No preview available
HomeMy WebLinkAboutCDP 09-13; Goetz Seawall; Coastal Development Permit (CDP) (3)^x » '\sl^t fafJ'l/^'Jtl No Day at the Beach: Sea Level Rise, Ecosystem Loss, and Public Access Along the California Coast Meg Caldwelf and Craig Holt Segalf Introduction: Climate Change and the Coast 534 I. Sea Level Rise in California 536 II. Tools to Protect the New Coast 544 A. Reshaping Local Coastal Programs: Coastal Commission and Local Government Jurisdiction Within the Coastal Zone 547 B Implementing Rolling Easements in California 550 1. A Rolling Easement Example 550 2. Public Trust Doctrine, Custom, and Nuisance: Common Law Roots for Rolling Easements 551 a. The Public Trust Doctrine 552 b. Custom 555 Copyright © 2007 by the Regents of the University of California. " Meg Caldwell is Senior Lecturer in Law and Director of the Environmental and Natural Resources Law and Policy Program at Stanford Law School and a Senior Lecturer at Stanford's Woods Institute for the Environment. From 2004 to 2006 she served as chair of the California Coastal Commission, as a member of the board of the California Coastal Conservancy, and as a member of California's Marine Life Protection Act Blue Ribbon Task Force. This paper grew out of remarks delivered at a conference on "Litigating Takings" sponsored by the Georgetown Environmental Law & Policy Institute, the Georgetown University Law Center, the California Center for Environmental Law & Policy, and the Boalt Hall School of Law at the University of California Berkeley; the authors thank all the organizers. The authors are grateful for the comments, research suggestions, and case updates generously provided by Joseph Barbieri, Peter Douglas, John Echeverria, Jonathon Gurish, Gary Griggs, Lesley Ewing, Ralph Faust, Jason Malinsky, Alice Reynolds, Casey Roberts, Matt Rodriguez, Hope Schmetaer, Stephen Schneider, Sam Schuchat, Jennifer Seidenberg, James G. Titus, and Sara Wan which greatly improved this paper. Any errors that remain are decidedly the authors' own. The views expressed in this Article are those of the authors and should not be attributed to any agency or department of the state of California. Please direct all correspondence to megc@stanford.edu. 1 Craig Holt Segall graduated from Stanford Law School in May 2007. He earned his degree in biology specializing in ecology and evolution from the University of Chicago and has worked for NRDC, Environmental Defense, and Earthjustice. He hopes that his children will be able to enjoy a diverse and vital California coast. 533 534 ECOLOGY LA W QUARTERLY [Vol. 34:533 c. Public Nuisance 557 'm 3. The California Statutory Puzzle: Reconciling the Public Trust and the Coastal Act 558| 4. Permit Conditions as Rolling Easements 564 |1 5. Takings and Rolling Easements in California 567 ;?f a. Implementing Rolling Easements: Examples from Other States 5701 b. Rolling Easements as Economic Assets 574-1 c. Living Shorelines and Public Access Measures 5761 Conclusion 578^1 INTRODUCTION: CLIMATE CHANGE AND THE COAST The sea is rising. All along the hundreds of miles of the California^ coast, global warming will cause higher water, more powerful storms, an<I;|j increased coastal erosion.1 The California Coastal Commission and its| predecessor regional commissions have worked to protect the state's^ coastal resources since the Commission's creation by voter initiative in|| 1972 and formalization in the California Coastal Act of 1976. Clir change-induced sea level rise presents the Commission—and all the who use and value the state's coastal resources—with a stark new set of! challenges.2 As sea level rises, pressure to armor the coast will grow. The bin and cliffs of the California coast may appear stable, but they are, in; places, riven with faults, joints, and fractures, and are often composed of|| unstable rock. Battering winter storms and high tides have and continue to cause bluff collapse and the loss of structures built upon! bluffs. Property owners, if allowed to do so, will attempt to forestall' inevitable with seawalls, rock revetments, and other barriers to the But these walls, though temporarily freezing the coast in place, will hav significant social and ecological costs. Beaches below the walls may eroded away, or the thin ribbon of sand remaining will be blocked: the public by massive shoreline protection structures. Where estua marshes, which provide significant nursery habitat for many species, are threatened by sea level rise, coastal armoring will preve marsh migration, leading to the eventual loss of ecosystem function.. along the coast, the dire effects of climate change may be amplified the effects of shoreline armoring. 1. See generally DAN CAYAN ET AL., CAL. CLIMATE CHANGE CTR., PROJI FUTURE SEA LEVEL (2006) [hereinafter PROJECTING FUTURE SEA LEVEL RISE]. 2. While both "global wanning" and "climate change" are used interchangeably in i popular press, we use the term "global wanning" to refer to the direct increase in temp associated with increasing greenhouse gas concentrations. By "climate change," we mean I larger complex of changes in weather patterns associated with this wanning. E2007]NO DAY AT THE BEACH 535 Yet, the California Coastal Commission and the state of California ican begin now to plan for sea level rise. Although future warming may be preduced if major global efforts are initiated soon, it cannot be wholly Irprevented, thereby imposing significant responsibilities upon the stewards of the coast. Sea level rise is an enormously complex public ppolicy problem; this Article is intended only as a starting point for what H should be an extended statewide conversation. We first place the problem context by discussing the basic threats posed to the coast. We then ^suggest a set of policy responses that the Commission and other land use phodies should consider adopting, ranging from carefully planning new ;£ development, to restricting armoring privileges of existing development, |: to designing unavoidable armoring structures for minimal ecological •harm. Development should be channeled away from vulnerable coastal I'areas through amendments to Local Coastal Programs.3 Existing |- structures in the urban cores of the state present a more difficult problem; some form of protection will often simply have to go forward. Even then, I;; engineering expertise must be brought to bear to ensure that coastal protection devices minimize environmental damage. Structures located on urban peripheries and in rural areas may often |( threaten important ecological or social values. Here, the Commission can |; defend and continue to deploy an existing network of "no future armoring" permit conditions and litigate to defend the state's public trust | interest in the shoreline. The Commission may also encourage the State Coastal Conservancy to purchase erosion control easements, which allow the state to decide whether or not a property will be allowed to armor. I We classify all of these strategies as variations-on the theme of the "rolling easement," a device, rooted in statutory or common law or in permit conditions, that allows the publicly owned tidelands to migrate inland as the sea rises, thereby preserving ecosystem structure and function. We consider the possibilities for such easements in California and past experience with them across the country. In cases where easements cannot be obtained and there is no other basis for permit denial, the Commission could at least require that armoring structures do not eliminate or impede the public's access along the shore and that they incorporate shoreline design principles that allow ecosystem continuity between the ocean and the shore.4 These solutions would likely not trigger major regulatory takings concerns and would 3. Although larger questions of state infrastructure are outside the scope of this paper, rechanneling transportation and other infrastructure spending away from fragile coastal areas would also be an important step. Local Coastal Plans (LCPs) will be involved in many of these decisions. They are the plans, developed by local land managers and overseen by the Coastal Commission, by which much of the California coast is managed. See infra notes 77-82 and accompanying text. 4. See infra notes 225-227 and accompanying text. 07]NO DAY AT THE BEACH 535 Yet, the California Coastal Commission and the state of California |ian begin now to plan for sea level rise. Although future warming may be need if major global efforts are initiated soon, it cannot be wholly evented, thereby imposing significant responsibilities upon the ewards of the coast. Sea level rise is an enormously complex public olicy problem; this Article is intended only as a starting point for what hould be an extended statewide conversation. We first place the problem . context by discussing the basic threats posed to the coast. We then Isuggest a set of policy responses that the Commission and other land use dies should consider adopting, ranging from carefully planning new ^development, to restricting armoring privileges of existing development, ip designing unavoidable armoring structures for minimal ecological . Development should be channeled away from vulnerable coastal through amendments to Local Coastal Programs.3 Existing |structures in the urban cores of the state present a more difficult problem; |spme form of protection will often simply have to go forward. Even then, [leering expertise must be brought to bear to ensure that coastal |$rotection devices minimize environmental damage. Structures located on urban peripheries and in rural areas may often ||hreaten important ecological or social values. Here, the Commission can fdefend and continue to deploy an existing network of "no future noring" permit conditions and litigate to defend the state's public trust Dterest in the shoreline. The Commission may also encourage the State sastal Conservancy to purchase erosion control easements, which allow J|jhe state to decide whether or not a property will be allowed to armor, classify all of these strategies as variations on the theme of the ||frolling easement," a device, rooted in statutory or common law or in fepermit conditions, that allows the publicly owned tidelands to migrate nland as the sea rises, thereby preserving ecosystem structure and pfunction. We consider the possibilities for such easements in California ||and past experience with them across the country. In cases where easements cannot be obtained and there is no other Ifebasis for permit denial, the Commission could at least require that parmoring structures do not eliminate or impede the public's access along JUthe shore and that they incorporate shoreline design principles that allow Ipecosystem continuity between the ocean and the shore.4 These solutions likely not trigger major regulatory takings concerns and would 3. Although larger questions of state infrastructure are outside the scope of this paper, jpiechanneling transportation and other infrastructure spending away from fragile coastal areas ^s. would also be an important step. Local Coastal Plans (LCPs) will be involved in many of these Jiff;;-.decisions. They are the plans, developed by local land managers and overseen by the Coastal p,, Commission, by which much of the California coast is managed. See infra notes 77-82 and If:';-"accompanying text. 4. See infra notes 225-227 and accompanying text. 536 ECOLOGY LAW QUARTERLY [Vol. 34:533 4 help prepare the state for the challenges of the decades to come^f Adaptation to climate change is necessary, but we need not adapt in ways J that amplify ecological and social damage along our shores. I. SEA LEVEL RISE IN CALIFORNIA Because the severity of global warming over the next century is: fully known, predicting sea level rise is necessarily an imprecise effort^ However, the California Climate Change Center's 2006 reports and othe assessments do provide a range of future sea levels; all possibilities wit this range require a policy response.5 Atmospheric wanning in California|| will range between 3 and 10.5° F over the next century, depending many variables within our climate system, as well as the speed with' we are able to reduce greenhouse gas emissions.6 In the center of th&jf range—based upon steadily rising emissions over the next century- temperature increases between 5.5 and 8° F are predicted.7 Thes£|j temperature increases would trigger a wide array of changes throug the state. Snowpack in the Sierra Nevada, which provides most of state's freshwater, is very likely to decrease progressively across century; even in projections based upon moderate warming, as muchi 40 percent of the snowpack may be lost.8 Water supply could fall by \ much as 50 percent.9 In the Central Valley, water loss will combine temperature increases to decrease the productivity of the fruit and < 5. See PROJECTING FUTURE SEA LEVEL, supra note l; INTERGOVERNMENTAL PA ON CLIMATE CHANGE (IPCC), CLIMATE CHANGE 2001: THE SCIENTIFIC BASIS (2001); seeai U.S. ENVTL. PROT. AGENCY (EPA), THE PROBABILITY OF SEA LEVEL RISE (1996). In j document, the EPA provides probability estimates on sea level rise culled from pooled i opinion. Although dated, they still provide ballpark estimates. For instance, they predict aji percent chance that sea level at San Diego will rise 45 cm by 2100 and a 5 percent chancel' the sea will rise 86 cm. Id at 145. There is also a small chance that the sea could rise a fewi in the next two centuries. Id. At the time of this writing, the fourth IPCC report had not yet t fully released. This report, however, does confirm that sea level rise rates have nearly dou the last decade—although it is not yet clear if this rate increase will continue. IPCC, < CHANGE 2007: THE PHYSICAL SCIENCE BASIS, SUMMARY FOR POLICYMAKERS 7 (2007),' IPCC further found that, at current temperatures, the entire Greenland ice sheet would i over the next thousand years, raising global sea level by about 7 meters. Id. at 17. The be of the ice sheet is poorly understood, however, and the IPCC notes that "dynamical pn related to ice flow not included in current models but suggested by recent observations < increase the vulnerability of the ice sheet to warming, increasing sea level rise." Id. This men that existing sea level rise estimates may well be u/K/e/estimates: the problem could very t be worse than we know. 6. AMY LYND LUERS ET AL., CAL. CLIMATE CHANGE CTR., OUR CHANGING CUMA| ASSESSING THE RISKS TO CALIFORNIA 3 (2006). 1. Id. 8. DAN CAYAN ET AL., CAL. CLIMATE CHANGE CTR., SCENARIOS OF CLIMATE ( IN CALIFORNIA: AN OVERVIEW 14-16 (2006), available at http://www.climatechange research/impacts/pdfs/CEC-500-2005-186-SF.pdf [hereinafter SCENARIOS OF CLIMATE < IN CALIFORNIA]. 9. Id. at 16. 2007]NO DAY AT THE BEACH 537 industries.10 The risk of wildfire in the surrounding mountains could increase by as much as 55 percent.11 The participates and smoke from these projected fires will add to growing air pollution and heat waves that will make urban life difficult and public health risks more pressing.12 In short, California's residents will be in dire need of "a day at the beach." Unfortunately, the beach itself may not be there for them. The extent of sea level rise is difficult to predict at any particular location, dependent as it is upon complex interactions including: the climate system, thermal expansion of ocean water,13 the breakup of both the Greenland ice cap, continental glaciers, and the ice shelves of Antarctica, and regional uplift due to tectonic plate movement and postglaciation rebound. The effects of a rising sea level will be amplified by the short-term but substantial impacts of high tides and atmospheric forcing, including storm surge due to climate change-enhanced winter storms.14 Globally, sea level has risen by 120 meters over the last 18,000 years. The average rate during the last 3,000 years has only been about 1- 2 centimeters (cm) per century,.but the past century saw an average of 10-20 cm of sea level rise around the globe.15 This long-term rise has been driven by ice melt from the retreating Greenland and Antarctic ice sheets, the melting of continental glaciers that covered much of North America and northern Europe and Asia during the last Ice Age, as well as by thermal expansion of the oceans.16 Long-term sea level measurements in California show a regional rise of 15-20 cm over the last century, or about 2 millimeters (mm) per year.17 As climate change accelerates, global sea level rise is expected to increase—rising as much as 72 cm by the end of the century at the highest emissions trajectories (but in the vicinity of 20 cm under more moderate emissions. trajectories).18 In California, the range runs between 89 cm and 10 cm (at the lowest emissions trajectories) over the next century—well above the historic rate.19 The lower end is considered to be "somewhat unlikely," as the ocean is already rising at that rate without increased polar melting 10. fa. ^ 19. 11. Id at 22. 12. Id. at 26-29. 13. As the temperature warms, water expands—a small effect that is globally significant. 14. PROJECTING FUTURE SEA LEVEL, supra note 1, at ix. 15. Id. at l;-see also IPCC, CLIMATE CHANGE 2001, supra note 5, at 659 (reviewing the literature of past sea level rise). 16. PROJECTING FUTURE SEA LEVEL, supra note 1, at 1. 17. Id. at ix. 18. Id at 5-4. 19. Id. at ix, 21; see also SCENARIOS OF CLIMATE CHANGE IN CALIFORNIA: AN OVERVIEW, supra note 8, at 10. 538 ECOLOGY LA W QUARTERLY [Vol. 34:533 and thermal expansion and even some low-end trajectories predict as much as 54 cm of sea level rise.20 While sea level increases in the middle to upper portion of the projections will present serious concerns in their own right, the combined influence of stronger storms and sea level rise will substantially amplify the potential for serious erosion and inundation along California's coast. Global warming is associated with an increase in El Nino/Southern Oscillation (ENSO) conditions.21 The trade winds normally lead to the buildup of the Pacific Ocean's warmest waters in the western equatorial portion of that ocean. During ENSO years, however, the trade winds weaken and the warm pool of water flows east towards South America where it then flows both north and south, bringing warmer water up along the California coast.22 This warm water pool alters the weather pattern in the eastern Pacific, allowing strong storms to attack the coast from the west and southwest.23 The majority of storm damage on the California coast has occurred during ENSO years.24 During the ENSO winter of 1997-98, for example, severe storms caused damage in the hundreds of millions of dollars, often moving into California during high tides and adding storm surge to already high water.25 The ENSO storms of the winter of 1982-83 were even more damaging than those of 1997-98 due to the greater coincidence of storm wave arrival at time of high tides and because many of the most threatened properties had been armored before the arrival of the 1997-98 ENSO.26 Such events will increase in frequency, pounding beaches with strong waves and undercutting bluffs. During storms that raised water level height furthest beyond historic norms, wave strength and energy also increased markedly, amplifying erosive force.27 Because the nearshore wave height varies directly with water depth and wave energy varies with the square of wave height, accelerating sea level rise will strongly increase the force of breaking waves in newly deepened near-shore waters, further exacerbating erosive losses.28 As sea level rise exceeds the rate observed over the last century 20. PROJECTING FUTURE SEA LEVEL, supra note i, at ix, 21. 21. Id at 12. 22. Gary Griggs et al., Weather, Climate Change, Sea Level, and the Coastline, in LIVING WITH THE CHANGING CALIFORNIA COAST 18,24-25 (Gary Griggs et al. eds., 2005). 23. 7<3r.at22. 24. Id. 25. PROJECTING FUTURE SEA LEVEL, supra note 1, at 13; see also U.S. Geological Survey, El Nino Sea-Level Rise Wrecks Havoc in San Francisco Bay Region, USGS Fact Sheet 175-99 (1999), ayaz/aWeailhttp://pubs.usgs.gov/fs/1999/fsl75-99/ (values are in 1998 dollars). 26. See generally Gary Griggs & Kristine Brown, Erosion And Shoreline Damage Along the Central California Coast: A Comparison Between The 1997-98 and 1982-83 Winters, 66 SHORE & BEACH 18 (1998) (discussing relative damage). 27. SCENARIOS OF CLIMATE CHANGE IN CALIFORNIA: AN OVERVIEW, supra note 8, at 11. 28. CAL. COASTAL COMM'N, OVERVIEW OF SEA LEVEL RISE AND SOME IMPLICATIONS FOR COASTAL CALIFORNIA 14 (2001). 