreme storm events as evidenced by the occasional flooding of parts
of Commercial Street (the closest street parallel to the waterfront) and structures located on piers
south of Commercial Street. Thus, while this engineered waterfront is not vulnerable to a change
in shoreline position due to a rise in sea level, if it remains as it is now, it will be vulnerable to
increased storm surges. Unless the structures are raised or reinforced, the geographic extent and
frequency of flooding from storm surges will increase as sea-level rises.
The inner harbor portion of the waterfront is in an intensely developed area where any sensitive
natural resources have already been disturbed through construction, dredging, intense use, and other
perturbations. While regulators should guard against any further environmental degradation, the
economic functions rather than environmental or habitat functions are likely to take precedence in
most reviews. Unlike salt marsh, sand beach, and eroding bluff areas where future regulatory
strategies are driven by preserving or restoring natural functions for maximum public benefit, on
engineered urban waterfronts, the maximum public benefit will probably be derived by allowing this
working waterfront to continue that economic function.
Individual property owners will experience any rise in sea level as a gradual change over time.
It will probably first manifest itself as slightly greater vulnerability to storm events over time. It is
likely that in the course of reinforcing and rebuilding existing structures through normal maintenance
and repair activities, property owners will accommodate to the increase in sea level by raising the
level of decks and designing the structure to protect upland areas from slightly higher waters. This
type of response would be incremental, parcel -by-parcel, and uncoordinated. If waterfront users have
sufficient resources to reinvest in periodically rebuilding and modifying their infrastructure, this de
facto response strategy may be sufficient to allow those structures to remain in place and continue
their economic functioning.63 Regulatory policies should be evaluated to determine whether they
will permit periodic reconstruction of piers and wharves to allow continued economic functioning
of key businesses.
b. Local Comprehensive Zoning, Flood Plain, and Shoreland Zoning Ordinances
The local comprehensive zoning ordinances for Portland and South Portland do not take the
possibility of sea-level rise into consideration. Neither ordinance expressly requires the applicant
to address site stability in the face of future change in sea level. To the extent that flooding is
addressed in local ordinances, it is through the adoption of State-mandated minimum flood plain
management regulations.64 These regulations focus primarily on construction standards such as
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minimum elevation of structures and other flood-proofing requirements. The review for compliance
with these flood plain management standards tends to be rather cursory, with reviewing staff and
boards tending to rely on representations of the developer's architect or engineer to gauge compliance
with the technical requirements of the standards.
The Shoreland Zoning Act has only minimal impact on these municipalities. Both Portland and
South Portland have complied with the Act by adopting hybrid ordinances that incorporate only
selected portions of the Guidelines into local ordinances. The 75 foot mandatory minimum setback
requirement under the Shoreland Zoning Act is inapplicable to the engineered portion of the Portland
and South Portland shorefronts since the zoning in this area is analogous to General Development
(25 foot setback) or Commercial Fisheries/Maritime Activities Districts (no setback) as established
in the Act.
The Shoreland Zoning Guideline's performance standards for piers, docks, wharfs, bridges, and
other structures,65 the Submerged Lands Act66 and the current comprehensive zoning ordinance for
the City of Portland generally combine to establish a land use policy favoring water-dependent uses
on, over, and immediately adjacent to coastal waters. This was not the case prior to 1987 when
Portland and South Portland saw high-density residential condominiums, new office buildings, and
tourist attractions such as floating restaurants approved for construction along the waterfront. The
use restrictions tend to be the most stringent part of Portland's local zoning ordinances. For example,
there are no setback requirements (except for 5 feet from the apron of a pier), lot coverage may be
100%, and buildings may be constructed to a height of 45 feet. Under certain conditions, a limited
range of non-water dependent uses are allowed in the upper story space of waterfront buildings.
c. Opportunities to Strengthen Controls on Development Along Engineered Urban
Shorelines
There appear to be two regulatory strategies to evaluate with regard to minimizing damage from
sea-level rise in the engineered urban harbor context. Since natural processes are no longer at work
to maintain the functioning of the shoreline system, the engineered solutions will need to be updated
as necessary. One strategy is to ensure that private owners are able to improve their structures to
cope with rising waters on a periodic basis as part of regular maintenance and reinvestment
opportunities. Any regulations which impede this ability should be identified and evaluated to
determine whether there are any unnecessary restrictions which could be eliminated.
The second opportunity to minimize future damage from increased inundation along the
engineered urban shoreline is to strengthen land use controls. While not originally adopted as a
response to threats posed by accelerated sea-level rise, giving a strong preference to water-dependent
uses for shoreline sites can become an important component of a sea-level rise adaptive response
strategy.
There are multiple policy reasons for restricting occupancy of structures over water and along
the immediate shoreline to uses which must locate there in order to function. Sites which provide
reasonable access to navigable waters are a scarce resource, particularly in the Portland/South
Portland harbor which has a very small shoreline in comparison to other ports in urban areas of a
comparable size.67 Those sites should be reserved for those uses which cannot function without that
access. Other activities which are attracted to the shore primarily for the views, ambiance, or other
Chapter Five 5-23 Responsiveness of Existing State and Federal Laws
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
amenity values—such as retail shops, residential uses, and non-water dependent offices—should be
required to locate further inland. They should not be allowed to preclude marine uses.68 The only
exception to this general principle should be in the case where non-water dependent uses can
contribute to the economic health of water-dependent uses and key water-dependent uses would not
otherwise be able to maintain the necessary piers, wharves, or similar infrastructure.
Without strong land use controls favoring water-dependent uses, during the last decade, market
forces in New England's cities have combined to encourage development of high-density residential
dwelling units, festival-type retail marketplaces, and high rise offices directly on the waterfront. This
type of high intensity development immediately on the shore places many people, expensive
structures, and complex urban infrastructure at risk from the impacts of rising seas.
In contrast, maritime uses tend to involve a lower level of investment in immobile structures or
equipment, would have fewer people on site who would be exposed to the risk of storm events, and
involve businesses and employees who are more cognizant of and accustomed to dealing with the
vagaries of coastal waters. Furthermore, by definition, water-dependent uses have no option but to
locate along the waterfront.
Restricting new shoreline development along engineered urban waterfronts to those uses which
need to be there—water-dependent-uses—should help minimize the potential damage from storm
surges or coastal inundation as a result of sea-level rise. This "no regrets" strategy will hold down
the value of development in areas vulnerable to increased damage from possible sea-level rise. But
even if sea level doesn't rise, it is consistent with other policies supporting the preservation of
shoreline sites for water-dependent uses.
Municipalities should give strict interpretation to the definition of water-dependent uses so as
to disallow uses such as residential condominiums with boat slips and floating restaurants as
"water-dependent uses." Similarly, as projections of sea-level change are developed with greater
precision, municipalities should evaluate whether they should develop more rigorous standards for
larger water-dependent use structures which would require applicants to prove that the development
is designed to minimize the hazards of storm surges assuming a rise in sea level of 3 feet over the
next century. This two-tiered review would be similar to the stricter scrutiny given to structures in
excess of certain height and size thresholds under the Sand Dune Rules.
The State should also review its policies on water-dependent uses. The Shoreland Zoning
Guidelines allow, but do not mandate, identification of areas for inclusion in Commercial
Fisheries/Maritime Activities zones. While Portland has a fairly strong waterfront zoning ordinance,
the State should assess whether other communities with highly engineered waterfronts are permitting
non-water dependent uses to locate in areas vulnerable to sea-level rise. One way to address the dual
goals of protecting and promoting water-dependent uses and of minimizing the risk of damage due
to sea-level rise would be to strengthen the Shoreland Zoning Guidelines to require designation of
areas meeting particular site characteristics (e.g., a combination of utility as a site for a maritime use
and orientation to wind and water making it vulnerable to sea-level rise effects) as Commercial
Fisheries/Maritime Activities District, thus precluding new non-water dependent uses.
Chapter Five 5-24 Responsiveness of Existing State and Federal Laws
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
C. FEDERAL LAWS AND REGULATIONS RELEVANT TO SEA-LEVEL
RISE
In theory, federal laws could also supplement state laws to comprise a de facto substantive
response to accelerated sea-level rise. In this section, relevant federal laws are reviewed in summary
form to identify the extent to which they do supplement the response established by Maine's existing
laws and regulations. In general this analysis concludes that while federal research efforts and
funding initiatives are important in assisting states with the development of anticipatory response
strategies, existing federal laws and regulations do not provide specific guidance to states or
supplement state laws in a significant substantive way so as to constitute an anticipatory response
strategy to accelerated sea-level rise.
1. Coastal Zone Management Program
The federal coastal zone management program, established by the Coastal Zone Management
Act of 1972, as amended,69 encourages and assists the states in preparing and implementing
management programs to "preserve, protect, develop and where possible, to restore or enhance the
resources of the nation's coastal zone."70
The Act was amended in 1990 to incorporate references to sea-level rise. A new Congressional
finding states: "[b]ecause global warming may result in a substantial sea level rise with serious
adverse effects in the coastal zone, coastal states must anticipate and plan for such an occurrence."71
Each participating state's management plan is directed to provide for management of coastal
development to minimize losses caused by improper development in "flood-prone, storm surge,
geological hazard, and erosion-prone areas and in areas likely to be affected by or vulnerable to sea
level rise, land subsidence and saltwater intrusion, and by the destruction of natural protective
features such as beaches, dunes, wetlands, and barrier islands."72 Thus, to remain consistent with
the federal law, and therefore eligible for federal financial assistance and leverage over federal ac-
tions, coastal management programs are required to incorporate sea-level rise considerations into
program objectives and activities.
The 1990 amendments established section 309 Coastal Zone Enhancement Grants to assist states
with specific projects to improve their management plans and implementing laws. Eight broad
"enhancement objectives" qualify for the funding, including an objective on coastal hazards;
anticipating and managing the effects of potential sea-level rise is one of the specific eligible topics
within the hazard objective.
In summary, the Coastal Zone Management Act now requires some consideration of sea-level
rise as part of the coastal management program and provides an opportunity for enhancement grant
funding to facilitate planning and enhanced management. As with other coastal policy objectives,
the Act does not mandate any particular sea-level rise strategy. Due to the variation among the states
in regulatory framework, problems posed, and institutional allocation of responsibilities, the Act
leaves it to each state to develop the response that is most appropriate for it.
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
2. Federal Climate Change Research
Another way the federal government is involved in planning for sea-level rise is through
supported research. The U.S. Global Change Research Program is multi-year, multi-agency,
federally-funded research program designed to bridge the gap between scientific research and policy
initiatives. It encourages research to monitor, understand, and predict global change, and to improve
the scientific basis for developing national and international policy. Greenhouse gases in the
atmosphere and sea-level rise are among the global change phenomena targeted for study.
Through this program, and with other funding, the United States Environmental Protection
Agency (EPA) and National Oceanic and Atmospheric Administration (NOAA) have taken lead
roles, both within this country and in international efforts, to develop a consensus on greenhouse gas
issues and response strategies. The EPA has conducted or funded a significant portion of the state
climate change research on adaptive responses to accelerated sea-level rise. It will be important for
states to keep themselves informed about the results of this research so that they can review their
anticipatory strategies periodically in response to developing information. However, this federal
research effort does not, in itself, establish any substantive portion of a policy response strategy.
3. Federal Clean Water Act
Section 404 of the federal Clean Water Act73 is the primary federal law controlling development
in coastal wetlands, the area most vulnerable to rising seas. It requires anyone who wants to conduct
dredging and filling activities in navigable waters, including wetlands, to obtain a permit from the
U.S. Army Corps of Engineers (COE). Federal resource agencies, the Fish and Wildlife Service
(F&W), the Environmental Protection Agency (EPA) and the National Marine Fisheries Service
(NMFS), review and comment on various permit applications. Through this permitting process, the
COE and the resource agencies can play a critical role in reviewing development in coastal and
estuarine waters and protecting coastal wetlands.
The COE generally evaluates proj ects based on historical sea levels. There is no formal guidance
directing the COE or the resource agencies to evaluate projects taking into consideration the risks
of accelerated sea level rise or the need to ensure that coastal wetlands have the ability to migrate.
Even if accelerated sea level rise became a routine consideration in the COE's public interest review,
the COE might still have limited influence over maj or impediments to coastal wetland migration due
to the geographic limits of its jurisdiction. Despite a lack of formal guidance or statutory directive,
district offices and resource agencies may have the discretion to consider risks of accelerated
sea-level rise in project review if the agencies consider them to be significant.74
While not within the purview of the Clean Water Act, it should be noted that the COE also plays
a major role in civil works functions such as the construction of seawalls, jetties, and other hard
erosion control structures, in soft erosion control efforts such as beach restoration and renourishment,
and in navigation projects such as channel dredging. Historical erosion rates are typically used in
project assessment. The COE is likely to play a major role in these types of engineered responses
if sea-level rise accelerates.
Chapter Five 5-26 Responsiveness of Existing State and Federal Laws
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
4. Coastal Barriers Resources Act of 1982
The federal Coastal Barrier Resources Act of 198275 established the Coastal Barrier Resources
System, consisting of undeveloped coastal barriers along the Atlantic and Gulf of Mexico coasts.
The coastal barriers were designated by the Secretary of the Interior in consultation with the
Governors and state coastal zone management agencies, after public comment.
The Act imposes limits on federal expenditures within the System; except for a few narrow
exceptions, no new federal expenditures or new financial assistance under the authority of any
federal law may be made within the System. This precludes financial assistance for most
development activities. Proscribed development activities include construction or purchase of struc-
tures, construction of roads, airports, boat-landing facilities, bridges or causeways, and most erosion
prevention projects.
The only exceptions to the prohibition on federal expenditures or financial assistance are for
water-dependent energy resources; navigational channels, structures, and dredge material disposal;
maintenance and repair of certain public roads, structures and facilities; certain military activities;
Coast Guard facilities; a variety of other emergency, habitat and research activities; and
"nonstructural projects for shoreline stabilization that are designed to mimic, enhance or restore a
natural stabilization system."76
The coastal barriers identified by the federal Coastal Barrier Resources System are also identified
by Maine statute as being part of the Maine Coastal Barrier System. Under Maine statute, the use
of state funds and financial assistance are also prohibited (with certain exceptions) in the designated
areas.77
The geographic extent of coverage is very limited. Only approximately 22.5 miles of Maine's
3,400 mile shoreline are included in the Coastal Barrier Resources System (CBRS).78 Other areas
which are already protected (such as through state ownership) are not included in the CBRS
designations.
This Act is consistent with a retreat strategy. It prohibits erosion stabilization projects except
for nonstructural shoreline stabilization projects that are designed to mimic, enhance, or restore
natural stabilization systems. It limits use of public funds for development in these areas and
promotes retention of natural storm protection functions. But the Act provides only limited
protection; it does not restrict private development nor does it include much of the shoreline.
In light of the threat of accelerated sea-level rise, it is appropriate to evaluate whether there are
other areas which meet the criteria and should be included in the system.
5. National Flood Insurance Program
The National Flood Insurance Program (NFIP),79 first enacted in 1968, is designed to reduce the
cost of Federal disaster assistance following floods. NFIP, administered by the Federal Insurance
Administration under the Federal Emergency Management Agency (FEMA), made previously
unavailable flood insurance protection available to property owners in flood hazard areas if the
community in which they resided adopted a floodplain ordinance meeting Federal standards designed
to reduce or avoid future flood losses. These ordinances were intended to ensure that any new
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structures constructed in a floodplain would be designed to withstand a 100-year flood with minimal
damage.
Most coastal communities have opted to participate in the program by adopting building codes
and zoning rules acceptable to FEMA. This voluntary local participation makes flood insurance
available to owners of new and existing structures, allows owners to apply for construction loans
from federally-regulated lending institutions, and makes the community eligible to receive
non-emergency federal disaster relief funds (e.g., funds to repair roads, schools, sewers, etc.).
The NFIP consists of three stages: the identification stage, the emergency program stage, and the
regular program stage. At the identification stage, flood-prone communities are identified, and
preliminary maps are prepared to identify general outlines of floodplains, including "A" Zones
representing areas expected to be inundated during a 100-year flood. In Maine, all identification has
been completed.
To enter the emergency program stage, the community must enact a preliminary ordinance which
requires a permit for construction or other development in flood-prone areas and which otherwise
meets FEMA standards. The ordinance must require that new construction and substantial
improvements be elevated above base flood level or, in non-residential structures, be flood-proofed
rather than elevated. Flood insurance is available at this emergency program stage, but there are
maximum ceilings on insurance coverage of $35,000 for a single family home and $10,000 for its
contents.80 As of the end of 1993, five Maine communities which had just recently decided to join
the program were still in the emergency program stage.
Once a community enters the emergency program, FEMA produces a Flood Insurance Rate Map
(FIRM) for the town outlining flood-prone areas. In some communities, the FIRM is prepared based
on detailed engineering studies which identify areas of special flood hazard designated Zones A,
Al-30, AE, AO and AH. Each zone has corresponding requirements which must be met before a
permit will be granted for construction or other development.
In communities with lower flood risks, FEMA may opt to forego detailed studies and identify
only "A" Zones on the Flood Insurance Rate Map. In Maine, less than one-half of the participating
towns have FIRMS based on detailed studies. The majority of towns do not have detailed studies
so in these communities only "A" Zones are mapped.
A community then has six months to enter the regular program by incorporating the FIRM into
its zoning ordinance or other floodplain management ordinance. Once in the regular program, full
insurance coverage is generally available. A portion of that insurance may be provided at
premium-subsidized rates.81
The National Flood Insurance Program has been subj ect to criticism on a variety of grounds since
its inception.82 While those general criticisms may have implications for its usefulness as a
mitigation tool, for purposes of this study, the most directly relevant criticism is that the National
Flood Insurance Program fails to adequately address gradual shoreline erosion.
Due to the statutory mandate of the Program, it places primary emphasis on avoiding flood
damage. To this end, it relies on elevating structures and "flood-proofing" as the primary means of
preventing loss of life and structures. The construction standards are primarily designed to bring
Chapter Five 5-28 Responsiveness of Existing State and Federal Laws
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
structures through the intermittent effects of coastal storms without reducing the capacity of the
water to runoff adj acent lands. They are not designed to minimize loss when the land underlying the
structure has eroded away through a gradual process.
One study of coastal erosion, reviewing the National Flood Insurance Program and other federal
responses, found that:
recognition of erosion as a hazard in its own right, apart from coastal flooding, has only
recently begun to emerge. Federal policy has typically addressed storm-generated erosion
as a short-term phenomenon with little attention to longer-term or gradual erosion resulting
from the effects of relative sea level rise.83
Other analysts have also identified this as a shortcoming of the Act, and have asserted that it fails
to incorporate an adequate strategic response to shoreline erosion caused by either historical or future
rates of sea-level rise.84
While some recent efforts have been made to amend the statute to develop greater erosion
management capability based on available historical data, the statute has not been amended to
incorporate any assumptions about an accelerated rate of sea-level rise as a result of global climate
change.85 Premiums do not reflect any projections of accelerated erosion due to an increase in sea
level.86 One commentator also suggests that under current law, due to a statutory cap on rate
increases, even if the risk of inundation from accelerated sea-level rise becomes known and apparent,
these rates will still be unable to reflect this knowledge, thus FEMA will be precluded from charging
actuarially sound rates.87
Over the years, there have been several efforts to incorporate an erosion element into flood
insurance risk assessment. A 1973 amendment added erosion as a possible flood loss,88 and 1976
regulations further established a framework for communities to use in addressing erosion hazards.89
But these efforts were very narrow, addressing erosion only if it related to a flood event, and ignoring
gradual erosion. A national study commissioned by FEMA found that NFIP failed to take action to
implement even these limited flood-related changes.90
The next maj or effort to manage erosion under NFIP took the form of the 1988 Upton-Jones Act
amendments to NFIP.91 These amendments, extended to 1995, authorize payment from the National
Flood Insurance Fund to demolish or relocate insured structures that are subj ect to imminent collapse
or subsidence as a result of erosion. The intent was to encourage removal of erosion-prone
structures in advance of their collapse, minimizing hazards and reducing the total loss expenditures.
The amendments also established new setback lines by mandating that once the Act applies, no
further flood insurance is permitted on that land unless the new or relocated structure is landward
of the setbacks. For 1-4 family residential structures, the setback is based on a 30-year erosion
standard; for any other structure, it is based on a 60-year erosion standard. These are calculated
assuming a continuation of historical rates.
The Upton-Jones Amendments have been praised as an important first step in setting the stage
for identifying erosion hazard zones, for adjusting premiums to reflect erosion risks as well as flood
risks, and for developing new land-use standards. But there is still widespread concern over the
program and multiple revisions have been recommended to improve its effectiveness.92 For
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
example, one national evaluation recommended that the geographic area of eligibility, the "zone of
imminent collapse," be expanded to facilitate anticipatory removal of structures in advance of a
maj or storm event.93 Another national assessment of policy options for preparing for climate change
recommended that the NFIP mapping and rate structures be revised to incorporate at least
conservative estimates of sea-level rise.94
Even with the Upton-Jones Amendments, the NFIP still does not include any express
consideration of projections of accelerated sea-level rise. Under the current Act, future erosion
estimates are to be based on projections of past shoreline change as documented in existing records;
sea-level rise trends will not be incorporated into the proj ection of future risk unless they are already
"present in the existing record."95
In 1991 and 1992 significant amendments to the NFIP were proposed but in both years the
amendments failed.96 Both proposals expressly recognized the relative rise in sea level as threatening
the flood insurance program with greater financial liability.97 Both proposals also sought to increase
compliance by imposing requirements on lenders,98 to increase local incentives to reduce
construction and the number of structures in flood-prone areas through premium rate reductions,"
and to increase State mitigation activities such as elevation, flood- proofing, and relocation through
national mitigation grants.100 The proposals would also have established erosion management
programs with mandatory (1991) or voluntary (1992) land management standards for erosion-prone
areas.
Senator Kerry introduced a slightly amended "National Flood Insurance Reform Act of 1993"
in August, 1993.101 Again the bill proposes that Congress find that the relative rise in sea level
exposes the NFIP to risks that should be adequately considered in risk assessment. Erosion hazard
areas, to be identified based on erosion rate information and other historical data, are defined as areas
where erosion is likely to result in damage to or loss of buildings and infrastructure within a 60 year
period. Other than requirements that the delineations be updated periodically, there is no express
recognition of the threat of an increased rate of sea-level rise as a result of global climate change.
The State should monitor the progress of the Kerry proposal and similar pending bills102 which
would amend the National Flood Insurance Program. These amendments might alter the economic
incentives to develop in or retreat from vulnerable areas.
The pending amendments to NFIP do not constitute a direct response to anticipated accelerated
sea-level rise as a result of global climate change, but they are designed to manage gradual coastal
erosion, divorced from a flood event. They assume a continuation of historical rates of sea-level rise
into the future rather than adopt a proj ected accelerated rate of rise. However to the extent that they
would protect threatened areas from further development and would heighten the ability of natural
shoreline processes to accommodate to a change in shoreline position, they could help mitigate the
impact of accelerated sea-level rise.
The State may also adopt its own measures on coastal erosion to supplement the National Flood
Insurance Program. For example, it could adopt provisions to establish locational restrictions for
coastal structures in the 100-year floodplain keyed to 50- to 100-times the annual erosion rate and
could designate erosion zones within flood hazard areas where only movable structures will be
allowed.
Chapter Five 5-30 Responsiveness of Existing State and Federal Laws
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
D. CONCLUSION
The federal programs discussed above provide some limited incentives and technical assistance
for states to engage in erosion mitigation planning. For example, the Coastal Zone Management Act
has been amended to recognize rising seas as a critical area for anticipatory planning and now
provides financial assistance for programmatic changes through Enhancement Grants. EPA's
Climate Change program also provides valuable technical assistance to states. However, the federal
programs are not yet internally consistent, nor are they intended to be a comprehensive response.
Given this lack of a comprehensive policy at the federal level and the general deference given
to states in land use and land development matters, state governments have an opportunity to play
a vital role in implementing coastal erosion mitigation strategies. States may regulate coastal
development directly, as Maine has done in sand dune systems through the Natural Resources
Protection Act. While the setback standards can be improved by tailoring them to individual beaches
or portions of beaches, in general they have successfully established setback standards for larger
structures which incorporate an assumed sea-level rise of three feet over the next century and have
established an important retreat policy for all structures.
States may also approach the issue more indirectly by guiding local planning and implementing
regulations. Maine has taken this approach through the Coastal Management Policies Act, the
Mandatory Shoreland Zoning Act, and the Growth Management Act. Together these Acts establish
overall goals and minimum standards, but leave it to individual municipalities to develop plans and
regulations which are consistent with these goals.
The products of these state-mandated planning requirements have been uneven, both from town
to town, and within local plans, from goal to goal. While towns generally focused a lot of energy
on identifying the community's vision for itself, delineating growth and rural areas, and deciding on
implementation strategies, they gave less attention to more technical issues such as preventing
inappropriate development in natural hazard areas, including flood plains and areas of high erosion.
While some technical assistance was available to towns concerning sea-level rise and coastal erosion,
these topics did not generally receive major emphasis. At the time, this was probably a rational ap-
proach given the difficulty in obtaining municipality-specific information about historical erosion
and project sea-level rise, the complexity of coastal hazard mitigation and sea-level rise issues, the
existence of local floodplain ordinances, and the degree to which state agencies already regulated
development in fragile environmental areas such as wetlands and sand dunes.
However, as indicated in the preceding system-by-system review of state laws and regulations,
local reliance on the adequacy of state regulation may be somewhat misplaced. The State generally
does a good job of regulating sand dune systems. However, there are significant gaps in state
regulation of development adjacent to salt marshes and on eroding bluffs.
State legislators and resource managers will have to evaluate the most appropriate way to
proceed to amend state and/or local ordinances to be prepared for the possibility of an accelerated
rate of sea-level rise. The State can opt to rely on amendments to NRPA and promulgation of
additional rules. Since there already seems to be an expectation that the State regulates development
in coastal erosion hazard areas and since the State has the necessary technical expertise, it would
make sense for the State to extend shoreline regulation to encompass the entire "soft coast" system
Chapter Five 5-31 Responsiveness of Existing State and Federal Laws
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
of sand beaches, salt marshes, and eroding bluffs. This state-wide approach is also supported by
considerations of:
1) interjurisdictional equity in coastal development management, since all municipalities
would operate under the same restrictions;
2) availability of necessary technical and legal expertise, since the development regulations
may need to be fairly complex and well-substantiated to avoid legal challenges from
owners of land in vulnerable areas;
3) consistent control over state infrastructure and public investment policies; and
4) ability to consider multijurisdictional impacts of changes in coastal systems such as
interference with natural processes in one town affecting the shoreline in an adjacent
town.
However, the State could also opt to encourage municipalities to make necessary changes in their
local land use and shoreland zoning ordinances. It is arguable that this approach would allow local
municipalities to tailor the most appropriate regulations for their own conditions. However, any
reliance on voluntary municipal action would have to be supplemented by extensive technical
assistance from the State to provide model ordinance provisions, detailed data about local historical
erosion rates, and detailed projections of changes in shoreline position given assumed sea-level rise
scenarios. It would also require extensive public education about the dynamic nature of coastal
systems to convince local officials and citizens of the benefit of these regulations.
A hybrid of these approaches may prove most successful since these options are not mutually
exclusive. The State could strengthen the NRPA regulations to establish statewide minimum
policies and regulations governing development within the "soft coast" system. And those
municipalities that wish to go beyond NRPA may adopt their own more rigorous standards
regulating development in erosion prone areas or wetlands as part of their shoreland zoning, land
use, or wetland ordinances.
E. ENDNOTES
1. 38MRSA§§ 1801-03.
2. COASTAL ADVISORY COMMITTEE, COASTAL MANAGEMENT POLICY GUIDELINES 9 (Augusta, ME: Maine
State Planning Office, Dec. 1986).
3. Id.
4. For example, Maine Geological Survey, the Department of Economic and Community Development and
the Department of Environmental Protection are involved in the second phase of a Section 309 Project of
Special Merit to designate coastal hazard areas threatened by sea-level rise and to recommend modifications
in state laws and regulations to more thoroughly address hazards created by coastal processes including
sea-level rise. MAINE STATE PLANNING OFFICE, MAINE'S COASTAL PROGRAM: FUNDING APPLICATION, JULY
1993 THROUGH JUNE 1994 (111-53-56).
Chapter Five 5-32 Responsiveness of Existing State and Federal Laws
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
5. Comprehensive Planning and Land Use Regulation Act, 30-A MRSA §§ 4311-4344.
6. Mandatory Zoning and Subdivision Control Act, 38 MRSA §§ 435-449.
7. JOSEPHKELLEY,ETAL. LIVING WITHTHECOAST OF MAINE 7 (Durham, NC: Duke University Press 1989).
8. 38 MRSA §§ 480-A-U.
9. Coastal Sand Dune Rules, Code Me. R, Ch. 355, §3, 06 096 355-007.
10. Id.
11. Id.
12. Id. §3, Preamble.
13. Development in certain back dunes was exempted from the permit requirements in 1993 (38 M.R.S.A.
§ 480-Q(16) exempting back dune alterations from permit requirements), but coverage has generally been
reinstated by a 1994 emergency amendment which makes the exemption applicable only if the back dune site
is not expected to be damaged due to shoreline change within 100 years based on historic and projected
trends, and repeals the entire permit exemption for back dunes on February 15, 1995 to be replaced by
permit-by-rule performance standards for activities exempt under § 16 on that date. Maine Legislative
Service, 116th Legislature, Ch. 522 (March 14, 1994).
14. Id. § 480-B(1).
15. Id.§ 480-D (7).
16. Coastal Sand Dune Rules, supra note 9, §3(A)(2).
17. Hall v. Board of Environmental Protection, 498 A.2d 260 (1985). The Court indicated that the same
analysis would apply regardless of whether this was treated as new construction or rebuilding of a
substantially damaged structure. Id. at 264.
18. Hall v. Board of Environmental Protection, 528 A.2d 453 (1987).
19. Rubin v. Board of Environmental Protection, 577 A.2d 1189 (1990).
20. Fichter v. Board of Environmental Protection, 604 A.2d 433 (1992).
21. Plaintiffs' heirs have reportedly discussed pursuing a takings claim, but as of July 1994 had not filed to
do so.
22. 38 M.R.S.A. § 480-O.
23. With the exception of piers, and additions, a combined total of which cover less than 250 square feet of
ground surface. Id. §3 (B)(l).
24. Sand Dune Rules, supra note 9, §3(A)(2).
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
25. See Appendix A, section D of this report for a more detailed discussion.
26. See Appendix A, section E of this report for a more detailed discussion.
27. See Appendix A, section F of this report for a more detailed discussion.
28. See Appendix A, section G of this report for a more detailed discussion.
29. 38MRSA§§ 1901-1905.
30. See Appendix A, section I of this report for a more detailed discussion.
31. An applicant may contest the mapped designations through an on-site survey.
32. Coastal Sand Dune Rules, supra note 9, §3(A)(2).
33. RUTHERFORD H. PLATT, ET AL., COASTAL EROSION: HAS RETREAT SOUNDED? 132-135 (Program on
Environment and Behavior Monograph No. 53, Institute of Behavioral Science, University of Colorado,
1992).
34. Id. at 191.
35. COMMITTEEONCOASTALEROSIONZONEMANAGEMENT,MANAGINGCOASTALEROSION9 (Wash., D.C.:
National Academy Press 1990).
36. Others contend if the erosion rate is more than one foot or so per year, setbacks established at 100 times
the annual erosion rate are too high because they unfairly deprive property owners of the right to use coastal
land, particularly if they would not even be allowed to build a small house that could be moved back if
required. See J.G. Titus, The Cost of Holding Back the Sea, 19 COASTAL MANAGEMENT 171 (1991).
37. W.A. Anderson, et al., Crustal Warping in Coastal Maine, 12 GEOLOGY (1984).
38. T.M.L. Wigley & S.C.B. Raper, Implications for Climate and Sea Level of Revised IPCC Emissions
Scenarios 357 NATURE 293-300.
39. STEPHEN M. DICKSON, SHORELINE EROSION MANAGEMENT PROTECT - PHASE I, PROJECT COMPLETION
REPORT 2 (Maine Geological Survey, July, 16, 1993).
40. Coastal Sand Dune Rules, supra note 9, §3(A)(2).
41. See Coastal Sand Dune Rules, supra note 9, §3(B)(2)(c) which requires applicants for buildings greater
than 35 feet in height or covering greater than 2500 square feet to show by clear and convincing evidence
that the site will remain stable after allowing for a three-foot rise in sea level over 100 years.
42. For example, the Fichter situation involves applicants who purchased their vacant lot in the 1950s, well
prior to the adoption of the Sand Dune Rules. The lot is surrounded by residences built on similar lots, but
is too small to allow the applicant to meet current setback requirements. The applicants' taking claim was
not reached in the original litigation. Fichter v. Board of Environmental Protection, 604 A.2d 433 (1992).
However, a Maine Superior Court rejected a taking claim in a similar freshwater shoreline situation, holding
that even though surrounded by 1920s cottages on small lots which could not meet current requirements, the
Chapter Five 5-34 Responsiveness of Existing State and Federal Laws
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applicant did not prove a regulatory taking because the landowners still had economically beneficial or
productive uses of their land remaining, despite the prohibition on construction of a seasonal dwelling.
Drake v. Town of Sanford, York County Superior Court, Docket #CV-88-679, December 18, 1992.
43. According to some scientists, warmer temperatures may yield a 40-50% increase in the destructive
potential of hurricanes. K.A. Emanuel, The Dependence of Hurricane Intensity on Climate, in AIP
CONFERENCE PROCEEDINGS : THE WORLD AT RISK: NATURAL HAZARDS AND CLIMATE CHANGE SYMPOSIUM
25 (Rafale Bras, ed., Cambridge, MA: MIT Center for Global Change Science and Industrial Liaison
Program, 1992). If Maine experiences an increase in frequency or intensity, it could cause storm-driven
beach erosion which would be in addition to coastal erosion due to an increase in sea level.
44. KELLEY, ET AL., supra note 7, at 4.
45. 38 MRSA § 480-A-U.
46. 38 MRSA § 480-B(2).
47. Id. § 480-D, (2),(3),(4) and (6).
48. Department of Environmental Protection, Bureau of Land Quality Control, Wetlands Protection Rules,
[Chapter 310], Code Me. R., § [06 096 310, Page 203000.727].
49. Department of Environmental Protection, Bureau of Land Quality Control, Soil Erosion Standard of the
Coastal Wetlands Law, [lA(4)(b)], Code Me. R. § [06 096 344, Page 203041].
50. Mandatory Zoning and Subdivision Control Act, 38 MRSA §§ 435-449.
51. 38 MRSA §435.
