All posts tagged 'Delaware Sea Level Rise Advisory Committee'

Delaware’s Most Vulnerable County Abstains from Vote on Sea Level Rise Mitigation Options

May 31, 2013 08:47
by J. Wylie Donald  & Jameson Tweedie

In our continuing our discussion (see here and here) of the Delaware Sea Level Rise Advisory Committee ("DSLRAC"), the efforts of the DSLRAC took an ironic - but perhaps predictable - turn when the delegate for the Delaware county likely to be most directly affected by sea level rise abstained from voting on any of the dozens of options developed by the DSLRAC to address the effects of sea level rise.

After developing a list of over 60 "Options for Preparing Delaware for Sea Level Rise" (PDF available here), over the past months the DSLRAC held public engagement sessions in each of Delaware's three counties and solicited public comments on the proposed options. These options fell within four broad types of responses to sea level rise - whether to accommodate, avoid, protect or retreat from the consequences of sea level rise. After consideration of the public comments, the DSLRAC - which includes representatives from municipal governments, business advocacy organizations, citizen advocacy organizations and the cabinet-level departments of the State of Delaware - voted on each of the options before the final list will be presented to Department of Natural Resources and Environmental Control Secretary Collin P. O'Mara. The Sussex County delegate, however, abstained from voting on any of the options, reportedly at the request of Sussex County Council.

Sussex County's abstention from the debate - and thus its refusal to vote for any of the options to mitigate the effects of sea level rise in Delaware - is ironic given the effects of sea level rise the DSLRAC found were likely to directly impact Sussex County, which is bordered on the east by the Atlantic Ocean and the Delaware Bay. For example, the DSLRAC found that between 35,000 and 55,000 acres of land in Sussex County was likely to be inundated by sea level rise by 2100, or between 6% and 9% of Sussex County (see here (PDF) at 19). The inundated areas would include low lying resort communities on the Atlantic Ocean, the Delaware Bay and the Inland Bays (id.). In addition to the obvious impacts on tourism and costal recreation, the DSLRAC found that Sussex County was likely to particularly feel the impact of sea level rise on a broad range of infrastructure and resources, including such key items as roads, bridges, evacuation routes, future development areas, and the availability of drinking water (see id. at x-xiii). These risks were apparently not enough to sway the County Council, with one Councilman reported as disputing the existence of sea level rise ("They don't have no facts. It's almost BS, to be honest with you"; "If it hasn't happened in the last 7,000 years, why's it going to do it now, all of a sudden?"), despite the scientific evidence presented by the DSLRAC. Another was reported to have stated that "Sixty percent of our tax base comes from one mile off that beach," but nevertheless suggested that the effects, if any, were "years down the road" and could be dealt with at a later date.

Despite the position of Sussex County Council, various coastal towns within Sussex County, including Dewey Beach and Rehoboth Beach, are looking at actions they can take without County involvement to address the potential impacts of sea level rise, and the Delaware General Assembly has declared the week of September 14-22, 2013 "Sea-Level Rise Awareness Week" to, among other things, "increase the awareness, education and knowledge of Delaware residents" about sea level rise. While the DSLRAC proceeded with the vote on options despite the Sussex County abstention, and will present those options to Secretary O'Mara, Sussex County's position highlights the controversy that continues to surround climate change and sea level rise, even in the places likely to be most affected by sea level rise, and despite the overwhelming consensus among scientists.

Climate Change | Rising Sea Levels

In Response to Sea Level Rising At Double the Global Rate, Delaware Debates Whether to Accommodate, Avoid, Protect or Retreat

February 20, 2013 17:07
by J. Wylie Donald  & Jameson Tweedie

On February 19, 2013, the Delaware Sea Level Rise Advisory Committee ("DSLRAC") held the second of three "public engagement sessions" to solicit public comment on a list of 61 "Options for Preparing Delaware for Sea Level Rise". These public engagement sessions are part of the second phase -- focusing on adapting to sea level rise -- of the DSLRAC's mission.