2007J NO DAY AT THE BEACH 539 and winter storms potentially grow stronger and more frequent, existing coastal protection structures will fail more often and damage to coastal development will increase.29 Increased coastal erosion will exacerbate pressure to armor the new stretches of the coast and to strengthen existing armoring. Approximately 72 percent of California's coastline consists of steep cliffs or bluffs. This apparent bulwark is, however, far from stable and has eroded almost 45 kilometers (km) over the past 18,000 years in some regions, including San Francisco. Sedimentary bluffs already erode at a rate of between 10 and 30 cm per year, yet it is on these bluffs, which often front large flat marine terraces, that most of California's coastal development has occurred.30 Californians have responded by armoring their coast with defense structures; at present, at least 10.2 percent of the state's Pacific coast is armored and a third of the Southern California coast sits behind some armoring structure.31 The impulse to armor stems from a serious erosive threat. The U.S. Geological Survey has identified significant coastal vulnerability to future sea level rise along the coast from San Luis Obispo to San Diego and from San Francisco to the shores of Monterey Bay.32 In the San Francisco/Monterey region, for instance, sea level is already rising at approximately 2 mm per year, combining with significant erosion rates and wave energy rankings to give the region "a background of high vulnerability."33 It is in this area and in other high vulnerability zones in Southern California that population growth near the beaches is also at its highest. The same factors that make the coast vulnerable also make it most desirable for development. It is here, where beaches are present and bluffs rise in flat terraces, allowing for easy development, that people want to live near the ocean. The result, without a sea level rise policy, is a fortified coast. A fortified coast comes with major financial, social, and ecological costs. These range from aesthetic losses to new barriers to public access to, critically, the physical losses of the beaches themselves—both to large 29. PROJECTING FUTURE SEA LEVEL, supra note l, at 30. 30. Gary Griggs & Kiki Runyan, Cliff Erosion and Bluff Retreat Along the California Coast, 2003 PROC. OCEANS 1219 (2005). As the California coast rose, waves cut large flat terraces in the rock at various levels as the coast and the ocean moved in relation to each other. 31. Id. at 1226. Note that seawalls and revetments are distinct from the breakwaters that protect harbors, which are designed to create still water to shelter vessels, rather than to prevent erosion. 32. See E. ROBERT THEtLER & ERIKA S. HAMMAR-KLOSE, NATIONAL ASSESSMENT OF COASTAL VULNERABILITY TO SEA-LEVEL RISE: PRELIMINARY RESULTS FOR THE U.S. PACIFIC COAST, U.S. GEOLOGICAL SURVEY OPEN-FILE REPORT 00-178 (2000), available at http://pubs.usgs.gov/ of/2000/o£00-178/. The National Oceanic and Atmospheric Administration (NOAA) gathers sea level trends and other useful data in searchable format at httpr/rtidesandcurrents.noaa.gov/. 33. Id. 540 ECOLOGY LA W QUARTERLY [Vol. 34:533 erosion control structures and, most importantly, to the ocean as armoring leaves beaches unable to retreat before the rising sea. The direct visual impacts of coastal armoring are significant—a fortress wall behind the public beach is quite different than a natural sea cliff.34 In the past ten years, many seawalls have been given a colored and textured coating to blend with natural bluffs.35 Nevertheless these structures can also directly occupy the beach; a rock revetment may cover thirty to forty feet of beach width, as it must slope outward from the cuff top, typically at a 2:1 or 1.75:1 (horizontal to vertical) slope, replacing public beach with a boulder field.36 Seawalls, however, will normally occupy much less beach area. Armoring covers sandy beach that otherwise could be used for access and recreation. Armored.walls also diminish, or destroy altogether, coastal access.37 Rather than being able to scramble down bluffs and dunes, beach-goers encounter vertical concrete walls or riprap fields, cutting them off from the sand below.38 These structures are not cheap. In 1999 dollars, heavy revetments cost as much as $2,000 per linear foot and full seawalls ran to as much as $4,500 per square foot.39 Economic costs to wall the beach are significant. There is also less beach to access. Even without directly influencing erosion, armoring threatens beaches as sea level rises. Armoring fixes the back of the beach, stopping natural shoreline erosion that would otherwise cause beaches to migrate inland as the water rises. As a result, the rising water covers the existing beach and no new beach is created. Coastal managers refer to this phenomenon as "passive erosion." This lost beach is at the core of the armoring threat: seawalls act in concert with rising water to make beaches disappear. As the beaches vanish, so does habitat for wildlife,40 vital public space, and a landscape that is central to California's quality of life. 34. Garry Griggs, California '$ Retreating Coastline: Where Do We Go From Here?, PROC. AM. METEOROLOGICAL Soc. ANN. MEETING (San Diego) 83,241,83,243 (2005). 35. See Gary Griggs et al., Responding to Coastal Hazards, in LIVING WITH THE CHANGING CALIFORNIA COAST, supra note 22, at 126-27 (providing examples of camouflaged armoring). 36. Griggs, supra note 34, at 83,244. 37. Id. at 83,245. 38. In cases where armoring structures cover a cliff face, where access would be difficult even without a structure, seawalls can be designed to improve access conditions by, for instance, adding stairways and other access routes. 39. LESLEY EWING ET AL., PROCEDURAL GUIDANCE DOCUMENT: BEACH EROSION AND RESPONSE 39 (1999). Beach replenishment—a less invasive option when confronted with rising seas—is also expensive and difficult, as it requires continuous intervention. Id. 40. One recent study found rising sea level would destroy vital seabird habitat and that the effects would be particularly acute if seawalls prevented inland migration of what habitat might be able to advance in front of the rising waves. See H. Galbraith et al., Global Climate Change and Sea Level Rise: Potential Losses of Intertidal Habitat for Shorebirds, 25 WATEKB1RDS 173 2007]NO DAY AT THE BEACH 541 Armoring structures also cut off the sand supply from eroding bluffs. While 70 to 90 percent of beach sand comes from rivers and streams, the majority of the remainder comes from eroding bluffs and cliffs; this contribution is highly variable, reaching as much as 10 percent of sand supply in some places.41 With upstream dams capturing river sediment and coastal armoring reducing coastal erosion, sediment supply to beaches has been appreciably reduced. As much as 50 percent of the sand originally delivered to the coast in Southern California, 31 percent in Central California, and 5 percent in Northern California has been lost, the great majority of this impounded behind dams in reservoirs.*2 Recently, arguments to expand California's reservoir capacity have found new vigor as the state's water managers raise concern about how climate change will affect the reliability of the state's water supply.43 Because global warming will influence demand for both dam construction and beach armoring, it poses a double threat to the sand sup'ply. Further sand source losses should be avoided. The combined effects of a reduced sand supply, armoring structures that cover beach areas, and increased storm erosion may shrink or eliminate the beach itself—depending on wave and current conditions—transforming a beach with a wall at its back into a thin sliver of sand at the base of the seawall, or worse, no beach at all.44 California's rapidly growing resident and tourist populations will find themselves competing for a diminishing resource. At present, if we divide up California's 1,100 miles of coast evenly between its thirty-seven million residents, we would each have about two inches of shoreline. However, much of the coastline north of San Francisco as well as the Big Sur area is steep, mountainous, and inaccessible, so the amount of sandy coast per person is reduced further—to only about one inch per person.45 The state's population is growing and the resource growing ever more scarce. In the next twenty years alone, demographers expect between (2002); see also J.E. Dugan & D.M. Hubbard, Ecological Responses to Coastal Armoring on Exposed Sandy Beaches, 74 SHORE & BEACH 10 (2006). 41. Griggs, supra note 34, at 83,246; see also Kristin Patsch & Gary Griggs, Littoral Cells. Sand Budgets, and Beaches: Understanding California's Shoreline, Univ. of Cal. Santa Cruz & Cal. Coastal Sediment Management Workgroup 17-22 (2006) (discussing sand budgets for California littoral cells). 42. See MICHAEL SLAGEL & GARY GRIGGS, CUMULATIVE Loss OF SAND TO THE CALIFORNIA COAST BY DAM IMPOUNDMENT (2006), available athttp://www.dbw.ca.gov/csmw/ PDF/ Slagel&Griggs_CA_Dams_Manuscript.pdf. 43. See, e.g., Glen Martin, The Great Thirst: Looking ahead to post-global warming life in California, 60 years hence, S.F. CHRON., Jan. 7, 2007, at C-M 9; Bettina Boxall, Governor puts global spin on state's need for dams, L.A. TIMES, Jan. 12,2007, at B-l. 44. Griggs, supra note 34, at 83,246-47. These roanmade structures are not cheap: typical construction costs for seawalls and revetments today range from about $3,000 to $10,000 per front foot, or $15 to $50 million per mile. 45. This is a linear measure—coasts are classically fractal, with each headland and rock creating more surface area. But, for our purposes, it illustrates the ever-growing demand for a limited resource that characterizes California's coastal politics. 542 ECOLOGY LA W QUARTERLY [Vol. 34:533 seven and eleven million new residents in California."* To complicate matters, Californians share our personal inch with millions of visitors who help support the state's thriving ocean economy. As urban and built environments expand, California's wild coastal areas will come under increasing development pressure and attendant pressure to armor. Unable to migrate past the walls, our intertidal zones, beaches, and dune systems will yield to the rising sea. Growing demand for armoring is only one of many threats that climate change will bring to the California coast. Coastal ecosystems already stressed by anthropogenic impacts such as overfishing, habitat loss and destruction, invasive species, and pollution face major perturbations from climate change.47 Warmer summer temperatures may weaken the California Current, the upwelHng off California's coast that sustains our highly productive fisheries.48 Warmer winters will lead to more precipitation falling as rain and less as snow, producing greater coastal flooding from swollen rivers. Repeated flooding events may reduce coastal water quality due to increased urban runoff and spikes in sediment and nutrient loading from flood-stage rivers, potentially triggering toxic algal blooms.49 And, in addition to the rising sea, which will gradually force shifts in intertidal species distribution, warmer waters will force many species north, into new geographic ranges.50 The seas are also a major carbon sink; as they absorb our carbon dioxide, they are gradually acidifying and becoming hostile to marine life.51 The prospect is one of near total ecological disruption and there is evidence that the process is beginning. In 2005 and 2006, warmer oceans visibly disrupted the food chains off our coast. The usual cold-water upwelling failed, decimating populations of rockfish, Cassin's auklets, and common 46. Pub. Pol'y Inst. of Cal., California's Future Population (2006), http://www.ppic.org/ content/ pubs/jtf/JTF_FuturePopulationJTF.pdf. 47. See generally LEON E. PANETTA, PEW OCEANS COMM'N, AMERICA'S LIVING OCEANS: CHARTING A COURSE FOR SEA CHANGE (2003) (detailing threats to the ocean and recommending an integrated national policy to address them); U.S. COMM'N ON OCEAN POLICY, AN OCEAN BLUEPRINT FOR THE 2lsr CENTURY (2004) (analyzing U.S. ocean management and proposing new legal coordinating structures). 48. Franklin Schwing, Presentation, The Impact of donate Change on California's Coasts and Oceans: Beyond Sea Level Rise (Oct. 5,2006). The fate of the California Current is unclear; there is some evidence that warmer temperatures will increase the cold water upwellings that drive it, in the short term. In the long term, however, major disruption is a serious possibility. Chris D. Harley et al., The Impacts of Climate Change in Coastal Marine Systems, 9 ECOLOGY LETTERS 228,230 (2006). 49. Schwing, supra note 48. 50. Id.; see also George N. Somero, Linking Biogeography to Physiography: Evolutionary and Acclimatory Adjustments of Thermal Limits, FRONTIERS IN ZOOLOGY, Jan. 2005, available at http://www.frontiersin20ology.com/content/pdf/1742-9994-2-l.pdf (discussing physiology basis for shifts in species ranges due to temperature changes). 51. See, e.g., Carles Pelejero et al., Preindustrial to Modem Variability in Coral Reef pH, 309 SCIENCE 2204 (2005) (discussing growing acidity and threat to coral reef ecosystems). 2007]NO DAY AT THE BEACH 543 murres.52 While the causes of decline are complex—these species were already in decline due to overfishing of either the species themselves or their forage species—their failing populations may well be just the beginning of a period of generalized collapse across many species and ecological communities.53 Coastal managers are asking for guidance to address these threats. A recent comprehensive survey of California's coastal managers found that only two counties had plans that consider climate change and none considered its impact upon coastal systems.54 While over 90 percent of coastal managers are concerned about global warming, most have simply not yet taken action.55 Thankfully, almost 70 percent are inclined to take action as soon as possible.56 They have not had any state level guidance or received the additional funding and staffing they need to begin to deal with the impending crisis in addition to their regular duties.57 State level managers, including the Commission, can provide both advice and resources to ensure that local coastal managers anticipate and address climate-based threats. Admittedly, many of these threats are out of the hands of local managers: they simply cannot change global emissions profiles. They can, however, contribute to the state reaching its goals to reduce greenhouse gas emissions by squarely evaluating coastal projects for their contribution to damaging emissions and by shaping local land use patterns to mitigate the interactions between global warming and local decisions.58 Climate change threatens the coast in myriad ways; coastal managers should work to ensure that it does not also generate an armored coast or put more structures and lives at risk due to rising seas. 52. See Jane Kay, Sea Life Counts Dive for 2nd Year, S.F. CHRON., June 23, 2006, at A-ll: Marcus Wohlsen, Warmer Oceans Disrupt Pacific Food Chain for Second Year, ASSOCIATED PRESS, July 22, 2006. 53. One ominous sign of this is reported in Anthony J. Richardson & David S. Schoeman. Climate Impact on Plankton Ecosystems in the North Atlantic, 305 SCIENCE 1609 (2004), who find that warming is associated with declining plankton populations, which are the base of the oceanic food chain. Shifts in planktonic abundance and productivity have the potential to destabilize both marine and terrestrial ecosytems. Id. 54. Susanne C. Moser, Presentation, Getting Ready for Climate Change: Helping California Adapt to the Impacts in Coastal Areas, at 14 (Oct. 5,2006) (on file with authors). 55. Id. at 9. 56. Id. at 11. 57. Wat 15. . 58. California is addressing global warming at a statewide level, most recently by imposing carbon caps that will reduce state emissions of greenhouse gases. See generally Qa&i'xm& Global Warming Solutions Act of 2006, CAL. HEALTH & SAFETY CODE §§ 38500-38599 (West 2006). The Coastal Commission has also begun work to improve coastal awareness of climate change issues. See generally CAL. COASTAL COMM'N, supra note 28 (setting forth basic science of sea level rise and analyzing policy responses). Preventing excessive coastal armoring is only one of many important policy decisions to make. This Article does not attempt to treat how the Coastal Commission or local decision makers can and should evaluate projects for their individual or collective contributions to greenhouse gas emissions, directly or indirectly. 544 ECOLOGY LA W QUARTERLY [Vol. 34:533 Tools are available that, if used now, can prevent at least some of the damage that inappropriate development and armoring would otherwise produce. In the next section, we review lessons from other states and the options available in California to begin to adapt to climate change on the coast. II. TOOLS TO PROTECT THE NEW CO AST The California Coastal Act sets out five basic policy objectives for coastal use, these range from protecting ecosystems to ensuring public access to furthering local planning.59 They are united by a concern with sustainability and stewardship and all of them are jeopardized by climate change and sea level rise. State agencies (and the Coastal Commission in particular) are charged with protecting and enhancing coastal resources, ensuring balanced resource use, maximizing public access, ensuring priority of coastal-dependent uses, and encouraging coordinated planning.60 The walls that will accompany rising waters will likely destabilize coastal planning, limit public access, threaten coastal uses, and damage coastal resources. It is incumbent upon the state to begin to plan and prepare for sea level rise impacts now, while early action can still be effective. Although owners of existing structures are permitted to armor under certain conditions,61 the Commission and other state agencies still have a range of management options available to them that respect property owners' rights. These methods, discussed below, should be implemented within a larger sea level rise strategy to maximize effectiveness. California's Pacific coast—as distinct from San Francisco Bay, which is separately administered62—is of central importance to the work of five 59. These purposes are to: (a) Protect, maintain, and, where feasible, enhance and restore the overall quality of the coastal zone environment and its natural and artificial resources. (b) Assure orderly, balanced utilization and conservation of coastal zone resources taking into account the social and economic needs of the people of the state. (c) Maximize public access to and along the coast and maximize public recreational opportunities in the coastal zone consistent with sound resources conservation principles and constitutionally protected rights of private property owners. (d) Assure priority for coastal-dependent and coastal-related development over other development on the coast. (e) Encourage state and local initiatives and cooperation in preparing procedures to implement coordinated planning and development for mutually beneficial uses, including educational uses, in the coastal zone. CAL. PUB. RES. CODE § 30001.5 (West 2006). 60. Id 61. /£/.§ 30235. 62. This is not to say that San Francisco Bay is immune from these problems. Rather, the San Francisco Bay Conservation and Development Commission is well aware of the distinct challenges posed by sea level rise in a confined space (the Bay, for instance, may lose many of its salt marshes) and is beginning to take action. See, e.g., Mike Taugher, Under Water by 2100? 2007]NO DAY AT THE BEACH 545 state agencies: the California Coastal Commission, the State Lands Commission, the State Coastal Conservancy, the State Parks Commission, and the California Ocean Protection Council.63 The Coastal Commission is the lead regulatory and permitting agency, charged with implementing coastal development plans, and approving plans developed by local authorities under delegated authority.64 This Article focuses primarily on opportunities before the Coastal Commission, but all five agencies have roles to play. The Coastal Conservancy, also established in the Coastal Act of 1976, serves as a "repository for lands whose reservation is required to meet the policies and objectives" of the Coastal Act.65 The Conservancy acquires property and subsidiary property interests to serve these purposes.66 The State Lands Commission owns and manages publicly owned land below the mean high tide line.67 The Department of Parks and Recreation and the State Parks Commission also manage important coastal resources, including near-shore marine reserves and dozens of state beaches and coastal state parks.68 Finally, the Ocean Protection Council, formed by the California Ocean Protection Act of 2004, is charged with coordinating all state coastal and ocean management agencies.69 These agencies will need to work together to develop a coordinated plan of policy development, regulatory change, and property rights acquisition to help the California coast adapt to climate change. Climate change and sea level rise will pose a significant threat to the ecological health and public use values of the California coast. Coastal policy should be addressed towards maintaining those values to the maximum extent possible. Although other solutions are, no doubt, possible and important, we suggest three avenues for adaptation. First, the Coastal Commission should consider encouraging the revision of Local Coastal Programs (LCPs), which govern coastal development patterns, to steer new development away from areas vulnerable to the effects of sea level rise. As the Commission cannot mandate changes to LCPs, this important phase of the work will rely on Risk of the Rising Sea: Scientists Seek Ways to A vert a Creeping Catastrophe in Bay Area, SAN JOSE MERCURY NEWS, Jan. 26,2007. 