52. State of Maine Guidelines for Municipal Shoreland Zoning Ordinances, [06-096 Department of
Environmental Protection Chapter 1000, March 24, 1990].
53. KELLEY, ET AL., supra note 7, at 4.
54. KELLEY, ET AL., supra note 7, at 6.
55. KELLEY, ET AL., supra note 7, at 5.
56. 38 MRSA § 480-A-U.
57. Department of Environmental Protection, Soil Erosion Standard of the Coastal Wetlands Law, supra
note 49.
58. 38 MRSA §§ 435-449.
59. 38 MRSA §§481-490.
60. Effective October, 1993, municipalities may now incorporate a special exception provision to allow
construction of a single family residence of up to 1500 square feet in a resource protection district if there
is no other location on the property where a structure may be built, if the improvements will not be on slopes
Chapter Five 5-35 Responsiveness of Existing State and Federal Laws
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
of 20% or greater, if it is located out of the velocity zone (or floodway of 100-year floodplain), if it otherwise
complies with the municipal floodplain ordinance and is set back at least 75 feet and to the greatest practical
extent. [Public Laws, 116th Legislature, 1193 First Regular Session, Ch. 318 amending 3 8 MRSA § 439-A].
61. KELLEY, ET AL., supra note 7, at 5.
62. KELLEY, ET AL., supra note 7, at 30-31.
63. Further study would be required, however, to determine the vulnerability of office and residential
structures on the piers (e .g., the office and condominium development on Portland Pier and Chandler's Wharf
and low-lying upland areas adjacent to the piers, such as the Commercial Street office/retail area). It is
possible water dependent businesses on the finger piers would be able to modify their structures and
functioning to accommodate occasional higher waters, without providing the types of walls that would offer
flood protection to these other uses.
64. See Appendix A, section G of this report for a more detailed discussion of the State Floodplain
Management Program.
65. These performance standards require that new structures be allowed over or beyond the normal
high-water line of a water body only if they require direct access to the water as an operational necessity and
prohibits the conversion of existing structures extending beyond the normal high-water line to residential
dwelling units. [Guidelines for Municipal Shoreland Zoning Ordinances, March 24, 1990, Section 15
66. 12 MRSA §§ 552, 558-A - 573. For a more detailed discussion, see Appendix A, section D of this
report.
67. See, e.g., MARINE LAW INSTITUTE, GUIDEBOOK TO THE ECONOMICS OF WATERFRONT PLANNING AND
WATER DEPENDENT USES (prepared for the New England/New York Coastal Zone Task Force, Portland, ME:
Marine Law Institute, 1988) at 233.
68. See, e.g., MARINE LAWlNSTITUTE, MANAGING THE SHORELINEFORWATERDEPENDENT USES (prepared
for the New England/New York Coastal Zone Task Force, Portland, ME: Marine Law Institute, 1988) and
MARINE LAW INSTITUTE supra note 67.
69. 16U.S.C.A. § \45\etseq.
70. Id. § 1452.
71. 16U.S.C.A. § 1451 (1).
72. 16U.S.C.A. § 1452 (2)(B).
73. 33U.S.C. § 1344.
74. The COE has factored relative sea level rise into risk assessments in Louisiana and Texas. PAUL N.
KLARIN, ET AL., SEA LEVEL RISE POLICY ALTERNATIVES STUDY: VOLUME 1, ALTERNATIVE POLICY
RESPONSES FOR ACCELERATED SEA LEVEL RISE AND THEIR IMPLICATIONS, 1-29 (Olympia, Washington State
Department of Ecology, 1990).
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75. 16U.S.C. §3509.
76. 16U.S.C. §3505(a).
77. For further discussion of Maine's Coastal Barrier Resources System, see MRSA § 1901 et seq. and the
summary in Appendix A of this report.
78. COASTAL BARRIERS STUDY GROUP, REPORT TO CONGRESS: COASTAL BARRIER RESOURCES SYSTEM
—RECOMMENDATIONS FOR ADDITIONS TO OR DELETIONS FROM THE COASTAL BARRIER RESOURCES SYSTEM,
VOL 2., MAINE, (U.S. Department of the Interior, 1988).
79. 42 U.S.C. §§4001-4128; Federal Emergency Management Agency Regulations, 44C.F.R. §§59.1-77.2
(1992).
80. 44C.F.R. §61.8(b)(l)(i).
81. At this stage, coverage price is supposed to be determined based on actuarial cost. However, for
buildings in existence before the FIRM was established, a portion of the cost is subsidized by premiums. For
example, for a pre-FIRM single family home the first $35,000 of coverage is at the lower, subsidized rate.
An additional $ 150,000 of coverage can be added, but it must be paid for at the FEMA determined actuarial
cost. Id. § 61.8(b)(l)(i) and § 61.6(a).
82. For example, in 1992, Senator John Kerry of Massachusetts, the sponsor of a set of proposed
amendments to the NFIP, asserted that chronic problems with that Program included: that only 17% of those
eligible for flood insurance are actually insured; that communities develop ill-advised areas, with the result
that the program is now a larger financial liability; that subsidized premium rates disguise the true risk and
market cost of insurance; and that coastal erosion is not factored into the actuarial process for setting rates.
138 CONG. REC. S9145-46 (daily ed. June 29, 1992) (statement of Sen. Kerry); 138 CONG. REC. S18246
(daily ed. Oct. 8, 1992).
83. PLATT, ET AL., supra note 33, at 36.
84. See, e.g., THE POTENTIAL EFFECTS OF GLOBAL CLIMATE CHANGE ON THE UNITED STATES (J.B. Smith
&D.A. Tirpak, eds., Hemisphere Publishing Corporation, 1990) at 359 [hereinafter Smith & Tirpak]. Anew
study prepared for three Congressional committees recommends revamping the National Flood Insurance
Program to provide stronger incentives to reduce potential costs associated with high-risk development in
coastal areas, to address erosion along the coast, and to incorporate sea level rise into the NFIP mapping and
rate structure. U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, I PREPARING FOR AN UNCERTAIN
CLIMATE, (Wash., D.C.: U.S. Government Printing Office, October, 1993) at 41, 197 [hereinafter OFFICE
OF TECHNOLOGY ASSESSMENT] .
85. The FEMA hazard zones as currently drawn do not account for the hazards from erosion or sea-level
rise. FEMA commissioned a study "to determine the impact of relative sea level rise on the flood insurance
rate maps" and to "project the economic losses associated with estimated sea level rise" for the nation and
by region. See P.L. 101-137, §5, 103 Stat. 825 (Nov. 3, 1989).
86. BENJAMIN NOBEL, SEA-LEVEL RISE AND COASTAL MANAGEMENT POLICIES IN THE UNITED STATES
(Wash., DC: Resources for the Future, 1992) at 9.
Chapter Five 5-37 Responsiveness of Existing State and Federal Laws
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
87. Smith & Tirpak, supra note 84, at 359.
88. Flood Disaster Protection Act of 1973, 42 U.S.C. § 4121.
89. 44 CFR, Part 60.1.
90. NATIONAL RESEARCH COUNCIL, MANAGING COASTAL EROSION (Wash., DC: National Academy Press,
1990) at 73.
91. 42U.S.C.S. §4013(c).
92. See, e.g., the conclusions of the National Research Council in its 1990 report, MANAGING COASTAL
EROSION, supra note 90, at 87-93 and conclusions of the OFFICE OF TECHNOLOGY ASSESSMENT, supra note
84, at 197.
93. NATIONAL RESEARCH COUNCIL, supra note 90, at 87.
94. OFFICE OF TECHNOLOGY ASSESSMENT, supra note 84, at 197.
95. NOBLE, supra note 86, at 17.
96. The companion House bill to the National Flood Insurance Mitigation Act of 1991 passed easily. But
the Senate failed to pass the 1991 Act. 138 CONG. REC. S9145 (daily ed. June 29, 1992) (Statement of Sen.
Kerry). The Senate did not pass the revised version of the 1991 Act, the National Flood Insurance Reform
Act of 1992, either. 138 CONG. REC. S18244 (daily ed. October 8, 1992) (statement of Sen. Kerry).
97. 138 CONG. REC. S9317-9328 (daily ed. June 30,1992) (reprint of National Flood Insurance Act of 1992)
[hereinafter 1992 Act]; 137 CONG. REC. S12207-12217 (daily ed. Aug. 2, 1991) (reprint of National Flood
Insurance, Mitigation and Erosion Management Act) [hereinafter 1991 Act].
98. 1992 Act §§ 21-129; 1991 Act §§ 201-209.
99. 1992 Act § 131; 1991 Act §301.
100. 1992 Act §§ 141-148; 1991 Act §§ 401-406.
101. National Flood Insurance Act of 1993, S. 1405, 103d Cong., 1st Sess., U.S. Senate, August 6, 1993,
pending.
102. See, e.g., 1993 H.R. 62, National Flood Insurance Compliance, Mitigation & Erosion Management,
103rd Cong., 1st Sess., U.S. House of Representatives, January 5, 1993, Pending; 1993 S. 1024, Local
Innovation and Coastal Protection Act of 1993,103rd Cong., 1st Sess., U.S. Senate, May 25, 1993, Pending.
Chapter Five 5-38 Responsiveness of Existing State and Federal Laws
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Chapter Six
LEGAL CONSIDERATIONS FOR MAINE'S
POLICY RESPONSE
Most tools that are likely to provide an effective policy response to sea-level rise are in the hands
of state and local governments. As the preceding chapter indicated, federal legal authority to address
rising sea level is limited to the federal flood insurance program, which has yet to incorporate
assumptions of an accelerated rate of rise, and the financial and technical assistance for planning
provided to states under the federal Coastal Zone Management Act. The activities of private
organizations that operate on a local or regional level, such as land trusts, can be important
components of a state-wide response strategy.
The response tools from which Maine can choose fall into three broad categories: regulatory,
non-regulatory (i.e, market-based), and informational. The selection of appropriate tools can be
based upon whether Maine decides to pursue a strategic retreat, accommodation, or resis-
tance/protection course of action, or a combination of these approaches. In this part of the report,
it is assumed that Maine will opt to pursue a retreat policy along most of the coast, based upon
considerations and assumptions discussed in the preceding chapters.
This chapter examines the retreat policy tools available to Maine in terms of their legal feasibility
and defensibility. The primary focus is on the potential constitutional challenges to those regulatory
tools that reduce the land use choices of private landowners. While the legal authority to employ the
non-regulatory, market-based tools is an important consideration, these approaches by definition
present fewer bases for legal challenge, especially under the takings clause. Accordingly, their legal
defensibility is discussed less extensively. The informational tools, which are very important to
support both regulatory and non-regulatory approaches, are discussed only very briefly. However,
it is important that Maine consider and select from the full array of tools available for a sea-level rise
response; the legal feasibility is just one factor to consider in formulating the State's policies.
A. OVERVIEW OF POLICY RESPONSE OPTIONS AND TOOLS
Tools that are regulatory in nature are those within the broad range of land use controls and
regulations that can be adapted for the special conditions of rising sea level. These include:
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
• static or dynamic construction setback lines which restrict new development next to
the shoreline and are measured using either historic or accelerated shoreline erosion
rates and the average useful life of structures;
conditional land use permits for new shoreline development that require removal of
structures once shoreline migration begins to occur1 or which condition development
on the conveyance of a rolling easement2 or a covenant prohibiting the construction
of a seawall or bulkhead;
• prohibitions on rebuilding of existing structures based upon projections of the future
location of the tide line;
• building and engineering codes and design standards requiring new structures to be
built at elevations above a future sea level; and
• buffer/no building zones around critical natural areas such as wetlands likely to
migrate with rising sea level.3
Non-regulatory tools rely on market forces and voluntary actions rather than legal prescriptions
to prevent development in areas subject to rising sea level. These include:
• public purchase of full or partial property rights such as flowage easements on land
likely to be affected by rising sea level;
• incentives or subsidies for private owners to relocate development away from the
shoreline;
• tax incentives to preserve undeveloped areas needed for wetland migration;
• development disincentives and exactions to pay public costs of erosion control; and
• transferable development rights to compensate landowners for development
restrictions (used in conjunction with land use regulations).
Several states have already adopted many of the regulatory tools listed above in their efforts to
control coastal erosion and hazards. A small number of states have expressly evaluated these tools
for the purpose of anticipating a rising sea level associated with global climate change. A review
of state programs with coastal hazard control and sea-level rise provisions is provided in Appendix
B.
Few states have evaluated or adopted non-regulatory, market-based approaches for addressing
sea-level rise. However, a number of these non-regulatory tools present advantages that should not
be overlooked, especially when used in conjunction with a system of land use controls relevant for
sea-level rise. The main advantage of non-regulatory tools like the voluntarily-conveyed, rolling
easement is that they are useful when sea level rise forecasts are uncertain. They do not require the
same degree of scientific and technical support as regulatory restrictions. These tools, while novel
today, are likely to become more feasible in the near future. This will happen when the public
becomes more familiar with alternatives to land use regulation and realizes that non-regulatory
alternatives are less litigation-prone and can be more cost-effective than regulation. In the discussion
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that follows, the feasibility of non-regulatory alternatives particularly suited for sea-level rise policy
will be considered in light of Maine law in section D.
B. REGULATORY OPTIONS FOR MAINE'S SEA-LEVEL RESPONSE
Maine, like many other states, already has in place a system of land use control laws designed
to control development in environmentally-sensitive areas and to prevent growth from overtaxing
public infrastructure needed to support communities.4 As described in Chapter Five, one of these
laws, the Natural Resources Protection Act, through the Sand Dune Rules, already takes account of
rising sea level in sand dune systems. That Act does not, however, expressly consider rising sea
level in other coastal wetland or eroding bluff areas. Given this existing body of environmental and
land use control laws and their gaps in coverage, it is likely that Maine's policy makers will wish to
consider adopting several additional regulatory tools that are consciously designed to anticipate the
movement of the shoreline.
Several opportunities exist for strengthening Maine's regulatory controls on land use and
development that would improve the legal framework for dealing with sea-level rise. The purpose
of this chapter is to examine one aspect of the feasibility of these measures—their ability to
withstand legal challenge by property owners. Additional considerations are also important in
determining overall feasibility, including availability of technical resources to support certain
regulations, legislative willingness to adopt additional land use controls measures, and public
understanding and acceptance of such measures. These factors must also be considered before a
final sea-level response strategy can be developed.
In Chapter Five, one measure is described that would protect Maine's valuable and limited sand
beach resources by establishing construction prohibition areas, commonly referred to as "setbacks,"
under the Natural Resources Protection Act and the Mandatory Shoreland Zoning Act. These "no
building" areas would be based upon proj ections of accelerated sea-level rise for some structures and
on historic erosion rates for other structures in a two-tiered system of setbacks. The first tier of
setback lines would apply to smaller structures and would be established using 100 times the historic
annual average erosion rate for a particular beach or beach segment. A setback line calculated on
this basis could also apply to favored coastal uses such as buildings that support commercial water
dependent uses, e.g., shipyards and fishing support facilities.
Larger structures and developments, and certain less-favored uses, e.g., non-water dependent
commercial uses like restaurants and office buildings, would be subject to a setback requirement
reflecting an assumed accelerated rate of sea-level rise, for instance, 3 feet over 100 years. All new
development subject to the Natural Resources Protection Act would also be conditioned on removal
if changes in the shoreline result in its interference with dynamic dune processes.
Both groups of setback lines would be published on maps available to landowners and municipal
officials and would be subject to periodic review and revision as new information improves
predictions of shoreline change.
To protect the irreplaceable wetland resources and their ecological functions along the Maine
coast, Chapter Five suggests steps to provide for the landward migration of salt marshes as the level
of the sea rises. These would include the adoption of measures under the Natural Resources
Chapter Six 6-3 Legal Considerations for Maine's Policy Response
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Protection Act and/or local shoreland zoning ordinances to restrict new development and to phase
out existing development in uplands areas adjacent to protected wetlands that are needed for inland
migration. These measures could take three forms:
an increase in the minimum setback (currently 75 feet) from the upland edge of a
coastal wetland based upon projected changes in shoreline;
• a requirement that applicants for high density development located adj acent to coastal
wetlands prove during site plan review that the site is stable and that the proposed
structures are set back from the wetland's new upland edge that would result from a
projected 100 cm rise in sea level over the next 100 years; and
• a condition on all new development and replacement structures that they be removed
if changes in shoreline result in their interference with natural migration of salt marsh
vegetation or tidal flows of water.
To prevent development on eroding coastal bluffs, Chapter Five suggests these natural features
should be incorporated into the Natural Resources Protection Act and regulations should be adopted
which would parallel the Sand Dune Rules. In addition, or in the alternative, protection under local
shoreland zoning ordinances should be substantially increased. These rules would limit new
development, prevent the construction of bluff stabilization devices designed to protect existing
structures, and would establish a retreat policy in the event of future bluff erosion.
With respect to engineered urban shoreline, stronger land use controls than are currently in place
under state and local laws would help to minimize damage from sea-level rise. The primary action
suggested would restrict building occupancy to uses that require a shorefront location in order to
function, uses that are sometimes referred to as "water dependent." These restrictions are within the
scope of existing zoning and land use controls and would require no special legal considerations if
adopted to address sea-level rise. Such controls would clearly further important state interests and
leave property owners with numerous economically beneficial uses.
The following discussion will focus on the preceding recommendations that may raise more
difficult questions of legal defensibility. It focuses primarily on the measures designed to protect
sand dune systems, wetlands, and eroding bluffs which may face challenges by land owners under
the federal and Maine constitutional provisions prohibiting governmental "taking" of property
through restrictive land use and environmental regulations.
C. POTENTIAL LEGAL CHALLENGES TO THE REGULATORY TOOLS
1. Overview: Due Process and Takings Clause Challenges
As with all land use regulatory measures that restrict the options of landowners, measures
anticipating climate change-induced sea-level rise may be challenged in court. Some owners may
pose what is referred to as a "substantive due process" challenge to the rationale for the restrictions.
They would claim, for instance, that the sea-level rise projections rely on models and possible
scenarios rather than on proven rates of shoreline change on their property, and that their property
use choices should not be limited by these assumptions. Some landowners may also consider the
economic impact of restrictions to be so burdensome or so inconsistent with their expectations that
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they will accept the risks and costs of mounting a takings clause challenge.5 Because of its scarcity
and high demand, coastal property is among the highest value property in the nation. This increases
the likelihood of landowners bringing legal claims, especially for monetary damages under the
takings clause.
State and local land use regulations are very likely to survive the challenge that they lack a valid
public purpose or a substantial basis in fact or scientific evidence. Legislative judgments, such as
the decision to include eroding bluffs under the Natural Resources Protection Act, are afforded a
presumption of validity by reviewing courts. The challenger/ landowner must prove to the court that
the legislation or regulations are invalid. A Maine court will uphold the regulations unless the
landowner proves that the laws do not promote the general welfare, use means that are not
appropriate to achieve these public goals, or are being exercised in an arbitrary or capricious
manner.6 The court will presume that the regulations are valid; the challenger must prove that the
regulations fail to meet at least one of these three standards.
Courts in Maine consider protection of environmental quality and preventing harm to life and
property from coastal storms a valid objective of the police (legislative) power.7 Likewise, Maine
courts have found that restricting development in environmentally sensitive areas such as wetlands
is an appropriate means of achieving these legislative objectives.8 The courts are likely to find that
additional regulations of the type described above are sufficiently based in fact to be upheld against
a substantive due process challenge. This will be so as long as the regulations are based on some
degree of scientific evidence, including, e.g., models and projections of sea-level rise that are
reasonably credible, even if there are alternative interpretations. Similarly, if the regulations are not
discriminatory and treat similar property in a similar manner, the courts will not find them either
arbitrary or capricious.
If a court were to conclude, however, that one of these tests is not met, it would strike down or
invalidate the particular regulation. In that event, the legislature, town council or selectmen would
be free to enact a modified or alternative measure that would meet these tests and achieve the same
ends. The outcome would be different, however, if the landowner concedes that the regulation is a
valid exercise of the police power, but claims that it deprives her of all or substantially all of her
property's value. If she can convince the court that the regulation constitutes a taking without
compensation, the court will not invalidate the regulation, but will require the regulatory body to
compensate the landowner for the appropriate measure of economic damage she sustained.
There are several ways in which regulators can design their laws in a manner that is sensitive to
the interests of landowners but which can achieve the public policy objectives. Before describing
these, it is necessary to set out the basic legal standards for regulatory takings under federal and
Maine law.
2. Takings Clause Principles
A landowner's challenge to Maine's sea-level rise regulations could be brought under either the
federal or state constitutional provision protecting private property against governmental takings
without compensation. While the tests the courts will use to analyze the claim differ slightly, the
fundamental considerations are the same: a largely factual inquiry into the purpose of the regulation
and the effect it has on the particular property in question.
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
a. Federal Takings Law
The Fifth Amendment to the United States Constitution provides that government bodies shall
not take "private property... for public use without just compensation. "9 Although the original intent
of the provision was to insure private property against physical seizure by the government, since the
1920s, the U.S. Supreme Court has held that the provision can be invoked against government
regulations that effectively take private property by eliminating most of its value to the owner
through restrictions on its uses. In his famous opinion in Pennsylvania Coal Co. v. Mahon™ Justice
Holmes observed that while government could not function if it could not impose some constraints
on private action, "if [a] regulation goes too far, it will be recognized as a taking."11
While the Supreme Court has consistently held that "no precise rule determines when property
has been taken [by government regulation],"12 the Court has generally recognized that a regulatory
taking is effected where a land use regulation "does not substantially advance legitimate state
interests, ... or denies an owner economically viable use of his land."13 In cases where the
enactment's legitimate state purpose is not seriously questioned, the Court's analysis has focused on
the "economic impact of the regulation on the claimant and ... the extent to which the regulation has
interfered with investment-backed expectations."14
The Supreme Court has developed a multi-factored balancing test, which courts are to use on a
case-by-case basis, to determine when a regulatory burden is so significant that the affected property
owner is entitled to compensation. The courts will look first at the character of the governmental
action and will ask whether the regulation advances a legitimate state interest. Under this first test,
the courts will look to see if the nature of the government action serves to cause a physical invasion
of the private property, by either the imposition of a structure not owned by the property's owner or
by allowing the general public to have access to the property. If a physical invasion is caused, the
regulation will be considered a takmgper se, and the courts will not look beyond that fact to consider
the impact of that invasion upon the property's value.
If the regulation does not cause an invasion, and serves a legitimate state interest, the courts will
then look at the extent to which the regulation affects the landowner's economic uses of the property.
Under this standard, courts often look at the economic impact in two ways. They may consider the
direct impact of the regulation on the market value of the property. However, regulations causing
very significant reductions in market value have been sustained, so this test is not determinative of
a taking, especially where the prohibited use is a public nuisance. Also, courts may consider the
extent to which the restriction interferes with the owner's investment-backed expectations. This
entails looking at the present uses of the property and whether the owner is enj oying some economic
return on the property despite the restriction.
In essence the multi-factored test seeks to balance the public benefit of the regulation against the
private costs that it imposes. To make this judgment, courts look at the specific facts of the case,
including the rationale for the regulation and the circumstances of the property owner and similarly
situated owners.
Courts, however, are not required to engage in this balancing process in all cases. In recent years,
the Supreme Court has developed two categorical standards for finding a regulatory taking. If the
regulation falls within either of these two categories, it will constitute a taking per se and the
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property owner will be entitled to compensation regardless of the degree of the economic impact or
the nature of the governmental interest served. The court will not balance the harm the regulation
sought to prevent against the effect on the property owner's interests to determine whether the
compensation is due.
As mentioned above, the first categorical standard requires compensation in any circumstance
where the effect of the regulation is to require the physical occupation of any portion of the owner's
property by someone other than the owner, or by some structure or equipment not owned by the
property owner, even if the economic impact of such occupation is minimal or zero.
The second categorical taking is even more recent in origin and is particularly relevant to sea-
level rise related regulation because of the facts of the case in which the rule was announced. This
test states that when the effect of the regulation is the total elimination of all economic value of the
property, the owner is entitled to compensation for that loss regardless of the public purpose the
restriction sought to achieve. Even if the purpose is to prevent a serious public harm, this will not
shield such "total takings" restrictions from the compensation requirement. This second category
of per se takings, however, has exceptions, and courts will not order compensation to the land owner
when these conditions triggering the exceptions are present. Unfortunately, when these conditions
will be found is unclear, as the Supreme Court has only discussed the second category of per se
takings in one recent case, and in that case strong dissenting opinions challenged the validity of the
per se rule and questioned the exceptions.
The "total takings" categorical rule was announced in a case challenging a state's beach erosion
setback lines which were enacted as part of the state's coastal management program. In Lucas v.
South Carolina Coastal Council,15 the U.S. Supreme Court held that when a land use regulation
prohibits all economically beneficial use of the land, the takings clause requires compensation to the
owner unless the regulation merely codifies restrictions inherent in the property or in the state's
common law of nuisance.
While this rule is relatively easy to state, the decision in which it was announced provides little
guidance on how to determine when a land use regulation strips a property of all economic value.
When Mr. Lucas first brought his challenge to South Carolina's setback law, the state trial court
agreed with his claim that the property had zero remaining value. For procedural reasons the U.S.
Supreme Court assumed that this factual finding of a "total taking" was correct.16 As a consequence,
the Supreme Court operated on the assumption that the beachfront setback regulation itself had
reduced the property's value to zero.
The Supreme Court stated, however, that there would be no taking if the state's property or
nuisance law already imposed a restriction on the use of the property that is comparable to that
brought about by the challenged regulation. Unfortunately, the Lucas case does not tell us what
principles of state property or nuisance law would constitute exceptions to the total takings rule.
When the case was remanded to the state supreme court for consideration of whether this exception
applied, the court merely found, without explication, that no basis existed in South Carolina's
common law to deny Mr. Lucas the right to build on his land. It then remanded the case to the trial
court for a determination of the monetary damages to which Mr. Lucas was entitled.17
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The meaning of the Lucas case is further complicated by the fact that the Court expressed
different opinions on the new per se rule and on the meaning of the exceptions. In his concurring
opinion, for example, Justice Kennedy stated that "[c]oastal property may present such unique
concerns for a fragile land system that the State can go further in regulating its development and use
than the common law of nuisance might otherwise permit."18
In light of the current Supreme Court's standards and views on the doctrine, the outcome of a
takings claim under the federal Constitution will be hard to predict, especially where the regulation
can be seen as depriving all uses of land. The implications of this uncertainty for a sea-level rise
strategy will be discussed below, after the Maine law on takings is reviewed.
b. Maine Takings Law
Maine has a constitutional provision very similar to the Fifth Amendment of the U.S.
Constitution. Article I, Section 6 provides that "[p]rivate property shall not be taken for public uses
without just compensation; nor unless the public exigencies require it."19 The Maine Law Court,
much like the U.S. Supreme Court, has recognized that takings claims are subject to no set rule, but
rather must be approached as a "factual inquiry into the substantiality of the diminution in value of
the property involved."20 Generally, a land use regulation will effect a taking under the Maine
Constitution where the regulation renders the property in question "substantially useless," or where:
it deprives an owner of one of its essential attributes, destroys its value, restricts or interrupts
its common necessary, or profitable use, hampers the owners in the application of its use to
the purpose of trade, or imposes conditions upon the right to hold or use it and thereby
seriously impairs its value.21
Stated succinctly," [t]he question is whether the right in question constitutes" a fundamental attribute
of ownership' such that its extinguishment would render the property substantially useless."22
At the time of this report, the Maine courts have not had an opportunity to apply the total takings
rule to a land use regulation case, so it is not clear if and how the Lucas decision will affect Maine's
takings law. In Maine's own beachfront regulation cases, however, the Maine Supreme Court has
shown a willingness to define broadly the economically beneficial uses that are open to property
owners and has recognized the high economic value of land along the Maine coast, even if it cannot
be built upon under the law.
3. Applications of Takings Clause Principles to Potential Sea-Level Rise
Regulations
Are any of the regulatory measures recommended in Chapter Five for Maine's sea level response
strategy vulnerable to successful regulatory takings challenges by landowners? As the following will
demonstrate, despite the uncertainty that recent Supreme Court decisions have caused, contemporary
takings law does not pose a high risk that state regulatory measures will be invalidated or found to
require compensation.
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a. Coastal Construction Setbacks
Construction setbacks and other development prohibitions stand a good chance of surviving legal
challenges if they are carefully designed with a view toward current takings standards, including both
the traditional balancing test and the categorical "total takings" rule.
Even if the construction setbacks or other development restrictions ban all new construction
outright, the government will have several defenses against a takings challenge. For example, in
most cases where setbacks are imposed, the restrictions will not deprive the landowner of all
economically viable use of the parcel, but will only affect the shoreside portion. The government
should be able to demonstrate that other valuable uses of land remain, or that the owner has already
derived significant benefit from her ownership, either through subdivision and sale or through
development elsewhere on the property.
Similarly, setback requirements and related prohibitions do not cause a permanent physical
invasion of the property by other individuals. It is also unlikely that a court would find that similar
prohibitions on holding back the sea with bulkheads or seawalls would result in a compensable
physical invasion of the parcel.
Finally, the government can defeat a takings challenge if it can establish that the coastal
protection regulations do not interfere with the owner's "reasonable investment-backed expecta-
tions." This may be done, for example, by emphasizing the dynamic nature of coastal property
boundaries, which reflect the realities of natural cycles of accretion and erosion, and which may
render the property unsuitable for the construction of a permanent residential structure. An argument
may also be made that the regulations do not effect a taking because they merely serve to codify
existing common law land use restrictions embodied in the principle known as the public trust
doctrine. Thus, the regulations did not deprive the owner of a pre-existing, lawful use of her
property.
Although the courts are likely to uphold the construction setbacks and other development
prohibitions that ban new construction in identified hazard areas, it is impossible to predict this with
certainty because the takings tests involve considerations of facts peculiar to the individual case.
Under Maine law, a landowner claiming a regulatory taking has the burden of proving the
absence of residual beneficial uses of the regulated land before the court will find that a taking has
occurred.23 Arguably, a shorefront owner, although precluded from constructing a permanent
residential structure, retains the ability to make valuable uses of her property in the face of the coastal
protection regulations. She may, for instance, use her lot and the adjoining intertidal zone for
sunbathing, picnicking, camping, and other nonresidential purposes. Indeed, the Maine Law Court,
in Bell v. Town of Wells24 recognized the right of shorefront landowners to enjoy these uses of the
adj acent intertidal zone to the exclusion of the general public.25 As it would appear that challenging
property owners would in fact retain beneficial use in their land and the adjoining intertidal zone
even when the new coastal construction regulations were applied, the landowners would have a
difficult time indeed establishing a regulatory taking under the "substantially useless" rule.
In fact, past Law Court decisions lend considerable weight to this argument. In Hall v. Board
ofEnvt'l Protection,26 for instance, the court reviewed a decision of the Superior Court holding that
the landowners had suffered a regulatory taking of their shorefront property under the State's then-
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
current version of the " Sand Dune Law. "27 The trial court had found that the Board of Environmental
Protection's (BEP) denial of a residential construction permit constituted a taking under the Maine
and United States constitutions because the denial deprived the landowners of the right to put their
land to its "highest and best use," which was, the court noted, as a site "for a single-family residence
on a year-round basis."28
The Law Court rejected the lower court's analysis, holding that, even in the face of the BEP
denial, the landowners retained sufficient beneficial uses of their land to allow the State law to
survive the takings challenge. Specifically, the landowners were still able to use the property during
the summer months by living in a motorized camper connected to utilities, to lease it for seasonal
trailer use by others, or sell it for a substantial price as had many of the landowners' neighbors.29
If it can be shown that landowners affected by the coastal protection setbacks would still be able
to make temporary, seasonal residential use of their shorefront properties, or would be able to sell
them on the open market for "substantial sums," the regulations are likely to survive a takings
challenge under the rationale of Hall. Thus, Maine may be able to prohibit all permanent residential
development on shorefronts that are subject to rising sea level and still defeat a taking challenge
which alleges absence of residual beneficial uses.
Another principle of Maine property law may influence a court's determination of what
constitutes a shorefront property owner's "reasonable investment-backed expectations." Since 1884,
it has been clear that seaward property lines of shorefront landowners move with the water line as
sand accretes and erodes at the shoreline.30 Oceanfront owners are on constructive notice that their
property could be completely consumed by one of these natural processes. Because they are
presumed to know of this risk, it is at least arguable that the challenging landowners had no reason
to assume they could safely construct permanent residential structures on the shorefront, or that land
of such ephemeral quality is suitable for these purposes.
There is no guarantee, however, that this second argument will allow Maine successfully to avoid
a regulatory takings claim in every case. Although it is undeniably true that shorefront property is
held subject to the effect of natural eroding forces (or rising sea level), it seems clear that a
landowner may still hold some "reasonable investment-backed expectation" to develop the land in
the face of this risk, particularly where the risk of erosion has been historically minimal. It may be
accurate to say that a landowner holds no "reasonable expectation" to develop shorefront property
for permanent residential occupation where historical data indicates the lot in question succumbs to
erosion on a frequent basis. It may be difficult or impossible, however, to sustain such an argument
where the lot has historically suffered only minor shorefront erosion over the course of several
decades. Whether a particular lot owner has a "reasonable expectation" to develop the land for
permanent residential use will thus depend upon the individual facts and circumstances surrounding
the particular parcel in question.
A landowner's expectations concerning use of her property are probably not reasonable unless
they are grounded in knowledge of historic erosion rates. However, at this time, due to scientific
uncertainty and lack of public education about the possible impacts of accelerated sea level rise, it
is probably unsupportable to expect landowners to have internalized global climate change-related
sea-level rise projections into the "reasonable expectations" for their property. In other words, the
rules of the game have not yet changed, although Maine's current Sand Dune Rules embody a
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consideration of the location of the shoreline in 100 years, and the public is expected to be aware of
these considerations.
Partially for these reasons of public awareness and expectations, Maine may wish to adopt two
different setback requirements, one based on historic erosion rates and the other upon predicted,
accelerated sea-level rise. The historic rate would be applicable to low intensity and publicly favored
shoreline uses. The accelerated rate would be applicable to high-intensity and disfavored shoreline
uses. All would be subject to retreat requirements.
The establishment of two different setback requirements and their application to different kinds
of structures based upon the expected useful life and ease of mobility should not give rise to any
unfairness claims. Both bases for setbacks can be supported by technical evidence. Maps are likely
to be available on which the different shoreline positions can be calculated. Moreover, the
differential treatment of structures based on mobility and use preferences is not arbitrary and is
clearly related to the purpose of the regulation which is to allow some land use while providing
protection for the landward movement of the shoreline.