The first phase focused on the preparation of a comprehensive assessment of Delaware's vulnerabilities to sea level rise. The Vulnerability Assessment modeled the effects of three potential sea level increases by the end of the century - 0.5 meters (1.6 feet), 1.0 m (3.3 feet) and 1.5 m (4.9 feet) from mean higher high water - and identified state resources that were vulnerable to sea level rise. The state resources considered were broadly divided into three categories: natural resources; society and economy; and public safety and infrastructure. Within these broad categories, the vulnerability of 79 specific resources to sea level rise was examined, of which 16 were determined to be of high concern statewide: dunes and beaches; coastal impoundments; dams, dikes and levees; evacuation routes; freshwater tidal wetlands; future development areas; habitats of conservation concern; heavy industrial areas; the Port of Wilmington; protected lands; roads and bridges; railways; tidal wetlands; tourism and coastal recreation; U.S. Fish and Wildlife Service Refuges; and wells. The models did not include any effects from storm surge or increased storm intensity, and thus the effects are arguably conservative for each of the three modeled sea level increases. Even so, the Vulnerability Assessment found that all three of Delaware's counties would be directly affected by sea level rise, and 8-11% of the entire state's land area would be permanently flooded (at the public engagement session a tax assessed value of $1.5 billion was estimated for the land which will potentially be flooded). (Full Vulnerability Assessment).

Delaware's vulnerability to sea level rise is a function not only of its coastal location and economy, but also because sea level rise is occurring faster in Delaware than elsewhere. Currently the global rate of sea level rise used by the DSLRAC (from the International Panel on Climate Change (IPCC) estimates) is 0.07 inches per year, or 7 inches per century (not considering any increase in that rate in the future). However, in Delaware the sea is currently rising at a rate of 0.13 inches per year (13 inches per century), or almost double the global average. This is occurring, in part, because the part of the earth's crust under Delaware is sinking. (Simplistically, during the last ice age some regions were depressed by the weight of the glaciers, while Delaware was not depressed by such heavy glacial coverage and as a result was raised up relative to other regions. This process is now reversing as other regions rebound upward, while Delaware settles downward.) Thus, in Delaware not only are the seas rising, but the land is literally - although slowly - sinking. (See Vulnerability Assessment at 7-8).

With the key vulnerabilities identified, the second phase of the DSLRAC's mission is focused on strategies for adapting to the effects of sea level rise. The DSLRAC has identified four broad strategies: to accommodate sea level rise; to avoid sea level rise; to protect resources form sea level rise; or to retreat from sea level rise. Within these broad strategies - which the DSLRAC does not view as mutually exclusive - are 61 specific options. These range from the very broad - "Increase opportunities for technology transfer and regional coordination for transportation issues affected by sea level rise" (Option 2); "Create new partnerships to increase resources for research and development of adaptation options" (Option 6); "Create a coordinated effort to provide technical assistance to local governments" (Option 56) - to the relatively specific - "Provide sea level rise information to the Delaware Agricultural Land Preservation Program" (Option 7); "Encourage the establishment of a sea level rise group within the American Association of State Highway Transportation Officials (Option 9); "Add additional tidal observation stations in Delaware" (Option 54).

Some of the original proposed options have already proven controversial. For example, Option 33 - "Develop a comprehensive outreach strategy to educate public about sea level rise" - was revised to eliminate a reference to educating public school students about climate change and sea level rise. This revision was reportedly made after objections from the Positive Growth Alliance (which is reported as having described such education as "brainwashing") and the Homebuilder's Association of Delaware (which is reported as questioning the "targeting" of children). Another option would require property owners selling property inside zones predicted to be inundated under a specific sea level rise scenario to disclose that vulnerability to potential buyers (also discussed here). This was met with concern that it might negatively affect sales of or the availability of mortgages for such properties, particularly as some stakeholders questioned the three modeled sea level rise scenarios (0.5 m, 1.0 m, 1.5 m) as "speculation" (click here). (It is worth noting that the scenarios modeled by the DSLRAC are generally in line with the recently issued National Climate Assessment (see National Climate Assessment.)

As Delaware considers whether to accommodate, avoid, protect or retreat from the consequences of sea level rise, the Options put forward by the DSLRAC serve as an excellent point of discussion. Option 24 - "Develop a statewide retreat plan" - will undoubtedly contribute to that discussion, if not controversy. Given recent retreat oriented developments in other jurisdictions, such as the recent proposal of Governor Andrew Cuomo of New York to use federal disaster funding in the wake of "Superstorm Sandy" to buy out certain willing homeowners (click here) or the determination in the Netherlands - experts in keeping the sea out - to begin letting the sea back in (click here), an honest and complete discussion of how to engage in retreat, before any retreat is necessary, may be entirely prudent. Whether such a discussion is politically palatable is another question entirely.