63. This is, of course, an oversimplification. The Public Utilities Commission, which manages railroads, and Caltrans, which manages roads, will also play important roles in any effort to readjust state infrastructure to ameliorate the coastal armoring crisis. 64. The Coastal Commission interacts with a network of local jurisdictions, which are encouraged to develop their own Local Coastal Plans (LCPs). If the LCP complies with the goals of the Coastal Act, the Commission certifies the plan and transfers development permitting authority to the local jurisdiction. 65. CAL.PUB. RES. CODE §31104.1. 66. /</§31105. 67. 7</.§6301. 68. /<*§§ 501,530. 69. Id. §§ 35500-35650. 546 ECOLOGY LAW QUARTERLY [Vol. 34:533 making a clear case to local leaders that they should act now to protect their coastal resources. Second, the Coastal Commission should work to avoid future armoring by developing a suite of policy tools that we class under the general name of "rolling easements." The concept, popularized by U.S. Environmental Protection Agency (EPA) Sea Level Rise Project Manager James G. Titus, is a catch-all term for "a broad collection of arrangements under which human activities are required to yield the right of way to migrating shores."70 Such an easement—whether guaranteed by permit conditions, purchased or donated by a landowner, or mandated by regulation underlain by the public trust doctrine—helps to maintain the ecosystem services71 provided by the living coast. In California, these easements would fall into three main classes, largely defined by the time at which coastal structures were built, the ecological and recreational importance of the shoreline below them, and whether there could be suitable upland for the shoreline to migrate into. First, structures built before the Coastal Act's 1976 adoption are often permitted to armor if various conditions are met.72 Post-1976 structures without "no future armoring" conditions in their original coastal development permits have also been permitted to armor in the past.73 For these structures, rolling easements will have to be secured through purchase, donation, or litigation. Second, by the mid-1980s, the Commission had begun to incorporate "no armoring" provisions into coastal development permits. Structures built under this system, which extends to the present, cannot legally armor.74 Finally, structures yet to be built may be addressed 70. James G. Titus, Rising Seas, Coastal Erosion, and the Takings Clause: How to Save Wetlands and Beaches Without Hurting Property Owners, 57 MD. L. REV. 1279,1313 (1998). 71. Ecosystem services are the vital functions provided to human society by functioning ecosystems. Examples include the water filtration services and fishery nursery provided by wetlands, the pollination services provided by native insects, the air quality maintenance and soil retention services provided by forests, and so on. For a fuller introduction to the subject, see Ecological Society of America, Ecosystem Services, http://www.esa.org/education/edupdfs/ ecosystemservices.pdf*search=%22Ecosystem%20Services%22 (last visited May 15,2007). 72. See infra notes 136-160 and accompanying text. 73. For a discussion of the controversy around armoring of post-Coastal Act structures, see Todd T. Cardiff, Comment, Conflict in the California Coastal Act: Sand and Seawalls, 38 CAL. W.L. REV. 255 (2001). 74. See infra notes 160-163 and accompanying text. No legal challenges to these provisions have been filed to date. Should the Commission's "no future armoring" conditions face legal challenge, however, the agency is well positioned to defend the imposition of the conditions along the following reasoning. To begin with, the conditions serve a fundamental purpose of preserving the state's ability to steward public trust lands as they physically shift from natural and climate change forces by preserving the trust lands themselves. Next, Coastal Act section 30253(2) provides that new development "shall assure stability and structural integrity, and neither create nor contribute significantly to erosion, geologic instability, or destruction of the site or surrounding area or in any way require the construction of protective devices that would substantially alter natural landforms along bluffs and cliffs." The "no future armoring" 2007]NO DAY AT THE BEACH 547 through a new rulemaking barring armoring in many areas of the coast or through continued use of strengthened permit conditions. It is important to emphasize, however, that not all structures in any class need be barred from all forms of protective devices. The Commission should act judiciously to enforce rolling easements in areas of the most pressing ecological need and upland availability. In areas without rolling easements, protective devices could be allowed if they result in truly minimal environmental damage. Structuring planning to predict future population growth and sea level rise, and to accurately identify threatened areas, will be a continuing policy challenge. The third category of adaptation arises in cases where armoring must be allowed for either statutory or prudential reasons. Here the Commission should insist that: (a) where feasible, armoring structures follow living shorelines design principles, which are engineering plans created to maximize the ecological connectivity of the land/sea interface;75 and (b) the public's right to access along the shore is maintained through access stipulations in armoring permits and, in some cases, by protecting the beach itself through beach nourishment and other preservation strategies.76 A. Reshaping Local Coastal Programs: Coastal Commission and Local Government Jurisdiction Within the Coastal Zone As a starting point, the Coastal Commission would do well to undertake an immediate and detailed review of existing LCPs to determine whether coastal zone jurisdictions deal appropriately with sea level rise in general and armoring in particular.77 The Coastal Act allows for significant local decision-making authority over permitting questions in the coastal zone, with LCPs and the Commission itself ensuring that statewide interests are protected when development proposals are reviewed. An LCP is the fundamental planning unit of the Coastal Act, conditions effectuate this statutory prohibition and make explicit the state's intention to protect public trust lands and resources. 75. Maryland and Virginia, among other eastern states, have led 'the way on the development of living shorelines principles. They encourage the use of wetlands, natural stones, and sturdy plants along shore margins, and have seen preliminary evidence demonstrating that strengthening natural shores provides superior wave protection by diffusing wave energy rather than just absorbing it, as hard barriers do. Lara Lutz, Shoring Up Coasts Against Erosion, CHESAPEAKE BAY J., Nov. 2005, available at http://www.bayjournal.com/article.cfm? article=2651. 76. "Beach nourishment" is a mechanical process by which tons of sand are trucked to diminishing beaches—or gathered from the sea floor by pumping—in an effort to replace sand lost to erosion. It is costly and not a permanent fix, as adding sand does not change the underlying forces that are eroding the beach. 77. See CAL. PUB. RES. CODE §§ 30500-26(West 2006) (setting forth the process for LCP development, certification, and amendment) 548 ECOLOGY LA W QUARTERLY [Vol. 34:533 giving local governments the authority to shape development in their region with the supervision of the Commission.78 Seventy-four coastal cities and counties have adopted LCPs, which consist of land use plans and legal tools to realize the plan on the ground.79 These plans vary by the needs of each community but must conform with the basic policies and intentions of the Coastal Act; to ensure that this is the case, the Commission examines each LCP for certification under the Coastal Act. If it finds that an LCP does not conform with the policies of the Act, it will suggest revisions to the local government, which must address the suggested revisions within a year.80 Upon certification, the Commission transfers permitting authority to the local government.81 The Commission itself, however, retains jurisdiction for structures on tidelands and other submerged lands and is the appellate body for permitting decisions. It also reviews any LCP amendments, and retains the right to review existing LCPs to ensure that they are administered to "conform[] with the policies" of the Act.82 Exactly which legal standards apply to coastal development applications depends on the nature of the development, the exact location of the property at issue, and the certification status of the LCP for the jurisdiction in which the property is located. For development approvals that are properly appealed from local jurisdictions to the Commission, the Commission applies the standards established in the certified LCP and the public access policies of the Coastal Act.83 For coastal zone developments in jurisdictions for which there is no LCP or the LCP is not certified, the Commission applies the standards and policies set forth in the Coastal Act.84 The majority of public and private property within the coastal zone is managed under LCPs, rather than under the direct authority of the Commission.85 Thus, changes to LCPs can have significant impacts on statewide land use. Essentially all coastal development requires a permit.86 Local governments with permitting responsibilities must take action to defend their own coasts. The Commission can use the LCP revision and review process to motivate, but not force, this effort. The consequences for local jurisdictions that refuse the recommendations of the Coastal Commission 78. 7tf.§ 30500. 79. The Commission maintains a database of approved LCPs at http://www.coastal.ca.gov/ la/lcpstatus.html. See also CAL. PUB. RES. CODE §§ 30511-30512. 80. CAL. PUB. RES. CODE §30519.5(a). 81. /</.§ 30519. 82. Id. §§ 30519.5(a), 30500-26; see also Cal. Coastal Comm'n, Local Coastal Programs, http://www.coastal.ca.gov/lcps.html (last visited Apr. 8,2007). 83. CAL. PUB. RES. CODE §30603 (West 2006). 84. Id. § 30517.5(b)(2). 85. See supra note 79. 86. CAL. PUB. RES. CODE § 30600. 2007]NO DAY AT THE BEACH 549 depend on the certification status of the LCP at issue. For LCPs that have not yet been certified, the jurisdiction risks certification denial if it declines to adopt the recommendations of the Commission. For existing certified LCPs, the local jurisdictions risk no penalty for ignoring the Commission's recommendations through the review process. Thus, for the large portion of the coast under management through certified LCPs, the Commission must lead by example and persuasion, rather than through coercion. The Commission should consider drafting exemplar sea level rise LCP amendments that could be adapted and implemented by local governments along the coast depending on their local circumstances. Local coastal managers looking for state guidance on climate change are likely to respond positively to a Commission-produced text for sea level rise LCP amendments and the Commission's encouragement of their use by local governments. The Commission should urge revision of LCPs to channel development, including public infrastructure, well away from areas threatened by sea level rise and associated hazards.87 Revisions should be designed to maximize ecosystem services—from aesthetic pleasure to public access to habitat for important species—that the coast provides. The revisions should head off development hi areas of high erosion vulnerability, because such development will lead to armoring and the loss of ecosystem function and public access. The research needed to properly plan this effort will require jointly mapping two complex processes: likely growth and development patterns, and likely sea level rise. Charting these two, potentially mutually reinforcing threats, along with areas of particular ecological and social value, will be a significant effort, but is essential to avert major losses. Some vulnerability maps are already available, but more detailed maps covering larger areas will need to be produced.8*1 The Commission should collaborate with the Coastal Conservancy and other interested parties on a detailed survey of the California coast to determine vulnerabilities and areas where allowing natural landscape migration will be critical to coastal resource protection 87. As discussed in note 63, supra, the state infrastructure agencies will also have to be involved in this effort. 88. For a set of maps covering the California coast, but at a relatively coarse resolution, see the regional chapters and coastal hazard projections in LIVING WITH THE CHANGING CALIFORNIA COAST, supra note 22. Much older versions of these maps are online at Western Carolina University's Coastal Hazards clearing house at http://coastalhazards.wcu.edu/ CoastalHazardMaps/California/Califomia.htm. The Coastal Commission has also begun to develop very coarse-scale maps. See CAL. COASTAL COMM'N, supra note 28, fig.10. These efforts are not yet sophisticated enough to enable policymaking at the resolution necessary to safeguard the coast. Under Coastal Act section 30341, the Commission can undertake studies and prepare maps and plans to carry out the policies of the Coastal Act. Commission maps and plans must be adopted through a public hearing process. 550 ECOLOGY LA W QUARTERLY [Vol. 34:533 or coastal recreation. Such locations might include the remarkable wetlands of Elkhora Slough on Monterey Bay, the salt marshes that fringe Humboldt Bay, or the elephant seal breeding grounds at Piedras Blancas near San Simeon on the Big Sur coast. Particularly at risk are coastal wetlands and estuarine environments, which are of extraordinary ecological importance, are already rare, and have often seen extensive restoration spending. The EPA has undertaken similar planning at the national level. The agency has begun producing sample maps highlighting areas likely to be armored under a business-as-usual scenario—the scenario in which state bodies do not undertake an aggressive effort to prevent unnecessary armoring, particularly in ecologically sensitive areas.89 California will benefit from similar maps but should undertake efforts to produce its own expeditiously rather than wait for an uncertain federal rollout. Only with a strong sense of which coastal resources are at risk can the state, the Commission, and local jurisdictions plan sensibly. B Implementing Rolling Easements in California LCP amendments will be important tools in avoiding the "double pinch" on coastal resources caused by increasing development pressure and rising seas, but they are essentially forward-looking and many properties are already in harm's way. To address existing structures, the state ought to develop a flexible portfolio of rolling easement options. As discussed above, the legal support for a given rolling easement will vary based upon the context and age of the structure applying for armoring privileges. We begin by discussing the operation of a generic rolling easement and then turn to the various methods that California can use to create and defend such easements. 1. A Rolling Easement Example How would rolling easements work in practice in California? Consider the scenario of a housing development slated to be built just above the beach. Below the low terrace where the housing is planned is a small strip of beach. As the sea rises and El Nino storms hammer the beach, the shoreline begins to erode towards the uplands. Without a rolling easement in place, the property owners would likely seek to erect some form of armoring, such as a seawall, revetment, or gunnite application to a bluff or cliff—perhaps covering the remaining beach with 89. See James G. Titus, Maps That Depict the Business-as-Usual Response to Sea Level Rise in~the Decentralized United States of America (2004) (paper presented at the OECD Global Forum on Sustainable Development: Development and Climate Change), at 10-13 (discussing methodology), 19-21 (sample maps for areas of Maryland and North Carolina). 552 ECOLOGY LA W QUARTERLY [Vol. 34:533 enjoyed by a private owner but merely clarifies that owner's existing rights.91 Put simply, there can be no taking when the property owner never had a "right" to armor to begin with. a. The Public Trust Doctrine Because the public trust doctrine requires both that the state hold its coastal resources in perpetual trust for the people and that the state protect those resources, the doctrine provides the most fundamental basis for responding to the threats of coastal armoring. The doctrine is an ancient legal principle, dating back to Roman law, that the state hold its waterways in trust for the public's benefit. The trust inheres in the land, and property encumbered by the public trust doctrine can only be transferred out of the trust if such transfer will serve the trust purposes.92 In recent years, the courts have understood trust purposes to include maintaining the ecological values of public lands and waters.93 California courts have affirmed that navigable waters and the public beaches along them are held in trust for the public's benefit by the state.94 The trust and its purposes are read expansively in California. As the California Supreme Court explained in the landmark Mono Lake case, "the objective of the public trust has evolved in tandem with the changing public perception of the values and uses of waterways."95 Although originally imagined around navigation, commerce, and fishing, the trust purposes have been expanded to include public recreation and "there is a growing public recognition that one of the most important public uses of the tidelands ... is the preservation of those lands in their natural state."96 This implies not just prevention of development but the preservation of ecological process: California fulfills its public trust duties when it preserves trust lands "as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life."97 This is a public trust rationale for the maintenance of ecosystem function; it is these fundamental ecosystem processes that are most threatened by coastal armoring. 91. See Lucas v. S.C. Coastal Council, 505 U.S. 1003,1029 (1992). 92. Nat'l Audubon Soc'y v. Superior Court, 658 P.2d 709,721-22 (Cal. 1983). 93. See, e.g., Allan Kanner, The.Public Trust Doctrine, Parens Patriae, and (he Attorney General as Guardian of the State's Natural Resources, 16 DUKE ENVTL. L. & POL'Y F. 57.61-88 (2005) (discussing origin and development of the doctrine). 94. Lechuza Villas West v. Cal. Coastal Comm'n, 70 Cal. Rptr. 2d 399, 417 n.19 (Ct. App. 1997) ("All navigable waterways are held in trust by the state for the benefit of the public."). 95. Nat'l Audubon Soc'y, 658 P.2d at 718-19. 96. Id. (quoting Marks v. Whitney, 491 P.2d 374,378-80 (Cal. 1971)). 97- Id. 2007]NO DAY AT THE BEACH 551 rock and concrete and certainly preventing the natural migration and survival of the beach. Similar scenarios apply to structures built slightly inland on marshlands and estuaries; there, storm waves will not often threaten but gradual sea level rise will cause the salt marsh to gradually migrate towards the buildings. If the buildings sit behind a bulkhead, the marsh will ultimately be unable to migrate and will drown beneath the rising waters.90 In the alternate case, where the state holds a rolling easement, the property owners do not own the right to prevent the shore from moving. Instead, they may use their property as normal until the sea reaches it. At this critical point, they must either move their structures or cede them to the ocean or advancing marshlands. Erosion will likely occur relatively slowly, over several decades. Thus this eventual end date will likely not appreciably reduce property values. It will, however, ensure that the coast will remain public and healthy at the reasonable cost of discouraging unwise overdevelopment of areas vulnerable to near- term erosion. This general easement model does not rely upon any particular legal device: rather, it describes the ecological effects of allowing the shore to move rather than impeding that movement with an armoring device. The appropriate legal device to reach this ecological and social goal will vary, as discussed above, based upon the age of the structure in question and the potential ecological and social costs associated with allowing versus preventing armoring. Below, we discuss the array of tools that the Commission and the state can rely upon to allow the shoreline to migrate when appropriate. These tools are underlain by the central concept of the public trust doctrine, which both motivates and requires the state to protect its coastal resources that are under attack from the combined effect of sea level rise and development that impedes the natural and expected shore migration process. 