In summary, the courts in Maine have already shown a willingness to sustain coastal construction
restrictions under existing laws and regulations and are likely to follow their own precedents in
subsequent cases. In addition, the following points should be emphasized respecting coastal setback
lines:
1) setbacks which prohibit the construction of permanent residences outright based on
evidence of threats to public health and safety are defensible, but their defensibility
becomes more tenuous as the threat of harm becomes more remote or the evidence
of harm less certain;
2) Maine's response strategy should prohibit new construction outright where it is likely
to be affected by historic erosion rates, considering the useful life of the structure;
3) in areas not expected to be affected by the continuation of historic erosion rates
within 100 years, but proj ected to be affected by sea-level rise, Maine should regulate
to allow only low-intensity, temporary uses, so as to leave owners with some
economically beneficial uses; and
4) Maine can couple the partial restriction to low-intensity uses with a retreat
requirement, to remove all structures in the event of rising sea level. This require-
ment is analyzed more fully in a later section.
b. Rebuilding Prohibitions for Existing Structures
Because much of the "soft" coast of Maine is already developed, at least that portion adjacent to
sand beaches, any comprehensive retreat strategy will have to include restrictions on the rebuilding
of existing structures as they are damaged by storms and high tides. Rebuilding prohibitions are not
uncommon in state beach management laws; these laws, for example, impose a ban once the
structure is damaged by 50% or more. Rebuilding bans are used in conjunction with beachfront
construction setback regulations.
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
South Carolina's Beachfront Management Act of 1988 included a rebuilding ban for existing
structures located between the baseline (the crest of the primary dune) and the setback line, which
the Act required to be located landward of the baseline to a distance which is forty times the average
annual erosion rate.31 The Act stated that any habitable structure "destroyed beyond repair" by
natural causes or fire could not be rebuilt seaward of the baseline or between the baseline and the
erosion setback line. South Carolina administrative regulations defined "destroyed beyond repair"
to mean "more than two thirds (66 2/3%) of the building components making up the structure are
damaged to such a degree that replacement is required in order for the structure to be habitable,
functional or sound."32 The law also restricted the construction of additions to existing structures
or the installation of recreational amenities.
A number of beachfront landowners challenged these restrictions in South Carolina, claiming
they amounted, on their face, to an unlawful taking of their property without compensation and a
violation of due process. The federal Court of Appeals for the Fourth Circuit, however, disagreed.
It held that the restriction served a legitimate state interest and bore a substantial relation to the Act's
goals of protecting the state's beach/dune system. In addition, the restriction did not deprive the
owners of economically viable use of their property. South Carolina's regulations allowed owners
to continue the existing use of their property and dwellings in the same manner as they had prior to
their enactment. The court rejected the owners' argument that the Act had diminished the market
value of their property and had therefore caused a taking. It noted that even substantial market value
reductions do not suffice to establish a taking. The owners were "significantly diminished only in
their discretion to rebuild a structure in the speculative event of its virtually complete destruction. "33
c. Permit Conditions Requiring Removal or Barring Future Construction of
Protective Devices
Another potential measure that is contingent upon the occurence of a future event (e.g., a storm
or shoreline retreat) would attach to state or local coastal land use permits special conditions
requiring either removal of structures in the event of a rise in sea level or banning the construction
of bulkheads. This approach offers certain advantages with respect to potential regulatory takings
challenges. Removal conditions allow landowners to use or develop their property in the manner
in which they desire, subject only to the contingency that a rise in sea level will necessitate the
structure's removal. The regulations unquestionably afford the landowner a productive and
beneficial use of the land. Because the regulation does not prohibit, for example, construction of a
residential structure, its constitutional validity does not depend on a court's willingness to find, as
in the Hall case, that other valuable uses of the property remain despite the ban on construction.
Maine's Sand Dune Rules already incorporate provisions which bar future bulkhead construction
and require removal of new structures in the event of substantial damage or interference with
dynamic sand dune systems. Similar regulations regulations should be extended to coastal wetlands
and eroding bluffs.
Regulators should limit the obj ective of such permit conditions to structure removal or banning
seawalls, to avoid complicating any legal challenge that may ensue. They may be tempted to modify
the conditions in an effort to preserve public access and use of the shoreline and adjacent tidelands.
While this is a legitimate goal, it will subject the conditions to a higher degree of legal scrutiny that
increases the uncertainty that the measures will be sustained. This higher degree of constitutional
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scrutiny would be triggered if, for example, landowners were allowed to construct seawalls if they
agree to convey an easement for public access along the wall or adjacent upland area.
In a 1987 decision, the U.S. Supreme Court identified special criteria for regulatory conditions
on coastal construction where the effect of the condition is to require the permanent physical
invasion of the property by the general public or government or by structures or equipment, owned
by someone other than the land owner. Such conditions must be designed to alleviate very directly
the burdens which that development poses on the environment or on other public interests. If the
conditions seems only marginally related to the project's impacts, the condition will not appear to
"substantially advance legitimate state interests" and the court will require compensation for the
owner.
This close fit test is referred to as the "nexus" requirement. It stems from the U.S. Supreme
Court's decision in Nollan v. California Coastal Comm'n,34 where the Commission had required
property owners to grant a public easement on the dry sand portion of their lot in exchange for
permission to rebuild and expand the dimensions of their house. Because the public easement did
not mitigate the adverse visual impacts of the house, impacts that would have justified denial of the
construction permit, the Supreme Court assumed that the agency was trying to expropriate the
owner's right to exclude people from their beach without having to pay for it. The Court suggested,
however, that outright denial of the permit would not have been unreasonable if the grounds had
been the house's adverse visual impact on public views of the ocean from the public road landward
of the house.
In a 1994 decision applying the Nollan rule, the Supreme Court struck down municipal permit
conditions designed to prevent construction in a flood-prone area. In Dolan v. City ofTigard, the
conditions required the landowner to dedicate a part of her parcel as a public greenway for
stormwater drainage, to mitigate the impact of her proposed expansion of her commercial
development. Part of the dedicated greenway would be used for a pedestrian and bicycle pathway.
The Supreme Court found that the "essential nexus" existed between the permit condition and
the state interests sought to be served. The constitutional problem arose because the city had not
demonstrated that the dedications related specifically to the degree of impact on stormwater flooding
and increased traffic that the proposed land use expansion would have. The Court stated that "[n]o
precise mathematical calculation is required, but the city must make some sort of individualized
determination that the required dedication is related both in nature and extent to the impact of the
proposed development."35
It is unlikely that the Nollan/Dolan test would arise in a challenge to coastal permit conditions
that merely require moving structures in the event of rising sea level, but if it did, such conditions
would be likely to be upheld. First, a permit for development which would lie in the path of
projected change in shoreline position due to changing sea level could be denied outright and such
denial, as discussed above, would likely survive a takings challenge. If, instead of denial, the
structure is allowed with the condition that it be removed under certain circumstances, the requisite
close fit is satisfied between the impacts that could justify denial and the condition.
Allowing the owner to undertake the development on the condition that it be removed provides
flexibility in the event that sea-level rise predictions are revised downward. The condition is directly
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
related to the adverse impact the development would have on the ability of wetland vegetation to
migrate in the event of rising sea level. It does not attempt to mitigate this adverse effect by an
unrelated condition.36
Such retreat conditions may not in fact have to meet the Nollan/Dolan nexus test. The Nollan
and Dolan decisions hold that conditions on land use that restrict an owner's right to exclude others
must satisfy a particularly demanding standard of reasonableness, beyond the "rational basis" that
is normally sufficient to meet the requirements of due process and equal protection.37 It is important
to keep in mind that the Nollan holding involved a perceived physical invasion by the general public
through the public access condition, which the Supreme Court has held is almost always a
compensable taking because the right to exclude is considered a fundamental attribute of land
ownership.
Regulatory conditions that restrict or eliminate other aspects of ownership would not necessarily
be subject to similar scrutiny or presumption of an intent to expropriate private property rights.
Courts have not yet held, for example, that the bundle of ownership rights includes a right to protect
property from erosion and other natural forces, especially where to do so will harm public resources
or adjoining property.38
Although the permit retreat conditions are very likely to be upheld if challenged in court, other
considerations may counsel for extreme caution if a strategy intends to rely on permit conditions to
accomplish the intended protections. Any conditional removal is likely to occur in the distant future,
and there is no guarantee that future legislatures or agencies will have the political will to maintain
the restriction. It would therefore be more effective if the conditions took the form of deed
restrictions or covenants that would run with the land. Given that the political pressure to amend
a regulatory restriction if sea-level rise occurs is almost a certainty and future legislative action is
unpredictable, the benefits in durability of a deed restriction or covenant approach outweigh any
slightly increased chance of judicial invalidation. Again, it is still most likely that the restriction
would meet a nexus test because of the adverse effect that the proscribed bulkheads and structures
would have on migrating shoreline resources.
d. The Total Takings Rule and "Background" Principles of Maine Shoreline
Property Law Including the Public Trust Doctrine
In Lucas v. South Carolina Coastal Council;19 the Supreme Court suggests that certain state
property law principles may so limit an owner's property as to preclude any basis for a regulatory
takings challenge. In order to properly evaluate the magnitude of the economic impact of a
regulation on a landowner's property, the Court suggests it is necessary to consider the extent to
which the state's common law operates to limit the landowner's use of her land. If the legislation
achieves nothing more than codification of a pre-existing, common law land use restriction, no
taking may be found. The landowner occupies the same economic position with regard to her land
both before and after the challenged legislation was enacted. The regulation has had no direct impact
on the owner's reasonable investment-backed expectations.40 If the legislation, however, reaches
beyond the common law and places restrictions on land use that render the owner's property
substantially useless, a regulatory taking will be found.
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
The question is whether the regulatory measures under consideration to anticipate rising sea level
and migrating wetlands merely codify existing limitations on shoreline property use. It is difficult
to state with any certainty whether existing Maine property law concepts would fall within this
category. The Supreme Court's Lucas opinion illustrates this exception through hypothetical
examples of potentially valid regulations but provides no definitive tests, relying instead on the
common law concept of a nuisance. Nuisance, however, is a concept which the law defines only in
general terms. Courts have to inquire into the specific facts and circumstances of a given land use,
and then balance its utility against any harm caused to determine whether it is a nuisance under the
law.
Given the examples the Court used in Lucas, however, it is possible that the regulatory measures
would be considered as merely codifying concepts in Maine law concerning coastal property rights,
both private and public.41 An examination of these principles follows.
Coastal lands fall primarily into three distinct geographical areas that are defined by the action
of the tides. Each of these areas has a different legal character in Maine and in all coastal states. The
lands that are below the mean low tide line, and thus are continuously under sea water, are owned
by the State.42 These lands are called the submerged lands. Above the low tide line but below the
mean high tide line, the area intermittently submerged by the daily tides is known as the foreshore
or intertidal zone. In most American states, this area is also owned by the state and held in trust for
the benefit of the public, along with the submerged lands. This rule of public ownership and use
rights is referred to as the "public trust doctrine."
Above the mean high tide line, the land is subj ect to full private ownership, in most states. Some
states have recognized public use rights or easements above the mean high tide line, sometimes to
the line of vegetation above the mark of the high tide.43 The mean high tide line, however, is not the
division between public and private ownership in the State of Maine. Here, the English common law
of tideland ownership, which recognized sovereign ownership of the foreshore and submerged lands,
was changed by the colonists in Massachusetts. The Colonial Ordinance of 1641-48 granted to the
owners of the adjacent upland private ownership rights to the foreshore, thus allowing private
ownership to extend to the low tide line, subj ect to reserved public use rights of fishing, fowling, and
navigation.44
With ownership rights defined on the basis of tide lines, ownership of shorefront property carries
with it some inherent risks. If the ocean moves inland, as in the case of sea-level rise or land
subsidence, the line of the tides moves inland as well. Under the common law in most states, the
boundary between public and private property also moves with the tide line. It may happen that the
shift causes the whole of what was once an owner's tract to now fall below whichever of the tide
lines that defines the area of public ownership. This is known as the doctrine of erosion, and it holds
that title rests with the state once the relevant tide line moves inland.45 Title does not return to the
private owner in the event that the land reemerges from the ocean.
On the other hand, private owners can benefit from shifts in the shoreline caused by the build-up
of sand or soil along the shore. The doctrine of accretion holds that new land that builds up below
the tide line which had previously defined private ownership belongs to the private owner.46 Some
states have modified this rule by retaining public ownership of accretions that are the result of the
property owner's actions, such as through the construction of jetties or groins. In Massachusetts,
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
the Supreme Judicial Court has ruled that accretions belong to the littoral owner, even when the
result of artificial causes, as long as they were not caused by the owner herself. If the accretions are
created by government-built structures to aid navigation (e.g., by jetties), the accretions belong to
the public rather than the littoral owner.47 The Maine Law Court has not ruled on this question.
Most states recognize the public's right to use the wet sand area below the mean high tide line,
either by virtue of public ownership or through public rights recognized under various common law
doctrines, like the one adopted into Maine's law based upon the Massachusetts Colonial Ordinance.
Several states also recognize the public's right to use dry sand areas above the high tide line. In
these states, courts and legislatures have ruled that the public acquired these use rights through
common law doctrines of prescription (similar to adverse possession or "squatters" rights), implied
dedication to the public by the present or prior owner, or custom. In at least one state, the courts
have interpreted the public trust doctrine, the principle of public ownership of lands covered by the
tides, to include a public right to use the sand beach above the high tide line.48 In states where these
public rights have been acquired or recognized, the law characterizes these rights as migratory or
dynamic, moving in or out as the shoreline erodes or accretes. Thus, over the years, the common law
has evolved to define significant public rights in the shoreline. These rights are usually protected
and supplemented by environmental and land use restrictions enacted under the police power as well
as governmental programs designed to preserve the sand beaches and shorelines where the public
rights apply.49
The common law also recognizes that owners of property bordered by navigable waters have
certain property rights inherent in the land's location. Generally, these rights include the rights of
ingress and egress over the submerged lands to the navigable channel. Similarly, the law recognizes
the littoral owner's right to construct a pier or wharf, subject to police power regulations. Littoral
property rights may also include a priority right to use the resources of the intertidal zone or the
space overlying the submerged lands fronting on the littoral property to moor vessels. The littoral
owner's rights do not include a right to build permanent structures that would block the public's use
rights in the foreshore. Nor do they include the right to build a groin or jetty, if to do so would
deprive a neighboring property of the natural movement and build-up of sand.50 Also, state police
power or public trust-based regulations can preclude uses of the public submerged lands.51 The
littoral owner does not have a property right to build protective structures in front of her property to
control erosion.52
Moreover, the special rights or privileges that come with littoral property ownership are qualified
by the recognition of a superior right of the public to use the navigational capacity of the waters.53
This public navigational servitude on all navigable waters derives from the Commerce Clause of the
U.S. Constitution.54 Thus, a littoral owner may lose her ability to gain access to the navigable
channel from her property when the government modifies the location of the channel, builds a jetty,
or makes other improvements related to public navigation. The law holds that the navigational
servitude exempts such government actions from the just compensation requirement of the Fifth
Amendment's takings clause. The theory is that the littoral owner's title never included a right in
perpetuity to access the navigable channel.55
While these rules and regulations restrain property owners from making uses injurious to the
public interest, it is likely that when sea-level rise becomes a reality and begins to manifest itself in
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increased coastal storms and erosion, pressure will be brought by homeowners to relax existing laws,
regulations, or zoning restrictions, e.g., the prohibition of bulkheads. Litigation may challenge the
reasonableness of development conditions that prevent shoreline armoring, requiring a determination
that the restrictions substantially advance a legitimate state purpose. The restrictions could be
overturned by the courts or by the legislative bodies, unless government officials prepare the public
and property owners through educational efforts for the eventual retreat in the face of rising sea level.
In Bell v. Town of Wells,56 the Law Court held that the public in Maine has an interest, in the
nature of a "public easement," in lands lying beneath navigable tidal waters for the purposes of
fishing, fowling, and navigation.57 Although not using the term "public trust doctrine," the Law
Court recognized that a set of public rights exists in the foreshore, very similar in nature to what
other courts, including the U.S. Supreme Court, have described as the public trust doctrine.58
Arguably, erosion setback lines, retreat or removal conditions, or other coastal protection measures
enacted in anticipation of rising sea level would operate to prevent shorefront landowners from
harming the public easement by preventing erosion and degradation of the shoreline, and hence
merely reiterate the preexisting common law principle that no one may act to the detriment of the
public trust. Under the Lucas analysis, then, no taking would be effected by the new regulations
since the new rules will not cause shorefront property owners to suffer any "new" land use
restrictions beyond what is imposed by existing state property and nuisance law principles.
The Maine Law Court, however, has yet to consider this question or suggest in a specific case
that the public trust doctrine or public use easement can be invoked by the State to preclude land use
activities occurring above the mean high tide line. Maine, like many other coastal states, has always
referred to the mean high tide line as the landward boundary of the public easement.59 Moreover,
Maine's Law Court has indicated that the public trust doctrine or easement may be used only to
protect the public's use of the intertidal zone for fishing, fowling, and navigation.60 The Law Court
has not shown an inclination to extend the doctrine to cover upland land use activities that do not
actively interfere with one of these three public rights.61 Thus, Maine will be able to avoid takings
challenges to the coastal regulations under this legal theory only to the extent the State can
demonstrate that the landowner's proposed permanent residential construction, either on the margin
of a wetland, on an eroding coastal bluff, or on a sand dune area would interfere with the public's use
of the intertidal zone for fishing, fowling, and navigation.
It would seem necessary, therefore, for Maine to establish in the course of permit proceedings
or in conjunction with the promulgation of new coastal regulations that the intertidal zone is likely
to shift landward within a 40-50 year period and that the prohibited construction would interfere with
this landward migration.62
Given the uneven treatment the public trust doctrine has received in the Maine courts in the last
decade,63 the question arises whether sea-level rise strategies that depend upon the public trust
doctrine are feasible in Maine. Would, for example, the Law Court find that the reserved public
rights move inland with rising sea level? It probably would, following its case law concerning the
doctrines of accretion and erosion. But whether the migratory nature of the reserved rights would
serve as a basis for restrictions on building structures on land that is now dry is an open question.
The courts in Maine, however, as previously noted, have shown an inclination to uphold significant
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building restrictions in shoreland, wetlands, and sand dune areas under the Mandatory Shoreland
Zoning Act and the Natural Resources Protection Act.64
The idea of a mobile public easement is illustrated in the Texas Open Beaches Act,65 which
serves to codify the common law public recreational use easement in dry sand beaches above the
mean high tide line and below the line of vegetation. In a recent decision, a federal district court
rejected a takings clause challenge to a provision of the Texas law which enjoins property owners
from interfering with public use rights where the shoreline has migrated inland as a result of coastal
erosion.66 The court concluded, however, that the landward moving easement did not require the
landowner to remove pre-existing structures that now find themselves below the line of vegetation.
A recent Massachusetts court ruling suggests that the public trust doctrine may have relevance
to the takings issue and restrictions on coastal property. In 1988, several oceanfront property owners
in Chatham, Massachusetts lost their homes when a winter storm broke through the barrier beach
in front of their property. Regulations under the Massachusetts Wetlands Protection Act67 had
prohibited their construction of a stone revetment. Some homeowners brought suit against the
Commonwealth, claiming that denial of the revetment license was an unconstitutional taking of their
property. They sought several million dollars in damages.
Under the Massachusetts wetlands law, any dredging, filling, removing, or alteration of either
"coastal banks" or "coastal dunes" is prohibited if it interferes with the ability of these land
formations to perform their flood control and storm damage prevention functions.68 Construction
of stone revetments on dunes is prohibited unless it is determined that the dune in question is not
significant to storm damage protection, flood control, or protection of wildlife habitat. Revetments
may be built on coastal banks, if built to protect buildings constructed before August 10, 1978, if
absolutely necessary, and if they minimize any adverse environmental impact.69 Also, the
Commissioner of the Department of Environmental Quality Engineering (now called the Department
of Environmental Protection) may waive such regulatory restriction after an adjudicatory hearing,
if "necessary to avoid [a restriction which] constitute[s] an unconstitutional taking without
compensation" and if other conditions are met.70
The Massachusetts supreme court recently ruled that the Chatham homeowners were entitled to
a trial on their takings claim against the Commonwealth.71 The superior court had dismissed the
claim without consideration. Before an appeal of this dismissal was heard, an intermediate court of
appeals also found that the landowners were entitled to a trial on the takings claim. In comments
directed at the trial court, the court of appeals identified several factors relevant to the question of
a takings, including the possible relevance of the public trust doctrine:
... the facts as developed at trial might establish that the coastal areas in question are
impressed with a public trust (citations omitted). If so, the plaintiffs, from the outset, have
had only qualified rights to their shoreland and have no reasonable investment-backed
expectations under which to mount a takings challenge....72
This language indicates that the public trust doctrine could be a background principle of law that
could preclude finding a taking even if all economic value is lost by virtue of the regulation, under
the exception to the per se total takings rule announced by the majority opinion in the Lucas
decision.
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While the Massachusetts supreme court agreed that the landowners were entitled to a trial on the
merits, it said nothing about the potential application of the public trust doctrine. It did say,
however, that the Lucas case would not help resolve the Chatham case due to significant differences
in the facts. First, the Lucas case did not involve any administrative proceedings. Second, the total
loss was due to natural forces while the administrative proceedings were pending, and the
landowners had alleged no dilatory agency conduct. In the court's view, the Chatham case was
distinguishable from Lucas because the Massachusetts regulation by itself did not render the property
valueless, and because it squarely raised the question whether government may restrict particular
uses of property that may adversely affect other owners and the state.73
Recent U.S. Supreme Court decisions applying the takings clause to state coastal regulations
have not considered directly the relevance of the public trust doctrine. In Nollan v. California
Coastal Comm'n74 discussed above, the Supreme Court majority did not consider any arguments
based upon the California public trust doctrine. Justice Brennan's dissent, however, found the
doctrine to have an important bearing on the analysis. He stated that "[t]he Court's insistence on a
precise fit between the forms of burden and condition on each individual parcel along the California
coast would penalize the Commission for its flexibility [in balancing private development with
preserving public shoreline access], hampering the ability to fulfill its public trust mandate. "75 He
went on to argue, inter alia, that the status of tidelands under state law is relevant to whether a
property owner's investment-backed expectations are affected.76
As in Nollan, the South Carolina Supreme Court in Lucas v. South Carolina Coastal Council did
not hear arguments based upon the public trust doctrine, nor apparently on any of the special
principles of property law that help to define public and private rights in coastal lands and waters.
Thus, it is very difficult to say whether principles like the mean high tide line rule, the doctrine of
accretion and erosion, riparian (or littoral) rights, the navigation servitude, or the public trust doctrine
have relevance to the multi-factored analysis in regulatory takings cases.
The law of nuisance in Maine does not provide direct guidance on the question whether a
seawall, bulkhead, or other structure that prevents the landward migration of the shoreline constitutes
a nuisance to adjacent property owners or to the public. The courts generally employ a balancing
test to determine the reasonableness of the challenged land use and whether its benefits outweigh the
adverse effects it has on the public or on neighboring properties.77 The Maine Law Court has held
that:
private property rights ... are subject to the implied condition that the property shall not be
used for any purpose that injures or impairs the public health, morals, safety or welfare. If
the use causes an actual and substantial injury or impairment of the public interest ... a
regulating or restraining statute, or an ordinance ..., if itself reasonable and not merely
arbitrary, and not violative of any constitutional limitation, is valid.78
Technical evidence is now available that shows the adverse effect that hard erosion control devices
have on adjacent shoreline property and on the condition of the intertidal area. Thus, it is likely that
a court would find that a regulatory ban on seawalls or bulkheads reflects existing principles of state
nuisance law and that a landowner has no constitutionally guaranteed property right to protect her
land from the sea's encroachment if to do so will damage adjacent property or public rights in the
intertidal zone.
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4. General Precautionary Measures to Reduce the Risks of Takings
Claims
In the aftermath of the Lucas decision several commentators have identified ways in which state
and local land use officials can structure their programs to avoid raising and potentially losing costly
takings claims.79 Some of these recommendations are reflected above, including the suggested
approach of two tiers of setback lines, and allowing temporary, removable uses of land subject to
sea-level rise and the landward migration of wetlands. To bolster the defensibility of these
provisions, state laws, regulations and local ordinances that define these setback lines should
expressly state that any construction seaward of the setback line that does not have a valid variance
is a public nuisance and may be summarily removed without compensation. Florida's coastal
construction setback law contains such a provision,80 and similar language would seem appropriate
in Maine, given the Lucas decision's emphasis on the nuisance exception.
In general, it is probably wise for Maine officials responsible for the sea-level response strategy
to acknowledge that economic wipeouts may occur in certain cases due to the regulations and to be
prepared to provide compensation. A portion of public funds should be encumbered for this purpose,
or a fund could be created from the levying of additional real estate transfer taxes, shoreline retreat
taxes, open space impact fees or other measures to raise revenues to help support the compensation
and acquisition of property that must be restricted.81
It is also advisable to offer effective, non-litigation remedies for disputes over the burdens of land
use regulations, including those necessary to anticipate rising sea level. Often, land use restrictions
provide a variance procedure, for instance the one that provided under the Sand Dune Rules. In
some instances, however, it may not be appropriate to allow variances, for example, where the
affected land is needed for the landward migration of wetlands or eroding bluffs. Variances here
could undercut the idea that these sea-level restrictions are necessary, unless they are limited to those
instances when the landowner can prove by convincing evidence that their land does not meet the
applicable criteria, i.e., will not be affected by nor interfere with sea-level rise. A non-judicial forum
for considering the burdens of land use restrictions could also be a method for providing non-
monetary compensation to affected landowners, through, for example, density increases, transferable
development rights, credit toward impact or other real estate fees, or other non-cash forms of
• 89
compensation.
The Lucas decision highlights the need for administrative processes that allow landowners to
hear the rationale behind application of restrictions to their property, such as coastal protection
setbacks, and to seek relief from the restrictions if they seem to be unwarranted or unreasonable in
their particular circumstances or excessively harsh. This could mean a greater use of quasi-judicial,
administrative proceedings than is currently practiced under Maine's land use and environmental
control laws, at least at the permit appeal stage, where the owner/ applicant has an opportunity to
challenge the reasonableness of the restrictions with respect to her property.83 Lucas may also
suggest incorporation of carefully drafted variance provisions to provide relief in circumstances in
which the property can support no other beneficial use than the one denied by the restriction. Several
of the state laws described in Appendix B contain such variance provisions.
The owner/applicant must bear the burden of proof, however, that no other uses are feasible, or
that the environmental conditions underlying the restrictions are not applicable in her case. In states
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where a variance provision is available in the shoreline and wetland protection programs, the courts
will require applicants to exhaust these appeal and variance provisions before the landowner can
challenge the restrictions as a takings. This requirement ensures that an appropriate factual record
is available for the trial court.
Any new, sea-level rise-related provisions of the Natural Resources Protection Act and municipal
shoreland zoning ordinances should provide an administrative appeal process with explicit standards
and burdens of proof. Such a process can elicit evidence on whether the owner has other viable uses
or has already made valuable uses of her property.84 By thus allowing agencies to establish this
factual record, the process that will help the regulations survive any subsequent takings challenges.
D. POTENTIAL NON-REGULATORY OPTIONS FOR MAINE
1. Overview
The regulatory approaches described in the preceding sections may not be readily accepted by
landowners and developers, particularly where they restrict current productive uses of land in
exchange for future benefits if and when a rise in sea level occurs. Public education and careful
implementation of land use restrictions can overcome some of this resistance and may limit the
economic impact of the regulations. Nevertheless, Maine may wish to consider non-regulatory tools
either as alternatives to or supplementary of regulations.
The outright purchase approach may be feasible for certain lands, for example, upland areas
needed for the migration of a particularly significant salt marsh. But it clearly is not feasible for the
State to purchase all the shoreland property that should be protected from development in the event
of rising sea level. Private land trusts may be able to purchase additional areas, but again these
entities are not likely to have the resources necessary to acquire all the needed areas.
As an alternative, one commentator suggests a "presumed mobility" approach that could be more
affordable. Under this idea, the government buys the necessary property, either through eminent
domain or a willing seller approach, and then leases it back to the owners for a period of time that
would expire once the shoreline reaches a certain point. The principal proponent of this approach,
James G. Titus of the U. S. Environmental Protection Agency, suggests it would allow current owners
to develop their land on the condition that the structures will not be protected against inundation and
must be removed in the event of sea-level rise.
Titus suggests that the purchase price of property interests which are realizable so far into the
future would be less than 1% of the purchase price of the full fee simple title. The approach has the
advantage of shifting the risk of sea-level rise from the environment (which will suffer if wetlands
and other coastal resources are lost due to development) to the private property owners "by
institutionalizing the presumption that development will have to make way for migrating
ecosystems."85 In the alternative, Titus suggests converting property rights to long-term leases that
expire after 99 years or upon the rise of sea level enough to inundate the affected property.
A variation on this approach is suggested by Professor Joseph Sax who recommends the public
purchase of a future flooding easement.86 The easements would prohibit interference with any
flooding caused by sea-level rise and would allow the easement holder to remove structures that
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interfere with natural sea-level rise. The flood easements would be sold through negotiated sales or
required as a condition on proposed development. The purchase price would be retained by the
government and compounded over time and then distributed to owners in the event that a retreat
from the shoreline is necessary. Sax also suggests that each owner be required to have insurance
sufficient to cover the costs of subsequent inundation. The government would pay the premiums for
this insurance. The insurance policy would be treated as an annuity payable at fixed sums in the
event of rising sea level.
Another idea, proposed by Lisa St. Amand of the Environmental Law Institute, suggests an
application of the approach the National Park Service takes in acquiring land from private owners.
The Service acquires the land through donation, purchase, or condemnation, and then allows the
previous owner to occupy their former lands for their lifetime under "reservations of use and
occupancy."87 The purchase price is calculated based upon the current value of the property less 1%
for each year of the term of the reservation, or the life expectancy of the reservation holder. For
purchases of land needed for wetlands migration the author suggests that the purchase price would
be substantially discounted by the decades-long reservation reflecting the period expected before sea
level rise becomes apparent.
St. Amand suggests another alternative that relies on providing land owners with incentives to
refrain from development of their property in a manner that interferes with the natural migration of
wetlands as sea-level rises. In this approach, a private land trust negotiates the creation and purchase
of a "wetlands migration easement." The trust then enforces the easement in the event that a rise in
sea level occurs at some distant time in the future. Again, with such a distant period for enforcement
the author suggests that the easement could be purchased at a significant discount.88
A version of this same approach, suggested in 1990 by Judith Knapp, then a graduate student at
the University of California at Berkeley,89 advocates the use of the public trust doctrine in
anticipation of actual rises in sea level. Knapp suggests that legislatures impose controls to reflect
the future position of public trust resources such as the intertidal zone that will migrate landward as
sea level rises.
2. Feasibility for Maine
Each of the above proposals involves changes to the legal framework that defines and regulates
property rights in the State. For example, to institute the Titus proposal it would be necessary to
change the nature of coastal ownership into a long-term leases. To do so would entail a program of
eminent domain acquisition followed by leases back to current owners subject to the restrictions
described above. This program would require legislative and administrative action, including a
significant appropriation of funds for the purchases, to be refunded largely by the lease fees. It is not,
however, precluded by any constitutional limitations on government action.
Similarly, the Sax proposal would require legislative action and an administrative agency that
could first calculate the present discounted value of a future flood easement, according to agreed
guidelines, and then decide where and when to apply them. Additionally, the Sax proposal would
require a financial management entity to manage the annuities prior to the rise in sea level and their
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disbursement to property owners. Such a system would require careful consideration by the
legislature and cooperation between various departments of the government with differing expertise.
The Knapp proposal is less likely to be feasible in Maine because of important differences in the
public trust doctrines in Maine and California. As the previous discussion of the Bell v. Town of
Wells decision indicates, the courts in Maine do not yet recognize a legislative role in defining and
applying the public trust principle to coastal lands and resources. California, on the other hand,
recognizes full public ownership of the intertidal zone, not merely reserved public use rights.
Moreover, a broader range of public uses, including ecological preservation, has been found to be
within California's public trust. It is most unlikely that the current Maine Law Court would accept
the anticipatory application of any public trust-based restrictions to lands that are not now but may
in the future be covered by the tides.
Given the legislative and administrative demands involved in the non-regulatory approaches,
they may not be practicable in the near term. With the possible exception of the anticipatory public
trust doctrine approach, however, none are infeasible on purely legal grounds.
3. Government Informational Programs for Sea-Level Rise
Other governmental programs, particularly those that educate the public about the possibility of
global climate change and the associated rise in sea level, are very important in an overall response
strategy. Only by early information programs, alone or in conjunction with the adoption of
regulations, will the public begin to accept the idea of limitations on property use to adapt to the
changing conditions of the shoreline and to preserve vital natural resources. To ensure that
regulatory programs will be sustained if challenged under constitu-tional standards, it is essential for
the State to begin now to ensure that expectations about shoreline property use that would be
incompatible with rising sea level do not crystallize in a manner that will defeat a prudent retreat
strategy where it is appropriate.90
E. SUMMARY
Current standards for the protection of private property do not pose insurmountable hurdles to
carefully drawn regulatory approaches to the problem of sea-level rise. The Maine Law Court has
already upheld significant restrictions under the current Sand Dune Rules. This indicates a belief
that such regulations do advance a legitimate state interest and do so in a manner that does not
deprive land owners of their property rights in violation of the constitutional guarantee. The
terseness of the Hall opinion, however, and the recent efforts of the federal courts to expand the
protection of private property subject to government regulation may encourage other land owners
to mount similar challenges to further regulation aimed at sea-level rise. In that event, the smaller
the area of a parcel that is affected by the restriction, the more likely it is to be upheld.
If Maine chooses to pursue several of the regulatory options described in the preceding sections,
it should develop and promulgate them as soon as possible. The earlier that the public is on notice
of the likelihood of rising sea level the more likely the regulations are to withstand legal challenge.
Property that is purchased after the regulations are adopted will be bought subj ect to the expectations
that development restrictions will be applied in light of sea-level rise. The promulgation of
regulations that require a wetland migration area on the upland margin or which prohibit the future
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construction of bulkheads that would block such migration will help to clarify the expectations of
landowners. When these expectations are clarified, if it is necessary to carry out removal conditions
or enforce revised coastal setbacks, the effect will be a minimal disruption of settled expectations.
F. ENDNOTES
1. Such a measure would be an example of a "presumed mobility" or adaptive approach, which could also
be achieved by government or non-governmental purchase of "flowage easements." See, e.g., James G. Titus,
Greenhouse Effect and Coastal Wetland Policy: How Americans Could Abandon an Area the Size of
Massachusetts at Minimum Cost, 15 ENV'LMGT. 39 (1991) and Joseph L. Sax, The Fate of Wetlands in the
Face of Rising Sea Levels: A Strategic Proposal, 9 J. ENV'L L. 143 (1991).
