The Legal Implications of The Legal Implications of

Sea Level RiseSea Level Rise

Erin Crisman-Glass

Attorney at Law

The Washington Climate Change Impacts Assessment Conference

Conference Presentation: Jessica Levin

Photos: courtesy of Hugh Shipman

Federal, State, and LocalLocal Laws Coastal Zone Management Act & Shoreline

Management Act (SMA) Hydraulics Project Approval law State Environmental Policy Act Floodplain Management Act

Governing Legal Principles Unconstitutional Takings Substantive Due Process Law of Accretion & Erosion Public Trust Doctrine

Possible Adaptations & Policy Decisions Retreat Rolling Easements

The Legal Landscape Along The Legal Landscape Along Washington’s ShorelinesWashington’s Shorelines

The Shoreline Management Act of The Shoreline Management Act of 19711971

Where does the SMA apply?Where does the SMA apply?

Shoreline Management Act

Policies Foster reasonable and appropriate uses

of shorelines Protect shoreline natural resources and

ecological function Promote public access

Shoreline Management Act

Implementation—A Cooperative Approach Local Governments

Shoreline Master Programs Department of Ecology

Shoreline Master Program Guidelines What do SMPs do?

Shoreline Management Act

Permit Process Substantial Development Permit Conditional Use Permit Variance

Exemptions Maintenance & repair Single-family residences Emergencies Bulkhead construction to protect single-family

residences

SMA: Possible Responses to Sea SMA: Possible Responses to Sea Level RiseLevel Rise

Shoreline Master Program Shoreline Master Program Guidelines update–every 7 yearsGuidelines update–every 7 years

Environmental designationsEnvironmental designations Cumulative impact of exemptions, Cumulative impact of exemptions,

particularly single-family residence particularly single-family residence exceptionexception

Increased training at local levelIncreased training at local level ““No net loss” of ecological functionNo net loss” of ecological function

The Hydraulic CodeThe Hydraulic Code

Fish and Shellfish ResourcesFish and Shellfish Resources

Hydraulic Code

Purpose: protect fish & shellfish resources

Permit requirement Any construction activity affecting flow

of salt or fresh water Exemptions

Single-family residences

Hydraulic Code

Responses to Sea Level Rise Department of Fish & Wildlife:

authority to create buffers? Consider cumulative impacts Reconsider exemptions for single-family

residences

State Environmental Policy ActState Environmental Policy Act

Agency Consideration of Environmental Agency Consideration of Environmental Consequences Consequences

State Environmental Policy Act

Purpose: consider likely environmental consequences

Categorical exemptions Residential structure of four units or less

SEPA review SEPA-related responses to sea level

rise Climate Action Team’s SEPA work group

Floodplain Management ActFloodplain Management Act

Floodplain Management Act

Mandate of the National Flood Insurance Program

Implementation Department of Ecology Local governments

Response to sea level rise Importance of floodplain maps

Relevant Legal Doctrines

Challenges to Land Use Regulations Takings

Per se taking Just compensation

Substantive Due Process Is the government exercising its police

power in an arbitrary or unreasonable manner?

Relevant Legal Doctrines

Existing Norms in the Common Law

Common law of erosion and accretion Loss of title

Public Trust Doctrine Waters of the state are a public resource Under-utilized?

Policy OptionsPolicy Options

Possible Legislative Possible Legislative ResponsesResponses

Rolling EasementsRolling Easements

Statewide Policy of RetreatStatewide Policy of Retreat

Hybrid approach?Hybrid approach?

Image taken from EPA: http://www.epa.gov/climatechange/effects/images/easement.jpgImage taken from EPA: http://www.epa.gov/climatechange/effects/images/easement.jpg

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