2. Public Trust Doctrine, Custom, and Nuisance: Common Law Roots for Rolling Easements Although a rolling easement can be authorized through statutory action or judicial fiat, there is a strong argument that such easements are most fundamentally rooted in common law principles—primarily the public trust doctrine, although the laws of custom and public nuisance may also play a role. Expressly grounding rolling easements in the longstanding background principles of the common law and within the principles of prope'rty law helps to immunize the state from potential constitutional takings challenges because articulating such background principles does not change the existence of fundamental property rights 90. See Titus, supra note 70, at 1314-17. 552 ECOLOGY LA W QUARTERLY [Vol. 34:533 enjoyed by a private owner but merely clarifies that owner's existing rights.91 Put simply, there can be no taking when the property owner never had a "right" to armor to begin with. a. The Public Trust Doctrine Because the public trust doctrine requires both that the state hold its coastal resources in perpetual trust for the people and that the state protect those resources, the doctrine provides the most fundamental basis for responding to the threats of coastal armoring. The doctrine is an ancient legal principle, dating back to Roman law, that the state hold its waterways in trust for the public's benefit. The trust inheres in the land, and property encumbered by the public trust doctrine can only be transferred out of the trust if such transfer will serve the trust purposes.92 In recent years, the courts have understood trust purposes to include maintaining the ecological values of public lands and waters.93 California courts have affirmed that navigable waters and the public beaches along them are held in trust for the public's benefit by the state.94 The trust and its purposes are read expansively in California. As the California Supreme Court explained in the landmark Mono Lake case, "the objective of the public trust has evolved in tandem with the changing public perception of the values and uses of waterways."93 Although originally imagined around navigation, commerce, and fishing, the trust purposes have been expanded to include public recreation and "there is a growing public recognition that one of the most important public uses of the tidelands... is the preservation of those lands in their natural state."96 This implies not just prevention of development but the preservation of ecological process: California fulfills its public trust duties when it preserves trust lands "as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life."97 This is a public trust rationale for the maintenance of ecosystem function; it is these fundamental ecosystem processes that are most threatened by coastal armoring. 91. See Lucas v. S.C. Coastal Council, 505 U.S. 1003,1029 (1992). 92. Nat'l Audubon Soc'y v. Superior Court, 658 P.2d 709,721-22 (Cal. 1983). 93. See, e.g., Allan Kanner, The Public Trust Doctrine, Parens Patriae, and the Attorney General as Guardian of the State's Natural Resources, 16 DUKE ENVTL. L. & POL'Y F. 57,61-88 (2005) (discussing origin and development of the doctrine). 94. Lechuza Villas West v. Cal. Coastal Comm'n, 70 Cal. Rptr. 2d 399, 417 n.19 (Ct. App. 1997) ("All navigable waterways are held in trust by the state for the benefit of the public."). 95. Nat'l Audubon Soc'y, 658 P.2d at 718-19. 96. Id. (quoting Marks v. Whitney, 491 P.2d 374,378-80 (Cal. 1971)). 97. 'id. 2007]NO DAY AT THE BEACH 553 The trust attaches to the shores regardless of where they may move.98 As shorelines erode, the public trust follows the eroding shoreline; similarly, as they accrete, the public trust moves seaward." This is an important point, as it turns even coastline property held in fee simple into defeasible estates, thus private property may be converted into public trust land as the shore erodes.100 California law on this question was recently clarified in Lecbuza Villas West v. California Coastal Commission, a 1998 case pitting the Commission against a developer who wished to build houses (and extend the aptly named "Sea Level Drive") on a public beach below, in some areas, the mean high tide line.101 The Commission denied the permit because the mean high tide line (and hence public trust property) extended into lands planned for development, and the court of appeal ultimately affirmed the Commission's decision.102 In doing so, the court re-emphasized the ambulatory nature of the tidelands trust, whose boundaries move as the mean high tide line shifts. "The state owns all tidelands below the ordinary high water mark and holds such lands in trust for the public," the court explained.103 The high water mark is the mark made by the fixed plane of high tide where it touches the land; as the land along a body of water gradually builds up or erodes, the ordinary high water mark necessarily moves, and thus the mark or line of mean high tide, i.e., the legal boundary, also moves.104 This principle "has long been a staple of the common law."105 Thus Lechuza's property line (and the property line of any coastal landowner) "moves back and forth with the gradual, seasonal accretion and erosion of the shore."106 Lechuza's development permit was rightly denied because it had "failed to meet its burden of showing that the project would not encroach on public tidelands."107 Although the Lechuza case dealt with tidelines shifting due to erosion processes, there is nothing in public trust jurisprudence that would deny the public its trust interest in cases where the sea begins to 98. Titus, supra note 70, at 1368. 99. Id. 100. Id. at 1370; see also Joseph J. Kalo, The Changing Face of the Shoreline: Public and Private Rights to the Natural and Nourished Dry Sand Beaches of North Carolina, 78 N.C. L. REV. 1869,1884-85 (2000) (explaining that title comes and goes with natural erosion). 101. Lechuza Villas West v. Cal. Coastal Comm'n, 70 Cal. Rptr. 2d 399, 399-404 (Ct. App. 1997). 102. 103. 104. 105. 106. 107. Id. at 403.- Id. at 411 (quoting State Lands Comm'n v. Superior Court, 900 P.2d 648,655 (1995)). Id. (quoting City of Oakland v. Buteau, 179 P. 170 (Cal. 1919)). Id. Id. Id. at 404. 554 ECOLOGY LA W QUARTERLY [Vol. 34:533 rise due to global warming. As one California court has already recognized, "if the sea level does rise [due to global warming], so will the level of mean high tide" and with it, the public's trust rights in the shore.108 Building a development or building a seawall for an existing structure will equally encroach on public tidelands as the sea rises and migrates toward and around the bases of buildings that once stood on dry land. Building a seawall does not eliminate the problem: a seawall that prevents the mean high tide line from migrating landward of the seawall artificially prevents the movement of the mean high tide line and denies the public its reversionary trust interest.109 It also destroys the public's trust interests in the beach itself: with the beach damaged or entirely absent, the trust interests in access, navigation, fisheries, and ecosystem functions, among others, have been entirely lost. Seawalls violate the public trust in a time of rising seas. In the absence of a seawall, the trust is preserved. Title would transfer under common law if erosion were allowed to occur; the rolling easement ensures that the shore will be able to move freely and that title to the migrating marsh or wet sand beach will ultimately shift to the public. As sea level rise expert James G. Titus puts it, "no one has an automatic right to build a bulkhead that causes the public's tidelands to disappear."110 Thus, a rolling easement acts to prohibit the building of erosion control structures now to ensure that the public's rights vest in the future. One important implication of this larger point is that statutes— including the Coastal Act—that grant some armoring privileges are only valid insofar as they maintain public trust rights. Statutes attempting to transfer lands or any property rights out of the trust would be "carefully scanned to ascertain whether or not such was the legislative intention."111 Courts seldom allow transfers out of the trust: "if any interpretation of the statute is reasonably possible which would not involve a destruction of the public use or an intention to terminate it in violation of the trust, the courts will give the statute such interpretation."112 Indeed, "a state, as administrator of the trust in tidelands on behalf of the public, does not have the power to abdicate its role as trustee in favor of private parties."113 Trust property may only be transferred into private hands to 108. Littoral Dev. Co. v. S.F. Bay Conservation & Dev. Comm'n, 29 Cal. Rptr. 2d 518, 527 n.5 (Ct. App. 1994). 109. Titus, supra note 70, at 1370-72. 110. /d-at!374. 111. Nat'l Audubon Soc'y v. Superior Court, 658 P.2d 709, 721-22 (Cal. 1983) (quoting People v. Cal. Fish Co., 138 P. 79 (Cal. 1913)). 112. Id 113. City of Berkeley v. Superior Court, 606 P.2d 362,365 (CaJ. 1980). 2007]NO DAY AT THE BEA CH 555 support trust purposes.114 Generally speaking, only very small transfers— made as parts of larger public projects—will be allowed. As the California Supreme Court concluded, while a transfer may occasionally be tolerated "we emphasize that the circumstances under which this may occur are of necessity unique, that the conditions sanctioning its approval must be scrupulously observed and satisfied, [and the parcel must be explicitly] determined by the Legislature to have no further value for the purposes of the public easement."115 This interpretive principle means that courts should support regulatory and statutory efforts that assert this basic trust principle by refusing to allow armoring that would impair the public's ancient trust rights. Indeed, even apparent statutory grants of armoring privileges, discussed below, may violate the public trust doctrine.116 Overly broad armoring privileges, which violate trust principles, may never have been held by coastal property owners, and despite administrative permit grants to the contrary, must be viewed as illegal transfers out of the trust. Explicitly denying such "entitlements" would therefore merely be an articulation of a background principle of state property law firmly rooted in the public trust. b. Custom In addition to the public trust doctrine, rights of customary use may also limit the ability of shoreline owners to armor the coast, although in more limited cases. The principle of customary law has enjoyed a resurgence as a tool to open beaches to public access over the past four" decades.117 It may also be well suited, in some instances, to ensure that the public has a beach to access as the seas rise. Like the public trust doctrine, custom may constitute a background principle of law whose application could defeat a takings claim. In general, customary use can grant an easement over beach property and requires demonstrating that the use has been "ancient, continuous, peaceable, and free from dispute," as well as "reasonable, certain, obligatory, and consistent with other laws."118 In short, a rolling easement can be based on customary beach use, although the degree to which custom applies will vary based on the history of a particular stretch of beach. 114. Id; see also CAL. PUB. RES. CODE § 6307 (West 2006) (limiting State Lands Commission's ability to transfer land out of the trust without explicit findings that such transfers will serve trust purposes). 115. City of Long Beach v. Mansell, 476 P.2d 423,440 (Cal. 1970). 116. See iiifra notes 137-159 and accompanying text. 117. See gexeraUyDavid J. Bederman, The Curious Resurrection of Custom: Beach Access and Judicial Takings, 96 COLUM. L. REV. 1375 (1996). 118. Wendy Cram & Clay Valverde, Note, Legal Protection of Surf Breaks: Putting the Brakes on Destruction of Surf, 13 STAN. ENVTL. L.J. 401,442 (1994) (synthesizing cases). 556 ECOLOGY LA W QUARTERLY [Vol. 34:533 In California, the seminal custom case is the combined ruling in Gion v. Santa Cruz and Dietz v. King, a 1970 California Supreme Court decision that set forth the basic legal principles.119 In that case, the court explained that while the public can acquire a prescriptive easement over the private dry sand areas of a beach (in essence placing private land under an easement for public use without the owner's permission), "the question is whether the public has engaged in long-continued adverse use of the land sufficient to raise the conclusive and undisputable presumption of knowledge and acquiescence, while at the same time it negatives the idea of a mere license."120 Put another way, those "seeking to show that land has been dedicated to the public need only produce evidence that persons have used the land as they would have used public land. If the land involved is a beach or shoreline area, they should show that the land was used as if it were a public recreation area."121 In cases where this can be shown, a prescriptive easement by customary use attaches to the dry sand area of the beach. Such prescriptive easements, much like the easement associated with the area below the mean high tide line in the public trust, should be able to migrate with the beach. Because prescriptive easements established by custom are historically contingent in California, requiring a showing of genuine past public use, they cannot be used generally to preserve broad swaths of the coast. Instead, they can be used as a focused tool to save particular areas of coastline. Fortunately, the restrictive legal test means that areas qualifying for prescriptive easements will be those long used by the public, and thus custom has an important role to play in preserving areas of the coast that are particularly dear to many Californians. Although custom's application has been interpreted more narrowly in California than in some states, meaning that California's doctrine will be most useful in saving specific popular beaches rather than the shoreline as a whole, its application to moving shorelines in those states may be relevant here as a supporting principle for restricting development. It is therefore worth examining the use of custom-based easements more generally. Custom has been used to open beaches and to prevent development in, among other states, Oregon, Texas, and Hawaii. Hawaii's use of custom is the most expansive.122 There, where ancient Hawaiian customary law and usage has been imported into state common law, principles of "collective existence and community" have been used to broadly allow access to beaches and to prevent interference with public hunting and gathering rights.123 But even states without this rich 119. 465 P.2d 50 (Cal. 1970). 120. 7</.at56. 121. Id."' 122. Bederman, supra note 117, at-1417-34. 123. Id. at 1435-34. 2007]NO DAY AT THE BEACH 557 indigenous law have used custom broadly. In Oregon, the state supreme court famously opened the dry sand ocean beaches of the state to the public based on a tradition of customary use.124 Texas has applied custom directly to justify moving public easements on public beaches after storm flooding has eroded significant areas of shoreline. In Matcha v. Mattox, a Texas court of appeals prohibited the reconstruction of a house that had been damaged by a storm because the storm had also shifted the beach vegetation line.125 The vegetation line had marked the limit of a declared public easement, which following the storm included the disputed property.126 As the court held, "the theory of a migratory public easement is compatible with the doctrine of custom and the situations that often give rise to custom."127 This is because in practice, a public easement "on a beach cannot have been established with reference to a set of static lines on the beach, since the beach itself, and hence the public use of it, surely fluctuated landward and seaward over time."128 If the public easement is to remain useful and "reflect the reality of the public's actual use of the beach, [it] must migrate as did the customary use from which it arose."129 This common sense rationale—that customary use of a moving target must follow the target as it moves—thus also supports the use of the doctrine of custom as a background principle of law to justify imposition of a rolling easement. For beaches or tidelands with long histories of public use, extending well before the Coastal Act, custom may be a useful tool for implementing and defending armoring bans. c. Public Nuisance Finally, basic nuisance principles can bolster both the argument against armoring and for removing poorly designed or harmful existing armoring structures. A rolling easement can, in other words, be supported as a way of averting or mitigating a public nuisance. California defines nuisances as including, among other things, "an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstruct the free passage or use ... of any navigable . . . bay, stream, canal, or basin, or any public park, square, street, or highway."130 This definition clearly encompasses damage to the coast—seawalls that interfere with public use of coastal public lands 124. State ex re!. Thornton v. Hay, 462 P.2d 671 (Or. 1969); see also Bederman, supra note 117, at 1417-25. 125. 711 S.W.2d 95 (Tex. App. 1986) 126. Id. 127. /a*, at 100. 128. Id. 129. Id. 130. CAL. Qv. CODE § 3479 (West 2006). I 558 ECOLOGY LA W QUARTERLY [Vol. 34:533 would "unlawfully obstruct" such use and "interfere with the comfortable enjoyment of life or property." By articulating the harms caused by seawalls—increased erosion, visual blight, loss of public beaches and ecosystem services, and creation of physically hazardous situations—they could likely be prosecuted as public nuisances.131 In addition, because waves can refract off barriers, thereby altering the surfs impact on neighboring properties, seawalls also may be a private nuisance due to their effect on nearby coastal properties. Because "[t]he legislature has the power to declare certain uses of property a nuisance and such use thereupon becomes a nuisance perse" governments can also simply define armoring in vulnerable locations as a nuisance.132 A California court upheld such a legislative definition in a case where the city of Del Mar removed coastal armoring because the city found that a seawall constituted a public nuisance.133 The court, however, did not reach the question of whether erosion caused by the structures at issue was a nuisance, instead deciding the case on public access grounds.134 While anchoring an armoring ban in public nuisance law should not be difficult given the considerable damage done by excessive erosion control structures,135 agencies should support such actions with well-documented findings since many courts will not be familiar with this construction of nuisance. 3. The California Statutory Puzzle: Reconciling the Public Trust and the Coastal Act Root common law principles—the public trust doctrine, custom, and nuisance—complement, yet may appear at odds with, the statutory provisions of the Coastal Act. The Coastal Commission confronts an unsettled interpretation question that complicates the implementation of rolling easements. The Coastal Act section 30235 provides that "existing structures" should be granted the privilege of armoring if specified conditions are met.136 Government agencies and nonprofit groups continue to debate the meaning of this provision: does "existing" mean existing as of 1976, when the Act was passed, or existing at the time of the application to build a seawall? The first interpretation would effectively bar seawalls for all post-1976 structures; the second would still bar applications for seawalls for unbuilt structures but leave all built 131. Id. § 3480 (defining public nuisance as "one which affects at the same time an entire community or neighborhood, or any considerable number of persons"). 132. Scott v. City of Del Mar, 68 Cal. Rptr. 2d 317,322 (Ct. App. 1997). 133. Id. at 319,322-23. 134. 7tf.at323n.6. 135. See Griggs, supra note 34 (discussing problems caused by armoring). 136. CAL. PUB. RES. CODE § 30235 (West 2006). 