2. The term "rolling easement" is used in a general sense to describe a number of different concepts, all
of which include a landowner's legal obligation to remove structures from land that becomes inundated by
the rise in tides. The holder of the easement, usually a government entity or land trust, can enforce the
commitment as a property right. See generally Titus, supra note 1.
3. See Paul N. Klarin, Kristi M. Branch, Marc J. Herschman, & Thomas F. Grant, Sea Level Rise Policy
Alternatives Study: Volume 2, An Analytical Review of State and Federal Coastal Management Systems and
Policy Responses to Sea Level Rise, Washington Dept. of Ecology (June 1990).
4. See generally Alison Rieser, Managing the Cumulative Effects of Coastal Land Development: Can
Maine Law Meet the Challenge? 39 ME. L. REV. 2 (1987).
5. The tests courts apply under these two constitutional challenges are interrelated and land use regulations
are often examined under both.
6. Tisei v. Town of Ogunquit, 491 A.2d 564, 569 (Me. 1985).
7. Hall v. Board of Envfl Protection, 498 A.2d 260 (Me. 1985).
8. Plummer v. Town of Cape Elizabeth, 612 A.2d 856 (Me.1992).
9. U.S. Const, amend. V.
10. 260 U.S. 393 (1922).
11. Mat415.
12. Agins v. Tiburon, 447 U.S. 255, 260-261 (1980).
13. Keystone Bituminous Coal Ass'n v. DeBenedictus, 480 U.S. 470,485, (1987) (quoting Agins v. Tiburon,
447 U.S. at 260).
14. Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978).
15. 112 S.Q. 2886 (1992).
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16. The trial court relied on the property's assessed value before and after the regulations, although there
was no evidence in the record that the landowner actually intended to build or had no other uses of the
property. In fact, in 1990 amendments to the South Carolina law, the legislature provided for the
construction of structures despite the setback in certain cases upon application of the landowner. Mr. Lucas
did not apply for this variance but instead proceeded to challenge the original legislation. In an unusual move
that was criticized by members of the Court, the Court accepted the case for appeal without Mr. Lucas
exhausting his remedies under the 1990 amendment.
17. Lucas v. South Carolina Coastal Council, 424 S.E.2d 484, 486 (S.C. 1992).
18. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2903 (Kennedy, J., concurring).
19. Me. Const, art. I, sec. 21.
20. Seven Islands Land Co. v. Maine Land Use Regulatory Comm'n, 450 A.2d 475, 482 (Me. 1982).
21. State v. Johnson, 265 A.2d 711, 715 (Me. 1970) (citation omitted).
22. Seven Islands Land Co., 450 A.2d at 482; Sibley v. Inhabitants of the Town of Wells, 462 A.2d 27, 31
(Me. 1983).
23. Curtis v. Main, 482 A.2d 1253, 1258 (Me. 1984).
24. 557A.2d 168 (Me. 1989).
25. Id. at 173, 176 (shorefront owners hold the intertidal zone in fee, subject only to an "easement" for
public uses reasonably related to fishing, fowling and navigation).
26. 528 A.2d 453 (Me. 1987).
27. 38 M.R.S.A. SS 471-478 (1987) (current version at 38 M.R.S.A. SS 480A-480U (West 1989 & Supp.
1991).
28. Hall v. Board of Envt'l Protection, No. CV-83-85, slip op. at 7 (Me. Super. Ct., Dec. 4, 1986).
29. Hall v. Board of Envt'l Protection, 528 A.2d at 456. In a later ruling, the Law Court in Rubin v. Board
of Envt'l Protection, 577 A.2d 1189 (Me. 1990), again upheld the sand dune rules and the Board's denial of
a variance for construction on a frontal dune.
30. 76 Me. 76 (1884). See also Lorusso v. Acapesket Improv. Ass'n, 564 N.E. 2d 360, 367 (Mass. 1990);
Mastin v. Prescott, 444 A.2d 556, 558 (N.H. 1982); Michaelson v. Silver Beach Improv. Ass'n, 173 N.E. 2d
273, 275 (Mass. 1961).
31. S.C. CODE ANN. Section 48-39-290(6) (Supp. 1989).
32. A similar definition of "destroyed beyond repair" was added in the 1990 amendments, which defined
the term to mean "more than sixty-six and two-thirds percent of the replacement value of the habitable
structure ... has been destroyed." S.C. CODE ANN. 48-39-270(11) (Supp. 1989). The amendments also gave
the South Carolina Coastal Council the power to issue special permits allowing construction or
reconstruction of habitable structures under certain conditions, even if located seaward of the baseline. S.C.
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CODE ANN. Section 48-39-290(D) (Supp. 1989).
33. Esposito v. South Carolina Coastal Council, 939 F.2d 165 (4th Cir. 1991), cert, denied, 112 S. Ct. 3027
(1992).
34. 483 U.S. 825 (1987).
35. Dolan v. City of Tigard, 662 LW 4576, 4580 (June 21, 1994).
36. See Surfside Colony, Ltd. v. Cal. Coastal Comm'n, 226 Cal. App. 3d 1260, 277 Cal. Rptr. 371 (1991)
(Comm'n condition which seeks to mitigate cumulative impact of private erosion control structures on beach
erosion through dedication of public access and recreational use easements was not supported by site-specific
evidence that the revetment would cause further erosion at this particular location, thus failing to meet the
nexus test ofNollan).
37. Nollan 483 U.S. at 834, n.3.
38. See, e.g., Lummis v. Lilly, 429 N.E. 2d 1146 (Mass. 1982).
39. 112 S.Ct. 2886, 120 L.Ed. 2d 798 (1992).
40. Id. at 813, n.7. See also Orion Corp. v. State of Washington, 109 Wash. 2d 621, 747 P.2d 1062 (1987)
(Washington's Shoreline Management Act does not deprive private tidelands owner of economically valuable
uses if those uses are already denied by virtue of the state's public trust doctrine).
41. See Jon A. Kusler, The Lucas Decision: Avoiding 'Takings'Problems With Wetland and Floodplain
Regulations, 4 MD. J. OF CONT. LEG. ISSUES 73 (1992-93).
42. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988) (State public trust extends to all lands subject
to the ebb and flow of the tides).
43. E.g., Hirtz v. Texas, 773 F. Supp. 6 (S.D. Tex. 1991), rev'd on other grounds, 974 F.2d 663 (5th Cir.
1992); Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355, 365 (N.J. 1984), cert, denied, 469 U.S. 821
(1984).
44. See Bell v. Town of Wells, 557 A.2d 168 (Me. 1989).
45. See Shively v. Bowlby, 152 U.S. 1, 35 (1894); HARRIET HENRY, MAINE LAWS AFFECTING MARINE
RESOURCES, vol. 2, at 214-215.
46. State v. Yates, 104 Me. 360, 363, 71 A. 1018 (1908) ("It is settled lawthatthe owner ofland bordering
on ... the sea, which is added to by accretion, that is the gradual and imperceptible accumulation or deposit
ofland by natural causes, becomes thereby the owner of also of new made land.")
47. Michaelson v. Silver Beach Improv. Ass'n, 343 Mass. 251 (1961).
48. Matthews v. Bay Head Improv. Ass'n, 471 A.2d 355 (N.J. 1984).
49. See, e.g., Florida Beach and Shore Protection Act of 1987, FLA. STAT. ch. 161 (1990) (establishing
construction setback regulations) and South Carolina Beachfront Management Act, S.C. GEN. LAWS 48-39-
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270 to 360 (establishing setbacks and requiring local beach protection plans).
50. Lummis v. Lilly, 385 Mass. 41, 429 N.E. 2d 1146 (1982) (use of groin or jetty subject to a reasonable
use rule applicable to riparian owners; relevant factors in determining reasonableness include purpose,
existence of license, harm caused, practicality of avoiding harm, protection of existing values of land and
water use, etc).
51. See, e.g., Kreiterv. Chiles, 593 So. 2d 111 (Fla. Dist. Ct. App., Feb. 11, 1992), cert, denied, 61 USLW
3284, Oct. 13,1992 (denial of permit to construct a private dock over submerged lands held in trust does not
constitute a taking, absent a showing of the necessity of ingress and egress).
52. See, e.g., Massachusetts v. Wilson, 413 Mass. 352, 597 N.E. 2d 43 (Mass. 1992).
53. Kaiser Aetna v. United States, 444 U.S. 164 (1979).
54. U.S. Const., art. I, sec. 8, cl. 3.
55. U.S. v. Rands, 389 U.S. 121(1967).
56. 557A.2d 168 (Me. 1989).
57. Id. at 173, 176.
58. See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988).
59. See Bell v. Town of Wells, 557 A.2d at 171.
60. Id. at 173.
61. Compare Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355 (N.J. 1984).
62. For a similar legal theory using California law, see Judith Knapp, "The Rising Sea Level and an
Anticipatory Public Trust Doctrine in California," unpublished manuscript, U.Cal. Berkeley, Boalt Hall Law
School, April 1990.
63. Compare Opinion of the Justices, 437 A.2d 597 (Me., 1981) with Bell v. Town ofWells, 537 A.2d 168
(M3. 1989).
64. See Hall v. Board of Envt'l Protection, 498 A.2d 564, 569 (Me. 1985); Drake v. Inhabitants of the Town
of Sanford, Sup. Ct. No. CV-88-679 (Dec. 17. 1992) (court notes cumulative impact rationale in rejecting
jury's finding that town shoreland zoning ordinance did not substantially advance legitimate state interests,
but accepts j ury's finding that ordinance did not deprive owner of all economically beneficial or productive
uses); Plummer v. Town of Cape Elizabeth, 612 A.2d 856 (Me. Aug. 20,1992) (local wetland ordinance does
not violate substantive due process but developer is entitled to a trial on takings claim).
65. TEX. NAT. RES. CODE Sec. 61.012(1990).
66. Hirtz v. Texas, 773 F. Supp. 6, rev'd on other grounds, 974 F.2d 663 (5th Cir. 1992).
67. G.L. c. 131, sec. 40(1990).
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
68. 310 CODE MASS. REGS. Sec. 10.28(4) (1989).
69. Id. at 10.30 (3) (1989).
70. 310 CODE MASS. REGS. 10.36(1989).
71. Wilson v. Commonwealth, 413 Mass. 352, 597 N.E.2d 43 (Mass. 1992).
72. Wilson v. Commonwealth, 31 Mass. App. Ct. 757, 768 (Jan. 9, 1992).
73. Wilson, 597 N.E.2d at 352, 44.
74. 483 U.S. 825 (1988).
75. Nollan, 483 U.S. at 847 (Brennan, J., dissenting).
76. Id. Justice Blackmun began his separate dissenting opinion with the following: "I do not understand
the Court's opinion in this case to implicate in any way the public-trust doctrine. The Court certainly had
no reason to address the issue, for the Court of Appeals of California did not rest its decision on Article X,
section 4, of the California Constitution. Nor did the parties base their arguments before this Court on the
doctrine." (Article X, adopted in 1879, protects the public right of way to navigable waters and the public
right of free navigation, and is considered to be the constitutional basis of the public trust doctrine in
California. Id. at 8 65.
77. See, e.g., Lummis v. Lilly, 429 N.E. 2d 1146 (Mass. 1982).
78. Town of Windham v. LaPointe, 308 A.2d 286, 290-91 (Me. 1973).
79. See, e.g., Terry D. Morgan, Takings Law: Strategies for Dealing With Lucas, LAND USE LAW &ZON.
DIG. 3 (Jan. 1993); Eric Damian Kelly, A Challenge to Planners: Solve the Takings Problem, LAND USE
LAW & ZON. DIG. 3 (Sept. 1993). Several of the suggestions in this section are based the recommendations
of Kelly, supra.
80. FLA. STAT. Section 161.052(7) (1979).
81. Kelly, supra note 79.
82. Id.
83. See Rubin v. BEP, 577 A.2d 1189 (Me. 1990) (upholding Sand Dune Rules variance provision requiring
applicant to prove that minimal impact on sand dune system would occur and structure would not be
damaged within 100 years by shoreline changes).
84. See Fichter v. BEP, 604 A.2d 433 (Me. 1992) (BEP action was "quasi-legislative" in reviewing DEP's
permit decision therefore applicant was not entitled to a full adjudicatory hearing on applicant's appeal of
DEP finding that 100 year rise in sea level will cause the subject seawall to collapse, that seawall would
interfere with the natural sand movement and redistribution and was located on a frontal dune).
85. Titus, supra note 1, at 45.
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86. Sax, supra note 1.
87. See Lisa A. St. Amand, Sea Level Rise and Coastal Wetlands: Opportunities for a Peaceful Migration,
19ENV'LAFF. 1, 18-19(1991).
88. Id. at 23.
89. Knapp, supra note 62.
90. Regulations will still be required because the effectiveness of public education is unproven. As one
commentator has noted, "development of beachfront property is not normally perceived as risky because of
cognitive limitations on the perception of low-probability risks, culturally- or commercially-motivated
distortions of risk level, and deliberate disregard or risk because of expected subsidization^] Persistent
publicity about risks, perhaps combined with recordation of risk information directly on deeds, could be
expected to have some effect on risky land use choices eventually, but its extent would be uncertain." Marc
R. Poirier, Takings and Natural Hazards Policy: Public Choice in the Beachfront, 46 RUTGERS L. REV. 243,
291-92(1994).
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Chapter Seven
PRELIMINARY ADAPTIVE RESPONSE STRATEGY:
CONCLUSIONS AND RECOMMENDATIONS
This study evaluated whether Maine should develop an adaptive response strategy to prepare for
the possibility of accelerated sea-level rise as a result of global climate change. It concludes that
Maine should begin to prepare itself for the possible consequences given:
• the significant possibility of global warming,
• the magnitude of the negative impacts if global warming theories are correct, and
• the potential for anticipatory measures to reduce adverse impacts if sea-level rises as
projected, without imposing substantial costs if the projections are not realized.
A. VULNERABILITY ASSESSMENT AND ANALYSIS OF EXISTING LAWS
Researchers determined that the developable portion of the study area within 100 meters of the
shoreline is, for the most part, already built up. There is little usable, vacant land zoned for
development. The shoreline development that has occurred over the last several years has been
typified by seasonal conversion, infill development in grandfathered subdivisions or on
grandfathered lots, and renovation or expansion of existing single family homes.
However, Maine has experienced a relatively depressed real estate market since approximately
1987. If development pressure increases in the future, coastal areas may face attempts to subdivide
or redevelop larger estates, to consolidate and redevelop marginal seasonal homes and marginal
commercial structures, and to redevelop cottage areas for multifamily residential units. Additional
development pressure might also prompt individuals to attempt to develop land which is not
currently zoned for development nor currently thought of as being suitable for development,
specifically including eroding bluffs and land in or adjacent to coastal wetlands.
Any strategy to minimize damage from future sea-level rise should not only control the location
of new development, but also consider the impacts of the strategy on existing development, and the
impacts of existing development on natural coastal processes as shoreline position changes.
The mapping and vulnerability assessment for specific sites determined that the components of
Maine's "soft coast" (coastal sand dune system, coastal wetlands, coastal eroding bluffs) face the
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prospect of significant coastal erosion and inundation even without accelerated sea-level rise, based
on historic rates of change. And for beaches and coastal wetlands, that erosion and inundation will
be exacerbated by an accelerated rate of sea-level rise.
1. Beaches
The most profound changes will be experienced on and adjacent to the beaches. Not only is the
proj ected landward movement of shoreline position along beaches three to six times greater than the
projected movement along salt marshes or bluffs. A change in shoreline position along a beach is
likely to affect relatively intensely developed areas immediately adj acent to the beach. At the same
time, any interference with the natural migration of the sand dune system could reduce or eliminate
the dry sand portion of the beach and have a very significant impact on coastal tourism, recreation,
and the local economy.
However, the analysis of Maine's laws and regulations concludes that Maine already has strong
laws and regulations in place to regulate development in or adjacent to sand dune systems. Maine's
Natural Resources Protection Act and the accompanying Sand Dune Rules already prohibit large,
new development unless the applicant can show that the site will remain stable assuming a 3 foot
rise in sea level over 100 years. While smaller, new development is evaluated based on historic,
rather than accelerated sea-level rise, all new development is subject to retreat requirements. There
are also limits on expansion of existing development and those structures essentially cannot be
rebuilt if they are destroyed by 50% or more of their value by coastal erosion or storms.
While some minor amendments would strengthen the law (e.g., adequate protection for unstable
back dune sites, clarification of the standards for site stability for smaller development), the Sand
Dune Rules are essentially a sound and exemplary set of far-sighted regulations. As part of the
anticipatory strategy for possible sea-level rise, it is critical to ensure that NRPA and the related Sand
Dune Rules are not weakened through amendments, site specific exceptions, or permissive
permit-by-rule regulations for back dune sites.
2. Coastal Wetlands
To date, Maine has not been equally attentive to the potential impact of sea-level rise on coastal
wetlands. Any anticipatory sea-level rise strategy should correct this omission.
It is beyond question that coastal wetlands play a critical role in maintaining landscape-level
ecosystem functioning. For example, they minimize damage from coastal storms and flooding, help
maintain water quality, and in serve as critical habitat for juvenile fish and waterfowl. Even though
them represent only 5% of the total land area of the United States, they contain 35% of all federally
listed rare and endangered animal species, and fully one-half of all listed animals rely on wetlands
habitats to some degree.1 The influence of wetland loss or disruption is likely to be felt well beyond
the wetland itself, in the waterways, flyways, and the fisheries to which they are functionally linked.
2 Any disruption of this critical coastal ecosystem could have serious economic impacts, particularly
on the commercial fishing industry.
A rise in sea level will result in the conversion of areas that were formerly just above mean low
water to open water. Some researchers have concluded that healthy coastal marshes with an
adequate supply of sediment will be able to build coastal marshland as fast as the sea rises to
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inundate it up to a rate almost equivalent to a 200 cm rise over 100 years.3 This means that, given
the right conditions, wetlands could migrate landward in equilibrium. But there are significant
limitations: the marsh must be healthy, there must be adequate sediment, and it must not run into
upland barriers, either natural (steep slopes, bedrock) or human-made (bulkhead, levee or other
hardened edge).
A national vulnerability study projected that in New England, if there were no artificial
interference with natural migration, a sea-level rise of .5 m to 2.0 m would result a maximum of a
5% loss in wetland area. In similar circumstances, if all shores were protected with bulkheads or
similar structures, 15 - 17% of the remaining coastal wetlands could be lost. If only already
developed areas were protected, the wetland loss could be reduced to 6 -10% of remaining coastal
wetlands.4 Further study might conclude that these regional projections substantially understate the
wetland loss that might occur in Maine due to its steeper slope and bedrock-dominated characteris-
tics.
Thus, under current conditions, with a significant rise in sea level, Maine is likely to suffer a
substantial reduction in wetland area for a combination of reasons. First, there are no laws designed
to protect the ability of wetlands to migrate inland by precluding the artificial hardening of the
upland edge. NRPA wetland regulations were formulated primarily to maintain an adequate buffer
to maintain wetland habitat value, assuming a static position. They do not preclude the construction
of artificial barriers to upland migration just outside the wetland.
Second, natural upland barriers will contribute to wetland loss even without human interference.
The steepness of the coastal region and the fact that it is bedrock-dominated will result in a much
smaller area of new marsh creation than would occur in non-rocky regions.
Finally, unless current trends are reversed, multiple stressors not directly related to sea-level rise
may contribute to the death of wetland vegetation which is critical to the process of vertical
accretion. For example, dredge and fill projects, nonpoint source pollution, and reductions in the
supply of sediment and nutrients may tax the health of wetland vegetation.
Given that some reduction in wetland area will be inevitable due to its topography alone, Maine
should focus with renewed resolve on that portion of wetland loss which is within human control.
Policy-makers need to decide how much of the existing wetland shoreline should remain in a natural,
unarmored condition. They could decide that all of it should be kept free from further human
interference with natural inland migration. Or they could decide that in specified circumstances,
existing investment justifies allowing the upland edge of a wetland to be hardened, for instance to
protect already intensely developed areas. Once the decision is made, appropriate regulations pat-
terned after the setback and retreat policy of the Sand Dune Rules should be adopted to implement
this policy in coastal wetlands.
3. Eroding Bluffs
Maine's laws also fail to do a complete job of regulating the third element of the soft coast,
eroding coastal bluffs. While not likely to be affected by a change in the rate of sea-level rise, it is
anticipated that this erosion will continue at a significant pace into the future, threatening individual
structures. Any unified State coastal erosion/inundation policy should address bluff erosion to
prevent interference with the process through hard erosion control strategies. Eroding bluffs can play
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
an important role in the sediment budget for sand dunes and coastal wetlands. Thus, it is important
to sand dunes and coastal wetlands that armoring structures not be allowed to unreasonably interfere
with the transfer of soil from the terrestrial to the marine environment.
4. Urban Engineered Shorefronts
This study determined that Portland's central waterfront is already lined with engineered
structures which will essentially keep shoreline position constant even given a 2 meter rise in sea
level over the next century. However, it is probable that this area will experience negative impacts
associated with flooding and storm surges with greater frequency, particularly in areas that already
experience flooding during a 100-year storm event.
The study concluded that existing laws, particularly State enabling legislation for zoning for
maritime activities and commercial fishing, the Coastal Management Policies Act and local
waterfront zoning ordinances, all make an important contribution to damage mitigation by reserving
this type of engineered waterfront site for water dependent uses.
5. Rocky Shores
It is not expected that Maine's rocky shoreline will be adversely affected by inundation or erosion
as a result of sea-level rise associated with global climate change. There may be very minimal inland
movement of the shoreline position, depending upon the adjacent slope. It was concluded that no
regulatory changes are required along the hard coastline to address possible impacts of accelerated
sea-level rise.
B. DEVELOPING AN ANTICIPATORY RESPONSE STRATEGY
1. Maine's Advantages
Maine has three advantages which should help it as it makes policy decisions about an
anticipatory response strategy. First, even though Maine is substantially built up along its
developable shoreline, it is not saddled with the intense, multi-unit recreational shoreline
development characteristic of states to its south.5 Maine is still in a position to decide whether to
allow further intensification of shoreline development. In most other states, the decision about
sea-level rise response options will be skewed by extensive investments already sunk into vulnerable
but immovable structures.
Second, some analysts have characterized response strategies as a choice between maintaining
economic activities in a shorefront location (e.g., making substantial environmental changes such
as dredging sand for beach nourishment, construction of bulkheads to protect houses from migrating
wetlands) or preserving the environment (e.g., removing structures to allow beach and wetland
migration).6 While this economy vs. the environment dichotomy may be true in other coastal states,
the choices in Maine are not that stark. Maine is much more heavily dependent on its natural
resources than many other coastal states. Its commercial fishing industry, other marine resource
harvesting industries, coastal recreation and coastal tourism industries are of critical importance to
the State's economy. These key industries depend upon maintaining the quality and ecological func-
tioning of Maine's coastal wetlands, marine waters and sand beaches. Thus, it is not a matter of
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economic activity or the environment; there are substantial economic benefits associated with
maintaining the environmental quality of the coastal ecosystem.
Finally, Maine should be in a good position to develop an anticipatory sea-level response strategy
because it has already successfully confronted very similar issues in regulating sand dune systems.
NRPA and the associated Sand Dune Rules already establish a clear policy of retreat from advancing
seas, whether at historic or accelerated rates, and impose reasonable limitations on the development
expectations of owners of land within or adjacent to sand dune systems. This provides a valuable
model to follow in developing policies for other areas of the soft coast.
As a means of bringing more information to bear on the complex choices to be made in
developing a formal sea-level rise response strategy, researchers conducted a cost/benefit analysis
of alternative response options for one site and analyzed constitutional limitations on regulatory
options. The findings are summarized below.
2. Economic Cost/Benefit Analysis
The cost-benefit analysis of four options for one specific sand beach site concluded that, subject
to the conditions and assumptions articulated in Chapter Four, it was more cost-effective to adopt
a strategy of retreat from the shoreline as sea level rises. The benefits of a retreat strategy
outweighed costs for the 50, 100 and 200 cm rise scenarios. In contrast, the analysis found that
attempts to protect most of the development or to maintain the shoreline in its current position were
not justified by a cost-benefit analysis. The costs of these reactive protection strategies (assuming
beach nourishment, bulkheads and in one strategy a selective buy-out of threatened structures)
exceeded benefits for the 50, 100 and 200 cm rise scenarios.
Specifically, that analysis concluded that for the currently eroding beach at Camp Ellis, with a
sea-level rise of 50 to 200 cm by 2100, from a quantitative standpoint, the preferable option is to
allow new development within the area projected to be inundated, but to require retreat of both new
and existing development as the shoreline position changes (Option 4). The second most favorable
response of the options evaluated was to ban all new development within the area projected to be
inundated under the particular scenarios and to require existing development to retreat as it suffers
major damage from coastal erosion or coastal storms (Option 3).
The major factors making the retreat strategies preferable to the reactive protection strategies
were the cost of sand and the expense of ongoing beach nourishment. As noted in Chapter Four,
this analysis is still very rough. The results are highly dependent upon the particular assumptions
used and the analysis is very simplified. Each strategy has different costs associated with it if sea
level actually rises either more or less than projected under the particular scenario; this uncertainty
would need to be considered when selecting a strategy. Moreover, there are other foreseeable costs
or risks, such as political feasibility, which are not addressed through this cost-benefit analysis. For
example, a community might initially select Option 4 (allow construction in vulnerable areas, but
with retreat requirements) but then lose the political will to enforce the retreat requirement when
faced with the actual need for abandonment. If the community then decides to protect that
development, the strategy would then become one of reactive protection, with all of those associated
costs.
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Despite these admitted constraints, the results of this simplified cost/benefit analysis lend general
support to the type of response strategy which is already embodied in the Sand Dune Rules. To
implement a retreat strategy, those Rules:
1) ban all new development in a band of land which extends from the water upland to the
projected shoreline 100 years hence, based on projections of a continuation of historic
rate of erosion over the next 100 years;
2) allow modest continued development in the next band of land, which consists of land
between the projected 100 year shoreline based on historic rates and the projected 100
year shoreline based on a 1.0 m rise in sea level.
3) allow development up to the maximum allowed by local zoning ordinances in the
furthest upland band of land in the sand dune system, from the projected 100 year
shoreline based on a 1.0 m rise in sea level to the upland edge of the sand dune system,
subject only to the retreat requirements outlined below;
4) throughout the sand dune system, require all rebuilding or repair of existing structures
to meet the requirements for new construction if the structure is damaged by 50% or
more of its value; and
5) condition all new development upon the requirement that the owner remove the structure
and return the site to its unaltered condition if the shoreline position changes so that the
structure is on part of the active dune system for six or more months.
The existing sand dune policies are not completely reflected in either Option 3 or Option 4 of the
cost-benefit analysis, but rather take a middle position between those retreat strategies. The Sand
Dune Rules allow modest new development in the area described in #2, above, thus avoid the high
opportunity costs otherwise incurred if all development were banned in the area threatened by
accelerated sea-level rise (as in cost-benefit Option 3). There are, of course, still some opportunity
costs associated with limiting the development to modest intensity rather than allowing
high-intensity development, but these cost are justified by environmental, hazard mitigation, and
visual access considerations which would support keeping high intensity development from locating
on the shoreline even assuming no change in shoreline position.
3. Legal Considerations for Maine's Policy Response
Researchers also analyzed several legal issues to determine if they might constrain the State's
ability to adopt a retreat strategy. The primary purpose of the analysis was to determine if the retreat
strategies being supported in the analysis of existing laws and in the cost-benefit analysis suffered
from substantial vulnerability to successful legal challenge.
The legal analysis concluded that Maine is at somewhat of a disadvantage in comparison to the
majority of coastal states due to the weakness of its public trust doctrine. However, it concluded that
with careful attention to drafting, U.S. constitutional law and State constitutional law give adequate
room to develop, adopt and enforce regulations on coastal development to restrict new development
in areas threatened by accelerated sea-level rise, to require removal of new development upon a
change in shoreline position, and to prohibit the rebuilding of existing structures which are
substantially damaged by coastal storms or erosion. The analysis also concluded that existing laws
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give adequate opportunity to adopt some non-regulatory responses, but that other non-regulatory
strategies would require statutory or constitutional amendments.
C. RECOMMENDATIONS FOR MAINE'S ANTICIPATORY RESPONSE STRATEGY
The remainder of this chapter summarizes the recommendations developed based on the analysis
in the preceding chapters. It is not intended as an exhaustive list of recommendations; individual
chapters should be consulted for full details.
Clearly, these recommendations are not the formal policy of any agency of the State of Maine;
they are the recommendations of the members of the research team, and are presented for further
consideration by appropriate state and local agencies.
These recommendations have been developed as part of a "no regrets" response based on the best
available technical information at this time. Any anticipatory strategy formulated based on these
recommendations will need to be reviewed periodically (e.g., every 5 to 10 years) to incorporate new
information available at that time.
1. Underlying Recommendations
The key recommendation of this report, underlying all of the others, is that the State should
protect and strengthen the ability of natural systems to adjust to changes in shoreline position.
There should be a strong presumption in favor of non-interference with "soft" coastal processes
including the natural inland migration of beaches and salt marshes and the natural movement of
material from the terrestrial to the marine environment. The correlative recommendation is that the
State should prevent new development which is likely to interfere with the ability of natural
systems to adjust to changes in shoreline position.
2. Specific Strategies
Within these general premises, more specific strategies should be articulated. There are at least
four types of responses to climate change:
1) "No action today'Vaction when problem emerges, where least-cost solutions are
well-defined and can be implemented quickly at the appropriate time using existing
technology and information. There is little reason to take action before the problem
emerges.
2) Anticipatory action, where concrete measures are justified today despite uncertainties
due to the minor additional cost of incorporating the measures today being outweighed
by large potential gains and possible benefits even without global climate change.
3) Planning, where no physical changes are needed immediately, but the "rules of the
game" need to be announced or changed so that people can make their decisions with
advanced notice of how the government intends to respond to climate change and
sea-level rise.
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
4) Strategic assessments, research and education, where it will take long periods of time
to determine the type and timing of responses to global warming, where we need to
develop a much better scientific understanding of natural processes and how to apply that
knowledge to mitigate impacts, and where enlightened professionals and citizens are
critical to support required changes.7
The following sections summarize the recommendations for each type of action.
a. Action When the Problem Emerges
This report does not identify any actions in this category to be taken now, or in the near term.
Concrete problems specifically attributable to global climate change induced sea-level rise have not
yet emerged to the point where it is necessary to take specific physical actions to implement
solutions. Altered resource management practices (e.g., reservoir water release schedules, shifting
crops) and engineered solutions specifically in response to rising sea level (e.g., raising piers and
wharfs, redesigning existing coastal drainage systems, bulkheading, etc.) should be undertaken, if
at all, only if there is an actual rise.
The State should continue to monitor Maine-specific sea-level rise data, global sea-level rise
projections, and local conditions on a periodic basis to determine if a problem has emerged which
requires specific action. It is also likely that if individuals begin to feel the effects of rising sea level,
they will take certain adaptive actions on their own, without governmental incentives or mandates.
For example, water-dependent uses reinforcing or maintaining their piers and wharves may build to
withstand higher water level based on their own observations about reduced protection from coastal
storms. Public education (discussed below) will help individuals place these actions into a larger
context.
b. Anticipatory Action
Maine should encourage anticipatory tangible responses to sea-level rise if the proposed action
meets the "no regrets" test. Such response options include the following:
1) Review design standards and similar specifications for every new coastal public works
project to determine whether it is cost-effective to make minor alterations in the design
to accommodate a changed shoreline position (e.g., slightly increasing the setback to
provide a protective buffer) or to design it to accommodate a more frequent storm event
(e.g., designing for a 15- to 20-year storm rather than a 100-year storm);
2) Develop a written capital investment policy to discourage an irreversible commitment
of public resources for new infrastructure or structures in areas likely to be affected by
accelerated sea-level rise, except to the extent necessary to support continued economic
viability and efficient functioning of water-dependent uses. The policy should also
provide specific guidance on avoiding coastal infrastructure investments that would
encourage residential development on the shore (e.g., extension of water systems, sewer
systems and roads to shoreline areas). It should also provide guidelines to help balance
when shoreline capital investments might be appropriate, such as in the case of
strengthening the viability of water-dependent industries or securing public waterfront
access. Except for water-dependent use infrastructure, all new and substantially modified
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public structures and facilities should be adequately setback to protect them from erosion
for 100 years assuming a rise in sea level of 100 cm by 2100. Even if shoreline position
does not change, these policies are consistent with sound coastal management practices.
3) Increase the amount of upland area owned or controlled by public or quasi-public entities
(e.g., State, municipality, land trust) adjacent to low-lying facilities intended to provide
public waterfront access (e.g., beaches, shoreline walkways, boat ramps, waterfront
parks, public docks, etc.) so that these facilities would still be available even with a
change in shoreline position. Until needed for shoreline access, the additional upland
could be used for beneficial purposes such as open space, parking or storage.
4) Expand coastal nature preserves, acquire key undeveloped coastal wetlands and similar
conservation areas to preserve areas important to the public and to provide sufficient
upland buffer areas for wetland migration in the event of a change in shoreline position.
This would increase protection of threatened ecosystems now, and would enhance the
prospects of wetlands being able to migrate in equilibrium with a change in sea level.
In conjunction with this, review funding options and financial incentives to determine
if they can be made more attractive. Mechanisms reviewed should include preferential
open space tax treatment, conservation easements coupled with required property tax
reassessment to reflect the decrease in value due to the encumbrance, preference for
purchase of this type of land under a bond-supported public purchase program, and a real
estate transfer tax surcharge on the transfer of coastal property or an income tax checkoff
system to fund property acquisition. Acquisition would not have to be in fee simple.
Conservation easements could protect the land in its undeveloped condition. Similarly,
it may be possible to acquire a contingent "flooding" easement which would not
encumber the land unless erosion or inundation changed the applicable shoreline position
or upland/marsh boundary.
c. Planning and Regulatory Policy
The State should "change the rules of the game" by adopting land use restrictions which will
guide the bulk of the development away from potential hazard areas and will protect the ability of
coastal ecosystems to migrate. While the following policy options are generally phrased in terms
of what the State of Maine should do, in some cases the State may decide it is more desirable to
delegate that responsibility to local governments with retained State oversight. Summary
recommendations include:
5) Halt attempts to stabilize the shoreline within or adjacent to the soft coast;
maintain/restore the ability for coastal sand dune systems, coastal wetlands and
eroding bluffs to migrate inland. This has already been accomplished to a great
extent within the frontal dune system. Maine needs to hold the line on existing sand
dune restrictions and not allow additional exceptions. Similar sorts of protections
need to be extended to back dunes, coastal wetlands and eroding bluffs. For
example, amend NRPA to prohibit edge-hardening structures (e.g., bulkheads,
levees, etc.) adjacent to the upland edge of a coastal wetland if any part of the
structure is projected to interfere with the inland migration of the wetland assuming
an accelerated sea-level rise of 100 cm by 2100.
