In response to the damage left in the wake of last summer's Tropical Storm Irene, the Connecticut General Assembly passed legislation this past session to change the way the State manages coastal development and preservation. Public Act 12-101, An Act Concerning the Coastal Management Act and Shoreline Flood and Erosion Control Structures, amends the Coastal Management Act (Sections 22a-90 through 22a-112 of the Connecticut General Statutes) in two significant ways.
First, Connecticut will now consider the rise in sea level of the Long Island Sound in coastal planning and policy. In fact, any future revision to the State's Plan of Conservation and Development must account for risks associated with the rise in sea level.
Second, the State’s coastal protection philosophy has moved away from "shoreline armoring" and towards the concept of “living shorelines.” In the immediate aftermath of Irene, a number of officials called for bigger and stronger seawalls to protect shoreline property. This strategy, however, was challenged by environmentalists and the scientific community who argued that such armoring increases the risk of property damage over the long term by reducing the shoreline’s natural defenses to storms. Under Public Act 12-101, the State’s policy is now to “minimize” shoreline armoring in favor of “feasible, less environmentally damaging alternatives” and “reasonable mitigation measures.” Such alternatives include relocating or elevating inhabited structures, dune and vegetation restoration, and the replenishment of tidal wetlands.
The Act does contain a few compromises. On a policy level, the bill requires that coastal preservation be conducted in “a manner consistent with the rights of private property owners.” This language is intended to assure property owners that coastal preservation efforts are not an attack on private ownership of coastal lands. Furthermore, although the bill encourages non-armoring options in the coastal zone, it expressly expands the universe of properties that are eligible for armoring. Specifically, flood and erosion control structures (e.g., breakwaters, seawalls, riprap, etc.) can now be used to protect inhabited structures built as recently as January 1, 1995 – a significant extension from the current January 1, 1980 cutoff date. In addition, cemeteries and burial grounds may also be protected using erosion control structures.
The bill contains one significant technical modification as well. The coastal boundary and, therefore, the Connecticut Department of Energy and Environmental Protection’s (“DEEP”) jurisdiction is no longer based on the “high tide line.” Instead, the coastal zone is now defined as the area waterward of the “coastal jurisdiction line.” The coastal jurisdiction line is the highest predicted tide as published by the National Oceanic and Atmospheric Administration. This change is intended to define the coastal zone in a more predictable manner by eliminating the subjective nature of high tide line determinations.
So what do these changes mean to coastal property owners and developers?
First, the good news – Owners of structures built between 1980 and 1995 now have the option of using shoreline flood and erosion control structures to protect their properties. A new segment of property owners now has a range of engineering solutions, previously unavailable, that can be used to protect existing investments and to potentially increase property values.
Then, the bad news – Owners and developers now have one more hurdle to clear when seeking to construct shoreline flood and erosion control structures. Specifically, in order to obtain coastal site plan approval for shoreline flood and erosion control structures, owners and developers must now demonstrate that there are no “feasible, less environmentally damaging alternatives” and that all “reasonable mitigation measures” have been implemented. Satisfying these requirements will require an understanding of the new legislation along with a comprehensive strategy that incorporates detailed engineering and financial analysis.
The attorneys at Brown Rudnick have had success in working with DEEP and local municipalities on development projects in the coastal zone and can assist property owners and developers in navigating this updated regulatory process.