2007]NO DAY AT THE BEA CH 559 structures with at least the possibility of obtaining a permit to armor. The Coastal Commission has historically adopted a version of the second view. However, the Coastal Act itself might be better read to bar new armoring for all structures built after the passage of the Act. The question of statutory interpretation, though important, is ultimately trumped by the public trust doctrine, which extends deeper than any statute. We conclude that no seawall permit can be granted, as discussed above, for any structure that would abrogate the public trust—and, in most cases, this will mean no seawall permits for structures in the way of the rising sea. Before turning to the statutory dispute's resolution in the public trust doctrine, it is important to understand the nature of the Coastal Act and the constitutional principles that support it. The California Coastal Act is, on the whole, a resource protection and public access statute that allows for economic growth, use, and development of coastal resources where those activities can be harmonized with coastal resource protection and public access. This reflects the fundamental state constitutional emphasis on the public's right of access to the coast, which is codified in, but not limited by, the Coastal Act. The California Constitution provides that no one shall be permitted to exclude the right of way to such water whenever it is required for any public purpose . . . and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall always be attainable for the people thereof.137 This theme runs throughout the Coastal Act. For example, section 30210 directs the Commission to work towards "maximum access ... and recreational opportunities ... for all the people," albeit taking into account "the need to protect public rights, rights of private property owners, and natural resource areas from overuse."138 Section 30211 further provides that "development shall not interfere with the public's rights of access where acquired through use or legislative authorization, including, but not limited to, the use of dry sand and rocky coastal beaches."139 The public's right to the beach is a central California value. That value is reinforced by the public trust principles discussed above, which safeguard and extend the public's rights. This core value should inform our reading of the apparent conflict between Coastal Act sections 30235, which permits seawall construction for existing structures, and 30253, which limits the location of new 137. CAL. CONST., art. 10, § 4. 138. CAL. PUB. RES. CODE § 30210. 139. Id. § 30211. 560 ECOLOGY LA W QUARTERLY [Vol.- 34:533 developments to areas that will not require seawalls.140 The Coastal Commission has not issued a formal rulemaking based on section 30235 but has instead acted on the assumption that the section does grant all threatened coastal structures a qualified privilege to armor—as if, in other words, "existing" structures means structures standing at the time of application. Normally, the Commission will only grant an armoring permit if (1) the structure the protective device is meant to protect exists when the application is filed, (2) the structure is "in danger from erosion" and (3) there are no other environmentally less damaging feasible alternatives.141 The Commission has, nonetheless, worked to limit the impact of its interpretation of section 30235 by requiring armoring waivers and setbacks for new development. This effort was not structured around the threats of sea level rise, however, and may need to be revisited in light of climate change. Since the meaning of the "existing structures" term has never been judicially resolved,142 the Commission might also consider undertaking a formal rulemaking to adopt a new administrative interpretation of the term for use hi future decisions. In the absence of a rulemaking, sections 30235 and 30253 work together with regard to future structures. Section 30253 provides that "new development shall," among other things, "assure stability and structural integrity, and neither create nor contribute significantly to erosion, geologic instability, or destruction of the site or surrounding area or in any way require the construction of protective devices that would substantially alter natural landforms along bluffs and cliffs."143 This seems a straightforward-enough section: to the extent that new development is permitted, it must not be sited so as to damage the coast. This bar is written to include a prohibition on "protective devices"—which includes armoring. This section does not conflict with the armoring privileges for "existing" structures provided for in section 30235 for the simple reason that new development does not yet exist. Note, though, that under a maximally protective alternative reading, in which "existing" structures are only those that were built before 1976, "new development" would include all post-1976 development. The two sections are consistent with each other under both readings. Under either reading, section 30253 requires that new development must be built in ways that will not require 140. 7rf.§§ 30235,30253. 141. #.§30235. 142. The closest that courts have come to resolution was one unpublished decision challenging seawall approval for a post-Coastal Act structure. The Commission took the position that "existing structures" include post-Coastal Act structures, but the court did not reach the issue, instead dismissing the case on technical grounds. Surfrider Found, v. Cal. Coastal Comm'n, No. A110033, 2006 WL 1530224, at *3-4 (Cal. Super. Ct. June 5, 2006) (holding that Surfrider should have challenged the seawall under the LCP rather than under the Coastal Act itself). 143. CAL. PUB. RES. CODE § 30253 (West 2006). 2007]NO DAY AT THE BEACH 561 armoring. As the Commission develops more accurate and comprehensive sea level rise predictions, section 30253 will ensure that new coastal development does not occur in vulnerable areas—preventing economic loss and ecosystem damage. The armoring privileges provided for in the Coastal Act, whether they are available to post-1976 structures or not, are not absolute. Section 30235 provides that protective devices, including "seawalls, cliff retaining walls, and other such construction that alters natural shoreline processes shall be permitted when required to serve coastal-dependent uses or to protect existing structures or public beaches in danger from erosion, and when designed to eliminate or mitigate adverse impacts on local shoreline sand supply."144 On its face, then, section 30235 is not a grant of armoring rights but an extension of armoring privileges and only when there is "danger from erosion"—which, under the coastal-protective purposes of the Act will likely be read to mean imminent danger—and only when armoring is designed to either eliminate or mitigate shoreline sand supply impacts. The Commission generally interprets "danger" to mean that an existing structure would be unsafe to occupy in the next two or three storm cycles if nothing were to be done. The provision does not contemplate the denial of permits for larger reasons of ecological stability or coastal access protection.145 In the absence of modifying law elsewhere, section 30235 still provides for an overbroad grant of armoring privileges, particularly if it is read to apply to all existing (e.g., post-1976) structures. Even under a narrower reading, though, limited to pre-1976 structures, the grant of armoring privileges still touches many structures.146 To address the threat of sea level rise, the Commission would be justified in finding appropriate limits for section 30235 elsewhere in the Act and the law of the state. As a starting point, note that the Coastal Act itself provides a rule for interpretation. Section 30007.5 explains that internal "conflicts be resolved in a manner which on balance is the most protective of significant coastal resources."147 As Todd Cardiff argued in a recent note on this subject, that resolution must take limiting coastal armoring as a guiding principle.148 Section 30007.5 can be read as embodying the underlying public trust doctrine that must guide all coastal decisions: it restates in statutory terms the basic state obligation to safeguard the 144. Id. § 30235. 145. Id. 146. There is no inventory of the number or distribution of these structures. Creating one would fill one of the many informational gaps that need to be addressed in order to chart a sea level rise policy for California. 147. CAL. PUB. RES. CODE § 30007.5. 148. Cardiff, supra note 73, at 269. 562 ECOLOGY LA W QUARTERLY [Vol. 34:533 public's resources against, among other threats, erosion by private parties. Cardiff, a proponent of the narrow reading of section 30235, cogently argues that it is meant as a grandfather clause, and that the more natural reading of the provision is that no structures built after the Act's 1976 passage can be said to be "existing" for the purpose of the section.149 Such an interpretation would bring California into comity with the coastal programs of other states, which grandfather in structures built at the time of passage but do not allow continued armoring.150 The alternative reading, in any case, offers limited protection against coastal armoring: if the section 30235 conditions are met, along with any other conditions inherent in the base common law, it would allow seawall construction applications for any built structure, giving no independent meaning to the word "existing."151 In the most liberal reading of the section, new developments could dodge any strictures of the section by building houses first—once the houses are built, they would be "existing structures" and so would be allowed to build coastal armoring.152 Even as a textual matter, Cardiff argues, the permissive reading does not square with the restrictive language of section 30235, which invites the court to inquire into the necessity of armoring "required to" protect "existing" structures. The reading also ignores the second sentence of section 30235, which requires that "existing marine structures causing water stagnation" be "phased out, or upgraded when feasible";153 here, existing structures clearly refer to those in existence at the time of the Act, which legislators intended to be phased out in the future. They surely did not contemplate the construction of new "existing" structures that would then be phased out at a future date, he concludes. Some of the legislative history of the Coastal Act, as collected by Cardiff, supports this understanding of "existing" in section 30235.154 As he notes, the word "existing" was inserted into the section late in the drafting process, suggesting that it was intended to have a limiting effect upon the original language.155 Indeed, the term was not present in a more developer- friendly version of the Act also under consideration.156 149. Id. at 268 (arguing that allowing section 30235 to apply to all "existing" structures, whenever constructed, would mean that "a structure would deserve protection moments after completion"). 150. See discussion of coastal acts of Rhode Island, Massachusetts, North Carolina, South Carolina, and Oregon, infra notes 192-213. 151. Cardiff, supra note 73, at 268. 152. Id. . 153. CAL. PUB. RES. CODE § 30235 (West 2006). " 154. Cardiff, supra note 73, at 261-68. 155. Id at 267. 156. Id. 2007]NO DAY AT THE BEACH 563 Cardiff's evidence, however, is not conclusive. In a recent unpublished case, which did not decide the issue due to a technicality regarding the standard of review, the Coastal Commission pointed out that "existing" is used in other places within the Act's text in ways that clearly indicate it was meant to refer to current conditions, not 1976 conditions.137 The Commission noted that "existing" was specifically modified with a date in other cases, which at least suggests that the "existing" in section 30235 was intended to refer to all built structures, although the comparison to other, unrelated provisions in the Act is, of course, not dispositive.158 Because both the broad and narrow readings of section 30235 can be read consistently with section 30253, neither Cardiff nor the Commission clearly has the better of the statutory analysis. Also, importantly, neither reading addresses the problem of pre-1976 structures, which both would allow. We must instead return to the basic trust principles the Act was designed to protect. As Cardiff notes and as the Act itself states, the essential goal of the Coastal Act is to ensure the long-term future of the coast, not to create an entitlement for destructive development.159 This principle is embodied in section 30007.5 and in the public trust doctrine: that every apparent conflict in the Coastal Act and between coastal development needs and the public trust must be resolved in the trust's favor. This root principle should be the Commission's guide to reading section 30235: whether its reach is broad or narrow, the armoring privileges that it grants should not be lightly conferred to any structure. A legislative change to section 30235's direction that seawalls "shall" be allowed when its conditions are met to a more permissive acknowledgment that seawalls "may" be allowed would make this point clearer. Indeed, it may be illegal for the Commission to confer armoring privileges even when the conditions of section 30235 are met. This is because where armoring the coast prevents inward migration of the public trust lands—as could be the case under sea level rise—neither the Commission nor the legislature acting through statute has the power to simply cede the state's trust rights. As discussed above, the public trust right is a fundamental principle of. law; the state and the Commission would be violating their fiduciary duties if they simply allowed its destruction. Indiscriminate armoring under section 30235 defeats the right in two separate ways. By canceling the reversionary trust interest— that is, by blocking landward migration of the shore—it destroys a 157. Brief of the Cal. Coastal Comm'n at 17-19, Surfrider Found, v. Cal. Coastal Comm'n, 2006 WL1530224 (Cal. Super. Ct. June 5,2006) (No. A110033) (on file with authors). 158. Id. at 20. 159. Cardiff, supra note 73, at 264-66. 564 ECOLOGY LA W QUARTERLY [Vol. 34:533 portion of the public right. But it also cancels concrete public trust rights: the long-recognized public right to navigation and recreation in the wet sand below the mean high tide line. Indeed, it not only cancels beach access—it cancels the beach itself. By reading the Coastal Act through the lens of the more fundamental law of the public trust doctrine, the Commission can find ample support for appropriate rolling easements for structures of any vintage. 4. Permit Conditions as Rolling Easements The public trust doctrine will also serve as a defense for past and future no-seawall permit conditions. The Commission has used agreed- upon permit conditions to ensure that property owners will never apply for armoring privileges for structures built after 1976, despite the Commission's broad reading of section 30235. The Commission has also used section 30253 to help keep most new structures out of harm's way. First, the Commission utilizes its authority under section 30253 to require that all new structures are set back from the coast far enough to ensure that erosion will not reach them during the expected economic life of the structure (normally seventy-five to one hundred years for homes, as specified in the relevant LCP). This setback is calculated using historical erosion data and slope stability or, in some cases, is based on the measured geological conditions in the permitted area. However, the Commission's current setback methodology does not take into account dramatic increases in wave forces and erosion due to sea level rise. If future erosion rates are the same as historic rates, the setback will erode at the anticipated rate and the structure will be threatened by erosion only at the end of its economic life. Yet, if erosion accelerates owing to sea level rise, increased storm strength and frequency, or increased wave energy, structures permitted with setbacks will be at risk from erosion many years before the anticipated economic term of the structure. The resulting policy dilemma is that owners of many structures permitted with setbacks may, nonetheless, ultimately be in a position to request armoring. The Commission has attempted to avoid this possibility by placing "no future armoring" conditions in all recent permits. A sample permit (this one borrowed from the standard language used in modern permitting documents) often specifies, among other requirements, that: A. By acceptance of this permit, the applicants agree, on behalf of themselves and all successors and assigns, that no bluff or shoreline protective device(s) shall ever be constructed to protect the development approved pursuant to this Coastal Development -Permit, including, but not limited to, the residence with the attached garage, foundations, well, septic system, and driveway in 1 ? _;<! '*• •'$ 2007] NO DAY AT THE BEACH 565 the event that the development is threatened with damage or destruction from waves, erosion, storm conditions, bluff retreat, landslides, ground subsidence or other natural hazards in the future. By acceptance of this permit, the applicants hereby waive, on behalf of themselves and all successors and assigns, any rights to construct such devices that may exist under Public Resources Code Section 30235 or under Local Coastal Plans. B. By acceptance of this Permit, the applicants further agree, on behalf of themselves and all successors and assigns, that the landowner shall remove the development authorized by this permit, including the residence with the attached garage, septic system, and driveway if any government agency has ordered that the structures are not to be occupied due to any of the hazards identified above. In the event that portions of the development fall to the beach before they are removed, the landowner shall remove all recoverable debris associated with the development from the beach and ocean and lawfully dispose of the material in an approved disposal site. Such removal shall require a coastal development permit. C. In the event the edge of the bluff recedes to within 10 feet of the principal residence but no government agency has ordered that the structures not be occupied, a geotechnical investigation shall be prepared by a licensed geologist or civil engineer with coastal experience retained by the applicant, that addresses whether any portions of the residence are threatened by wave, erosion, storm conditions, or other natural hazards. The report shall identify all those immediate or potential future measures that could stabilize the principal residence without shore or bluff protection, including but not limited to removal or relocation of portions of the residence. The report shall be submitted to the Executive Director and the appropriate local government official. If the geotechnical report concludes that the residence or any portion of the residence is unsafe for occupancy, the permittee shall, within 90 days of submitting the report, apply for a coastal development permit amendment to remedy the hazard which shall include removal of the threatened portion of the structure.160 Permit conditions also commonly include a waiver of risk and liability and a permanent deed restriction, giving notice to future owners of the parcel in question. Such terms in essence remedy the dangers created by an overbroad reading of section 30235, not by amending the law or altering the Commission's interpretation, but by imposing a series J-i5 '•,;j;; ;•• 160, This language is borrowed from a number of public permits issued by the Commission. See. e.g.. Staff Report: Permit Amendment 1-88-040-A1 (2006) (on file with authors) (barring seawall construction for single family home on coastal bluff in concert with requiring setback sufficient to likely avoid erosion problems during economic life of the house). 