Chapter Seven 7-9 Preliminary Adaptive Response Strategy
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
6) Along all soft coasts, establish building setbacks to protect the natural systems.
Prohibit all new structures on or adjacent to sand dunes or coastal marshes if the site
is projected to be affected by sea-level rise within 100 years, assuming a rise in sea
level of 100 cm by 2100 (except as provided in 7, below). Similarly, for eroding
bluffs, if not included within a district allowing only non-intensive use, adopt
setbacks for structures and septic systems which require them to be set back from
the area likely to experience erosion over the next 100 years assuming a continuation
of the historic rate of erosion or, if greater, set back 75 feet plus the average annual
rescission rate times the structure's assumed life span.
7) As a limited exception to 6, above, allow construction of new, small, easily-movable
structures built at low densities (e.g. walkways, small single family residences on
reasonably large lots, temporary/reversible structures) adjacent to sand beaches or
marshes if, and only if, the site is expected to remain stable over the next 100 years
assuming a continuation of the historic rate of erosion. This exception should only
be allowed if the State has the political will to require removal of these structures if
erosion exceeds historic rates. In cases where small, new, movable development is
allowed, extend the Sand Dune Rule's "presumed mobility" policy to all areas of the
soft coast (beach, marsh and bluff) by making all new building permits conditional.
As a condition of approval, require the owner to agree to remove any structure
permitted after adoption of the policy if the shoreline position changes so that the
structure interferes with the ability of the natural systems to adjust to changes in
shoreline position. Require that the condition be recorded at the appropriate registry
of deeds so that all subsequent purchasers are put on notice of the risk of being in
a hazard area and their obligations in the event of a change in shoreline position.
8) Notwithstanding 6, above, allow new structures for functionally water- dependent
uses which meet certain performance standards designed to minimize the impact on
natural systems, regardless of whether the area is likely to be affected by either
historic or accelerated sea-level rise.
9) Treat existing development located within the area which is threatened by erosion
or inundation from a sea-level rise of 100 cm over the next century as a
non-conforming structure if it can not meet the new setback standards; prohibit
expansion of the structure or intensification of use, but allow ordinary maintenance
and repair so long as it is not damaged by more than 50% of its value. To the extent
legally feasible without constituting a taking, extend the "presumed mobility" policy
to existing structures as well to require the owner to remove any structure if the
shoreline position changes so that any portion of the structure is located on public
land or becomes a public nuisance (even if the structure has not sustained damage
of 50% or more of its value).
10) On any site which is unlikely to be affected by accelerated sea-level rise
assuming a 100 cm rise over 100 years but which is projected to be affected by
a 200 cm rise over 100 years, allow new development only if it meets perfor-
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
mance standards for cluster development designed to minimize the costs of
protection should the 100 cm sea-level rise estimate be too low.
11) Supplement the State regulatory procedures by encouraging or requiring other
State agencies and individual municipalities to consider a high probability of
future increased rates of sea-level rise in making daily investment, development
and permitting decisions. For example, consider mandating incorporation of a
sea-level rise standard into shoreland zoning and subdivision review standards.
d. Strategic Assessments, Research and Education
Given scientific uncertainty and rapidly evolving scientific knowledge, coastal managers are
not in a position to make decisions now about a definitive adaptive response strategy for the
next century. Policy decisions will have to be made now based on the best available knowledge,
with the express intent of reviewing these policies periodically as scientists refine their
predictions. Continuing research will be required to revise and refine anticipatory strategies and
policies as scientific knowledge increases. The State of Maine should participate in increasing
the understanding of global warming and its projected impacts, particularly as applied to the
State, in the following ways:
12) The State should designate one State agency as the lead agency for monitoring
issues associated with global climate change and sea-level rise. This agency
should keep abreast of scientific progress and policy responses of other entities.
It should also work with related State agencies and with municipalities in
formalizing an anticipatory response strategy and seeing that it is implemented.
Since it appears that a major part of the implementation strategy will involve
strengthening the core laws of the coastal management program, it would be
logical to designate the State Planning Office as this lead agency. This lead
agency would need to work closely with the Maine Geological Survey and other
State agencies with coastal and marine responsibilities.
13) The lead State agency and cooperating State agencies should undertake
additional research to document coastal erosion in Maine and to determine how
global or regional proj ections concerning particular impacts might affect Maine.
For example, the ability to regulate coastal development will be improved if
Maine Geological Survey receives funding to complete its work on historic
coastal erosion rates for all beach, marsh and bluff segments. In addition, the
State's anticipatory plan will be strengthened if municipalities adopt complemen-
tary comprehensive plans and implementing regulations. To facilitate this, the
State should increase technical assistance to municipalities to help them identify
areas threatened by coastal erosion and to modify their comprehensive plans
accordingly.
14) As part of a related effort, to enhance the likelihood that regulatory policies will
be accepted and supported, the State should undertake a substantial educational
effort aimed at local officials, code enforcement officers, other State agencies,
and the general public. The focus of this effort should be to educate the target
Chapter Seven 7-11 Preliminary Adaptive Response Strategy
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
audience about the hazards of coastal erosion and inundation, including the
possible impacts of an accelerated rate of sea-level rise, the fragility of the
coastal ecosystem, the benefits of conserving (or restoring) it as a resilient
natural system, and the costs (both financial and environmental) of hard
structures, beach nourishment and similar engineered "solutions."
15) Finally, as additional funding is available, the State should undertake supple-
mental studies on different aspects of sea-level rise to compliment this study.
The possible impacts with highest priority for further study are coastal flooding/
storm surges and salinization/saltwater intrusion. These are discussed in
additional detail immediately below.
D. RECOMMENDATIONS FOR ADDITIONAL RESEARCH
Additional research is recommended to complete the picture of probable impacts of accelerated
sea-level rise as a result of global climate change. While flooding and storm surges are closely
related to inundation and erosion, developing a flood model and conducting detailed surveys of
elevations and types of structures were outside of the scope of this study.
National studies suggest that sea-level rise will bring with it additional damage from flooding
and storm surges because of the loss of protective wetlands, the erosion of the shoreline, the higher
base for the surge to build on, a higher water table and reduced coastal drainage. Depending upon
the tides, winds and waves at the time the storm hits, there can be a substantial temporary increase
in water level.8 For example, Hurricane Hugo in 1989 caused a 6.5 meter storm surge.9
Low barriers can be overcome, either by overtopping or undermining, resulting in storm damage.
It has been estimated that with moderate sea-level rise, today's 100-year flood could essentially
become a 15-year flood (a storm with a severity averaging a 15 year recurrence interval).10
It is particularly important to undertake a flooding/storm surge analysis for Portland's central
waterfront, particularly in the Commercial Street area. While this study concluded that there would
probably be no change in shoreline position in this area due to the engineered structures (which were
observed to be built approximately 2 meters above mean high water), it did not rule out damage from
storm events. This area contains new residential condominiums, multi-story office buildings, retail
shops, restaurants, intermodal transportation facilities, a recreational marina, the municipal fish pier
and municipal fish display auction, a major ship repair facility, many other commercial fishing or
other water-related enterprises, and various public or institutional uses. These structures are built
on piers, wharves, and formerly filled land. Additional study is needed to assess the vulnerability
of the public investments and private infrastructure along this engineered waterfront to flooding and
storm surges.
Another potential impact that should have high priority for additional analysis is salinization.
A rise in sea level will move the salt water/fresh water boundary landward. Saltwater intrusion may
significantly impact coastal towns or residents that use a river or well as their source of drinking
water.11 Additional analysis is required to determine which coastal towns or residents may be at risk
from this impact.
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
The problem may be particularly acute for coastal islands that rely on ground water for their
drinking water. As sea level rises and decreases the island size, the fresh water lens overlying the
salt water will shrink and its ability to sustain island residents will decrease.12 Several Maine islands
have based their comprehensive plans and implementing ordinances on island carrying capacity
concepts based on ground water studies. Those studies should be reviewed to determine the
adequacy of any sea-level rise assumptions.
Finally, some studies suggest that a change in the fresh water/salt water boundary may impact
the abundance of marine resources, particularly shellfish.13 Additional research would be required
to determine probable impacts on Maine's fisheries. While the State may not be able to take any
action to prevent this change, the possible impact should be factored into decisions concerning
management of the State's marine resources.
E. ENDNOTES
1. Curtis Bohlen, Wetlands Politics from a Landscape Perspective, MARYLAND JOURNAL OF LAW AND
CONTEMPORARY PROBLEMS,
2. Id. at
3. Robert Costanza, et al.,Modeling Coastal Landscape Dynamics, 40 BloSciENCE, Feb. 1990, at 91.
4. T.V. Armentano, R.A. Park, and C.L. Cloonan, Impacts on coastal wetlands throughout the UnitedStates,
in GREENHOUSE EFFECT, SEA-LEVEL RISE AND COASTAL WETLANDS 87-128 (J.G. Titus, ed., Wash., DC:
EPA, 1988).
5. This may be attributable to the rocky, highly irregular coastline, the relative scarcity of sand beaches, and
the temperature of the coastal water. This high density, highly engineered shoreside development has been
referred to as "New Jerseyization." In 1989, one observer of the Maine coast cautioned that "there are beach
communities with the first growing pains of New Jerseyization already apparent." JOSEPHT. KELLEY, ET AL.,
LIVING WITH THE COAST OF MAINE 3 (National Audubon Society and Maine Geological Survey, Duke
University Press, 1989)
6. James G. Titus, Strategies for Adapting to the Greenhouse Effect, APA JOURNAL, Summer 1990, at 311,
313.
7. Adapted from id. at 315-321.
8. Fletcher, Charles H. Ill, Sea-Level Trends and Physical Consequences: Applications to the U.S. Shore,
33 EARTH SCIENCE REVIEWS, 1992, at 94.
9. Id.
10. THE POTENTIAL EFFECTS OF GLOBAL CLIMATE CHANGE ON THE UNITED STATES 328 (J.B. Smith&DA.
Tirpak, eds., Wash., DC: Hemisphere Publishing Corporation, 1990).
11. Fletcher, supra note 8, at 91.
12. Id. at 92.
Chapter Seven 7-13 Preliminary Adaptive Response Strategy
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
13. James G. Titus, et al., Greenhouse Effect and Sea Level Rise: The Cost of Holding Back the Sea, 19
COASTAL MANAGEMENT 179 (1991).
Chapter Seven 7-14 Preliminary Adaptive Response Strategy
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Appendix A
SURVEY OF MAINE'S LAWS RELEVANT TO
ACCELERATED SEA-LEVEL RISE
Maine's laws contain several provisions that
address the possibility of a change in shoreline
position. While some of these provisions may
have been adopted primarily in anticipation of
continued land subsidence rather than in specific
response to the threat of accelerated sea-level rise
due to global climate change, they will be applica-
ble regardless of the cause of the change. The
following appendix analyzes each law according
to the following format:
1. Summary of law in general;
2. Identification of portion of the law that relates
to sea-level rise;
3. Analysis of extent to which it addresses any
direct or indirect consequences of accelerated
sea-level rise;
4. Analysis of extent to which accelerated
sea-level rise might affect the application of
the law.
The policy implications and recommendations
based on this analysis are discussed in more detail
in Chapter Five of this report. Within this Appen-
dix, the laws are reviewed in the following order:
A. Natural Resource Protection Act and Sand
Dune Regulations;
B. Coastal Management Policies Act;
C. Growth Management Act;
D. Shoreland Zoning Act;
E. Site Location of Development Act;
F. Subdivision Law;
G. State Floodplain Management Program;
H. Submerged Lands Act; and
I. Coastal Barrier Resources System.
A. NATURAL RESOURCES PROTECTION ACT
(38 MRSA §§ 480-A -U)
1. Summary of law in general
The Natural Resources Protection Act is
designed to protect the State's rivers, streams,
great ponds, fragile mountain areas, freshwater
wetlands, significant wildlife habitat, coastal wet-
lands and coastal sand dune systems from degra-
dation. It promotes research and management
programs for these protected natural resources.
The Act also establishes a permit system for all
activities in, on, or over any protected natural re-
source, and for all activities on land adjacent to
any freshwater or coastal wetland, great pond,
river, stream or brook if the proposed activity
would operate in such a manner that material or
soil may be washed into them.
Unless otherwise specifically exempt in
§480-Q of the Act, activities requiring a permit
Appendix A
A-l
Maine's Laws Related to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
are:
• dredging, bulldozing, removing or displacing
soil, sand, vegetation or other materials;
draining or dewatering;
• filling, including adding sand or other mate-
rial to a sand dune; or
any construction, repair or alteration of any
permanent structures.1
The Act is administered by the Department of
Environmental Protection.
2. Identification of portion of the law that
relates to sea-level rise
The Act defines significant wildlife habitat,
coastal wetlands and coastal sand dune systems as
three of the protected natural resources. Signifi-
cant wildlife habitat is further defined to include
specific types of areas, including habitat for
officially listed endangered or threatened species;
critical spawning and nursery areas for Atlantic
sea run salmon; shorebird nesting, feeding and
staging areas; and seabird nesting islands. How-
ever, this habitat is only protected by the Act if
this significant wildlife habitat has been mapped
by the Department of Inland Fisheries and Wild-
life. To date, only a portion of these areas have
been mapped, greatly reducing the degree of
protection.
The coastal wetlands and sand dune systems
protections are somewhat stronger. Coastal
wetlands are defined as "all tidal and subtidal
lands, including all areas below any identifiable
debris line left by tidal action; all areas with
vegetation present that is tolerant of salt water and
occurs primarily in a salt water or estuarine
habitat; and any swamp, marsh, bog, beach, flat or
other contiguous lowland which is subject to tidal
action during the maximum spring tide level as
identified in tide tables published by the National
Ocean Service."2 The Act specifies that coastal
wetlands may include portions of coastal sand
dunes.
Coastal sand dune systems are defined as
"sand deposits within a marine beach system,
including, but not limited to, beach berms, frontal
dunes, dune ridges, back dunes and other sand
areas deposited by wave or wind action."3 They
may extend into coastal wetlands.
Both of these protected resources are defined
in such a way that the definition of the area regu-
lated will fluctuate as the shoreline changes in
response to global climate change or land subsi-
dence.
For those activities that do require a permit,
the Act establishes statutory standards for review.
The Department is directed to grant a permit upon
such terms as are necessary to fulfill the purposes
of the Act if the applicant can demonstrate that the
proposed activity meets those standards. The
application of these standards is further detailed
by regulations.
The standards most applicable to shoreline
activities and sea-level rise are as follows:
• 2) Soil erosion. The activity will not cause
unreasonable erosion of soil or sediment nor
unreasonably inhibit the natural transfer of
soil from the terrestrial to the marine or fresh-
water environment.
3) Harm to habitats; fisheries. The activity
will not unreasonably harm any significant
wildlife habitat, ... aquatic habitat, ...
estuarine or marine fisheries or other aquatic
life....
4) Interfere with natural water flow. The
activity will not unreasonably interfere with
the natural flow of any surface or subsurface
waters.
• 6) Flooding. The activity will not unreason-
ably cause or increase the flooding of the
alteration area or adjacent properties.
• 7) Sand supply. If the activity is on or
adjacent to a sand dune, it will not unreason-
ably interfere with the natural supply or
movement of sand within or to the sand dune
system or unreasonably increase the erosion
hazard to the sand dune system.
The Act contains a list of specified activities
for which a permit is not required. The most
Appendix A
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Maine's Laws Related to Accelerated Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
critical exception, enacted in July 1993 as part of
the general budget act,4 amended the list of activi-
ties for which a permit is not required to add
"alterations in back dunes of coastal sand dune
systems" except if the site is subject to flooding
during a 100-year flood event based on infor-
mation from the Federal Emergency Management
Agency. The applicant had to provide the DEP
with a location map and notice 14 days in advance
of the proposed activity prior to commencing
work in the back dune area.
This 1993 exemption was criticized as being
overly-broad. In many sand beach areas, the
historical primary dune no longer exists; proposed
development on the front tier of the beach would
actually involve development of what is techni-
cally a back dune area. Yet, these back dune areas
are likely to be as threatened by accelerated
sea-level rise as frontal dunes. In response to
these criticisms, NRPA was again amended in
1994 to limit the exemption for back dune sites to
only if the site is not expected to be damaged due
to shoreline change within 100 years based on
historic and projected trends. The entire permit
exemption for back dunes is repealed as of Febru-
ary 15,1995, to be replaced by permit-by-rule per-
formance standards.5
Other more general exceptions may also
become important if owners try to repair and
maintain structures and infrastructure in the face
of rising sea level. Some of these activities which
do not require a permit include maintenance and
"minor repair" of structures above the high water
line causing no additional intrusion of an existing
structure into a protected resource; repair, mainte-
nance or replacement of an existing road culvert
meeting size limits; emergency repair or normal
maintenance and repair of existing public works
which affect any protected natural resource, so
long as it does not result in additional intrusion
into the protected resource; and maintenance,
repair or reconstruction of existing access ways in
coastal wetlands to residential dwellings as long
as the access way, if in a coastal wetland, is
traditionally dry at mean high tide.6
The NRPA regulations include Coastal Sand
Dune Rules.7 These rules are designed to guide
the application of the standards requiring that
development in, on, or over sand dune systems
must not cause unreasonable soil erosion, must
not inhibit the natural transfer of soil from the
terrestrial to the marine environment, and must
not unreasonably interfere with the natural flow of
any surface or subsurface waters. The Rules
require the Department to consider impacts which
may reasonably be expected to occur during the
following 100 years; projects will not be permit-
ted if, within 100 years, the project may reason-
ably be expected to be damaged as a result of
changes in the shoreline, including changes from
sea-level rise.
The Sand Dune Rules establish a policy of
mobility or retreat in the face of a migrating
coastal system. If a building sustains damage to
the extent of 50% or more of the building's ap-
praised value, it may not be repaired or rebuilt
without a permit; no permit will be granted for its
reconstruction unless the applicant can meet all of
the requirements for new construction. It is highly
unlikely that the owner of a structure damaged to
this extent would be able to secure a permit to
repair or rebuild.
The regulations allow permits to be granted,
whetherfornew or replacement structures, subject
to the condition that the structure (and related
facilities) must be removed in the event that the
shoreline recedes so that parts of the structure are
within the coastal wetland for 6 months or more.
In that event, the site must be restored to its
natural condition. The rules also prohibit the
construction of new seawalls in or on any sand
dune system, and limit the repair or maintenance
of existing seawalls. Finally, new buildings
greater than 35 feet in height or covering a ground
area greater than 2,500 square feet will only be
allowed if the applicant can demonstrate the site
will remain stable, assuming a three foot rise in
sea level over 100 years.
3. Analysis of extent to which it addresses
any direct or indirect consequences of
accelerated sea-level rise
NRPA, as implemented through the Coastal
Sand Dune Rules, directly addresses sea-level
rise. For coastal sand dune areas, it establishes a
Appendix A
A-3
Maine's Laws Related to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
policy of restrictions on the size and intensity of
development in hazardous areas, and allows
development of smaller structures subject to the
requirements of retreat if the shoreline position
changes so that the structure would interfere with
natural sand dune processes.
The mobility or retreat policy is not geared to
any particular assumption about the rate of change
in shoreline position; since this policy operates
after-the-fact to require removal of damaged
structures, it is sufficiently flexible to respond to
any rate of change.
In reviewing applications for new or substan-
tially rebuilt structures, the Rules require an
assessment of whether the proposed activity may
reasonably be expected to be free from damage as
a result of changes in the shoreline, including
changes from sea-level rise, over the next 100
years. However, the Rules give no specific guid-
ance on what assumption reviewers should use for
the rate of change in shoreline position. These
assessments usually assume a continuation of
historical rates of change, based on the assump-
tion that if this rate proves to be too low, the
structures are small enough to be moved pursuant
to the retreat requirements. If the State wants to
minimize reliance on the retreat option (e.g.,
prohibit development in the first place) additional
guidance would be required to direct reviewers to
assume an accelerated rate of shoreline change.
In contrast, the Rules governing construction
of larger structures in threatened areas do assume
a specific rate of shoreline change which takes
into consideration an accelerated rise in sea level.
An applicant to build these larger structures must
prove that the site will be stable given a sea-level
rise of three feet over the next century. This
generally conforms to an assumed global scenario
of a 100 cm rise in sea level over the next 100
years.
These Sand Dune Rules and the explicit
policy of retreat apply only to a very small, but
intensely developed, portion of Maine's coast.
The other types of coastline are generally subject
to NRPA standards and specific regulations on
soil erosion and the like. These standards pro-
vide, in a much less detailed way, for consider-
ation of non-interference with the transfer of soil
from the terrestrial to the marine environment.
But in non-sand dune settings, there appears to be
less express consideration of a change in shoreline
position and there are no rules parallel to the Sand
Dune Rules which detail explicit policies of
retreat or migration.
4. Analysis of extent to which accelerated
sea-level rise might affect the applica-
tion of the law.
The NRPA standards are sufficiently flexible
to respond to accelerated sea-level rise without
requiring a statutory change. The Rules require
consideration of sea-level rise. If sea-level rise
accelerates or if the Board is more confident about
projections of a certain rate of change which
exceeds historical rates, these can be used in
permit reviews without any statutory amendments.
B. COASTAL MANAGEMENT POLICIES ACT
(38 MRSA §§ 1801-03)
1. Summary of law in general
This 1986 law is a statement of legislative
policy and intent with respect to state and local
actions affecting the Maine coast. It acknowl-
edges that there are increasing use conflicts and
increasing development pressures on the coastal
region. In an effort to reach a well-reasoned
balance among the competing uses, it establishes
nine policies and directs that state and local
agencies and certain federal agencies with respon-
sibility for regulating, planning, developing or
managing coastal resources conduct their activi-
ties in a way which is consistent with the nine
policies.
No procedures for implementation are
adopted in the Act, nor have any regulations been
promulgated. The Coastal Advisory Committee
issued guidelines in December, 1986 to assist state
agencies in implementing the policies. To date,
implementation of the policies has been uneven
among the affected agencies.
Appendix A
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Maine's Laws Related to Accelerated Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
2. Identification of portion of the law that
relates to sea-level rise
Eight of the nine policies articulate the need
to promote ports and harbors for fishing, transpor-
tation and recreation; to manage marine resources
to preserve the integrity of communities and
habitats; to manage the shoreline to give prefer-
ence to water-dependent uses and to promote
public access; to protect critical habitat and
natural areas; and to maintain the quality of fresh,
marine and estuarine waters.
The remaining policy specifically addresses
sea-level rise. It establishes a policy that munici-
palities are to discourage growth and new devel-
opment in coastal areas where it would be hazard-
ous to human health and safety as a result of
natural forces including sea-level rise. Specifi-
cally, Policy Four states:
Hazard area development. Discourage
growth and new development in coastal areas
where, because of coastal storms, flooding,
landslides or sea-level rise, it is hazardous to
human health and safety.
The Guidelines for Policy Four8 present the
rationale for the policy, noting that coastal
floodplains, sand dunes and wetlands in their
natural state provide storm protection and support
a variety of important plants and wildlife. Citing
the extensive damage to natural and man-made
features visited by coastal storms and the direct
and indirect costs to governments of repairing this
damage, they establish an objective of discourag-
ing development and redevelopment in areas that
present threats to public safety or that threaten
property damage which will be costly to public
entities.
The implementation procedures recommend
that affected agencies take the following steps:
• Government agency decisions will not sup-
port new infrastructure or related facilities in
hazardous areas;
Public funds available for improvements,
renovations, or repair to existing infrastruc-
ture or other public facilities in hazard areas
will give priority to their relocation out of
hazardous areas.
• Government agencies will require new and
modified structures/facilities to be adequately
setback to protect them from erosion for 100
years.
• Government agencies will include scientific
projections of sea-level rise in regulatory and
management decisions affecting the
shoreline.9
Each state agency was required by Executive
Order to examine all their programs affecting the
coast and, by July 1, 1987 to identify changes
necessary to make them consistent with the poli-
cies. The proposed changes were to be reviewed
by the Coastal Advisory Committee and were then
to be incorporated into State programs before
December 31, 1987.
Some agencies have made significant prog-
ress. For example, work done includes computer-
ized hazard mapping of certain coastal areas,
adoption of revised coastal sand dune regulations,
and work on flood prevention. Other agencies
such as the Bureau of Public Lands have incorpo-
rated the policies by reference into laws affecting
coastal areas. However, implementation of Policy
Four, as well as the others, has not been system-
atic.10 The State has not yet adopted a Coastal
Action Plan for the 1990s, one component of
which would address sea-level rise and its
implications for shoreline use, as recommended
by the State Planning Office.11
By the same Executive Order, federal and
local agencies were encouraged to review their
programs for compliance with these Coastal
Management Policies. As applied to municipali-
ties, this recommendation was strengthened into a
requirement through the Growth Management Act
and the Shoreland Zoning Act, both of which
required the resulting comprehensive plans,
comprehensive land use ordinances and shoreland
zoning ordinances to "address" these Coastal
Management Policies.12
3. Analysis of extent to which it addresses
any direct or indirect consequences of
accelerated sea-level rise
Appendix A
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Maine's Laws Related to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
The Coastal Management Policies are very
general so they do not distinguish between haz-
ards posed by sea-level rise caused by subsidence
and sea-level rise caused by global climate
change. Regardless of the specific source of the
hazard, growth and new development is to be
discouraged in areas threatened by these natural
erosive processes.
As a general statement, Policy Four and the
Guidelines, are sound as far as they go and pro-
vide an already established framework for consid-
ering the possible threats posed by accelerated
sea-level rise. The Act, however, relies on essen-
tially voluntary implementation by affected local,
state and federal agencies. Some agencies, such
as the Maine Geological Survey, have taken the
lead in translating these general statements into
concrete regulations. Others have not been ag-
gressive in integrating these coastal management
policies into their daily functioning. So despite
the mandate that all agencies act in ways consis-
tent with these policies, in the absence of any
enforcement provisions or concerted executive
department leadership to secure compliance, they
are not proving adequate to the task of producing
coordinated, multi-agency efforts to implement
the policies.
4. Analysis of extent to which accelerated
sea-level rise might affect the applica-
tion of the law
Due to the general phrasing of the Act, accel-
erated sea-level rise will not affect the actual
application of the law. It does, however, broaden
the range of variables to be considered in planning
to manage hazard area development.
C. GROWTH MANAGEMENT ACT
(Comprehensive Planning and Land Use
Regulation Act, 30-A MRSA §§4311-4344)
1. Summary of law in general
The purpose of the Growth Management Act
is to encourage municipalities to prepare compre-
hensive plans and to adopt implementing land use
ordinances to manage growth so as to protect the
integrity of the natural resource base, to control
the costs of providing necessary public services,
to safeguard the long-term economic viability of
the State's economy, and to protect the quality of
life. To provide an overall direction and
consistency, the Act establishes ten State growth
management goals which are to be furthered by
the individual growth management efforts of each
municipality. In addition, the Act requires that the
comprehensive plans of coastal municipalities
also address nine coastal management policies
contained in the Coastal Management Policies
Act. The Act is administered by the Department
of Economic and Community Development in
coordination with individual municipalities.
The Growth Management Act defines the
elements of a comprehensive plan and implemen-
tation program and sets up a system of financial
and technical assistance to towns to comply with
its mandate. The Act as originally passed estab-
lished a schedule for municipal plan completion
ranging from January 1, 1991 through 1996.
However, due to budgetary constraints, that
portion of the Act was repealed in December
1991. While comprehensive plans are now volun-
tary, pursuant to March 1992 amendments, if a
municipality (excluding those in unincorporated
areas) fails to adopt a comprehensive plan consis-
tent with the Growth Management Act by January
1, 2003 (January 1, 1998 if it has received both
planning and implementation grants) it will loose
its right to enforce any land use ordinance except
minimum shoreland zoning. Adoption of a com-
prehensive plan which is certified by the State as
consistent with the Act also gives a municipality
preference for receiving certain State aid, grants
and assistance funds.
This Act reflects an underlying policy that
"the most effective land use planning can only
occur at the local level of government and com-
prehensive plans and land use ordinances de-
veloped and implemented at the local level are the
key in planning for Maine's future."13 The goals
and policies identified in the Act are important to
unify the plans so that the multiple local efforts
coalesce to accomplish consistent ends.
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
2. Portion of the law relevant to
sea-level rise
The Growth Management Act is most relevant
to sea-level rise through the goals to be addressed
in comprehensive plans and implementing ordi-
nances. The ten goals statements establish some
general goals including to develop an efficient
system of public facilities; to protect the quality of
water resources (e.g., aquifers, estuaries, rivers
and coastal areas); to protect critical natural
resources including wetlands, wildlife and fisher-
ies habitat, sand dunes, shorelands and unique
natural areas; to protect the marine resources
industry, ports and harbors from incompatible
development and to promote access to the shore
for commercial fishermen and the public; and to
promote access to surface waters for outdoor
recreation. If towns fail to take the possibility of
accelerated sea-level rise into consideration when
addressing these goals, the resulting plan may be
insufficient if there is a significant rise in sea
level.
Similarly, the Coastal Management Policies,
made applicable to municipal comprehensive
planning and land use regulation efforts through
the Growth Management Act, establish policies
which municipalities may fail to meet if they do
not consider the potential threat of accelerated
sea-level rise. Under the framework established
by the Growth Management Act, Policy Four (to
discourage growth in areas made hazardous by
sea-level rise) will be furthered primarily through
voluntary municipal comprehensive planning
efforts, State review for compliance as a condition
of awarding implementation grants, State techni-
cal assistance, State consistency certification for
preference for certain funds, and through the
long-range restriction that a municipality will not
be able to enforce any land use ordinance (beyond
the minimum shoreland zoning requirements) if it
has not adopted a comprehensive plan which is
consistent with the Act (including furthering its
goals) by 1998 or 2003.
3. Analysis of extent to which it addresses
any direct or indirect consequences of
accelerated sea-level rise
The December 1991 and March 1992 amend-
ments to the Growth Management Act repealed
the mandatory deadlines for plan completion
(1991-96), and substituted the much less immedi-
ate requirement that if a municipality wants to
enforce land use ordinances (including zoning),
they must have adopted a plan which is consistent
with the Act by January 1, 2003 (January 1, 1998
if they receive both planning and implementation
assistance grants from the State). The amended
Act provides more immediate incentives for
compliance only in the form of preferences for
certain funds and State financial and technical
assistance for local growth management efforts.
While the State may review the plans for compli-
ance with the Act in certain circumstances (i.e.,
when the town applies for implementation assis-
tance or when the town voluntarily requests a
certificate of consistency), the State no longer has
the ability to require towns to adopt plans and
ordinances which promote the growth manage-
ment and coastal policies goals. If a town opts to
pursue comprehensive planning and zoning, the
elements to be included in the comprehensive
plan, the local processes, and goals to be pro-
moted remained unchanged.
Despite amendments to the law, many towns
continue to voluntarily undertake comprehensive
planning and to follow through by adopting
implementing ordinances. The State will continue
to have an important role to play in providing
technical assistance to these towns.
To date, the State's technical assistance to
municipalities has focused on relative sea-level
rise as a result of local land subsidence, rather
than on accelerated sea-level rise as a function of
global climate change. The information has
generally been presented within the context of
meeting Policy Four of the Coastal Management
Policies Act and has not been integrated into a
more general discussion about potential impacts
on other goals such as efficient provision of
public facilities, or protection of water quality,
natural resources, ports or public access.14
While it is important that Policy Four has
been made applicable to municipalities through
the Growth Management Act, additional guidance
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
will be required from the State if it wants to
encourage municipalities to plan for the possibil-
ity of an accelerated rate of shoreline change
rather than just historical rates of change. If towns
are expected to take the lead on coastal hazard
management, they will need technical and finan-
cial assistance to evaluate the appropriateness of
different strategies, to establish appropriate stan-
dards, and to translate these general recommenda-
tions into local plans and ordinances.
4. Analysis of extent to which accelerated
sea-level rise might affect the applica-
tion of the law
If the possibility of accelerated sea-level rise
is not built into the comprehensive plans and
implementing ordinances developed as a result of
this Act, towns will miss the opportunity to plan
for this possibility now when policy adjustments
are likely to be less expensive. Due to the general
nature of the Act, however, accelerated sea-level
rise will not affect the application of the law.
D. MANDATORY SHORELAND ZONING ACT
(Mandatory Zoning and Subdivision Control
Act, 38 MRSA §§ 435-449) and Guidelines
1. Summary of law in general
The Mandatory Shoreline Zoning Act requires
all municipalities to adopt zoning and land use
control ordinances applicable to their "shoreland
area" which are no less restrictive than minimum
guidelines adopted by the Board of Environmental
Protection. The shoreland area is defined as
"those areas within 250 feet of the normal
high-water line of any great pond [10 acres or
more], river or saltwater body, within 250 feet of
the upland edge of a coastal or freshwater wetland
[10 acres or more, as defined], or within 75 feet of
the high-waterline of a stream."15 If a municipal-
ity fails to adopt a shoreland zoning ordinance
which complies with the minimum guidelines, the
Board of Environmental Protection may adopt a
suitable ordinance on behalf of the municipality.
Shoreland zoning ordinances are enforced by the
municipality; however, the State reserves the right
to approve proposed amendments, to comment on
proposed variances, and to bring actions against
municipalities which fail to adopt, administer or
enforce shoreland zoning ordinances.
2. Identification of portion of the law that
relates to sea-level rise
The Shoreland Zoning Act was designed to
promote public health and safety by protecting
shoreland resources from degradation and by
protecting against unwise development in that
area. Of the multiple purposes, several relate to
hazards similar to accelerated sea-level rise in-
cluding: to protect buildings and lands from
flooding and accelerated erosion; to control
building sites, placement of structures and land
uses; to conserve shore cover; and to anticipate
and respond to the impacts of development in
shoreland areas.
While not specifically crafted in response to
accelerated sea-level rise, the Act does contain
water setback requirements with the potential to
minimize its impacts. The Guidelines16 estab-
lished pursuant to the Act prohibit the construc-
tion of any new principal or accessory structure or
any substantial expansion of an existing structure
within the shoreland zone unless that structure is
set back 100 feet from the normal high-water line
of great ponds and rivers, and 75 feet from the
normal high-water line of other water bodies,
tributary streams or the upland edge of a wetland.
However, in a General Development District (or
its equivalent, allowing intensive commercial,
industrial and/or recreational use), the setback
requirement is 25 feet and there is no setback
requirement in a Commercial Fisheries/Maritime
Activities District (allowing functionally water-
dependent uses).