Climate Change | Climate Change Effects | Insurance | Rising Sea Levels

Delaware Advisory Committee Suggests Mandatory Disclosure of Rising Sea Levels in Real Estate Contracts

January 14, 2013 17:09
by J. Wylie Donald

If the State dropped a notice in the mail advising you that 10% of your property was going to be condemned without compensation, you would immediately hire a lawyer, seek out the press and raise holy **** about the trampling of individual rights, justice and the Constitution. That is the situation in which Delaware contemplates finding itself, but the Constitution is no salve.  Rising sea levels of between 0.5 and 1.5 meters are predicted to inundate between 8% and 11% of the state's land area by 2100.

Delaware, however, is not one to tear its clothes and beat its chest in lamentation; instead, it is acting. Last July, the Delaware Sea Level Rise Advisory Committee published Preparing for Tomorrow's High Tide:  Sea Level Rise Vulnerability Assessment for the State of Delaware. Besides providing background about sea level rise and the methodology of vulnerability determinations, it looked at 79 resources in the state and assessed the impact of rising sea levels. Sixteen of those resources were assessed as being of high concern statewide.

To quote the Executive Summary:

"Within those potentially inundated areas lie transportation and port infrastructure, historic fishing villages, resort towns, agricultural fields, wastewater treatment facilities and vast stretches of wetlands and wildlife habitat of hemispheric importance."

"[E]very Delawarean is likely to be affected by sea level rise through increased costs of maintaining public infrastructure, decreased tax base, loss of recreational opportunities and wildlife habitat, or loss of community character."

From roads to wetlands to tourism, Delaware now has a basis to marshal its resources, and its polity, and move forward into the next phase:  adaptation planning.

The United Nations Framework Convention on Climate Change defines "adaptation" thus: "Adaptation refers to adjustments in ecological, social, or economic systems in response to actual or expected climatic stimuli and their effects or impacts. It refers to changes in processes, practices, and structures to moderate potential damages or to benefit from opportunities associated with climate change."  Delaware's focus is to "identify ways that government, businesses and citizens can adapt their policies and business practices to reduce the impact of seal level rise on our state's citizens, economy, and natural resources."

The committee has wasted little time in taking action on the vulnerabilities identified in July. As reported in Delaware Online, last Thursday the committee offered up for public comment this question:  "whether property owners selling inside boundaries where seas are predicted to rise will have to disclose that vulnerability to potential buyers."  Hearings will begin in February.  Currently, disclosure of a property's location in a flood zone is required, but flood zones are based on the historical record. Requiring a disclosure about a prediction for the future is new.

One can quickly see a few of the implications. First, all things being equal, some will be dissuaded from purchasing, demand will drop and prices will fall. How much and when is anybody's guess.  Second, the drawing of the sea-level-rise boundary may be intensely litigated. Indeed, we have already seen one ocean front property rights case, Stop the Beach Renourishment v. Fla. Dep't of Envtl. Protection, 130 S. Ct. 2592 (2010), make its way all the way to the Supreme Court. Third, realtors, real estate lawyers and other professionals involved in shore transactions will be pleased by this development as the liability for non-disclosure will be much harder to pin on them.  An injured property owner likely will find it difficult to assert an adviser's failure to disclose the risk was the proximate cause of his or her injury.  See J. Wylie Donald, Getting Ahead of Storm Surge, Especially in the Era of Climate Change.  

Fourth, and perhaps most significantly, this small step will set the stage down the road when questions of compensation arise for individuals and entities harmed by rising sea levels. Buyers with such a disclosure in their contracts will be hard-pressed to claim ignorance. That in turn is likely to figure into the public discussion of fairness and the right to compensation.

Of course, the committee's raising the point for discussion does not mean anything is going to change.  But, with the dialogue initiated, we expect that this issue will no longer be quietly ignored.  In any event, we look forward to further discussion in February.

Climate Change | Climate Change Effects | Regulation | Rising Sea Levels


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