566 ECOLOGY LA W QUARTERLY [Vol. 34:533 of conditions that remove the threat of future armoring. These provisions have not been tested in court. However, courts have been responsive to other conditions similarly designed to address adverse impacts to public recreation stemming from seawall construction. In September 2006, the Superior Court of Monterey County, for instance, upheld a $2.3 million mitigation fee intended to compensate the public for the lost recreation value of a beach that is expected to completely erode due to shoreline armoring approved for a poorly sited condominium development built before the Coastal Act.16' The fee covered a total lost future value of $5.3 million.162 It is worth noting that this fee may have been too low—it took into account only lost recreation value rather than including the loss of other ecosystem services, such as wildlife habitat and lost sand supply to the region's littoral cell163—but it demonstrates that even where armoring is allowed, it need not be a simple give-away of public rights to the coast. This case does not, however, serve as a perfect predictor of stronger permit conditions favoring structure removal over large mitigation fee payments. More importantly, these permit conditions vindicate the public trust rights at stake: they prevent the loss of the public's reversionary interest in the moving shoreline and maintain the public trust navigation and recreation interests on the beaches that would otherwise be lost. They should survive in court because the building permits themselves would be invalid without them. The Commission has no power to violate the public trust or to alienate public trust lands and so has no power to grant seawall privileges in cases where the shoreline is migrating under sea level rise. Thus permit conditions only make explicit what is implicit: the public trust doctrine attaches to all of these transactions. Because these rights are deeply grounded in the public trust doctrine, working them out in a series of site-specific permit conditions rather than asserting them generally risks being haphazard or underprotective. While it would not be equitable to simply change course without public notice and comment,164 rulemaking on a statewide basis is 161. Ocean Harbor House Homeowners Ass'n v. Cal. Coastal Comm'n, Case No. M 73109 (Cal. Super. Ct., Monterey County Sept. 2006). 162. 7tf.at2. 163. See generally Alexander Brown & A. McLachlan, Sandy Shore Ecosystems and the Threats Facing Them: Some Predictions for the Year 2025, 29 ENVTL. CONSERVATION 62 (2002) (discussing the ways in which beach ecosystems function and how they interconnect with other human and natural systems). 164. Courts frown upon abrupt reversals of agency positions without due process. While agencies are not bound to carry on a bad policy, public reliance upon agency pronouncements mean that agencies are well advised to offer opportunities for notice and comment before reversing course. See. e.g., Ariz. Grocery v. Atchison, Topeka & Santa Fe R.R. Co., 284 U.S. 370 (1932) (seminal Supreme Court case establishing due process requirements for agency position changes); see also Motor Vehicle Mfr.'s Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29 (1983) (reversals in position are due as much as formal process as adoptions of policy). 2007]NO DAY AT THE BEACH 567 a potential long-term solution. Such a rulemaking process would, of course, be politically contentious, but the Commission could reduce the ire of developers by applying its rulemaking prospectively—only to permit applications filed after finalization of the rulemaking. The Commission should seriously consider reinterpreting section 30235 as a grandfather clause, rather than a general grant of power to armor. Alternatively, it might leave section 30235 undisturbed, and simply explain how the public trust doctrine combines with the Coastal Act to bar injudicious armoring. This rulemaking would make clear that the Commission will seek the maximally protective policy, as originally mandated by the Coastal Act upon its passage in 1976 and as fundamentally required by the public trust doctrine.165 5. Takings and Rolling Easements in California Could California impose a blanket rolling easement along its coastline without running into takings prohibitions and without being stymied by political opposition? The answer is probably yes, as a constitutional matter, but with serious practical caveats. Few judges, if any, will initially be comfortable with allowing structures built under one understanding of the law to yield to the sea, even if the public trust doctrine would appear to require this result. Because takings lawsuits are most likely if political processes break down, implementing easements in a savvy way is vital. Developing a mixed strategy, including the purchase of rolling easements from existing landowners in appropriate circumstances, will reduce political pressure and is the more equitable course. The cost of rolling easements for existing structures in sensitive areas has the potential to be relatively low if they are implemented within the context of a larger policy. As part of a general strategy including LCP amendments to deflect development away from highly sensitive areas, the imposition of rolling easements in undeveloped areas and requirements to mitigate permitted armoring can provide the lynch pin for sea level rise management. James G. Titus of the EPA provides valuable analysis of the takings problems at issue.166 Under the Supreme Court's decision in Lucas v. South Carolina Coastal Council, a taking will occur if a regulation "denies all economically beneficial or productive use of land."167 Even then, regulations that actualize title restrictions arising from "background principles of the State's law of property and nuisance"168 do not effect a taking. Under both prongs of analysis, rolling easements—even if 165. CAL. PUB. RES. CODE § 30007.5 (West 2006). 166. Titus, supra note 70, at 1354-59. 167. 505 U.S. 1003,1015 (1992). 168. Id. at 1029. 568 ECOLOGY LA W QUARTERL Y [Vol. 34:533 imposed by the state without compensation—would probably not be a taking. As Titus argues, the common law of erosion and the public trust jointly act to "diminish the rights of coastal lowland owners, compared with the rights of noncoastal dryland owners."169 The public trust doctrine is a background principle of the common law and so would obviate a Lucas taking as applied in this case. The easement, simply put, has always been there: it is not an imposition on the property owner but part of the nature of his or her property. This is precisely the reasoning of a U.S. District Court in Texas, upholding that state's rolling easement policy in Severance v, Patterson™ As Judge Hoyt wrote in that recent decision, issued in May 2007, "the public's rolling beach easement was established long before" the property owner took possession.171 The extent of the easement depends on the behavior of the ocean, not the caprice of government: "The natural movement of the beach's boundaries may result in a temporary (or long-term) expansion of the physical area covered by the easement, but it may also result in a contraction of the covered area. This natural movement does not work a constitutional wrong."172 But even if a case did not involve this background principle, a state's direct imposition of a rolling easement would likely not cause the total loss of economically beneficial uses of land required for a Lucas taking. This is' because rolling easements impose a future loss that will not occur for decades.173 Discounted for present value, a rolling easement will not significantly diminish property values. The change in value would be truly minimal for undeveloped land and would likely still be minor for most developed land, except those properties in almost immediate danger of loss. Easements could also be constitutionally required as permit conditions. The NollanlDolan line of cases makes clear that all permit conditions must bear an "essential nexus" to the purposes for which the permitting statute was designed, and the burden of the exaction on the permittee must bear "a rough proportionality" to the harm the exaction seeks to prevent.174 The purposes expressed by the Coastal Act require that state bodies charged with administering the coast "protect, maintain, and, where feasible, enhance and restore the overall quality of the coastal zone," by assuring "orderly, balanced utilization and conservation" of its 169. Titus, supra note 70, at 1356. 170. Severance v. Patterson, No. H-06-2467,2007 WL 1296218 (S.D. Tex. May 2,2007). 171. fd.at'9. 172. Id. at *8; see also id. at *9 ("[Plaintiff] has not suffered a taking because her right to exclude the public never extended seaward of the dynamic, natural boundary of the beach."). 173. Titus, supra note 70, at 1358. 174. See Nollan v. Cal. Coastal Comm'n, 483 U.S. 825,841 (1987) (essential nexus); Dolan v. City of Tigard, 512 U.S. 374,390 (1994) (rough proportionality). 2007]NO DA YA T THE BEACH 569 resources, maximizing "public access to and along the coast," assuring "priority for coastal-dependent" development over other developments, and encouraging state and local cooperation.175 The state can show (once coastal vulnerability maps are completed) that permitting development would lead to armoring in some areas, and that .armoring will reduce access and fail to conserve the critical resources of the land/sea interface. This showing should satisfy the "essential nexus" requirement. The state may also point to existing armored coastlines as evidence of the damage that accelerated armoring would do, as well as to the experience of other states that have successfully prohibited armoring to protect coastal resources. The "rough proportionality" test may at first seem more difficult to meet—after all, a rolling easement requirement means that the structures may need to be moved or abandoned. However, this is not a total loss in value but rather a limitation on the total economic life of the structure. In present value terms, the burden may be minimal—and because value declines before the structure is built, in the worst case the effect is merely to discourage the building of expensive features. This burden is a small one to bear for the privilege of living in an erosion-prone area where, even with armoring, collapse may be inevitable in the long term. The state is simply readjusting the length of time of occupancy, not prohibiting it, and the permit condition mandates no additional expenses on the part of the property owner. The sea level rise policy of the state, while rooted generally in the rolling easement concept, will see these easements applied in different ways and with variable frequencies. In urban cores, where ecological losses are likely to be lower and infrastructure replacement costs greater, few easements would be required—and those created (for instance, to protect public beach access) should be purchased, not extracted from unwilling sellers. In more rural areas, where ecological values may trump infrastructure values, easements should also, generally speaking, be negotiated rather than imposed. Here, well-chosen litigation would be more appropriate to defend areas of considerable ecological or public importance. New structures would only be built, under section 30253, in places where no armoring will ever be required—and even they should have "no future armoring" provisions in their permits to deal with the possibility that the sea may rise even faster than anticipated. Such a strategy would use limited state dollars to protect the most important areas, and would allow most existing structures to either armor, if they are in imminent danger and no less environmentally damaging alternative is available, or receive equitable compensation for the eventual property loss. In this way, the state retains its coastal resources and fulfills its 175. CAL. PUB. RES. CODE § 30001.5(a)-(e) (West 2006). 570 ECOLOGY LA W QUARTERLY [Vol. 34:533 public trust duties. The policy is flexible, allowing "nature to take its course with respect to sea level rise and inland migrations of coastal wetlands," thereby "forcing landowners to incorporate" this risk into land use decisions and providing a dynamic incentive to avoid development of areas subject to loss.176 a. Implementing Rolling Easements: Examples from Other States Whether rooted in public trust doctrine, custom, nuisance doctrine, permitting requirements, or statute, rolling easements have been deployed across the country. California lawmakers can take some comfort in the fact that the concept has been successfully implemented to deal with ordinary erosion issues on other coastlines.177 The rolling easement concept is most frequently associated with Texas common and statutory law and was first clearly articulated in Feinman v. Texas, a 1986 case concerning the rights of property owners after Hurricane Alicia significantly eroded Galveston's West Beach.'7x The facts of Feinman help to illuminate the concept. According to Texas' Open Beaches Act, the public trust applies and the public enjoys unrestricted rights in all beaches below the first line of vegetation.179 The question in Feinman was whether the public "easement could shift automatically as the vegetation line moved" as it had during the storm."*0 The court cited to the common law of erosion, which generally awards title over accreting land to shoreline owners and removes title as land erodes, and then extended the concept to hold that "not only can title change because of the advances and retreats of the sea, but the location and extent of easements along waterways can change because of accretion or erosion to land along a waterway."181 Put simply, "an easement is not so inflexible that it cannot accommodate changes in the terrain it covers."'"2 The interpretation of the beachfront property owners—that the newly reduced beach largely belonged to them because the original easement was now submerged—would "greatly diminish the public's easement. In fact, the easement in some instances eventually 176. Daniel D. Barnhizer, Givings Recapture: Funding Public Acquisition of Private Properly Interests on the Coasts. 27 HARV. ENVTL. L. REV. 295.346 (2003). 177. This Article's focus is domestic, but sea level rise is, of course, a global problem. Britain, for instance, has recently adopted a policy of "managed retreat" —essentially a variation on the rolling easements proposed here. There, as here, the social and ecological choices are often wrenching. See Elisabeth Rosenthal. Beccles Journal: As the Climate Changes. Bits of England's Coast Crumble, N.Y. TIMES. May 4,2007, at A-4. • 178. 717 S.W.2d 106 (Tex. App. 1986). 179. Id. at 109: see a/so TEX. NAT. RES. CODE ANN. § 61.011(a) (Vernon 2006) (defining public beach as area "extending from the line of mean low tide to the line of vegetation"). 180. Feinman. 717 S.W.2J at 109. 181. A/, at 110. 182: Id. 2007]NO DA YAT THE BEACH 571 would disappear," defeating the public trust and public interest.183 The court somewhat confused matters by relying upon the public's long-term use of the beach to find a (rolling) easement rooted in implied dedication rather than relying upon a broad public trust rationale that would have immediately covered all beaches.184 Texas courts have continued to employ the rolling easement concept to protect the public's rights on eroding beaches, most recently in Arlington v. Texas General Land Office, which upheld a rolling easement that prevented the rebuilding of a beach home when the easement crossed the former building site due to storm erosion.185 A federal court recently confirmed the constitutionality of the rolling easements endorsed in Arrington and Feinman in Severance v. Patterson, finding that while plaintiffs "may not like this aspect of Texas property law, . . . nothing in the federal Constitution forbids it."186 Although Feinman established the rolling easement's conceptual outlines, it is important to note a few wrinkles not present in that case. First, it, like Arlington, did not involve a refusal to allow armoring, though Arlington involved the somewhat analogous denial of a rebuilding permit. Second, the grounding of the easement concept in Feinman itself is not entirely clear—it appears to arise from a combination of statutory policy, easement common law, and perhaps, the public trust doctrine. Courts in other states have been variably receptive to the rolling easement concept. The Supreme Court of North Carolina applied the concept to affirm that a beach access route whose location had shifted due to erosion maintained its easement character.187 The Nebraska court of appeals imported the concept, in an unpublished decision, to extend an eroding drainage easement, affirming that "erosion to some degree is a natural consequence of the movement of water over soil" and that the easement could, therefore, roll as in Feinman.^ Courts have declined, however, to extend the concept of rolling easement to include public facilities owned by the state based upon reasons other than the public trust doctrine. For example, the Supreme Court of Vermont refused to find a moving easement for a lakefront road that needed to be moved due to erosion, distinguishing Feinman because Vermont had no statutory 183. A/, at 111. 184. Id. at 112-14. 185. See 38 S.W.3d 764 (Tex. App. 2001). 386. Severance v. Patterson, No. H-06-2467, 2007 WL 1296218, at *9 (S.D. Tex. May 2, 2007); see also supra notes 170-172. 187. Concerned Citizens of Brunswick Co. Taxpayers Ass'n v. North Carolina, 404 S.E.2d 677, 684 (N.C. 1991) (citing Feinman approvingly for the proposition that "shifts occurring from time to time in the beach vegetation line due to storm action did not defeat establishment of a prescriptive public easement"). 188. Swaney v. City of Bellevue, No. A-98-456,1999 WL 703548 (Neb. App. Sept. 7, 1999). 572 ECOLOGY LAW QUARTERLY [Vol. 34:533 policy supporting public access such as had supported the rolling easement in the Texas case,189 A Delaware court similarly refused to find that a road right-of-way should migrate along with an eroding lakeside riparian boundary because the road in question had been platted at a firm location and was not designed as an easement with the purpose of allowing public access to the water.190 Although the court acknowledged that the common law of erosion removed title from eroded land, it did not follow that the right-of-way paralleling the water would shift; rather, the road was itself eroded by the changing lake levels.191 None of these courts addressed the question at issue here of coastal armoring structures. Several states have codified variations of the rolling easement concept.19? Maine, the Carolinas, Massachusetts, Rhode Island, and Oregon are among states that have implemented explicit restrictions on shoreline armoring structures. In some states, coastal armoring is flatly barred; in others it is strongly limited or permitted only when it minimizes ecological damage. The strength of these measures vary by state, but all are stronger than the laws that are presently available in California. In New England, Maine has sought to protect the "fragile, dynamic resources" that comprise its coastal sand dune systems.193 It anticipates that "sea level will rise approximately two feet in the next 100 years" and has regulated accordingly to prevent damaging its coastal dune system with erosion control structures.194 It therefore provides that no project may be permitted "if, within 100 years, the property may reasonably be expected to be eroded," and flatly provides that "no new seawall may be constructed."195 Massachusetts similarly provides that development on. coastal dunes may not interfere with "the landward or lateral movement of the dune"196 and that development on unconsolidated banks will not be allowed to use seawalls to prevent erosion, except for bank structures existing at the time of the law's 1978 passage.197 Rhode Island bars essentially all erosion control structures along the oceanfront portion of its coast.198 These policies will allow wetlands, beaches, and the purposes of the public trust to be maintained even as the sea level rises. An 189. Town of South Hero v. Wood, 898 A.2d 756 (Vt. 2006). 190. Scureman v. Judge, 747 A.2d 62 (Del. 1999). 191. Id. at 67-69. As the court explained, moving the right-of-way would not roll an old easement but rather create a new one, forcing a right-of-way where one had not previously been. Id. at 68. 192. For a broader statutory survey, see James G. Titus, Does the U.S. Government Realize That the Sea is Rising? How to Restructure Federal Programs so That Wetlands and Beaches Survive, 30 GOLDEN GATE U. L. REV. 717,743-44 (2000). ' 193. Maine Coastal Sand Dune Rules ch. 355.1 (2006). 194. Id. 195. Id. at ch. 355.5(C)-(E). 196. 310 C.M.R. § 10.28 (2006). 197. /</.§ 10.30. 198. Rhode Island Coastal Resources Management Program § 300.7(D)(1) (2006). 