These setback requirements are supplemented
by a second set of provisions which require inclu-
sion of certain land in a resource protection
district (RP). If land is zoned RP, it is essentially
subj ect to a 25 0 foot setback requirement since an
RP district generally allows only non-intensive
uses; no principal structures are allowed for
residential, commercial, industrial, governmental
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
or institutional uses. Municipalities are required
to include in this RP district:
• All lands within the shoreland area which are
also rated "moderate" or "high" value
wetlands (freshwater, salt marshes, salt mead-
ows or wetlands associated with great ponds
or rivers) by the Maine Department of Inland
Fisheries and Wildlife;
The 100 year flood plains along rivers and
adjacent to tidal waters as shown on FEMA
Flood Insurance Rate Maps or Flood Hazard
Boundary Maps;
• Land along rivers or adjacent to tidal waters
which are subject to severe erosion or mass
movement, such as steep coastal bluffs.
They may also include other natural areas, public
access areas, wildlife habitat areas or similar sites
which should be protected from development.
However, even if they meet one or more of the
above criteria, if they are currently developed or
meet the criteria for the Limited Commercial
(mixed residential and low intensity business and
commercial uses), General Development (inten-
sive commercial, industrial or recreational uses)
or Commercial Fisheries/Maritime Activities
District (functionally water-dependent uses), they
need not be designated as resource protection.
In addition, it should be noted that the law
was amended, effective October 1993, to allow
municipalities to incorporate a special exception
provision to allow construction of a single-family
residence in a Resource Protection District if:
there is no other location on the property other
than in the Resource Protection District where a
structure can be built, if it was a lot of record prior
to adoption of the Resource Protection District, if
the improvements will not be on slopes of 20% or
greater, if improvements are located outside of the
velocity zone in areas subject to tides and it
otherwise complies with the municipal flood plain
ordinance, if the structure is 1,500 square feet or
less, and it is set back to the greatest practical
extent and no less than 75 feet.
The Guidelines also establish performance
standards for piers, docks, wharfs, bridges and
other structures and uses extending over or
beyond the normal high-water line of a water
body or within a wetland. These may become
increasingly important as sea level rises. Among
the requirements are provisions that shore access
shall be on appropriate soils and shall be con-
structed so as to control erosion; that the location
shall not interfere with developed or natural beach
areas; that the facility shall be the minimum size
necessary; and that new structures will only be
allowed if they require direct access to the water
as an operational necessity; and that no existing
structures extending beyond the normal
high-water line may be converted to residential
dwelling units.
Finally, by statute, as part of their shoreland
zoning ordinance, coastal municipalities are
required to address the coastal management
policies, including Policy 4 requiring governments
to discourage growth in coastal areas made haz-
ardous because of sea-level rise, coastal storms,
flooding or landslides. However, addressing this
Policy has not been a high-profile concern on the
part of municipalities or the Department of Envi-
ronmental Protection. It is generally assumed that
if the municipality meets the express minimum
guidelines, no additional provisions are required
to address the coastal management policies.
3. Analysis of extent to which it addresses
any direct or indirect consequences of
accelerated sea-level rise
The Shoreland Zoning Act addresses acceler-
ated sea-level rise to some extent by attempting to
protect land that is not already developed from
development that would interfere with natural
coastal processes. If municipalities comply with
the directive that coastal lands subject to flooding
and severe erosion should be designated as Re-
source Protection, that designation should help
retain that land in its natural condition so that it
can respond to changes in the shoreline. How-
ever, municipalities are frequently reluctant to
designate land as RP given the limited uses al-
lowed in that district. And the new amendment
may allow new residential development in Re-
source Protection Districts.
Similarly, the building setbacks (100 feet
Appendix A
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
from rivers and great ponds, 75 feet from coastal
waters) may be of some help in mitigating possi-
ble impacts of accelerated sea-level rise. They are
an improvement over no setbacks, but they will be
insufficient in many areas. The performance
standards for structures extending beyond the
high-water line are also helpful since they are
designed to minimize the intensity of that devel-
opment.
However, there are several factors that restrict
the Act's ability to address direct or indirect
consequences of accelerated sea-level rise. First,
there is an inherent tension in the Act since the
minimum standards are established by the State
but they are to be adopted and enforced by munic-
ipalities. A significant number of municipalities
failed to pass the required amended ordinances by
the July 1, 1992 deadline and face the prospect of
the Board of Environmental Protection adopting
an ordinance on behalf of the municipality. The
portions of the Act most likely to contribute to
mitigating the impacts of sea-level rise—the set-
back standards and the limits on development in
the resource protection district—have been the
subject of intergovernmental controversy; this
does not bode well for local enforcement.
Second, there are many exceptions written
into the Act and Guidelines which allow for more
intense development than otherwise allowed.
Certain mandatory minimum provisions cannot be
altered by the municipality; setback requirements
are in this category. However, there are ways
around this limitation through the designation of
a district. For example, a municipality may
designate an area which includes some unde-
veloped land as a General Development District if
there is an already discernible pattern of intensive
development in the area; this would allow devel-
opment of substantial intensity to continue in the
shoreland zone which will only be required to set
back 25 feet from the water. Similarly, while it
meets the admirable obj ective of promoting water-
dependent uses, designating an area as a Commer-
cial Fishing/Maritime Activities district will allow
intensive maritime commercial and industrial
development without requiring any setback.
Some local shoreland zoning ordinances allow
construction of "marine related structures" with-
out any setback requirement. While intended to
accommodate water-dependent uses, there have
been reports of this provision being misused to
allow construction of structures which greatly
exceed the functional requirements of a boat
house or trap storage facility, and are suspected of
being used primarily for residential purposes.
Finally, there is flexibility for municipalities
to deviate from the Guidelines as long as the
resulting ordinance is "equally or more effective"
in achieving the purposes of the Act. This can
take the form of ordinances that are completely
different from the recommended districts and uses
contained in the Guidelines. Municipalities may
deviate from most of the non-setback standards if
special local conditions justify a different set of
standards.
4. Analysis of extent to which accelerated
sea-level rise might affect the applica-
tion of the law
This Act assumes a static shoreland position.
There are no provisions for adjusting the manda-
tory minimum setback requirement based on local
historical rates of erosion or projections of accel-
erated rates of sea-level rise. Depending upon the
shoreline configuration and type of coast, the 75
foot setback from coastal waters may be com-
pletely insufficient to protect a structure over its
expected economic life. Municipalities may in-
crease the setback requirements above the mini-
mums to address this problem.
The Act does promote water-dependent uses
by encouraging municipalities to designate Com-
mercial Fisheries/Maritime Activities Districts.
However, it makes no provision to address the
dilemma created by the fact that these critical uses
may be the first displaced by rising seas. Any
displacement may be compounded by the Guide-
lines which allow municipalities to designate
multiple small Commercial Fisheries/Maritime
Activities Districts. This may result in the cre-
ation of districts that do not allow any room for
relocation beyond the existing site.
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
E. SITE LOCATION OF DEVELOPMENT ACT
(38 MRSA 481-490)
1. Summary of law in general
The Site Location of Development Act pro-
vides for State regulation of "development that
may substantially affect the environment," includ-
ing:
• development occupying land or water in
excess of 20 acres;
subdivision of a parcel of land of 20 or more
acres into 5 or more lots during any 5 year
period (subject to exceptions); or
• construction of a defined structure, meaning
buildings, parking lots, roads, paved areas,
wharves or other areas to be stripped or
graded and not to be revegetated that occupy
a ground area in excess of 3 acres.
Such development requires a permit from the
Board of Environmental Protection. The stan-
dards for development review include: financial
capacity, traffic movement, no adverse effect on
the natural environment, soil types and erosion,
ground water, infrastructure and flooding.
2. Identification of portion of the law that
relates to sea-level rise
The standards for review of permit applica-
tions relating most directly to accelerated
sea-level rise are the standards relating to the
natural environment, soil and erosion, and flood-
ing. The developer must fit the development
"harmoniously into the existing natural environ-
ment" without adverse impacts on existing uses or
other natural resources. Secondary and cumula-
tive impacts of development on these resources
may be considered, including the impacts on
wildlife and fisheries. This standard includes the
consideration that there be no unreasonable
alteration of natural drainage ways.
The soil standard provides that the develop-
ment "will be built on soil types which are suit-
able to the nature of the undertaking and will not
cause unreasonable erosion of soil or sediment nor
inhibit the natural transfer of soil." This standard
would be considered if structures built in areas
threatened by accelerated sea-level rise would
inhibit the natural transfer of soil.
The standard on infrastructure requires not
only that the developer make adequate provision
for facilities for the proposed development, but
also that the proposed development will "not have
an unreasonable adverse effect on the existing or
proposed" infrastructure in the municipality or
area served by those services. This standard
might be applicable if a proposed development,
when long-range accelerated sea-level rise projec-
tions are considered, might increase local erosion
and negatively impact infrastructure serving other
development.
Development is only permitted if it will "not
unreasonably cause or increase the flooding of the
alteration area or adjacent properties nor create an
unreasonable flood hazard to any structures."
Until repealed effective October 1993, the Act
also contained a provision that if the activity is on
or adjacent to a sand dune, development will only
be permitted if it "will not unreasonably interfere
with the natural supply or movement of sand
within or to the sand dune system."17
3. Analysis of extent to which it addresses
any direct or indirect consequences of
accelerated sea-level rise
For those developments subject to review
underthe Site Location of Development Act, there
are adequate standards for the Board to use to
prevent development in those areas most vulnera-
ble to accelerated sea-level rise if the Board is
convinced by finding that the impacts of develop-
ment in this area would be "unreasonable." The
standards on the natural environment, flooding
and soil erosion can be used for this purpose.
However, there are two significant limitations.
First, this Act applies only to larger developments.
Due to the perceived burden of going through
DEP review, many developments are designed so
that they only need local reviews and permits. For
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
example, it is very common for subdivisions to
consist of just under 20 acres. Very significant
development could occur in areas without consid-
eration of these standards by the state-level
reviewers if each development is small enough to
avoid triggering the Site Location of Development
Act review.
The second limitation is that the application
standards to the threat of accelerated sea-level rise
is fairly subjective. The regulations are fairly
detailed for certain requirements related to the
standards. For example, they do require erosion
and sedimentation plans and permanent erosion
control measures, and 50- to 330- foot buffers to
protect adjacent waterbodies. Stormwater man-
agement systems must be maintained by develop-
ers and groundwater runoff must be retained on
site so that post- development runoff does not
exceed pre- development runoff. There are,
however, no specific parallel regulations which
flesh out how the standards are to be interpreted
with regard to accelerated sea-level rise. Thus if
the potential impact of accelerated sea-level rise
becomes an issue in a particular proposed
development, the interpretation of what consti-
tutes an unreasonable impact on the environment,
erosion, or flooding as a result of changing shore-
lines will be left to the interpretation of the Board
without any guidance from regulations.
4. Analysis of extent to which accelerated
sea-level rise might affect the applica-
tion of the law
The definitions contained within the Act are
sufficiently flexible to adjust to changing shore-
lines so the land area subject to review will evolve
with accelerated sea-level rise. The standards are
also phrased so that the Board is able to take a
wide range of concerns into consideration in
assessing unreasonable impact. No specific
amendments appear necessary to allow some
consideration of accelerated sea-level rise within
the existing standards for review.
The law could be improved to be more di-
rectly responsive to accelerated sea-level rise. In
attempting to identify development that may
substantially affect the environment, the Act has
already identified for additional scrutiny some
activities taking place in the shoreland area. For
example, lots of 40 or more acres do not count as
lots unless the proposed subdivision is located
wholly or in part within the shoreland zone.
However, 1993 amendments removed the require-
ment that multi-unit housing development of 10 or
more units not triggering review under any other
standard must receive a permit if it is located in
whole or in part in the shoreland area. As the
nature and magnitude of threats of accelerated
sea- level rise become more concrete, the State
should consider designating more activities in
shoreland areas as subject to this level of state
environmental review. This could be accom-
plished by amending the definition of develop-
ment that may substantially affect the environ-
ment.
There are currently no regulations which
address accelerated sea-level rise and how that
should be factored into the Board's assessment of
compliance with the general standards of review.
The Board should consider including provisions in
the regulations which are specifically designed to
detail how the erosion, flooding and sand dune
standards should be applied within the context of
anticipatory planning for accelerated sea-level
rise.
F. SUBDIVISION LAW
(30-A MRSA §§ 4401-4406)
1. Summary of law in general
This law establishes the minimum criteria for
municipalities to use in reviewing subdivisions
(defined as the division of a parcel of land (or
structure) into 3 or more lots (or dwelling units)
within any five year period that begins on or after
September 23, 1971. Municipalities have sole
subdivision review jurisdiction for subdivisions
that are below DEP Site Location of Development
Act thresholds, and concurrent jurisdiction over
subdivisions that also need DEP review under that
Act.
Municipalities may adopt more stringent
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
standards for subdivision review. The Depart-
ment of Economic and Community Development
has developed model subsivision regulations to
assist municipalities with implementation of
higher standards.
The substantive review criteria address water
and air pollution, adequacy of water supply,
impact on municipal water supply, erosion, traffic,
sewage disposal, impact on municipal solid
waste disposal, aesthetic, cultural and natural
values, conformity with local ordinances and
plans, financial and technical capacity, impact on
outstanding river segments, ground water, flood
areas, identification of freshwater wetlands, and
storm water management.
2. Identification of portion of the law that
relates to sea-level rise
The two criteria relate directly to accelerated
sea-level rise: erosion and flood areas. The Act
directs municipal planning boards not to approve
a proposed subdivision unless it finds that:
the proposed subdivision will not cause un-
reasonable soil erosion or a reduction in the
land's capacity to hold water so that a danger-
ous or unhealthy condition results;18 and
• if any part of the subdivision is in a "flood
prone area," the proposed subdivision plan
will include a condition requiring that princi-
pal structures in the subdivision will be con-
structed with their lowest floor, including the
basement, at least one foot above the 100-year
flood elevation.
This determination of the 100-year flood
elevation is to be made based on Federal Emer-
gency Management Agency (FEMA) Flood
Boundary and Floodway Maps and Flood Insur-
ance Rate Maps, and other information presented
by the applicant regarding whether the proposed
subdivision is in a flood-prone area.
3. Analysis of extent to which it addresses
any direct or indirect consequences of
accelerated sea-level rise
While neither of these standards for review
specifically mention historic or accelerated
sea-level rise, they address possible impacts of
changing shorelines. The erosion standard is very
general and is most often used to address con-
struction practices, such as erosion controls during
site preparation, construction and clean-up, and to
require revegetation plans which minimize
non-point source pollution. However, if acceler-
ated sea-level rise becomes a clear threat, local
boards could use this standard to address develop-
ment that might cause an increase in coastal
erosion due to the effects of global climate
change.
The flood area standard is much less subjec-
tive and tends to be applied in a mechanical
fashion. The developer and reviewers generally
rely on the FEMA maps to determine whether any
part of the proposed subdivision is located in a
special flood hazard area. While the precise
standards may vary by municipality, most munici-
palities have adopted floodplain ordinances so
they can participate in the National Flood Insur-
ance Program. The model floodplain management
ordinance prepared by the Office of Compre-
hensive Planning contains standards for reviewing
subdivisions within the 100 year floodplain. The
1991 model subdivision regulations, prepared by
Southern Maine Regional Planning Commission
with funding from Maine's Office of Comprehen-
sive Planning, essentially restate the model
floodplain management ordinance standards to
augment the subdivision statute, so the review
under the subdivision ordinance and floodplain
management ordinance would be substantially the
same. The model subdivision regulations require
that:
all public utilities and facilities be located and
constructed to minimize or eliminate flood
damage;
• adequate drainage be provided to reduce
exposure to flood hazards; and
the plan not only include a statement that
structures in the subdivision shall be con-
structed with their lowest floor (including the
basement) at least one foot above the
100-year flood elevation, but also that the
restriction appear in any document transfer-
AppendixA
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
ring or expressing an intent to transfer
any interest in real estate or structure.
Many communities have actually required that
the first floor elevation be two feet above the
flood elevation as part of their floodplain manage-
ment ordinance, so they may impose this stricter
requirement through the subdivision regulations
as well.
The extent to which the subdivision regula-
tions will address direct or indirect consequences
of accelerated sea-level rise depends in large part
upon the accuracy of the FEMA 100-year
floodplain maps. If they are based on historic
rates of sea-level rise and do not take accelerated
sea-level rise into account, they may underesti-
mate the potential problem and allow the con-
struction of subdivisions that are not adequately
setback from flood hazards.19
4. Analysis of extent to which accelerated
sea-level rise might affect the applica-
tion of the law
Accelerated sea-level rise might affect the
application of the law by changing the assessment
of what is an "unreasonable" burden or impact
under the subdivision review standards. These
standards are sufficiently flexible to allow munici-
pal boards to focus on an evolving set of concerns
as erosion and flooding problems become more
evident. However, planning boards will probably
not feel sufficiently secure in their knowledge or
legal standing to use these general standards to
deny a project or impose conditions based on the
potential impact of accelerated sea-level rise
unless that threat is very well documented and
almost immediate. Barring this, most planning
boards will probably not factor long-range proj ec-
tions of accelerated sea-level rise into their review
nor will they have the expertise available to them
to go beyond a mechanical application of the
flood area standards.
G. STATE FLOODPLAIN MANAGEMENT
PROGRAM
1. Summary of program in general
Maine's Department of Economic and
Community Development is the agency responsi-
ble for coordinating the National Flood Insurance
Program (NFIP) in Maine. As such, it is responsi-
ble for assisting communities in qualifying for
participation in the NFIP, assisting with the
development and implementation of local flood
plain management regulations, and establishing
minimum state flood plain management regulatory
standards consistent with NFIP regulations and
state and federal environmental and water pollu-
tion standards.
The NFIP was created in 1968 under the
National Flood Insurance Act to provide a nation-
wide system of federal insurance for property and
structures located in designated flood hazard
areas. Essentially the federal government makes
relatively low-cost, guaranteed insurance available
to homeowners to cover flood damage if the
municipality in which they reside agrees to direct
development away from designated hazardous
areas and enforces a floodplain ordinance consis-
tent with the regulations established under the
Act.20
Maine's DECD has developed model
floodplain management ordinances for adoption
by municipalities. The standards within the model
ordinances vary, depending upon the level of
detail in the information provided by FEMA.
Detailed flood insurance studies have been con-
ducted for less than half of Maine's communities.
The remaining participating communities have
only "A" zone maps (designating areas of special
flood hazards in which no base flood elevations
are determined and an estimated base flood eleva-
tion is optional).
The model ordinances require a Flood Hazard
Development Permit for any development within
any special flood hazard area. The applicant must
submit information including data on elevations of
base flood, lowest floor of structure, and level of
Appendix A
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
flood-proofing in non-residential structures as
well as a certification by an engineer or architect
that the floodproofing methods meet the detailed
floodproofing criteria of the ordinance. These are
all modeled after the federal requirements.
In addition, Maine's model ordinance contains
standards for review of subdivision and develop-
ment proposals requiring the Planning Board to
assure that:
• All such proposals are consistent with the
need to minimize flood damage;
All public utilities and facilities are located
and constructed to minimize or eliminate
flood damage;
• Adequate drainage is provided so as to reduce
exposure to flood hazards;
All proposals include base flood elevation
and, in a riverine floodplain, floodway data;
• Any proposed development plan will include
a statement that structures on lots shall be
constructed in accordance with the Develop-
ment Standards, and that requirement will be
included in instruments of transfer of any
property interest.21
These are essentially the same requirements
included in the 1991 Model Subdivision Regula-
tions, discussed above.
2. Identification of portion of the pro-
gram that relates to sea-level rise
Since Maine's Floodplain Management Pro-
gram facilitates participation in the National
Flood Insurance Program (NFIP), it very closely
parallels the federal Act. The primary focus of
the national program has been to minimize dam-
age from flooding rather than coastal erosion, but
coastal erosion is gaining increasing recognition
as a hazard which should be addressed by the
NFIP.
The NFIP itself does not consider any pro-
jected relative rise in sea level in its risk assess-
ment. But the program may affect development in
areas which are most vulnerable to the effects of
rising sea level. The Act contains a mandate to
"constrict the development of land which is
exposed to flood damage and minimize damage
caused by flood losses" and to "guide the develop-
ment of proposed future construction, where
practical, away from locations which are threat-
ened by flood hazards."22 However, there is
significant debate about the impact of the NFIP on
coastal development.23
The FEMA hazard zones as originally drawn
do not account for the hazards from erosion or
sea-level rise. FEMA has commissioned a study
"to determine the impact of relative sea level rise
on the flood insurance rate maps" and to "project
the economic losses associated with estimated sea
level rise" for the nation and by region.24 While
some revisions have been proposed to address
coastal erosion, no final revisions have been made
to the National Flood Insurance Program nor have
the maps been revised to reflect sea-level rise
projections.
3. Analysis of extent to which it addresses
any direct or indirect consequences of
accelerated sea-level rise
Maine has taken steps to meet the guidelines
of the Act by ensuring that communities incorpo-
rate provisions to guide proposed subdivisions and
development away from locations which are
threatened by flood hazards. However, since
consideration of an accelerated rate of sea-level
rise is not currently incorporated into the control-
ling Federal program, Maine's Floodplain
Management Program is not designed to address
the consequences of accelerated sea-level rise.
Statutory amendments to the NFIA will be re-
quired before Maine's Floodplain Management
Program can be responsive to those concerns.
4. Analysis of extent to which accelerated
sea-level rise might affect the applica-
tion of the law
As noted above, if sea level rises and coastal
erosion and sea-level rise have not been incorpo-
rated into the NFIP, claims may outstrip the funds
available to pay claims, and financial resources
may be allocated in a very inefficient manner to
repeatedly floodproof and repair high-hazard
properties. Additionally, critical natural re-
AppendixA
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Maine's Laws Related to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
sources such as wetlands will not be able to
respond to rising sea level by migrating inland if
their movement is blocked or impeded by struc-
tures or "floodproofing" measures.
H. SUBMERGED LANDS ACT
(12 MRSA §§ 552, 558-A - 573)
1. Summary of law in general
This Act establishes the framework for man-
aging State-owned submerged and intertidal lands.
It recites that the State owns submerged lands
(meaning those lands beneath coastal waters, from
the mean low water mark (or a maximum of 1,650
feet seaward of the mean high water mark, which-
ever is further landward) seaward to the
three-mile boundary; land below the mean low
water mark of tidal rivers upstream to the farthest
natural reaches of the tides; all land below the
natural low water mark of great ponds; and the
river bed of international boundary rivers out to
the international boundary) in trust for the benefit
of the public. The Act relinquishes title to, and
public trust rights in, submerged and intertidal
lands filled before October 5, 1975. It establishes
a program for the leasing of the remaining
State-owned submerged and intertidal lands. The
public has a general right to make use of sub-
merged lands for navigation, fishing and other
public trust uses, but must obtain a lease or ease-
ment for permanent structures (occupying for 7 or
more months) or similar exclusive uses.
2. Identification of portion of the law that
relates to sea-level rise
The portion of the law most relevant to accel-
erated sea-level rise is that the boundary for State
ownership of submerged land is defined in rela-
tion to the mean low-water mark or 1,650 feet
seaward of the mean high-water mark, whichever
is further landward. This boundary will shift as
the low- or high-water mark is altered as a result
of sea-level rise. The statute does not create these
state ownership rights, but rather recites the rights
already established by federal statute and case
law.
The leasing program does not give particular
legal preference to the upland owner for use of
submerged lands. However, the Submerged
Lands Rules do create a system of littoral zones
and setbacks (applicable to projects within 1,000
or less feet of the shoreline) which allows the
Bureau of Public Lands to opt to require a letter of
no objection from a shoreland owner into whose
littoral zone the proposed project extends and
establishes setback lines for structures, subject to
exemptions.25
The Rules clarify that in coastal areas, the
mean low water line (the beginning of state own-
ership except on mud flats) may be established
through a survey conducted by a qualified land
surveyor and referenced to a National Geodetic
Vertical Datum as established by the National
Oceanic and Atmospheric Administration.
The standards for review to be used by the
Bureau in deciding whether to issue a lease or
easement include an assessment of whether the
use will unreasonably interfere with public access
ways, navigation, fishing, marine uses, public
safety. They also provide that the use should not
conflict with "those aspects of the Coastal Policies
or the Coastal Policy guidelines [citations omit-
ted] which relate to the criteria considered by the
Bureau as outlined in these rules."26 It is unclear
whether Coastal Policy 4 would be taken into
account in submerged lands leasing decisions.
3. Analysis of extent to which it addresses
any direct or indirect consequences of
accelerated sea-level rise
The Act does not in itself address any direct
or indirect consequences of accelerated sea-level
rise since it primarily addresses submerged lands.
It does establish the regulatory scheme for lands
that convert from upland or intertidal lands to
submerged lands as a result of accelerated
sea-level rise.
4. Analysis of extent to which accelerated
sea-level rise might affect the applica-
tion of the law
Appendix A
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Maine's Laws Related to Accelerated Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
The definition of submerged lands is tied to
the mean low water line, which will shift with
accelerated sea-level rise. The affect of acceler-
ated sea-level rise will be to include more land
within the scope of the submerged lands scheme
as state-owned lands.
I. COASTAL BARRIER RESOURCES SYSTEM
(38 MRSA §§ 1901-1905)
1. Summary of law in general
The statute, a mirror of its federal counterpart
(U.S. Coastal Barrier Resources Act of 1982),27
prohibits the expenditure of state funds or state
financial assistance for development activities
within the coastal barrier resource system. Pro-
scribed development activities include construc-
tion or purchase of structures, construction of
roads, airports, boat-landing facilities, bridges or
causeways, and erosion prevention projects. The
only exceptions to the prohibition on expenditure
of state funds are for:
maintenance, replacement or repair of state
roads, structures or facilities;
• protection or enhancement offish and wildlife
resources and habitats;
recreational uses not involving an irretriev-
able commitment of natural resources;
• scientific research;
nonstructural shoreline stabilization projects
designed to mimic, enhance or restore natural
stabilization systems; or
• emergency actions essential to save lives,
protect property, public health and safety
approved by the Governor.
The coastal barriers identified by the federal
Coastal Barrier Resources System are also identi-
fied by Maine statute as being part of the Maine
Coastal Barrier System. Maps are available
through the Maine Geological Survey office and
at the registry of deeds for each county.
2. Identification of portion of the law that
relates to sea-level rise
This and the parallel federal law are designed
to protect and conserve coastal barriers and the
adjacent wetlands, marshes, estuaries, inlets and
nearshore waters by discouraging development on
and adj acent to those barriers. Among the reasons
given for their preservation are to retain their
natural storm protection function and to prevent
development that would be vulnerable to hurri-
canes, storms and shoreline recession.
3. Analysis of extent to which it addresses
any direct or indirect consequences of
accelerated sea-level rise
This law provides limited protection for the
included undeveloped areas in that it prohibits
expenditure of state funds in support of develop-
ment. It does not restrict private investment. It
applies only to a small fraction of Maine's coast-
line; only 32 coastal barriers (e.g., coves, beaches,
islands, points) are included.
4. Analysis of extent to which accelerated
sea-level rise might affect the applica-
tion of the law
Since the law prohibits erosion stabilization
projects except for nonstructural shoreline stabili-
zation projects that are designed to mimic, en-
hance, or restore natural stabilization systems, the
areas designated as coastal barriers may decrease
in size. In light of the threat of accelerated
sea-level rise, it is appropriate to evaluate whether
there are other areas which meet the criteria and
should be included in the system.
J. ENDNOTES APPENDIX A
1. 38 MRSA § 480-C.
2. 38 MRSA § 480-B (2).
3. 38 MRSA § 480-B (1).
Appendix A
A-17
Maine's Laws Related to Accelerated Sea-Level Rise
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
4. An Act Making Unified Appropriations and
Allocations, Ch. 410, HP 215, Legislative Document
283, Sec. G-7.
5. Maine Legislative Service, 116thLegislature, Ch.
522 (Mar. 14, 1994).
6. 38 MRSA § 480-Q.
7. Ch. 355.
8. COASTAL ADVISORY COMMITTEE, COASTAL
MANAGEMENT POLICY GUIDELINES (State Planning
Office, Augusta, ME, December 1986) at 9.
9. Id.
10. MAINE STATE PLANNING OFFICE, MAINE COASTAL
PROGRAM, IMPLEMENTATION OF MAINE'S COASTAL
POLICIES, 1986-1988, (submitted to the Maine State
Legislature, Jan. 1, 1989) at 9-10.
11. Id. at 21, 23.
12. See the specific discussion of those Acts.
13. 30-AMRSA§4312(1)(E).
14. The publication, COASTAL MANAGEMENT TECH-
NIQUES: AHANDBOOKFORLOCALOFFICIALS, prepared
by Land & Water Associates and Maine Tomorrow for
the Department of Economic and Community Develop-
ment, October, 1988, advises that growth in hazard
areas should be prevented or discouraged to protect
public health and safety, reduce public costs resulting
from damage to public and private facilities, and to
help maintain the health of natural systems which
depend on floods and sediment to sustain them. (p. 35)
It advises that sand dunes and beach systems should not
be artificially "stabilized" but rather must be free to
"migrate" landward with rising sea level to preserve
their storm barrier function. This publication recom-
mends that communities gather more information about
natural processes occurring in their area. It recom-
mends that towns work with Maine Geological Survey
to determine their vulnerability to the effects of
sea-level rise, to identify and map other hazard areas,
and to determine shoreline erosion rates. It also
recommends a review of FEMA maps for flood-prone
areas. The publication recommends public education,
vegetation maintenance, regulatory and investment
responses to hazard area management. Local ordi-
nances to restrict development in hazard areas, such as
floodplain management ordinances, are identified as a
first step. Additional regulatory efforts suggested may
include: prohibiting structures in all floodplain areas
including intermediate hazard zones, prohibiting
structures and fill adjacent to and in wetlands, requiring
that structures and fill be well set back from the edge of
wetlands, and requiring a minimum structure elevation
of 2-3 feet above flood levels to maintain a margin of
safety. It also recommends that the public obtain a
property interest (easement, lease or purchase) in
certain hazard areas and limit use to passive recreation
or other public use, that public investments be planned
to avoid hazard areas, that funding priority be given to
relocate public facilities out of hazard areas, and that
technical and financial assistance be made available to
individuals seeking to relocate out of hazardous areas
(pp. 35-39).
15. 38 MRSA §435.
16. State of Maine Guidelines for Municipal
Shoreland Zoning Ordinances, 06-096 Department of
Environmental Protection Chapter 1000, Mar. 24,
1990.
17. Public Laws, 116th Legislature, 1993 First Regular
Session, Ch. 383, § 23 repealing 38 MRSA § 484, sub-
§o
8..
18. 30-A MRSA § 4404(4).
19. For further discussion, see Chapter 5, National
Flood Insurance Program.
20. See Chapter 5, p. 5-28 for a more complete discus-
sion of the National Flood Insurance Program.
21. Department of Economic and Community
Development, "Model Floodplain Management Ordi-
nance," Article VIII, A-E.
22. National Flood Insurance Act, 42 USCS §
4001(e)(2).
23. For further discussion, see B. MlLLEMANN & E.
JONES, STORM ON THE HORIZON: THENATIONALFLOOD
INSURANCE PROGRAM AND AMERICA'S COAST, (Wash.,
DC: Coast Alliance, Sept. 1989) and R.H. PLATT, ET
AL., COASTAL EROSION: HAS RETREAT SOUNDED?
Program on Environment and Behavior, Monograph
No. 53, (Institute of Behavioral Science, University of
Colorado, 1992) at 26-37.
24. PL. 101-137, § 5, 103 Stat. 825 (Nov. 3, 1989).
25. Bureau of Public Lands, Submerged Lands Rules,
1.6 B (11).
26. Id., 1.7C(8).
27. 16 U.S.C. § 3059. See discussion, Chapter 5.
Appendix A
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Maine's Laws Related to Accelerated Sea-Level Rise
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Appendix B
SELECTED STATE/REGIONAL POLICY
RESPONSES TO ACCELERATED SEA-LEVEL
RISE AND COASTAL EROSION
A. APPROACHES TO ANTICIPATED
ACCELERATED SEA-LEVEL RISE AS A
RESULT OF GLOBAL CLIMATE CHANGE
While some states have started to address the
issue of planning for accelerated sea-level rise as
a result of global climate change, even the most
advanced states are only in the very preliminary
stages of developing a unified response strategy.
Many are still in the problem recognition stage,
where they are beginning to understand the poten-
tial scope of the problem, but have yet to translate
that recognition into any specific studies, statutes
or programs. The following section summarizes
activities in selected non-Maine jurisdictions.
1. Washington State
The State of Washington became very active
in planning for accelerated sea-level rise through
its Sea Level Rise Response Program, begun in
1988. Through that program, it evaluated the
scientific literature on vertical land movement in
the western Washington area, mapped broad
patterns of vertical land movement, supported
additional research on subsidence in Puget Sound,
and began to study "near term, internal policy
alternatives."1
The following policy issues were identified in
Washington: siting standards and protection
alternatives for coastal facilities; management of
old coastal solid and hazardous waste disposal
sites; shore protection alternatives; wetlands and
shallow water habitat protection alternatives; and
sea water intrusion responses.2
Washington's studies emphasize the theme
that in the face of likely but uncertain levels of
accelerated sea-level rise, the "first steps" toward
regulation addressing this problem "can and
should be done for other fiscally prudent
reasons."3 For example, if Washington accepts
the theory that global warming will cause greater
frequency of severe storms, a prudent response
may be to require stricter design standards. The
State's design standards already reflect safety
measures based on "hydraulic design storms," or
standards based on the projected frequency and
severity of storm events (e.g., requiring that
buildings be constructed in such a way or location
to avoid damage from a 25-, 50- or 100-year
storm). Using the "other fiscally prudent reasons"
test, one response option would be to increase
those design standards to require design to avoid
damage from a less frequent, more severe storm
event. Washington's studies suggest this type of
regulation may be more politically acceptable than
others based solely on anticipated sea-level rise,
especially if regulations based on sea-level rise
are perceived to interfere with the use of private
Appendix B
B-l
Selected State/Regional Policy Responses
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
property. However, the State has not yet acted to
incorporate the more rigorous design standards.
The State of Washington has expressed
interest in conducting a formal cost-benefit analy-
sis of specific response options if it can obtain
sufficient funding. Such an analysis might be
used to evaluate the different problems posed by
inundation of private property in areas of high-
and low-intensity development.