2007]NO DAY AT THE BE A CH 573 important exception is that Maine and Massachusetts do not ban armoring on rocky headlands, which are tough, largely granitic rocks rather unlike the relatively weak sedimentary bluffs in California. In California it is precisely these landfonns, favored by builders and standing behind many popular beaches, that will be most at risk. In the Southeast, North and South Carolina have been leaders in coastal protection. South Carolina's legislature found that the dynamic beach/dune system along its coast was "extremely important" to the state as "a storm barrier" contributing to "shoreline stability," by "generating approximately two-thirds of [the state's] annual tourism industry revenue," as "habitat for numerous species [and as] a natural healthy environment for the citizens" of the state.199 Recognizing that "development unwisely has been sited too close to the system," the legislature found that it was hi "both the public and private interests to protect the system from this unwise development."200 The state legislature found that armoring provided a "false sense of security" but in fact "increased the vulnerability of beach front property" while contributing to the deterioration of the dry sand beach in front of the seawalls.201 The state has therefore opted to "severely restrict the use of hard erosion control devices to armor the beach/dune system and to encourage the replacement of hard erosion control devices with soft technologies."202 As a result, the state has barred most new construction and all erosion control structures (except those that protect public highways) seaward of a setback line determined by the crest of the dune system.203 North Carolina has taken similar steps. Under that state's Coastal Management Act, no "permanent erosion control structure" may be erected "in an ocean shoreline."204 The state does allow sandbags to be used on a temporary basis.205 The administrative rules amplify this, allowing even temporary control structures (e.g., sandbag walls) to be used only to protect "imminently threatened roads . .. and buildings and associated septic systems."206 These structures may remain in place for a maximum of five years.207 A structure may only be protected once, regardless of ownership transfers.208 Structures existing before the Coastal 199. S.C. CODE ANN. § 48-39-250(1) (2006). 200. Id § 48-39-250(4). 201. /d § 48-39-250(5). 202. Id. § 48-39-260(3). For discussion of these "soft technologies"-based on living shorelines principles—see Section II.B.v.(c), below. 203. S.C. CODE ANN. § 48-39-280 (establishing setback line); § 48-39-290 (barring erosion control structures and development). 204. N.C. GEN. STAT. §§ 113A-115.1 (2006). 205. Id. 206. N.C. ADMIN. CODE tit. ISA, subch. 7H, § 0.0308(2)(A)-(B) (2006). 207. Id. § 0.0308(2)(F). 208. Id. § 0.0308(2)(L). 574 ECOLOGY LA W QUARTERL Y [Vol. 34:533 Management Act's 1974 passage date are grandfathered in, however, and may be maintained.209 Oregon, with a coastal morphology more like California's than the sandy beaches of the Carolinas, has taken similar measures. The state has barred all permits for shoreline armoring for all development built after January 1, 1977.210 Even permitted structures must be designed to maintain scenic standards, allow for recreation use and access, and avoid or minimize impact to resource values including habitat quality.211 Oregon's comprehensive statewide planning goals echo these standards and the basic presumption against shoreline armoring.212 It is also significant to note that the state's comparatively strict laws have not fallen prey to takings challenges. In 1993 the Oregon Supreme Court upheld a seawall permit denial against a takings claim, finding that denying the construction of a seawall did not deny all economic use of the property in question.213 b. Rolling Easements as Economic Assets Across the country, states have taken proactive measures to prevent excessive shoreline armoring, in many cases simply forbidding the practice. Under many of these statutes, property owners must yield to the public's reversionary interest and allow vital beaches and marshes to shift as sea level rises. Admittedly this practice does lead to some private property losses; but because public interest preferences are stated clearly in state code, the practice also prevents losses (both private and public) by steering development away from areas vulnerable to erosion. Such laws acknowledge geologic and climatic reality. There is also growing evidence that restrictions on armoring improve economic possibilities for coastal towns. Coastal erosion is a major threat nationally; one recent study, which did not even model the effects of climate change, found that a quarter of all homes within 500 feet of the coast may fall prey to erosion within the next sixty years.214 As a result, there is considerable interest in economically efficient management of coastal erosion. At least two studies have found that the policy of managed retreat promoted by rolling easements (or straightforward statutory prohibitions on armoring) may often produce results 209. N.C. GEN. STAT. §§ H3A-115.1(b). 210.. OR. ADMIN. R. 736-020-0010(6) (2005). 211. Id. at 736-020-0015-0030. 212. See id. at 660-015-0010(3) (Oregon Statewide Planning Goals & Guidelines, Goal 18) (setting forth very limiting permit conditions for shoreline structures). 213." Stevens v. City of Cannon Beach, 854 P.2d 449,459-60 (Or. 1993). 214. JOHN H. HEINZ III CTR. FOR Sci., ECON. & THE ENV'T, EVALUATION OF EROSION HAZARDS xxi, 128 (2000). 2007]NO DA YAT THE BEACH 575 economically superior to armoring.215 The economic effect may be best understood as a "coastal tragedy of the commons," with beach access and enjoyment as the common pool resource. Working in the Southeast, economists Warren Kriesel and Robert Friedman amassed empirical data showing that, while the first property owners to armor do capture property value increases, such armoring lowers property values just a few rows of houses inland.216 If half of all waterfront owners armored, property values for nonwaterfront homes fell 12 percent below parallel contexts where no armoring is present.217 Although Kriesel and Friedman do not speculate as to why property values declined, this effect is presumably due to the vastly less pleasant shoreline as a result of armoring. The authors do note that their results demonstrate a "classical .. . negative economic externality" and should "give communities pause" before they rely upon armoring.218 By contrast, Kriesel and Friedman found that beach nourishment— adding sand directly to beaches—broadly increased property values without the costs associated with armoring.219 Economist Craig Landry and his co-authors achieved similar results using data based upon Georgia's Tybee Island.220 They found that the major costs of engineering barriers to erosion were on the same order of magnitude as the property losses that would be sustained under a policy of retreat under a moderate rate of erosion.221 In other words, armoring costs may often be high enough to make the property losses they prevent negligible.222 Because the benefits resulting from a broad and unarmored beach are much greater than the management costs associated with such beaches (e.g., the costs of beach nourishment), a policy barring erosion control structures coupled with some degree of nourishment may be the most economically efficient strategy.223 Landry et al. suggest that in the interests of equity such a policy should offer some payment to the shoreline property owners who bear the additional risk of losing their homes,224 even if they have no legal right to armor. This compensation could come in the form of the purchase price of a rolling easement. 215. See Craig E. Landry, Andrew G. Keeler & Warren Kriesel, An Economic Evaluation of Beach Erosion Management Alternatives, 18 MARINE RES. ECON. 105 (2003); Warren Kriesel & Robert Friedman, Coastal Hazards and Economic Externality: Implications for Beach Management Policies in the American Southeast, Heinz Ctr. Discussion Paper (May 2002). 216. Kriesel & Friedman, supra note 215, at 2,12-13. 217. Id. at 13. 218. Id. at 13,16. 219. Id. at 12-13. 220. See Landry et al., supra note 215. 221. 7rf.atl21. 222. Id 223. Id. at 119-21. 224. 576 ECOLOGY LA W QUARTERL Y [Vol. 34:533 I&-." But is compensation appropriate at all? As a matter of expectations, it may be: the changing conditions of sea level rise make clear that previously set assumptions about the stability of the coast and the nature of armoring law must be reexamined. But it is not clear that compensation will always make sense as a matter of policy. For decades, coastal property owners have been allowed to externalize the risk of living in an erosion zone onto the public: they do so by armoring, which imposes public costs for their private benefit. This subsidy—transferring the public trust's value into private hands—is not an entitlement and need not be continued. Although smoothing the transition to the new regime alone may justify a compensation scheme, it is not at all clear that the public need, as a matter of law or equity, pay for maintaining its basic trust rights against transfer to private parties. Although the experience of rising sea levels and erosion control regulation is relatively new, it is clear that states across the country have taken important steps toward allowing erosion to take its course. Such a policy prevents beach privatization via seawall and maintains ecosystem function. By saving the costs associated with armoring, it may also be the most economically efficient course in many cases. California, which has already armored large swaths of its coast and faces some of the highest erosion risks due to sea level rise should move rapidly to implement rolling easements and related policies. c. Living Shorelines and Public Access Measures In some cases, where developments have already been built and a policy of retreat through rolling easements is either financially or legally imprudent, armoring structures will have to be built. In these instances, the Coastal Commission should create and promulgate "living shorelines" and public access design principles for all new coastal armoring structures. The living shorelines movement has grown largely on the eastern seaboard, where fingers of salt marsh are being replaced with concrete walls. The effort is an important one. As the National Academy of Science explained in a 2006 report, replacing natural land/sea transitions with concrete and steel not only- destroys beaches, it disrupts "highly diverse and productive plant and animal communities ... along with the vital ecosystem services they provide."225 To prevent these losses, the Academy calls for a broad research effort to develop regionally tailored design principles and implement them through a permitting process with a strong preference for minimally invasive 225. "NAT'L ACADEMIES OF Sci., REPORT IN BRIEF: MITIGATING SHORE EROSION ON SHELTERED COASTS 3 (2006). 2007]NO DAY AT THE BEACH 577 structural solutions.226 Such an effort is particularly important for California, where technologies developed for salt marshes and low shores will simply be inappropriate for our coast of rocky bluffs and sandy beaches. This is another area where immediate research is essential to prevent the loss of ecosystem function. Living shorelines guidelines, if developed to fit the California context, will ensure that coastal protection is built in ways that allow some species to continue to move across the land/sea interface, maintaining a degree of ecological function. Social values may also be maintained by requiring armoring structures to provide for public access, such as including public walkways or promenades along the crests of armoring structures. Design principles will necessarily vary by region. North Carolina has experienced success with replacing seawalls with grassy margins reinforced by low, rocky sills.227 In California, where El Nino waves batter entire cliffs down, solutions will be different. The Coastal Conservancy, a grant-making agency, should devote substantial research funds to developing a suite of living shorelines options for various coastal situations. Stark bulkheads might, for instance, be replaced by more limited structures that allow for marine mammal haul-outs228 and some degree of bluff erosion. Rocky revetments that spill across the entirety of formerly broad beaches might be disfavored and we may instead see smaller replacements designed to preserve areas of sand and also provide habitat for tide pool denizens. On many ocean shores, beach nourishment may provide a protective solution, if done with proper care. The goal should be to maintain a substantial degree of ecosystem function when armoring is necessary, rather than simply sacrificing it entirely. Some armoring designs could be regionally planned, ensuring that no beach or stretch of headlands is entirely lost, even if it is fragmented. The goal should be to balance the protection of development with the protection of coastal amenities that first attracted development. 226. Id at 3—4. One successful effort, at the Jefferson Patterson Park and Museum in Calvert County Maryland is detailed at http://www.jefpat.org/Living%20Shorelines/ lsmainpage.htm (last visited Apr. 17, 2007). The museum's website provides a useful taxonomy of living shorelines approaches, from planting specific marsh grasses to careful regard for banks. Also see the Virginia Department of Environmental Quality's guide to techniques used in that state at http://www.deq.state.va.us/coastal/documents/lsfactsheet.pdf (last visited Apr. 17,2007). 227. N.C. Coastal Fed'n, Living Shorelines Projects, http://www.nccoast.org/Restoration/ LivShore (last visited Apr.-8,2007). 228. Haul-outs are so called because they are sites where marine mammals, like seals or sea lions, "haul out" of the ocean in order to rest, mate, and lounge on land. 578 ECOLOGY LA W QUARTERLY [Vol. 34:533 CONCLUSION Protecting coastal access and coastal resources requires developing a sea level rise policy. Climate change will fundamentally reconfigure the California coast; in turn, the Coastal Commission must be ready to plan for a rapidly changing future. Committing California to a responsible sea level rise policy will require more than rolling easement conditions, purchases, and LCP amendments. However, sensible use of rolling easements will allow vital public rights to track the coast more easily as the sea level rises. The Commission can be ready to defend those public rights from premature cancellation by limiting coastal armoring. It will not be a small project, but starting now is preferable to bearing the public costs of inaction later. Even if wholly successful, a more ecologically sensitive coastal armoring policy can only begin to help the coast to adapt to climate change and to mitigate some of its effects. It cannot, on its own, save the coast as warmer waters choke the California Current, bring stronger storms, and destroy marine life. While the Commission explores its role hi addressing climate change's effects—from shifts hi coastal fauna and flora to the armoring crisis, it can act to prevent the fortress-like coast that the combination of population growth, coastal development, and climate change would otherwise create. By urging LCP revision to discourage development in erosion-prone or ecologically important areas, implementing rolling easements, preserving access along the shore, and encouraging living shorelines design solutions, the Commission can steward the coast through the difficult years ahead. Fall 2001 Volume 38 Number 1 CALIFORNIA WESTERN LAW REVIEW CONFLICT IN THE CALIFORNIA COASTAL ACT: SAND AND SEAWALLS Todd T. Cardiff CONFLICT IN THE CALIFORNIA COASTAL ACT: SAND AND SEAWALLS Todd T. Cardiff I. INTRODUCTION "Seawalls damage virtually every beach they are built on. If they are built on eroding beaches—and they are rarely built anywhere else—they even- tually destroy [the beach]."' Coastal landowners in California are building seawalls at an alarming rate.2 Currently, shoreline armoring3 occupies between 130 and 150 miles of California's 1,100-mile coastline." Unfortunately, seawalls have a disastrous effect on the public beach.3 On an eroding beach, seawalls will eventually * J.D. Candidate, April 2002, California Western School of Law; B.A., 1995 California Polytechnic State University at San Luis Obispo; Executive Committee Member, San Diego Chapter of the Surfrider Foundation; Executive Editor, California Western International Law Journal. 1. CORNELIA DEAN, AGAINST THE TIDE, THE BATTLE FOR AMERICA'S BEACHES 53 (1999). Cornelia Dean is the science editor for the New York Times. 2. In the last two years seawalls have been permitted to protect fifteen properties in So- lana Beach, CA. See, e.g., Cal. Coastal Comm'n Application No. 6-99-103 (shoreline armor- ing permit protecting seven properties, approved Oct. 14, 1999); Application No. 6-99-56 (shoreline armoring permit protecting three properties, approved May 12, 1999); Application No. 6-99-91 (approved Jan. 12, 2000); Application No. 6-00-66 (shoreline protection permit protecting two properties, approved Oct. 10, 2000); Application No. 6-00-36 (shoreline ar- moring protecting two properties, approved March 13, 2001); and Application No. 6-00-138 (shoreline armoring protecting two properties, approved Mar. 13, 2001). See also pleadings at 1 Calbeach Advocates v. City of Solana Beach, Case No. GIN010294, (filed Jan. 25, 2001 San Diego Superior Court) (on file with author). 3. "Shoreline armoring" is a generic term for any hardened structure used to protect against wave action, such as seawalls, revetments, rip-rap, and bulkheads. In this Comment the terms "seawalls" and "shoreline armoring" will be used interchangeably. 4. See SURFRIDER FOUNDATION-. STATE OF THE BEACH 10 (2000) (noting that 1990 statis- tics showed 130 miles of seawalls in California and that California has experienced two El Nifios in the 1990s). See also Gary B. Griggs, Bringing Back the Beaches—A Return to Ba- sics, available at http://www.wetsand.com (last visited Nov. 15, 2000) (noting that approxi- mately 14% of California is armored). 5. See generally DEAN, supra note 1; ORRIN H. PILKEY & KATHARINE L. DKON, THE CORPS AND THE SHORE (1996); WALLACE KAUFMAN & ORRIN PlLKEY, THE BEACHES ARE MOVING, THE DROWNING OF AMERICA'S SHORELINE (1979) (explaining the adverse impacts of seawalls). 255 256 CALIFORNIA WESTERN LAW REVIEW [Vol. 38 200 destroy the beach, leaving no dry sand area for recreation.' Furthermore, beach replenishment projects, the primary method for restoring beaches de- or h stroyed by seawalls, are extremely expensive and increase the width of the coa; recreational beach for only a very short time.7 tion Beaches are vital to California's economy, generating fourteen billion crea tourism dollars per year.8 From a purely economic viewpoint, California's wit! beaches are considerably more important to the overall economy than the . that property that shoreline armoring is designed to protect. Shoreline armoring iron only benefits the incredibly small minority of the population that owns prop- erty directly on the coast, while it decreases access to the millions of people who flock to the beach every year.9 Coastal property owners claim they have both constitutional and statu- tory rights to protect their property with shoreline armoring.10 Under the cur- rent interpretation of the Coastal Act," Coastal landowners are permitted to build a seawall if their primary structure is endangered by erosion. However, as this Comment will demonstrate, it was never the Legislature's intent to protect structures built after 1976. con In 1976, when the California legislature passed the Coastal Act, the leg- set^ islature was aware of the adverse impacts of seawalls.12 California Coastal °f F Act section 30253 mandates that: tion ture New development shall... [a]ssure stability and structural integrity, and neither create nor contribute significantly to erosion, geologic instability, line or destruction of the site or surrounding area or in any way require the construction of protective devices that would substantially alter natural . landforms along bluffs and cliffs.13 . I"c( witl the a ci 6. Nicholas C. Kraus, The Effects of Seawalls on the Beach: An Extended Literature Re- w. view, Special Issue, J. COASTAL RES., 1, 4 (1988) (However, Kraus disputes whether active flicl erosion is supported by scientific evidence.). 7. See SAN DIEGO REGIONAL BEACH SAND PROJECT FINAL ENVIRONMENTAL IMPACT REPORT/ENVIRONMENTAL ASSESSMENT, State Clearinghouse No. 1999041104 (2000) (The sand replenishment project will add two million cubic yards of sand to San Diego's beaches at ] a cost of fourteen million dollars. The sand is expected to last one to five years.). THE i 8. Philip King, Executive Summary of 1999 Report on: The Fiscal Impact of Beaches, at } http://userwww.sfsu.edu/~pgking/beaches (last visited Nov. 18,1999) (report prepared for the setb< California Department of Boating and Waterways). Com 9. For an excellent documentary film see the video by Eden Productions, LIVING ON THE ' gran EDGE (1998) (available from the Surfrider Foundation at http://www.surfrider.org, 122 S. El cap/i Camino Real, #67, San Clemente, CA 92672). coas 10. See Whaler's Village Club v. Cal. Coastal Comm'n, 173 Cal. App. 3d 240, 252 . note (1985) (landowners arguing they have a vested right to protect property). See < 11. CAL. PUB. RES. CODE § 30000 et. seq. (2001) [hereinafter Coastal Act § 30000 et. 25 (i seq.]