Douglas Canning, Sea Level Rise Project
Manager of the Shorelands and Coastal Zone
Management Program at the Washington State
Department of Ecology, believes that such an
analysis would show that highly-developed,
low-lying waterfront areas, such as those in
Seattle, Tacoma, and Olympia, would need to be
structurally protected at some public cost because
relocation would be far more costly than protec-
tion. On the other hand, he expects that private
land of lower density development, such as agri-
cultural, rural residential, and timber lands, may
well cost more to protect than they are presently
worth, and therefore it is unlikely that public
monies should be spent to protect them.
The State of Washington's Sea Level Rise
Response Program has evolved into the Coastal
Erosion Management Program. The focus is on
protecting natural coastal systems so they are able
to respond to shoreline changes regardless of the
driving force behind the change. Components of
this program include working with local govern-
ments to prepare a programmatic environmental
impact statement on the impacts of shoreline
armoring, and developing additional information
and policies on shoreline erosion control. The Sea
Level Rise Response Program also facilitated use
of coastal zone management funds for a sea-level
rise impact study conducted by the City of Olym-
pia.
2. California
Various agencies in California have also
begun to focus on global climate change in gen-
eral, and sea-level rise in particular. The April
1989 Assembly Natural Resources Committee
"blueprint" for State response4 identifies damag-
ing shoreline erosion, decline in delta water
quality, damage to structures and loss of recre-
ational beaches, increased need for shoreline pro-
tective devices, and expensive modifications to
port facilities as possible negative impacts of sea-
level rise. It recommends legislation to require
agencies to begin to consider global warming
impacts, but does contain specific policy
recommendations.
In the San Francisco Bay Area, planning for
specific areas at risk from flooding is encouraged,
and varying strategies are emphasized, depending
on the type of coastal feature and the threat of risk
from sea-level rise. In its report, the San Fran-
cisco Bay Conservation and Development Com-
mission (BCDC)5 recommends that planners for
the area take global climate change and acceler-
ated rates of sea-level rise into account. The
report also notes that, due to local sedimentation
patterns, land movement and other factors, inun-
dation will occur at variable rates in the Bay area,
and this needs to be accounted for through plan-
ning. Not surprisingly, the report finds that
marshes and other tidal wetlands are at the great-
est risk from flooding and notes that the economic
costs of protecting them may be prohibitive.
BCDC recommendations are based on exten-
sive research and mapping of various areas around
San Francisco Bay. BCDC has also conducted
detailed studies to assess expected impacts associ-
ated with tidal flooding of urban development, the
creation of an inland sea in the Delta, increased
salinity levels in Suisun Bay and the Delta, flood-
ing and impeded drainage in low-lying shoreline
areas, and the loss of tidal marshes and managed
wetlands. These studies have resulted in the
development of an engineering design review
process to be used by designers and reviewing
authorities to assure safety from hazards of tidal
flooding.6
The six adopted policies7 regarding sea-level
rise are limited to the Bay Conservation and
Development Commission's jurisdiction, which
covers activities in San Francisco Bay and land-
ward to 100 feet from the shoreline. The policies
are mandatory design standards ratherthan merely
advisory criteria directing that sea-level rise be
Appendix B
B-2
Selected State/Regional Policy Responses
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
considered. While some flexibility is allowed, the
Commission has set a range of rates within which
engineers may work with twice the historic rate of
sea-level rise established as the minimum standard
assumed rate. This standard was based on data
which show a doubling of the rate of sea-level rise
in the Bay over the last 20 years. Engineers for all
proposed projects are required to defend the
specific rate of sea-level rise chosen for a particu-
lar project proposal before the Commission.
The California Coastal Commission staff has
also undertaken detailed research on projected
impacts on coastal wetlands, beach erosion, cliff
retreat, and harbors and structures.8 This research
may eventually lead to the development of spe-
cific policy responses, but no specific implemen-
tation action has been taken since the 1989 study.9
3. Oregon
Oregon has begun to review possible impacts
from global warming through the development of
a preliminary report illustrating the range of
changes that might result from global warming.10
The report characterizes itself as speculative
rather than predictive, but identifies sea-level rise
concerns about shoreline retreat, flooding of
coastal areas, and salt water intrusion. Following
an opportunity for public comment and debate, the
Oregon Department of Energy plans to develop a
second report which will include recommenda-
tions for actions by State agencies.
In addition to the Department of Energy's
report, James Good of Oregon State University
has also conducted a recent study of the Siletz
area cell on the Oregon coast to analyze the
effectiveness of Oregon's laws and regulations
regarding shoreline protection and beach access.::
Good found that State land use planning
goals, regulations, and legislation have failed to
adequately control the building of hard shoreline
protective structures, with the re suit that consider-
able amounts of sediment are "locked up" behind
such structures, and are thus unable to migrate and
nourish eroding beaches.
According to this study:
despite the fact that Oregon has one of the
most far-sighted set of state land use
policies in the United States ... including
three land use goals that focus on natural
hazards, the hazard management strate-
gies actually employed by landowners
depend more on structural mitigation than
on hazard avoidance. Along the Siletz
cell, the result has been the proliferation
of SPSs [shoreline protective struc-
tures].12
The study also found that setback requirements in
the research area have proven inadequate to
prevent the construction of SPSs, and that a large
number of lots too shallow to provide for erosion
protection continue to result from subdivision.
Good asserts that the building of hard erosion
control structures in the coastal zone is actually
encouraged and "institutionalized" by the failure
of local planning decisions to give adequate
weight to State goals and regulations directing
that non-structural solutions are to be "pre-
ferred".13 He predicts that more SPSs will further
exacerbate the rate of coastal erosion, which will
create even more demand for permits for these
structures.
To minimize coastal erosion, coastal hazards,
and the use of hard erosion control structures, the
study recommends concentrating on hazard avoid-
ance as the "fundamental principle" for guiding
development.14 Where the use of these hard
structures is unavoidable, Good suggests that
compensation for "unavoidable adverse im-
pacts—individual and cumulative—should be
required,"15 similar to the system Oregon uses to
compensate for adverse impacts to wetland re-
sources.
Coast-wide construction setbacks and compre-
hensive area management planning for the various
"cells" of the Oregon coast are also suggested as
useful strategies in planning for sea-level rise. In
addition, Good recommends increasing State
oversight of local land use decision making in
flood and erosion hazard areas to help insulate
local decision-makers from some of the pro-
Appendix B
B-3
Selected State/Regional Policy Responses
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
development political pressures they now feel.
More recently, in October 1993, the Oregon
Coastal Natural Hazards Policy Working Group
published an "Issues and Options" report which
incorporates both the types of suggestions out-
lined above and public reaction.16 Participants
discussed many coastal management issues. Sea-
level rise was not a separate issue, but rather was
addressed through related issues such as coastal
erosion and flooding. Policy options and sugges-
tions considered in the report included: instituting
a mandatory preference for soft erosion control
strategies over hard structural solutions; prohibit-
ing hard shoreline protective structures outright;
eliminating public subsidies for development of
hazardous areas; classifying sites by susceptibility
to natural hazards; using public funds to buy lots
made unbuildable by setback requirements; insti-
tuting more restrictive setbacks; instituting tax
credits for the donation of coastal hazard proper-
ties to state or local governments; imposing
stricter limitations on variances; prohibiting
development in high hazard areas; imposing more
restrictive lot coverage requirements; and requir-
ing hazard disclosure to potential buyers. The
report also discusses seismic issues unique to the
west coast.
4. New Hampshire
New Hampshire's Office of State Planning
commissioned a 1987 technical report that recom-
mends a three-step process to approach the issue
of how sea-level rise should be factored into
coastal zone planning.17 The three steps are to
delineate impact areas, inventory potentially
affected populations, assets and resources, and
develop regulatory and legislative responses.
Based on the recommendations of this report,
in 1991 the Rockingham Planning Commission
published a "Preliminary Study of Coastal Sub-
mergence and Sea Level Rise in Selected Areas of
New Hampshire." It describes the phenomenon of
relative sea-level rise, examines the various
projections for accelerated sea-level rise, and
identifies potentially threatened areas by applying
sea-level rise predictions to local area maps,
taking account of local topography, water bodies,
and patterns of development.
The report contains general suggestions for
managing coastal areas in anticipation of likely
but uncertain increasing rates of sea-level rise.
The report stresses the importance of anticipating
the phenomenon well in advance in order to
minimize both costs and environmental damage:
Some of the most cost-effective solutions
to property losses that could arise take
several decades to implement. Future
dislocations of development can be
greatly lessened by directing development
away from areas that lie within the range
of likely sea level rise.18
The report finds the risk to developed areas to
be "relatively minor" in the study areas given a
projected sea-level increase of 5 feet, discounting
the effects of storm flooding. It finds that the
structures at risk under this scenario do not ac-
count for much more than those already at risk
from current storm generated flooding: "For the
most part, structures within the submergence areas
are already at risk from storm driven flooding."19
The report is less optimistic about the fate of
coastal wetlands, and cites EPA estimates of
wetlands losses of 26% to 82% under a one meter
rise in sea-level. The report cites two basic
problems for wetlands migration: 1) that sea-level
will rise too rapidly for wetlands to keep pace in
their upland migrations and 2) that development
adjacent to wetlands will effectively prevent that
migration if landowners erect hard structures such
as bulkheads to protect their properties. Noting
that there is little that coastal planners can do
about the first problem, but that the second prob-
lem can be mitigated by coastal land use regula-
tion, the Rockingham County report suggests a
few strategies in this regard:
Such approaches might include: acting
now to limit future development in areas
where wetlands are likely to migrate to;
allowing development in sensitive areas
only on the condition that no attempt will
be made to protect the property (via bulk-
heads, seawalls, etc.) from advancing
wetland, and modifying the federal flood
Appendix B
B-4
Selected State/Regional Policy Responses
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
insurance program to greatly discour-
age or disallow reconstruction of
structures damaged as a consequence
of sea level rise.20
The report stresses federal, state, and local
cooperation "to devise fair and equitable ways to
abandon development that is in the path of wet-
land migration,"21 but it does not suggest any
concrete or particular strategies which New
Hampshire should follow. However, it does stress
that preventive planning is both more effective in
minimizing losses of natural resources such as
wetlands and is also cheaper than after-the-fact
regulation.
5. Massachusetts: The Cape Cod Com-
mission
Barnstable County's Regional Policy Plan22
identifies the peninsula of Cape Cod, Massachu-
setts, as an area which is particularly vulnerable to
the effects of erosion from storms and wave
processes, as well as to potential problems posed
by anticipated sea-level rise. By April 1990, the
town of Barnstable had held two conferences on
the potential effects of sea-level rise on the com-
munity as part of an effort to determine what steps
community leaders could take to alleviate these
effects.23 Since that report, the County of
Barnstable has incorporated specific measures to
control the detrimental effects of sea-level rise on
Cape Cod into its Regional Policy Plan.
The plan addresses accelerated sea-level rise
in its section on coastal resources.24 The plan
notes that the present rate of erosion on the Cape
results in the loss of "24 acres of upland per year,
or 1080 acres by 2025." The plan compares this
present rate of annual erosion with EPA's mid-
range predictions, and also uses a study by Woods
Hole Oceanographic Institution geologists which
projects a loss of 3900 acres, based on a 1.57 foot
rise in relative sea-level. The plan also notes that,
at the time it was written, existing laws and regu-
lations did not specifically address projected
increases in the rate of relative sea-level rise.
The Cape Cod Regional Management Plan
enumerates certain policies to deal with acceler-
ated sea-level rise, in addition to other measures
designed to control erosion or to allow for the
migration of coastal features at the historic rate of
sea-level rise. One goal is" [t]o limit development
in high hazard areas in order to minimize the loss
of life and structures and the environmental
damage resulting from storms, natural disasters
and sea level rise."25 To achieve this goal, the
section enumerates minimum performance stan-
dards, one of which reads:
In order to accommodate possible sea
level rise and increased storm intensity,
ensure human health and safety, and
protect the integrity of coastal landforms
and natural resources, all new buildings,
including replacements, within FEMA A
and V flood zones shall be designed one
vertical foot above existing FEMA base
flood elevation and state building code
construction standards.26
To address the problem of eroding bank and
dune systems, another standard specifies that:
[i]n areas where banks or dunes are erod-
ing, the setback for all new buildings and
septic systems to the top of the coastal
bank or dune crest shall be at least 30
times the average annual erosion rate of
the bank or dune. This rate shall be deter-
mined by averaging the erosion over the
previous 30-year period at a minimum."27
Other standards under this goal section in-
clude a prohibition on development or redevelop-
ment within FEMA V flood zones, although
allowing an exemption for certain water-depend-
ent uses where "no feasible alternative" exists.28
A similar prohibition includes similar exceptions,
on development and redevelopment on barrier
beaches and coastal dunes.29 There are also
prohibitions on the building or expansion of
public infrastructure in flood hazard zones.30
Another performance standard prohibits the
reconstruction of buildings which have been
damaged at greater than 50 percent of their tax
assessment valuation in flood hazard zones, on
coastal banks, dunes, or barrier beaches unless
they comply with specified standards for new
development.31
Appendix B
B-5
Selected State/Regional Policy Responses
-------
Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
6. New York: Long Island
In New York State, a hazard management plan
has been proposed for the South Shore of Long
Island to deal with accelerated sea-level rise and
its attendant problems of increased erosion, more
frequent coastal storms and resulting dislocation.32
The South Shore Hazard Management Plan works
within the framework of the New York State
Coastal Erosion Hazard Areas Act.33
Long Island is especially vulnerable to the
effects of sea-level rise in that it is characterized
by extensive barrier beaches fronting on the
Atlantic Ocean. At the same time, areas of its
coastline are highly developed. The area also
provides recreation benefits to the many residents
of the metropolitan New York area. The Long
Island Regional Planning Board has developed a
proposed management plan for the island's south
shore addressing these problems and prioritizing
goals for the management of various sub-areas on
Long Island's south shore.
The Long Island plan stresses the importance
of planning and advanced identification of critical
natural resources and undeveloped areas through
extensive mapping. Responses to erosion and sea-
level rise are to be tailored to specific areas.
According to the plan, relatively undeveloped
hazard areas are to be protected from further
development; isolated structures are not to be
rebuilt after destruction; building of new struc-
tures in hazard areas is discouraged; in built-up
areas, some additional protective structures might
be allowed if there is no significant amount of
pristine shoreline.
The plan encourages "soft" management
strategies, such as using sand from south shore
inlet maintenance dredging to nourish downdrift
beaches.34 It discourages rebuilding in V Zone
Hazard areas (determined by flood insurance rate
maps) for private structures damaged over 50%.
Sea-level rise is specifically mentioned, although
no specific rate assumptions or timetables for
retreat are given. The plan recommends that:
astrategic retreat from vulnerable coastal
areas is the rational approach to follow.
While it is not recommended that whole-
sale abandonment of existing public
facilities and private development located
in coastal areas should occur in advance
of actual sea level rise acceleration, struc-
tures should be removed from vulnerable
locations over the long-term when subject
to substantial damage from erosion and
flooding impacts.35
In general, the plan designates thirteen seg-
ments of Long Island's south shore to be treated as
distinct regional management units. It describes
specific, detailed recommendations for shoreline
management for each coastal segment. These
recommendations are tailored for each segment by
taking into consideration natural and
anthropogenic coastal features and population
densities in setting priorities for each section.
The plan is consistent with other jurisdictions
in placing emphasis on the public value of the
coastline, both as public recreation and as flood
and storm protection. It specifically recognizes
that private coastal landowners, particularly those
in high risk areas, may impinge on the rights of
other members of the public through their activi-
ties in such high risk zones.
The executive summary of the plan asserts,
"[p]roperty owners should not adversely impact
coastal processes to the detriment of adjacent
shoreline areas."36 In the coastal high risk zone,
or the Federal Flood Insurance V zone, the plan
notes that the public should not be expected to pay
for damage to private property: "Private interests
... should bear the burden of the loss of such
structures and/or property due to erosion and
flooding. Within this Coastal High Risk Zone,
there is minimal public interest in making govern-
ment expenditures for maintaining private devel-
opment."37 The plan also recommends that
changes be made to the National Flood Insurance
Program, specifically that "the elimination of
federal flood insurance coverage for structures
located on barrier islands and spits must be con-
sidered."38
The plan states a preference for retreat from
high hazard areas, where feasible. It also recog-
nizes that most often severe damage will occur as
Appendix B
B-6
Selected State/Regional Policy Responses
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
the result of storm events, and that often there are
not adequate planning mechanisms in place to
deal with the problems communities face in the
wake of a severe coastal storm. It therefore
recommends "that post-storm community re-
development plans be prepared in advance to deal
with those instances where a severe storm event
destroys a large portion of a community and
government can neither prevent re-development
through regulation nor acquire properties because
of a lack of financial resources."39
On Long Island, planners realize that prepara-
tion for the aftermath of coastal storms is an
integral component of planning in areas at great
risk from erosion. In very high risk areas where
the preferred policy on Long Island is one of
"strategic retreat," it is noted that the alternative
may be chaotic and involuntary retreat at any rate:
The policy of strategic retreat from vul-
nerable coastal areas in light of potential
acceleration in the rate of sea level rise
and subsequent flooding of low lying
coastal areas is the rational approach to
follow.... The alternative of gradual
retreat is involuntary retreat as a result of
disaster situations.40
Communities are to ensure that post-storm
development does not exceed planned density
levels, and to that end, it prohibits public expendi-
tures for infrastructure which would have the
effect of encouraging denser development on
coastal barriers. In keeping with the view that the
coastal barrier islands represent a significant
recreational resource, communities are encour-
aged to consider expenditures on infrastructure for
water-dependent uses facilitating public access,
such as beaches, parks and fishing piers.41 In
addition, in certain high-risk coastal areas owned
by the state where residents currently hold long-
term leases, the plan proposes a gradual abandon-
ment policy under which those leases are to be
phased out.
The Long Island plan also recommends
government purchase of certain undeveloped
coastal lands for purposes of recreation and open
space.42 Again, this is in keeping with the policy
that such areas provide needed recreation areas for
the public at large, and that these areas are being
threatened by both sea-level rise and increased
coastal development.
Other priorities involve the protection of
coastal wetlands and coastal bluffs, which the
plan notes are threatened by accelerated rates of
sea-level rise. The plan stresses the need for
public awareness of the possible negative effects
of bulkheads and other hard erosion control
devices on wetlands, and emphasizes planning to
provide for adequate buffer zones.43
With respect to coastal bluffs, the plan em-
phasizes that permit decisions regarding armoring
structures should include consideration of the
local sediment budget and the structure's possible
negative effects on down-drift beach areas.
Mitigation schemes are contemplated, such as
conditioning permits for construction of erosion
control devices on a requirement to replace sand
on certain down-drift beaches deprived of sedi-
ment by the artificial structure. The plan also
differentiates bluffs from dunes, and points out
that attempts to stabilize them may have negative
impacts on local sediment budgets: "unlike the
dunes, bluffs are a relic feature and cannot be
expected to recover after an erosional event; the
erosion of bluffs may have a more important role
in the sediment budget ... than the role of dune
erosion
n44
In general, the Long Island plan is a compre-
hensive and flexible document, which, while it
advocates a gradual retreat from the shoreline in
erosion hazard areas, modifies its recommenda-
tions according to pre-existing coastal land uses
and densities. It achieves this through treating the
various coastal regions of Long Island separately,
from the highly developed sections to the west, to
the relatively pristine areas to the east.
B. SELECTED COASTAL EROSION RESPONSE
STRATEGIES
Many states have adopted specific policies to
minimize loss due to coastal erosion caused by
coastal storms and the continuation of historic
Appendix B
B-7
Selected State/Regional Policy Responses
-------
Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
submergence. These policies have been devel-
oped in response to historical rates of change over
the last century, and rarely incorporate any as-
sumptions anticipating an increase in the rate of
sea-level rise during the next century as a result of
global climate change.
Since these laws are designed to mitigate
erosion losses if historic rates continue into the
future, as currently written, they may prove
inadequate if future sea-level rise significantly
exceeds historic rates of change. However,
selected statutes are surveyed here for the purpose
of identifying innovative land use management
techniques that may be amenable to modification
for application in strategies designed to respond to
accelerated rates of sea-level rise.45
State erosion response legislation has been
characterized as falling into three general groups:
erosion management laws (e.g., New York, Penn-
sylvania, South Carolina), coastal zone manage-
ment laws with an erosion element (e.g., Florida,
Rhode Island, North Carolina, Michigan), and
related resource management laws (e.g., New
Jersey, Massachusetts and Texas).46 This sum-
mary focuses on laws in the first two categories.
1. Rhode Island
The State of Rhode Island's Coastal Resources
Management Program identifies sea-level rise as
a concern, but it does not specifically mention an
accelerated rate of sea-level rise as a result of
global climate change. Nevertheless, the plan
does address the problems caused by sea-level rise
at historic rates through policies specifically
tailored to protect various types of coastal envi-
ronments, and varying densities of development
on those features.
The Program is based on a system which
classifies all waters of the state into six quality
categories, based primarily on the characteristics
of the adjacent shoreline. Those categories in-
clude type 1, conservation areas; type 2, low
intensity use; type 3, high intensity boating; type
4, multipurpose waters (i.e. those that support or
could support both commercial and recreational
activities, as well as providing good fish and
wildlife habitat); type 5, commercial and recre-
ational harbors; and type 6, industrial waterfronts
and commercial navigation channels.
Recommended responses to shoreline erosion
and possible sea-level rise in Rhode Island vary
according to the type of shoreline feature involved
as well as type of waters to which they are adja-
cent. However, standard setbacks of a minimum
of 50 feet "from the inland boundary of the coastal
feature" are required, "except in areas designated
by the Council as Critical Erosion Areas"47 In
critical erosion areas, setbacks of 30 and 60 times
the average annual erosion rate are required, the
more stringent standard being reserved for higher
density development.48
The section entitled "Shoreline Features"
specifically mentions sea-level rise, albeit at
historic rates:
All shoreline systems are dynamic, and
change their shape and character in re-
sponse to storms, currents, human modifi-
cations, and the gradual rise in sea
level.... The present rate of sea-level rise
is about one foot each century. A foot of
vertical rise, however, accounts for an
inland retreat of some 30 feet along low-
profile shores."49
The plan asserts that most erosion to the
Rhode Island Coast occurs not as a result of
gradual sea-level rise, but rather from discreet
storm events.
As has been noted, the plan provides for
general coastal setbacks as well as more stringent
ones for "Critical Erosion Areas." These critical
erosion areas are mapped under 4 categories, (A-
D), with annual estimated erosion rates from 2-2.5
feet for category A, to 5-6 feet for category D.
Corresponding required setbacks range from 75
and 150 feet, (for four or fewer dwelling units,
and for more than four dwelling units, respec-
tively) in category (A), to 180 and 360 feet,
respectively, in category (D).
Categories of Critical Erosion Areas are
determined by the Rhode Island Coastal Re-
sources Management Council independent from
decisions regarding adjacent water quality. They
Appendix B
B-8
Selected State/Regional Policy Responses
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
are shown on detailed coastal planning maps
included in the Rhode Island Coastal Resources
Management Program document, and appear to
cover only the areas of the coast most exposed and
prone to erosion.
There is a variance mechanism for applicants
who cannot meet such standards, but the granting
of a variance "does not remove the applicant's
responsibility to comply with all other Program
requirements."50 Applicants must also show that
proposed alterations are "the minimum necessary
to remove an undue hardship"51 and will not cause
"significant adverse environmental impacts or use
conflicts,"52 among other requirements. Another
section contemplates Special Exceptions for
projects which do not comply with the program's
goals for projects serving "a compelling public
purpose" which are water-dependent, or for which
no alternative sites exist.53
The Plan also provides for post-hurricane
emergency procedures. These procedures provide
for a temporary moratorium on reconstruction of
structures "to remain in effect for a maximum of
30 days from the disaster declaration." The
moratorium should provide local officials time to
assess damage, to consult with state officials, to
act on possible ameliorative response actions in
high damage areas such as the purchase of open
space, and to "make a policy decision about re-
permitting according to best available options for
hurricane mitigation."54
The plan also emphasizes protection of
coastal features, including coastal beaches and
dunes, barrier beaches, coastal wetlands, coastal
cliffs, bluffs and banks, rocky shores, and man-
made shores.55 Itnotesthat "beaches are dynamic,
flexible features," and that hard erosion control
structures may interfere with the natural processes
of dynamic coastal features.56
The plan states that this dynamism is particu-
larly true forbarrier beaches, which it describes as
being "particularly ill-suited to human occupa-
tion."57 It categorizes beaches as undeveloped,
moderately developed, and developed, and its
restrictions on development vary according to the
level of development, from no new construction
on undeveloped barrier beaches to requiring
construction lines on three specific barrier
beaches classified as developed.58
Regarding coastal wetlands, the Rhode Island
plan notes that, "[b]ulkheading and filling along
the inland perimeter of a marsh prevents inland
migration of wetland vegetation as sea level
rises." The plan therefore forbids use of "struc-
tural shoreline protection" except when "the
primary purpose is to enhance the site as a conser-
vation area and/or a natural buffer against storms"
in Type 1 waters, and allows such structures only
pending permit approval in Type 2 waters.59
The discussion regarding coastal bluffs and
cliffs notes that their erosion may actually provide
needed sediments to down-drift beaches, and
therefore instructs the Council to "encourage the
use of non-structural methods to correct erosion
problems associated with coastal cliffs, banks, and
bluffs adjacent to Type 1 and Type 2 waters."60
Although hard erosion control strategies are to be
discouraged in these areas, they may be permitted
under certain exceptional circumstances. How-
ever, the Council is instructed to:
weigh the impact of the proposed struc-
ture on the supply of sediments to nearby
beaches. Where the Council finds that a
substantial reduction or elimination of
sediment is likely to result, and that natu-
ral erosional processes affecting the
nearby beach will thereby be accelerated,
it shall deny its Assent [for the permit] ."61
The plan also deals with rocky shores and
with man-made shorelines,62 but it points out that
"[t]he presence of isolated seawalls, bulkheads,
and similar structures does not constitute a man-
made shoreline, as the term is used in this Pro-
gram."63
In Rhode Island, the Coastal Resources Man-
agement Council "may order restoration or re-
moval [of isolated structures] where it finds that
the structure poses a hazard to navigation, inter-
feres with the public's right of access to and along
the shore, causes flooding or wave damage to
abutting properties, or degrades the scenic quali-
ties of the area."64
Appendix B
B-9
Selected State/Regional Policy Responses
-------
Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
2. South Carolina
South Carolina's Coastal Tidelands and
Wetlands Law65 implements an aggressive and
detailed beach preservation policy. The legisla-
tive findings section66 of this statute notes that
previously existing state legislation (prior to
1988) "did not provide adequate jurisdiction to the
South Carolina Coastal Council to enable it to
effectively protect the integrity of the beach/dune
system."67 It cites the importance of the
beach/dune ecosystem to the State as a protective
storm barrier, as a basis for tourism, as habitat for
wildlife, and as providing recreational opportuni-
ties for South Carolinians.68 In addition, this
section notes that the system is threatened by
development too close to the shore and specifi-
cally points to hard erosion control devices as
exacerbating the problem of shoreline erosion:
These armoring devices have given a
false sense of security to beachfront prop-
erty owners. In reality, these hard struc-
tures, in many instances, have increased
the vulnerability of beachfront property to
damage from wind and wave while con-
tributing to the deterioration and loss of
the dry sand beach which is so important
to the tourism industry.69
In addition to this finding, the section points
out that erosion is a natural process, which causes
problems for humans "only when structures are
erected in close proximity to the natural system."
The section specifically notes that it is important
to afford the dynamic beach/dune system space to
erode and reform without hindrance by hard
erosion control devices and other structures. It
also states a preference for retreat from exposed
beaches:
It is in both the public and private inter-
ests to afford the beach/dune system
space to accrete and erode in its natural
cycle. This space can be provided only
by discouraging new construction in close
proximity to the beach/dune system and
encouraging those who have erected
structures too close to the system to re-
treat from it.70
It is the stated policy of the law to "protect,
preserve, restore and enhance the beach/dune
system"71 To achieve this general goal, "local
comprehensive beach management plans" are
required within the context of "a comprehensive,
long-range beach management plan," and the
plans are "to include a gradual retreat from the
system over a forty-year period."72 Other ancil-
lary policies aim to "severely restrict the use of
hard erosion control devices ... and to encourage
the replacement of hard erosion control devices
with soft technologies," encourage erosion control
techniques with low environmental impacts,
promote beach nourishment, preserve and promote
public beach access, involve local governments in
the coastal planning process, and to "establish
procedures and guidelines for the emergency
management of the beach/dune system following
a significant storm event."73
The forty-year gradual retreat policy for areas
of the South Carolina coast is based on a setback
of forty times the annual erosion rate.74 The
policy requires the Council to establish a baseline
paralleling the shoreline along the "crest of the
primary oceanfront sand dune."75 In addition, a
setback line:
must be established landward of the base-
line a distance which is forty times the
average annual erosion rate or not less
than twenty feet from the baseline for
each erosion zone based upon the best
historical and scientific data adopted by
the council as part of the State Compre-
hensive Beach Management Plan.76
The law also requires mandatory periodic
revision of the baseline,77 and "monumented and
controlled survey points" in each Atlantic coastal
county are required.78 Exempted structures not
subject to the setback include: wooden walkways,
small wooden decks, fishing piers providing
public access, golf courses, "normal landscaping,"
pools, and specially permitted structures.79
An aggrieved landowner provision is also
included, whereby a landowner who feels that the
setback line is in error "must be granted a review
of the setback line, baseline, or erosion rate, or a
review of all three."80 These requests for review
Appendix B
B-10
Selected State/Regional Policy Responses
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
are to be forwarded to the "appropriate committee
of the council and handled in accordance with the
council's regulations on appeals."
The Act only allows structures other than
erosion control devices to be rebuilt seaward of
the baseline by special permit if:
the structure is not constructed or recon-
structed on a primary oceanfront sand
dune or on the active beach and, if the
beach erodes to the extent the permitted
structure becomes situated on the active
beach, the permittee agrees to remove the
structure from the active beach if the
council orders the removal ... [and] the
use of the property authorized under this
provision, in the determination of the
council, must not be detrimental to the
public health, safety, or welfare.81
Parties aggrieved by a decision by the Council to
grant or deny such a permit have the opportunity
to appeal to the full Council.82
The Act also provides for the gradual phasing
out of erosion control structures and devices
seaward of the setback line by applying an incre-
mental system under which they may not be
rebuilt in the event of damage, with the threshold
of percent damage decreasing with time. Thus,
erosion control structures destroyed more than
eighty percent may be rebuilt until 1995 and more
than two-thirds until 2010. After June 30, 2010,
an erosion control structure may only be rebuilt if
it is less than fifty percent destroyed.
In addition, the Act limits construction of
habitable structures seaward of the setback line by
providing that structures are limited to less than
five thousand square feet of heated space, no part
is seaward of the baseline (dune line), and that no
erosion control devices are incorporated into the
structure. Repairs and maintenance are allowed
on if the total result is not greater than five thou-
sand square feet of heated space. Repair or
renovation is allowed for structures not damaged
beyond repair. Replacement of structures de-
stroyed by natural causes is take place, where
possible, landward of the setback line; enlarge-
ment of the structure is prohibited; and the re-
placement may be no farther seaward than the
original.83
Dispute resolution regarding damage assess-
ments of damage to protective structures is to be
carried out "by a registered professional engineer
acting on behalf of the council,"84 but a property
owner may challenge this assessment by obtaining
"an assessment by a registered professional engi-
neer." The section also provides for an assess-
ment by a third registered professional engineer,
should the two assessments differ. The third
engineer is to be selected by the first two engi-
neers, or, failing that, by "the clerk of the court of
the county where the structure or device lies ...
[and] [t]he determination of percentage of damage
by the third engineer is conclusive."85
3. Delaware
Delaware's Beach Preservation Act specifi-
cally mentions sea-level rise as a phenomenon to
be considered in regulating beach use:
Beach erosion and shoreline migration
occur due to the influence of waves,
currents, tides, storms and rising sea
level.... Development and habitation of
beaches must be done with due consider-
ation given to the natural forces impact-
ing upon them and the dynamic nature of
those natural features....86
Delaware's legislation puts sea-level rise in
the context of on-going coastal erosion problems
by defining "beach preservation," "beach erosion
control" and "erosion control" as including but
"not limited to, erosion control, hurricane protec-
tion, coastal flood control, shoreline and offshore
rehabilitation."87
The legislation defines a building line parallel
to the coast, "seaward of which construction of
any kind shall be prohibited without a permit or
letter of approval from the Department (Delaware
Department of Natural Resources and Environ-
mental Control)."88 In addition, construction
"landward of the building line on any beach ...
shall be permitted only under a letter of approval
from the Department."89 Furthermore, construc-
tion carried out in violation of the Beach Preserva-
Appendix B
B-ll
Selected State/Regional Policy Responses
-------
Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
tion Law is declared to be a public nuisance.90
The law also sets up a Beach Preservation Fund91
to be used to fulfill the law's general goals.
Also of interest in Delaware are recommenda-
tions for strategic retreat through "planned obso-
lescence," developing "post-storm plan[s]," and
advocating land uses which are compatible with
the goals of beach preservation, "such as fishing
camps and recreational uses, or for donating
conservation easements."92
Such incentive strategies, along with im-
proved public education and awareness about
coastal processes and the consequences of sea-
level rise and coastal erosion may prove an impor-
tant addition to coastal hazard management pro-
grams. They may help to decrease friction be-
tween government and private property owners
over an issue which is likely to increase in impor-
tance for coastal managers, residents, and user
groups.
4. Florida
Florida's Beach and Shore Preservation Law
provides for the establishment of construction
control lines93 which are to be periodically re-
viewed and updated "after consideration of hydro-
graphic and topographic data which indicates
shoreline changes that render established coastal
construction control lines to be ineffective for the
purposes of this act."94 Construction control lines
are to be established taking into consideration
"historical storm and hurricane tides, predicted
maximum wave uprush, beach and offshore
ground contours, the vegetation line, erosion
trends, the dune or bluff line ... and existing
upland development."95 Public hearings are
required for the establishment of these lines, and
allowance is made for administrative review of
construction control lines for aggrieved riparian
upland owners.96 The mutable aspect and periodic
review of the construction control lines allow
Florida the flexibility to use the Beach and Shore
Preservation Law to respond to changes in the rate
of sea-level rise. The statute also envisions a
state/local partnership in the preservation of
beaches.97 The section provides for state funding
of beach renourishment and restoration projects
from the Beach Management Trust Fund of up to
75%, while local municipalities are required to
pay the remainder.
5. Pennsylvania
While Pennsylvania's legislation does not
specifically mention the issue of sea-level rise, it
does contemplate the problem of coastal erosion
in its Bluff Recession and Setback Act,98 and it
encourages state and municipal cooperation to
regulate land uses in erosion hazard areas. The
legislation deals specifically with bluffs on Lake
Erie, but provides an interesting example of state-
local cooperation which has applicability to the
regulation of coastal bluffs.
The law provides for Pennsylvania's Environ-
mental Quality Board to establish regulations for
minimum bluff setback requirements in bluff
recession hazard areas. These areas are defined as
"area[s] or zone[s] where the rate of progressive
bluff recession creates a substantial threat to the
safety or stability of nearby or future structures or
utility facilities."99 However, six months after a
given municipality has been designated as includ-
ing such bluff recession hazard areas, the munici-
pality must implement an ordinance which re-
quires setbacks in those areas and which complies
with the minimum State standards set by the
Environmental Quality Board.100 Municipal
ordinances may be more restrictive than the State's
minimum setback requirements.101 The State may
bring an enforcement action against municipalities
which fail to adopt or implement setback ordi-
nances.
6. Maryland: The Chesapeake Bay
Planners in Chesapeake Bay have identified
the need for development of alternative
site-specific strategies to protect wetlands from
inundation.102
In the Chesapeake Bay area, private landown-
ers have often invested heavily in waterfront
properties, and are unlikely to choose to simply
abandon these properties without trying to protect
them. Analyses by Chesapeake Bay area coastal
managers contend that the building of seawalls
Appendix B
B-12
Selected State/Regional Policy Responses
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
and dikes to protect private upland property from
sea-level rise will likely have significant negative
impacts on wetlands. If development is situated
immediately upland of a coastal wetland, there
will be nowhere for that wetland to migrate should
it become inundated as the result of accelerated
sea-level rise.
This is particularly significant for Chesapeake
Bay, where historical wetlands and whole islands,
mapped in the eighteenth century, have already
disappeared.103 Due to the nature of coastal
wetlands as low-lying, very gently-sloping areas,
coastal wetlands will be the first areas to be
inundated, and an increase in the rate of sea-level
rise will accentuate this trend.
If owners of private upland property construct
sea walls and dikes, the wetlands cannot migrate
to the adjacent uplands, but will rather be more
quickly inundated. A possible wide-spread loss of
wetlands, in addition to the ongoing
anthropogenic direct destruction of wetlands
through dredging and filling operations could
have devastating effects on already threatened
coastal ecosystems. If wetlands do not have a
chance to migrate, the biological productivity of
coastal ecosystems will be seriously impaired.
Maryland's wetlands protection legislation
covers all areas within 1000 feet of the Chesa-
peake Bay that are less than 50% developed. It
requires local governments to develop protection
plans for wetlands by requiring buffer zones.104
Because the legislation covers such vast areas in
the Chesapeake Bay area and requires buffer
zones, it may be adaptable to ameliorating the
effects of accelerated sea-level rise on wetlands.
Maryland also requires private landowners to pay
for the costs of erosion control projects which
benefit their properties, although the levy is to be
calculated to cover only the cost of the project
itself, and apparently does not include calculations
of costs resulting from the loss of natural shore-
line features resulting from the project.105
C. CONCLUSION
Several recurrent themes appear in the meth-
ods these jurisdictions have adopted or are con-
templating using to address the issues of sea-level
rise and coastal erosion. These are summarized
below.
1. Respect Dynamic Nature of Coastal
Systems
One important theme is an increasing realiza-
tion among legislators and planners that coastal
systems are dynamic and that attempts to stabilize
them may have detrimental effects on the coastal
ecosystem. As the understanding of coastal
processes increases, the expectation that coastal
areas are immutable and permanent has come to
be considered unrealistic and environmentally
unsound. This is true not only in states evaluating
the possible impacts of accelerated sea-level rise
(e.g., Washington, Oregon, and New Hampshire)
but also in states with laws designed to protect
against a continuation of historical rates of shore-
line change (e.g., Rhode Island, South Carolina,
Florida).
2. Preserve/Enhance Resiliency of Nat-
ural System
Similarly, there is growing rejection of hard
structural solutions and increased focus on main-
taining (and in cases, improving) the resiliency of
natural systems as the best way to minimize
coastal hazards (e.g., Washington, Rhode Island,
South Carolina). This approach entails: 1) pre-
serving buffers to allow room for natural systems
to migrate (Rhode Island, Washington, Maryland);
2) hazard avoidance by directing new develop-
ment away from potentially high-risk areas (New
Hampshire, Oregon, Florida); and 3) gradual
retreat of existing development from hazard areas,
at least through restrictions on rebuilding after a
specified level of destruction (Cape Cod, Long
Island).
Appendix B
B-13
Selected State/Regional Policy Responses
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
3. Revisit Issues of Public Nuisance, Pub-
lic Subsidy
As a related theme, the developing public
policies suggest that private development in high
hazard areas is increasingly being seen as a public
nuisance which diminishes the quality of a public
resource, often at the monetary expense of the
public. There appears to be a decreasing tolerance
for such hidden subsidies, and an increasing
awareness that anticipated accelerated sea-level
rise will exacerbate these problems. For example,
it has been suggested that property owners who
erect hard erosion control structures be required to
pay for beach nourishment for beaches which
have been starved of sand due to the erection of
the structure (Long Island, Oregon).
4. Build on Existing Policies
Several factors make it difficult to implement
anticipatory accelerated sea-level rise strategies at
this time, including: scientific uncertainty about
the timing, magnitude, and impacts of global
climate change; lack of public education about
and public acceptance of the probability of accel-
erated sea-level rise; and a failure to appreciate
the possible severity of impacts caused by rela-
tively small changes in temperature or sea-level.
Furthermore, coastal resource managers and
coastal landowners are just beginning to under-
stand the importance of adjusting to accommodate
the dynamic shoreline system within the param-
eters of non-accelerating rates of shoreline
change. It is difficult enough to win acceptance of
regulations designed to minimize damage from
coastal erosion projected to continue at historical
rates. The case has to be made even more con-
vincing to cause coastal residents to adopt regula-
tions to protect against unquestionably serious but
remote-in-time, uncertain projections of acceler-
ated rates of change.
Despite a leading state-level research pro-
gram, the State of Washington has opted not to
develop a new, stand-alone, accelerated sea-level
rise response strategy. Instead it is focusing its
current efforts on more mainstream coastal ero-
sion issues. A study conducted for that State
suggests that amendments to existing laws are
much more palatable and are more likely to pro-
duce the type of "no regrets" (e.g., it makes sense
even if sea level doesn't rise) strategy which the
State is seeking. Similarly, other states have not
developed specific new legislation to address
sea-level rise projections, but appear to be work-
ing within a framework of amendments to existing
laws to make them more effective if accelerated
sea-level rise becomes a reality. Thus prudent
planners appear to be basing planning and regula-
tions on the evidence of what coastal storms and
erosion are already expected to do, but build into
those regulations an extra precautionary increment
for an accelerated rise, or build in a structured
retreat as conditions require it.
5. Retain State/Regional Oversight of
Local Decisions
Another common issue relates to the alloca-
tion of responsibilities between state, regional,
and local authorities. In several jurisdictions,
states and progressive regional authorities have
established mandatory minimum standards for
local governments; the local governments are free
to establish more stringent standards if they so
choose (e.g., Pennsylvania bluff erosion). An
Oregon study also suggested this retained state
oversight may be the optimal arrangement for this
type of coastal management problem because it
allows for integrated management of a public
resource and helps insulate the decision-making
process from some of the pro-development politi-
cal pressures.
6. Develop an Integrated Strategy:
Beaches, Eroding Bluffs, Migrating
Wetlands
The most developed state/regional strategies
are grounded in a comprehensive philosophy that
applies not only to beaches, but also to the other
"soft" components of the coastal system—eroding
bluffs (e.g., Rhode Island, Washington, Long
Island) and coastal wetlands (California, Long
Island, Maryland, Rhode Island). For example,
they require that permit reviews for bluff stabili-
zation projects evaluate the importance of the
eroding coastal bluffs as part of the beach sedi-
Appendix B
B-14
Selected State/Regional Policy Responses
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
ment supply system (Oregon, Rhode Island).
Several states have policies, some implemented
through regulations, to protect wetlands by pre-
serving the opportunity for inland migration by
discouraging or prohibiting the hardening of the
inland perimeter of coastal marshes (Rhode
Island, Maryland).
7. Recognize the Complexity of Planning
Process: Topography, Intensity, and
Land Use
Despite a comprehensive philosophy toward
the soft coast, another recurrent theme is the
complexity of planning for coastal land loss due
to the fact that it will affect different coastal
features in different ways, at different rates. In
addition, due the response costs, some strategies
will only be feasible in intensely developed areas.
A meaningful plan must be sufficiently sensitive
to take into account the variations in coastal
8. Utilize Coastal Setback Requirements
Most surveyed jurisdictions use setback
requirements to minimize erosion hazards, includ-
ing Cape Cod (30 times average historical erosion
rate), South Carolina (40 times average annual
erosion rate), and Rhode Island (in critical erosion
control areas, 30 times annual erosion rate for up
to 4 units and 60 times that rate for 4 or more
units). These requirements are typically based on
an increment of the historical average annual rates
rather than on projections of accelerated rates of
sea-level rise, but there is no reason future trends
could not be used to establish the setback if
justified by particular circumstances. Taking a
slightly different approach, San Francisco Bay
Conservation and Development Commission
requires applicants to design for a minimum of
twice the historic annual rate of sea-level rise.
features and land uses.
For example, special area management plan-
ning has been advocated for the littoral cells of
Oregon in planning for sea-level rise. The Long
Island South Shore plan also uses a special area
management planning approach to deal with its
varied coast. The State of Rhode Island regulates
coastal areas not by geographic region, but by
shore type, population density, and the uses of
adjacent waters, effectively creating a kind of
special area management planning. These plans
typically distinguish between strategies for unde-
veloped and developed areas, with general recog-
nition that the more costly methods (e.g., hard
protective structures and beach nourish-
ment)—both in terms of financial expenditures
and environmental degradation—can only be
justified, if at all, in the more heavily developed
areas.
certain percent of pre-damage value (Cape Cod,
South Carolina), provisions for recalculation of
coastal setback lines in response to sea-level rise
or other changes (Florida), heightened design
standards which take sea-level rise into account
(San Francisco), stricter building codes which
require an additional increment above current
floodproofmg requirements (Washington, Cape
Cod), limits on building or expanding public
infrastructure in flood hazard areas (Cape Cod),
tax incentives for less intense uses along the
shoreline (Delaware), purchase of undeveloped
coastal lands (Long Island) and advanced
post-storm redevelopment planning and/or provi-
sions for temporary post-storm building moratoria
(Long Island, Delaware, Rhode Island, South
Carolina).
9. Evaluate a Variety of Additional
Strategies
Setbacks for new construction are merely one
component. Other strategies adopted or being
considered include restrictions on rebuilding
structures or seawalls if damaged by more than a
Appendix B
B-15
Selected State/Regional Policy Responses
-------
Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
D. ENDNOTES APPENDIX B
1. Washington Dept. of Ecology Global Climate
Change Programs, Joint Legislative Workshop, House
Energy and Utilities Comm. and House Envt7 Affairs
Comm., Univ. of Washington, Seattle, WA, (Nov. 21,
1989) (statement of D.J. Canning, Sea Level Rise
Project Manager, Shorelands and Coastal Zone Man-
agement Program, Washington Dept. of Ecology,
Olympia, WA).
2. D.J. Canning, Sea Level Rise in Washington State:
Technical Issues and Preliminary Policy Responses,
OCEANS '89: AN INTERNATIONAL CONFERENCE AD-
DRESSING METHODS FOR UNDERSTANDING THE GLOBAL
OCEAN (Seattle, WA Sept. 18-21, 1989) at 231-235.
3. D.J. Canning, Global Climate Change Assessment
in Washington State, reprint of paper to be delivered at
Coastal Zone '91, Long Beach, CA, (July 8-12, 1991)
at 6.
4. ASSEMBLY NATURAL RESOURCES COMM., STATE
OF CALIFORNIA, GLOBAL WARMING: A BLUEPRINT FOR
STATE RESPONSE (April 1989).
5. MOFFATT & NICHOL, WETLANDS RESEARCH
ASSOCIATES, INC., AND SAN FRANCISCO BAY
CONSERVATION AND DEVELOPMENT COMMISSION
STAFF, FUTURE SEA LEVEL RISE: PREDICTIONS AND
IMPLICATIONS FOR SAN FRANCiscoBAY(SanFrancisco
Bay Conservation and Development Commission, Dec.
1987) (Oct. 1988).
6. Id.
7. Id. app. B at 102-103.
8. L.C. EWING, ET AL., DRAFT REPORT: PLANNING FOR
AN ACCELERATED SEA LEVEL RISE ALONG THE CALI-
FORNIA COAST, (California Coastal Commission, June
1989).
9. Personal communication with California Coastal
Comm'n staff, (Jan. 6, 1994).
10. OREGON TASK FORCE ON GLOBAL WARMING,
OREGON DEPARTMENT OF ENERGY, POSSIBLE IMPACTS
ON OREGON FROM GLOBAL WARMING (March 1989).
11. Two State laws form the basis of legislation in the
Oregon coastal zone, the Beach Law (OR. REV. STAT.
§ 390.605-390.770) and the Removal/Fill Law (OR.
REV. STAT. § 196.800-196.990). They are administered
by the State Parks and Recreation Department (Beach
Law) and the Division of State Lands (Removal/Fill
Law). They are supplemented by regulations and
coastal planning goals which form part of the State's
well-developed land use planning program.
12. James Good, Ocean Shore Protection Policy and
Practices in Oregon, in COASTAL NATURAL HAZARDS:
SCIENCE, ENGINEERING, AND PUBLIC POLICY at 12
(J.W Good & S.S. Ridlington (eds.), Oregon Sea
Grant, Corvallis, OR) (1992) (cite omitted).
13. Id. at 20.
14. Id. at 26.
15. Id. at 26.
16. OREGON COASTAL NATURAL HAZARDS POLICY
WORKING GROUP, COASTAL NATURAL HAZARDS:
ISSUES ANDOPTIONSREPORT (Oregon State University,
Corvallis, OR, Oct. 1, 1993).
17. SHEVENELL GALLEN AND ASSOCIATES, INC.,
TECHNICAL REPORT: RISE IN SEA LEVEL AND COASTAL
ZONE PLANNING (Office of State Planning, State of
New Hampshire, Oct. 24, 1987).
18. ROCKINGHAM PLANNING COMMISSION, PRELIMI-
NARY STUDY OF COASTAL SUBMERGENCE AND SEA
LEVEL RISE IN SELECTED AREAS OF NEW HAMPSHIRE 1
(1991).
19. Id. at 30.
20. Id. at 32.
21. Id. at 31.
22. Cape Cod Commission Regional Policy Plan,
(Barnstable, MA effective Sept. 6, 1991).
23. Tom Bigford, Planning Ahead for the Coast:
Climate Change and Coastal Planning, (paper deliv-
ered at the South Carolina Sea Grant Consortium's
Eighth Annual Winter Conference, CLIMATE CHANGE:
PLANNING AHEAD FOR SOUTH CAROLINA, (Columbia,
SC) (Jan. 16, 1990).
24. Cape Cod Commission, supra note 22, standard
2.2.
25. Id. standard 2.2.2.
26. Id. standard 2.2.2.2. (empasis added).
27. Id. standard 2.2.2.4. (empasis added).
28. Id. standard 2.2.2.1.
29. Mstandard 2.2.2.3.
30. Id. standard 2.2.2.6.
Appendix B
B-16
Selected State/Regional Policy Responses
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
31. Id. standard 2.2.2.5.
32. LONG ISLAND REGIONAL PLANNING BOARD,
PROPOSED LONG ISLAND SOUTH SHORE HAZARD
MANAGEMENT PROGRAM (Dec. 1989).
33. N.Y. Environmental Conservation Law § 34
(Consol. 1993).
34. Long Island Regional Planning Board, supra note
32 at xvii.
35. Id. at xviii.
36. Id. at xix.
37. Id. ch. 3.5.
38. Id. at xix.
39. Id. ch. 3.5.
40. Id. ch. 3.7.
41. Id. ch. 3.5.
42. Id. at xviii.
43. Id. ch. 3.6.
44. Id. ch. 3.7.
45. For a more comprehensive description and analysis
of state responses to erosion hazards, see, for example,
NATIONAL RESEARCH COUNCIL, MANAGING COASTAL
EROSION 94-119 (National Academy Press, Wash.,
D.C., 1990); and R.H. PLATT, ET AL., COASTAL ERO-
SION: HAS RETREAT SOUNDED? 41-139 (Program on
Environment and Behavior, Monograph No. 53, Insti-
tute of Behavioral Science, University of Colorado,
1992).
46. PLATT, ET AL., supra note 45, at 129.
47. STEPHEN OLSEN & GEORGE L. SEAVEY, THE
STATE OF RHODE ISLAND, COASTAL RESOURCES MAN-
AGEMENT PROGRAM, § 140 (as amended).
48. Developments of four or more dwelling units.
49. THE STATE OF RHODE ISLAND COASTAL RE-
SOURCES MANAGEMENT PROGRAM, As AMENDED §
210(A)(2) (Coastal Resources Management Council,
1990) (addendum Oct. 14, 1993) (emphasis added).
50. Id. § 120(B).
51. Id.§ 120.A.I.
52. Id. § 120.A.2.
53. Id. § 130.
54. Id. § 180.3.E.
55. Id. §§210.1-210.6.
56. Id. §210.1.B.l.
57. Id. § 210.2.B.2.
58. Id. §210.1.
59. Id. § 210.3.C.
60. Id. § 210.4.C.4.
61. Id. § 210.4.C.4.
62. Id. §§210.5 and 210.6.
63. Id. § 210.6.A.
64. Id. § 210.6.C.3.
65. S.C. CODE ANN. § 10 (Law Co-op. 1991 & Supp.
1993) The 1993 amendments to the law substitute the
Coastal Division of the Department of Health and
Environmental Control (§ 35) and the Coastal Zone
Management Appellate Panel (§ 40) for the South
Carolina Coastal Council. The amendments also made
some technical and procedural changes (see, e.g. §
280). The 1993 amendments are effective as of July 1,
1994.
66. Id. § 250.
67. Id. § 250(4).
68. Id. § 250(1).
69. Id. § 250(5).
70. Id. § 250(6).
71. Id. § 260(1).
72. Id. § 260(2).
73. Id. § 260(3).-(8).
74. Id. § 48-39-280(B).
75. Id. § 280(A)(1).
76. Id. § 280(B).
77. Id. § 280(C).
78. Id. § 280(D).
79. Id. § 290.
80. Id. § 280(E).
81. Id. § 290(D)(1).
82. Id. § 290(D)(4).
83. Id. § 290(B)(l)(a)-(b).
84. Id. § 290(2)(b)(iv).
Appendix B
B-17
Selected State/Regional Policy Responses
-------
Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
85. Id. § 290(2)(b)(iv).
86. DEL. CODE ANN. tit 7, § 6801 (1993) (emphasis
added).
87. Id. § 6802(3).
88. Id. §§ 6802(4), 6805(a).
89. Id. §§ 6805(c).
90. Id. §§ 6807(b).
91. Id. §§ 6808.
92. Klarin & Hershman, citing Delaware Environmen-
tal Legacy Program, BEACHES 2000: REPORT TO THE
GOVERNOR (Delaware Department of Natural Re-
sources and Environmental Protection, 1988) at 150.
93. FLA. STAT. ANN. § 161.053 (West 1992).
94. Id.
95. Id. § 161.053(2).
96. Id. § 161.053(2).
97. Id. § 161.101.
98. PA. CONS. STAT. § 5201 (1993)..
99. Id. § 5203.
100. Id. § 5206.
101. Id. § 5206(c).
102. K. Kasowski, Global Warming and the Bay: The
Rising Chesapeake, CHESAPEAKE CITIZEN REPORT
(July-August 1989).
103. Id.
104. MD. CODE ANN., Chesapeake Bay Critical Area
Protection Program § 1801 (1993). See also Paul
Klarin & Marc Hershman, Response of Coastal Zone
Management Programs to Sea Level Rise in the United
States 18 COASTAL MANAGEMENT 143-165, 1990, at
152.
105. MD. CODE ANN., Shore Erosion Control § 1006,
Benefit Charge (1993).
Appendix B B-18 Selected State/Regional Policy Responses
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
Appendix C
BACKGROUND INFORMATION ON THE
CASCO BAY/SACO BAY REGION
The Casco Bay/Saco Bay study region in-
cludes the portion of Maine's coastline extending
from the City of Saco to the Town of Brunswick,
including Old Orchard Beach and Saco in York
County, and Scarborough, Cape Elizabeth, South
Portland, Portland, Falmouth, Cumberland,
Yarmouth, Freeport and Brunswick in Cumber-
land County. (See Figure C.I)
A. GEOLOGIC SETTING OF STUDY
Casco and Saco Bays, Maine are adjoining
estuaries along the western margin of the Gulf of
Maine. Each embayment is framed by a bedrock
skeleton which is partially covered by unconsoli-
datedglacigenic deposits of Pleistocene-Holocene
age. Along the shoreline these deposits have been
reworked by modern processes into intertidal
environments such as mud flats and sand beaches.
Casco Bay is characterized by linear chains of
islands, shoals and peninsulas controlled by the
orientation of bedrock (Kelley, 1987). The rocks
are often directly overlain by till, a mixture of
gravel, sand and mud deposited by glacial ice.
This material is highly variable in thickness and
often occurs in the form of elongate ridges called
moraines (Thompson and Borns, 1985). Till is
often overlain by glacial-marine sediment, locally
called the Presumpscot Formation (Thompson and
Borns, 1985). The Presumpscot Formation was
deposited in early postglacial times, and is a
generally muddy, and often thick deposit. It crops
out widely along the Casco Bay shoreline and
covers much of the seafloor of the bay as well
(Kelley, et al., 1989b).
Following deposition of the Presumpscot
Formation, the land in Maine was uplifted as a
result of the removal of the load of glacial ice.
The surface of the Presumpscot Formation, the
former seafloor, became deeply gullied in places
and experienced landslides as it became emergent.
The large rivers which carved Casco Bay, the
Kennebec and Androscoggin, were blocked by
glacial deposits from entering Casco Bay as sea
level fell, and when the sea reached its lowstand
at -60 m, around 10,500 years ago (Kelley et al.,
1992) (Figure C.2), only small streams like the
Presumpscot and Royal Rivers entered Casco Bay.
As sea level rose during the Holocene, the
glacial deposits of the bay were reworked by
waves and currents. As a result, most of the
seafloor of the outer bay is bare rock or gravel,
and significant accumulations of modern sediment
exist only in areas in the lee of islands and penin-
sulas (Kelley etal., 1987a). As the rate of sea-lev-
el rise slowed during the past few thousand years
(Figure C.2), the outer, ocean-facing islands were
swept clean of most glacial deposits by storms,
and gravel beaches and bedrock form most
intertidal environments (Kelley, 1987). In the
inner bay, protected from direct wave attack by
islands, substantial bluffs of glacigenic deposits
continue to erode. It is the erosion of this material
Appendix C
C-1 Background Information on the Casco Bay/Saco Bay Region
-------
Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Figure C.I. Regional Study Area for Sea-Level Rise Analysis.
Appendix C
C-2 Background Information on the Casco Bay/Saco Bay Region
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
MAINE COAST
LOCAL RELATIVE SEA LEVEL 14,500-0 B.P.
EUSTATIC RISE
ISOSTATIC REBOUND
DEGLACIATION
100^
80-
60-
40- S£
£' 20-
OBelknap and others, 1987
xSaco Bay'")
y Casco Bay \ This study
z Cape Small-'
z
in
-20-
-40-
-60-
£-2^ Bel knap and others, 1987
Maine Shelf
Seismic - Geomorphic Inference
14
12
10
T T
8
i
2
MHW
0
10° RADIOCARBON YEARS B.P.
Figure C.2. Sea-level change curve for coastal Maine (from Kelley et al, 1992).
-------
Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
Appendix C C-4 Background Information on the Casco Bay/Saco Bay Region
-------
Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
which provides sand and mud to create contempo-
rary tidal flats and salt marshes. Owing to the
abundant occurrences of the muddy Presumpscot
Formation in Casco Bay, there are few natural
beaches in the embayment. Those beaches that do
exist are "pocket beaches" protected by rock
outcrops at either end (Kelley et al., 1986; Kelley,
1987).
Saco Bay is arcuate in shape and located
directly south of Casco Bay. Despite its proxim-
ity, its geological history is different from Casco
Bay and this difference is manifest in most aspects
of the bay's appearance (Kelley et al., 1986).
Although there are till deposits on the seafloor of
Saco Bay (Kelley et al., 1987b), none crop out on
land. Similarly, the Presumpscot Formation is a
common deposit on the bay bottom, but few
exposures may be seen on land (Kelley et al.,
1989c). Saco Bay experienced a similar history to
Casco Bay until the time of lowering of the sea,
around 10,500 years ago (Kelley et al., 1986). At
that time the Saco River contributed great quanti-
ties of sand from as far away as the White Moun-
tains of New Hampshire to the bay (Kelley et al.,
1992). Sand covered the muddy Presumpscot
Formation and beaches became common environ-
ments. As sea level rose during the Holocene,
sand from the river maintained beaches in the bay
up to the present time, although it is unclear
whether sand continues to be brought down the
river. Where beaches front embayments, exten-
sive salt marshes have colonized most of the
intertidal, back- barrier environments (Kelley et
al., 1986, 1989c).
The effects of coastal erosion on developed
and undeveloped property are not as conspicuous
in Maine as they are south of New England. This
may be because the rate of sea-level rise in the
region is only 2.3 mm/yr, slightly more than half
the rate for some mid-Atlantic states. A recent
study suggests that sea level may have reached
near its present elevation in Maine around 1000
years ago, however, and that many of the beaches
and marshes developed during that pause of the
sea (Kelley et al., in press). The current rate of
sea-level rise is much greater than has occurred in
several thousand years, and some contemporary
erosion and land loss has been attributed to the
recent increase in sea level (Wood et al., 1989;
Jacobson, 1988).
B. SOCIO-ECONOMIC CHARACTERISTICS
1. Population
While the exact number of residents that stand
to be affected by accelerated sea-level rise along
the Casco and Saco Bay shorelines was not calcu-
lated, based on knowledge of existing shoreline
development patterns, it is reasonable to estimate
that of the total 1990 regional population of
180,172, roughly 3,600 to 9,000 people currently
live in the immediate vicinity of the shore (2-5%
of the total population). Assuming the same
proportion of waterfront dwellers as compared to
the total population for the region, and using
population projections for the Year 2015 (the
latest year for which county population projec-
tions are available) between 4,300 and 10,800
people may live in the immediate vicinity of the
region's waterfront in the Year 2015.
2. Land Use and Property Values
Land use is varied along the region's shore-
line. Old Orchard Beach contains Maine's only
area of beachfront high-rise condominiums. The
shoreline of Saco, Scarborough and Freeport
includes a mix of cottage development and more
substantial homes on larger lots. The wealthier
suburbs of Falmouth, Yarmouth, Cumberland, are
characterized by estate development along the
shoreline, with small enclaves of cottage develop-
ment. Industrial, commercial and institutional
development predominates along the waterfronts
of Portland and South Portland.
No figures were compiled for total value of
properties in the region that may potentially be
influenced by rising sea level. However examples
of ranges of coastal property values are given for
specific mapped study area sites in Chapter Three.
3. Anticipated Land Use Change
Discussions with town officials and analysis
Appendix C
C-5 Background Information on the Casco Bay/Saco Bay Region
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
of current development patterns throughout the
region indicate that shoreline areas within 100
meters of current mean high water are already (for
the most part), built out, with little usable, vacant,
appropriately zoned land available for new devel-
opment. During the last five years, building
permits in the shoreland areas have consisted
mostly of seasonal conversions, infill develop-
ment in grandfathered subdivisions or on
grandfathered lots, renovation or improvement of
single family residences, and only very limited
new single family development. However, the
depressed real estate market during the last five
years probably understates the potential for future
demand. If development pressures reach 1980s
levels, the most likely opportunities for growth in
the shoreland area will be the subdivi-
sion/redevelopment of larger estates, consolida-
tion/ redevelopment of marginal seasonal homes
and marginal commercial structures, and redevel-
opment of seasonal cottages to multi-unit residen-
tial structures.
4. Infrastructure
Each of the municipalities in the region is
served, to varying extent, by public water and
sewer, and by an improved road network. There
are numerous sewage treatment and stormwater
outfalls along the region's shoreline.
Information provided by Maine's Department
of Environmental Protection did not indicate the
presence of any landfills within 100 meters of the
shoreline. However, past practice in many com-
munities was to use estuarine shorelines as dump
sites. Interviews with local officials may reveal
that there are, in fact, historic dumps located
within this area of concern.
The only large utility of concern within the
study area is Central Maine Power's Wyman
power-generating facility on Cousin's Island in
Yarmouth. According to plant manager David
Potter, the distance from high tide to upland is
about 4 ft., but during abnormal high tides, the
plant has experienced some flooding. No
floodproofing of the facility has taken place.
Also of concern due to the possible types of
materials stored there, are sites scattered through
out the study region (most on Casco Bay's islands)
that were formerly used by the U.S. Defense
Department. Further research would be needed to
assess individual site vulnerability, and the pres-
ence of hazardous materials.
5. Cultural and Recreational Features
The shoreline parks and natural areas in the
study region attract thousands of visitors each
year. They include wide sandy beaches such at
those at Ferry Beach State Park, Old Orchard, and
Pine Point, nature trails around salt marshes such
as Scarborough Marsh and Gilsland Farm, rocky
promenades such as Two Lights State Park in
Cape Elizabeth, forested paths like those at Wolf
Neck Woods State Park in Freeport, and urban
amenities such as the fitness trail around Back
Cove in Portland.
The shoreline of Casco and Saco Bays is rich
in history. There are more than 60 sites of known
or suspected archeological resources along the
shores, many of which are located on Casco Bay's
islands. There are seven historic sites and two
historic districts within 100 meters of the sea that
may be potentially affected by rising sea level.
6. Habitat/Critical Areas
Maine's coastal waters support an extremely
diverse array of marine life. High value wetlands,
and marine habitats of national significance are
scattered throughout the region. According to the
U.S. Fish and Wildlife Service (Maine State
Planning Office, 1992), some locations contain
the highest diversity of marine life in all the
coastal waters of the United States.
There are at least 20 registered, state critical
areas within 100 meters of the shoreline. "Critical
areas" are sites containing habitat for rare plants
and animals, unusual geologic formations, or
other important natural features.
7. Fisheries
A significant commercial fishery, both finfish
and shellfish (landed value of $154 million in
Appendix C
C-6 Background Information on the Casco Bay/Saco Bay Region
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Originally published September 1995 by the U.S. EPA Office of Policy, Planning, and Evaluation
1991) exists in the Gulf of Maine (MSPO, 1992).
Softshell clams continue to be a valuable compo-
nent of Maine's annual fish landings, and within
the study area, Brunswick, Freeport, and
Scarborough support sizable shellfish populations.
Clusters of shellfish aquaculture leases are located
in Freeport and further south in the study area.
No analysis has yet been completed which
focuses on projected changes in estuarine condi-
tions in the Gulf of Maine due to climate change.
However, an analysis of the Gulf of Mexico found
that those Gulf coast fisheries could be negatively
affected by the loss of critical wetland habitat
associated with sea-level rise. That study con-
cluded that warmer water temperatures will be at
or above tolerances for many important commer-
cial species of finfish and shellfish and other fish
could be threatened by increased salinity. The
Gulf of Mexico study predicted that sea-level rise
between 50 and 200 cm would reduce available
food supply for marine species by 42-78%, result-
ing in a disproportionate loss in seafood popula-
tion. A sea-level rise of 1 meter was associated
with a major loss of fisheries. (Livingston, as
reported in Smith & Tirpak, 1989)
It is beyond the scope of this study to attempt
to quantify potential impacts to Gulf of Maine
fisheries associated with global climate change.
However, it is important to note that some experts
project that an already threatened, multi-million
dollar industry may be further affected by changes
in fisheries habitat caused by sea-level rise and
global warming.
C. REFERENCES APPENDIX C
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Possum, D. Assistant Town Planner, Old Orchard
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Jacobson, H.A. 1988. "Historical development of the
salt marsh at Wells, Maine." Earth Surface Pro-
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Kelley, IT., A.R. Kelley, D.F. Belknap, and R.C.
Shipp. 1986. "Variability in the evolution of two
adjacent bedrock-framed estuaries in Maine." In
Wolfe, D., Estuarine Variability 21-42. Orlando,
FL: Academic Press.
Kelley. 1987. "An inventory of coastal environments
and classification of Maine's glaciated coastline."
In Ed. FitzGerald, D.M., and PS. Rosen. Glaci-
ated Coasts 151-176. Orlando, FL: Academic
Press.
Kelley, IT., D.F. Belknap, and R.C. Shipp. 1987a.
"Geomorphology and sedimentary framework of
the inner continental shelf of southcentral Maine."
Technical Report to the Minerals Management
Service, Maine Geological Survey Open File
Report 87-19; 75 pp.
Kelley, IT, R.C. Shipp, and D.B. Belknap. 1987b.
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the inner continental shelf of southwestern
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Kelley, IT, D.F. Belknap, and R.C. Shipp. 1989a.
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Kelley, IT, R.C. Shipp, and D.B. Belknap. 1989b.
"Geomorphology and late quaternary evolution of
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Kelley, IT, S.M. Dickson, D.F. Belknap, and R.
Stuckenrath. 1992. "Sea-level change and the
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Kelley, IT, R.W Gehrels, and D.F. Belknap. 1994,
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Appendix C
C-7 Background Information on the Casco Bay/Saco Bay Region
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Anticipatory Planning For Sea-Level Rise Along The Coast Of Maine
PROJECTIONS OF MAINE COUNTIES AND MINOR
CIVIL DIVISIONS."
Maine Department of Inland Fisheries and Wildlife.
1988. "The identification and management of
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Maine State Planning Office, Maine Coastal Program.
1992. "Policy options for Maine's marine waters."
A Report of the Marine Policy Committee of the
Land and Water Resources Council, Augusta, ME.
Morelli, P. and R. Roedner, Saco Town Planners.
Personal communication.
Naylor, A., former Brunswick Town Planner. Personal
communication.
Nugent, M., Codes Officer, Old Orchard Beach.
Personal communication.
Potter, D., Plant Manager, Central Maine Power,
Wyman facility. Personal communication.
Smith, J.B. and D.A. Tirpak, eds. 1990. "Potential
effects of global climate change on the United
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Publishing Corporation.
Southern Maine Regional Planning Commission.
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Thompson, W, and H. Borns,. 1985. "Surficial geo-
logic map of Maine." Augusta, ME: Maine Geo-
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Appendix C
C-8 Background Information on the Casco Bay/Saco Bay Region
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