. inchi 12. See CALIFORNIA COASTAL PLAN 89 (1975). The California Coastal Plan was prepared , eighl prior to the coastal act pursuant to Proposition 20 (1972). See CAL. PUB. RES. CODE § 27320. ' 13. Coastal Act § 30253 (2001) (emphasis added). 1 1.38 2001] CONFLICT IN THE CALIFORNIA COASTAL ACT 257 ;ore, New development must have sufficient setback from the edge of a bluff de- or high tide line so that a seawall is not needed in the future. Unfortunately, the coastal landowners continue to build too close to the shoreline,14 often inten- tionally subverting the Coastal Act in exchange for a better view or an in- lion crease in the floor area of their coastal home.15 As the shoreline erodes to ia's : within ten or fifteen feet of the house, the coastal homeowner then argues the that the Coastal Act guarantees shoreline protection because their home is in ing imminent danger of destruction from shoreline erosion.'6 op- Coastal Act section 30235 states: iple ;, Revetments, breakwaters, groins, harbor channels, seawalls, cliff retaining walls and other shoreline construction that alters natural shoreline proc- esses shall be permitted to protect existing structures... in danger from:ur" erosion when designed to minimize or mitigate adverse impacts to shore- 1 to line sand supply... 'er, to As Coastal Act section 30235 is currently interpreted, there is a policy conflict between the requirement that all new development have sufficient ig- setback so that shoreline armoring is unnecessary in the future and the policy tal of protecting existing structures in danger from erosion. The ultimate ques- tion in resolving this conflict is: What is the definition of "existing struc- ture"? This Comment explores the policies and the current conflict with shore- line armoring in California. It begins with a discussion of shoreline proc- esses, explaining the destructive force of shoreline armoring. Next, the con- flict between Coastal Act sections 30253 and 30235 is more fully explored, with an eye towards understanding the legislative history and the intent of the legislature. The coastal property owners' claim that building a seawall is ;' a constitutional right is examined by investigating current case law, both e. : within and outside of California. Finally, three options to resolve this con- ve flict are presented: legislative, administrative, and judicial. :T ie , at 14. See Gary Griggs & Lauret Savoy, Building or Buying on the Coast, in LIVING WITH THE CALIFORNIA COAST 35, 35 (Gary Griggs & Lauret Savoy eds., 1985). •" , 15. Setbacks from streets and other property lines are fixed. In many areas though, the16 setback from the bluffs edge is determined by 75-year erosion rates. California Coastal Commission, Periodic Review of the San Luis Obispo County Certified Local Coastal Pro- £ gram, at 269-70 (Prelim. Rep., Feb. 2, 2001), available at http://www.coastal.ca.gov/web/re-;' cap/rctop.html. By declaring an overly optimistic erosion rate of two to three inches a year, a coastal landowner may build as close as twenty-five feet from the bluff edge. Id. at 271. This 2 . not only provides a great view, but also allows for an increase in square footage of the house. See also. Staff Report, Cal. Coastal Comm'n Amendment Application No 4-83-490-A2, 24 n. 25 (approved Nov. 14, 2001) (noting that the bluff setback was based on an estimated three inches per year erosion rate, but geologists subsequently estimated a buff retreat rate of forty- 1 . eight inches per year). 16. See Coastal Act §30235 (2001). 17. Id. (emphasis added). 258 , CALIFORNIA WESTERN LAW REVIEW [Vol.38 200 II. SHORELINE PROCESS AND SEAWALLS bea< expi Shoreline armoring destroys the beach in three main ways: occupation wid loss, passive erosion, and active erosion.18 Occupation loss is simply the area parl of the public beach that is physically occupied by the seawall." Passive era- sani sion is the narrowing of the beach in front of a seawall because seawalls fix bea in place the back end of the beach, preventing the retreat of the bluff or slo] shoreline, while the lower beach continues to erode.20 Active erosion is sand stal loss caused by waves rebounding off of the seawalls themselves and scour- can ing away the sand.21 oft The first step in understanding the damaging nature of seawalls is to un- inc derstand fundamental beach processes. Beaches in California are created be; from sediment transported to the ocean by rivers, streams, and eroding sin bluffs.22 Once the sand reaches the coastline, the sand is transported along ter the coast by side-shore currents, also called the long-shore currents or littoral drift.23 Beaches are sometimes characterized as rivers of sand because of this sh< constant movement.24 Unfortunately, this river of sand is often cut-off at its dr source by dams, development, flood control projects, and seawalls; and once ba the sediment does reach the beach, it is often held up by harbors, jetties and it groins.25 wi The recreational area of the beach, also called the dry sand area,26 makes up only a small portion of the total sand at a beach.27 Ninety percent of the — 18. Orrin H. Pilkey & Howard L. Wright III, Seawalls Versus Beaches, Special Issue 4, ^ J. COASTAL RES., 41,43 (1988). See also Video, Living on the Edge (Eden Productions, 1998) (available from the Surfnder Foundation) (Gary Griggs and Scott Jenkins explaining the ef- B< fects of shoreline armoring). 19. Pilkey & Wright, supra note 18, at 43 (asserting that a seawall located on a public beach will naturally prevent use of the beach that it is physically occupying). in 20. DEAN, supra note 1, at 53; PILKEY & DDCON, supra note 5, at 40. See also Gary B. B Griggs, Bringing Back the Beaches—A Return to Basics, available at N http://www.wetsand.com (last visited Nov. 15, 2000). R 21. See DEAN, supra note 1, at 53-55; KAUFMAN & PILKEY, supra note 5, at 208; and h Griggs et al., Understanding the Shoreline, in LIVING WITH THE CALIFORNIA COAST 1, 22 fi (Gary Griggs & Lauret Savoy eds., 1985) (noting that seawalls block sand supply and cause ' S erosion from wave rebound). ii 22. Griggs et al., supra note 21, at 14. Griggs also notes that in Southern California some u beaches are created and maintained by the dredging of harbors. Id. at 21-22. 23. See KAUFMAN & PILKEY, supra note 5, at 81. Technically, littoral drift is the actual movement of the sand, whereas long shore currents are the side shore currents that cause the littoral drift. Griggs et al., supra note 21, at 11. I 24. See PILKEY & DDCON, supra note 5, at 29; Griggs et al., supra note 2.1, at 15. 25. Katharine E. Stone, Sand Rights: A Legal System to Protect the "Shores of the Sea, " ! STETSON L. REV. 709, 711-12 (2000). < . 26. See, e.g., Coastal Act § 30211 (2001) ("Development shall not interfere with the pub- lic's right of access ... including the use of dry sand and rocky coastal beaches to the first line of vegetation"). 27. See PILKEY & DIXON, supra note 5, at 91 (showing a comparison of a sand replen- ishment to size of shoreface and zone of active sand movement (underwater sand)). al. 38 2001]CONFLICT IN THE CALIFORNIA COASTAL ACT 259 pation tearea 'e ero- Jls fix uff or s sand scour- to un- reated roding along littoral of this f at its donee es and makes of the Issue 4, i, 1998) the ef- i public 3ary B. '/e at beach is underwater.28 A beach with an inadequate supply of sand input may experience increased coastal erosion (the shoreline will move back), but the width of the beach, in the long run, will not change.29 However, if the back part of the beach is fixed by a seawall, the shoreline cannot move back. The sandy beach will continue to erode, and eventually the dry sand area of the beach will disappear.30 In some cases, seawalls will artificially increase the slope of the beach profile." The importance of this concept cannot be over- stated, because it is crucial to an understanding of a number of different cause-and-effect relationships in coastal processes.32 For example, people are often struck by how temporary the benefits of beach replenishment are.33 The increases in the beach width may last only one season.34 A sand-starved beach has a steep profile. When sand is added to the upper beach, the beach simply adjusts, seeking equilibrium and the beach profile is temporarily flat- tened.35 On a natural beach, the sand will act as a shock absorber protecting the shoreline from wave energy.36 High-energy waves will take a portion of the dry sand area and coastal bluff and redistribute it underwater to form sand bars.37 These sand bars will cause substantial wave energy to disperse before it reaches the shoreline.38 In many areas of California, a steep narrow beach will be backed by a cliff, which will be subjected to intense wave energy.39 28. See KAUFMAN & PILKEY, supra note 5, at 89; DEAN, supra note 1, at 158; Griggs et al., supra note 21, at 11. 29. Aram V. Terchunian, Permitting Coastal Armoring Structures: Can Seawalls and Beaches Coexist?, Special Issue 4, J. COASTAL RES. 65, 67-68 (1988). 30. PILKEY & DKON, supra note 5, at 40; Kraus, supra note 6, at 4. 31. Pilkey & Wright, supra note 18, at 59. Contra Kraus, supra note 6, at 4 (finding no increase in beach slope in front of seawalls, compared to "unstabilized" beaches); and Gary B. Griggs & James F. Tail, The Effects of Coastal Protection Structures on Beaches Along Northern Monterey Bay, California, Seawalls Versus Beaches, Special Issue 4, J. COASTAL RES. 93, 102 (1988) (noting that beach profile in front of seawalls did not change). Griggs, however, notes that seawalls may cause "wave wash or reflection that actually removes sand from the beach in front of a seawall." Griggs et al., supra note 21, at 22. A current study by Scott Jenkins, an oceanographer at Scripps Institute of Oceanography has found significant increase in the slope of the beach profile in front of seawalls compared to beaches in front of unprotected cliffs in Solana Beach and Del Mar, CA. (Data on file with author). 32. See DEAN, supra note 1, at 27. 33. See id. at 96; KAUFMAN & PILKEY, supra note 5, at 216. 34. SAN DIEGO REGIONAL BEACH SAND PROJECT ENVIRONMENTAL IMPACT REPORT/ENVIRONMENTAL ASSESSMENT, State Clearinghouse No. 1999041104,4.1-5 (2000). 35. See DEAN, supra note 1, at 96; KAUFMAN & PILKEY, supra note 5, at 216. For dia- grams of wave and beach profile dynamics see KAUFMAN & PILKEY (illustration at 206-07); Griggs et al., supra note 21, at 8. 36. Griggs et al., supra note 21, at 13. 37. Id. at 8. 38. Id. Naturally coastal erosion increases during storm events coupled with extreme high tides. Id. at 22. 39. See id. 260 CALIFORNIA WESTERN LAW REVIEW [Vol. 38 2 Eventually, the cliff will fail, adding more sand to the system and again flat- tening the beach profile.40 ° On a sand-starved beach backed by seawalls, however, waves break n closer to shore and wave energy against the bluff or seawall increases.41 The ^ land behind the seawall will not erode (which is the purpose of a seawall), ^ yet the shoreline will continue to retreat adjacent to the wall. Studies have r shown that the rate of erosion to the shoreline adjacent to a seawall will ac- ^ tually increase due to wave reflection and increased wave energy surround- e ing a seawall/2 This has led preeminent coastal geologists to note that once £' shoreline armoring begins, it seldom stops, because neighboring properties ^ will soon build a seawall to protect their property as well.43 Furthermore, the F increased wave energy rebounding off of seawalls will exacerbate sand loss fl on an already depleted beach.44 F In California, the wallification of the coast is reaching epic propor- tions.45 In 1990, seawalls armored over 130 miles of shoreline, approxi- mately 12% of California's 1,100-mile shoreline,46 and the wallification of the coast has increased in the last decade.47 It is estimated that 25% of the total sand supply is contributed by bluff erosion.48 Even accepting this esti- mate, armoring 12% of the coast creates a significant cumulative effect on the volume of sand placed into the coastal system. a w. c 40. Id.; Nat. Res. Council, MANAGING COASTAL EROSION 24 (1990). Griggs estimates r that bluff erosion does not contribute more than 25% of the beach sand. Griggs et al., supra • note 21, at 15. •* 41. Terchunian, supra note 29, at 67. 42. Griggs & Tait, supra note 31, at 101-02. 43. Pilkey & Dixon, supra note 5, at 51-53 (noting ten truths about shoreline armoring: , (1) Destroys beaches, is ugly and blocks access; (2) There is no need for armoring unless j someone builds too close to the shoreline; (3) Small number of people create the need; (4) Once you start you cannot stop; (5) It costs more to save the property than it is worth; (6) Shoreline armoring begets more shoreline armoring; (7) Shoreline armoring grows bigger; (8) Shoreline armoring is a politically difficult issue because of its long-term impacts; (9) Shore- line armoring is a politically difficult issue because no compromise is possible; (10) You can ' have buildings or you can have beaches; you cannot have both). ( 44. Active erosion, beach erosion caused by wave rebound, is still highly controversial in ' the scientific community. See generally Krause, supra note 5, at 1 (disputing whether beach profile increased because of seawalls). Griggs & Tait, supra note 31, at 93 (study noting in nothem Monterey, where seasonal beach profile rebounded as quickley with a seawall). See I also Pilkey & Wright, supra note 18, at 59 (explaining the academic debate between active erosion and passive erosion). i 45. See Video: Eden Productions, LIVING ON THE EDGE (1998) (Mark Massara, Esq., < Coastal Director of the Sierra Club, coining the word "wallification"). 46. SUKFRIDER FOUNDATION, STATE OF THE BEACH 10 (2000) (noting that in 1990 there l was 130 miles of shoreline armoring in California). 47. Statistics on shoreline armoring for 1990-1999 are not yet available. It is a reasonable assumption that at least 20 miles of additional shoreline armoring were constructed in the last ' decade. ( 48. Griggs et al., supra note 21, at 15. ^ ol 38 2001] CONFLICT IN THE CALIFORNIA COASTAL ACT 261 j rj t_ The ultimate impact of the current shoreline-armoring trend is the loss ': of the public beach. According to State and Federal law, the beach below the bj-gjjk mean high-tide line is owned by the State and held in trust for the people.49 »i -p^g In many areas of California, the public owns the dry sand area of the beach, wajjN but even in areas where dry sand area is privately owned, the public has the , ^avg i right to use the beach for access to the public land.50 If halting the natural re- •jl treat of the coastline narrows the recreational beach and harms public prop- ound, i erty,51 should California allow property owners to protect their property at t Qnce the expense of public property? Should nuisance law prevent the cumulative )ertjes \ destruction of public property? Does it make economic sense to favor the re j^g i protection of private property when public beaches are the most popular ft 'joss i tourist destination in the United States,52 considering the expense of sand re- : plenishment?53 °o°j. III. HISTORY OF THE CALIFORNIA COASTAL ACT ion of . , . , Qf ^g A. Legislative Intent s esti- i, t i In the late 1960s and early 1970s Californians became increasingly i aware of the need for a comprehensive plan to conserve and preserve the : State's 1,100-mile coastline.54 In 1970, less than one quarter of California's coast was legally accessible to the public,55 and coastal land was being sub- jected to a tremendous amount of public and private development at the ex- timates pense of long-term conservation.55 Development interests controlled the ma- •supra jority of California's city and county planning commissions.57 It was evident 49. Lechuza Villas West v. Cal. Coastal Comm'n, 60 Cal. App. 4th 218, 235 (1997) nonnS: ("The State owns all tidelands below the ordinary high water mark, and holds such lands in "I"ess trust for the public") (citations omitted). ®r: ™ 50. Coastal Act § 30211 (2001). oer' LN 51. KAUFMAN & PILKEY, supra note 5, at 89. "shore- ^2. J3™63 &•' Houston, International Tourism and U.S. Beaches, SHORE AND BEACH, Apr. -ou can 1996, at 3. See also, Fun at the Sea: Coastal Tourism, Recreation, SEA TECH., Oct. 1998, at 3 (noting that 90% of all tourist dollars are spent in Coastal States and 180 million people visit ,rsial in the coast each year). 'r beach 53. See Terry Rodgers, Deficit May Reduce Beach Sand Project, SAN DffiGO UNION- )ting in TRIE., Feb. 24, 2001, at B5 (noting that San Diego's Association of Governments Sand Re- n $ee plenishment Project will cost over $17 million). , active 54. See also Janet Adams, Proposition 20—A Citizen's Campaign, 24 SYRACUSE L. REV. 1019 (1973) (describing the background of the bill that created the coastal act). See also gen- L g erally STANLEY SCOTT, GOVERNING CALIFORNIA'S COAST (1975). 55. See SCOTT, supra note 54, at 6 (noting that only 260 miles of coast was accessible to 0 there the Public)'56. Id. at 7. sonable 57. See id. at 119-24. "California Legislature's Joint Committee on Open Space Land the i^t found that 52.9% of city planning commission... [and] 62.3 percent of county planning commission members were persons who represented direct or indirect 'beneficial interests.'" Id. at 120. "The most corruptive force in government has to do with the use and development 262 CALIFORNIA WESTERN LAW REVIEW [Vol. 38 2( that the power to make coastal development decisions needed to be removed cc from local jurisdictions and vested in a statewide agency.58 Local control of si coastal development decisions, in essence, amounted to uncontrolled devel- th opment. st Reacting to concerns by environmentalists and the impending Federal ai Coastal Zone Management Act,59 the California Legislature introduced six 3( coastal act bills from 1970 to 1971, none of which passed into law.60 In 1972, p; frustrated by the inability of the Legislature to pass a strong coastal act bill, conservationists successfully mounted a petition drive to get a coastal initia- sj. tive on the ballot.61 Proposition 20, the California Coastal Zone Conservation tii Act of 1972,62 passed with over 55% of the vote despite well-funded opposi- pi tion.63 b; Proposition 20 created one state-level and six regional coastal commis- le sion boards to review all coastal development permits. In addition, the c< coastal commissions were to submit a detailed coastal development plan to bi the Legislature by December 1, 1975. Most of the policies and suggested ei language in the California Coastal Plan was adopted as the California Coastal Act of 1976." o n: B. The Legislative Record h si The legislative record supports the proposition that Coastal Act section d> 30235 was, in fact, simply a grandfather clause, intended to protect only o: structures existing before 1976. The legislative record displays this in three I main ways. First, the Coastal Act was written by environmentalists and op- t« posed by industry. The intent of the bill can be gleaned from reading the C 1975 Coastal Plan from this context. Second, an analysis of the textual evo- p lution of the bill in the legislative record supports the "grandfather clause" b T S of land. The developers and the building industry have been extremely destructive in Califor- v nia... local government [has] been corrupted by these developers." Id. at 121 (quoting Rich- ard Graves, former executive director of the League of California Cities). _ 58. See'Adams, supra note 54, at 1023 (recounting why conservationists became frus- trated with local government and eventually viewed local government as the enemy); SCOTT, supra note 54, at 7-8, ("until Proposition 20 passed, the coast was under the fragmented man- agement of 15 counties, 45 cities, 42 state unites and 70 federal agencies (1972 figures)"). 59. SCOTT, supra note 54, at 11-12. 60. Id. at 14. 61. Adams, supra note 54, at 1032; SCOTT, supra note 54, at 353-54. The Coastal Alli- ance and coalition of various environmental groups spearheaded the Proposition 20 initiative drive after legislative efforts to pass a strong coastal bill failed in 1971. Id. 62. CAL. PUB. RES. CODE §§ 27000-27650 (1972) repealed by Coastal Act of 1976. 3, 63. Scorr, supra note 54, at 357. Opposition included Bechtel Corp., General Electric "] Co., Southern California Edison Co., Standard Oil Co. of California, Mobil Oil Corp., Gulf ti Oil Corp., Occidental Petrol Co., Texaco Inc., Irvine Company (developer), Southern Pacific Land Company, Teamsters and the California Real Estate Association (partial list). a! 64. See Coastal Act § 30002 (2001). te .38 2001] CONFLICT IN THE CALIFORNIA COASTAL ACT 263 ived contention, because "existing" was intentionally inserted into the final ver- il of sion of the bill. Finally, a comparison of the language of the Coastal Act to vel- the competing coastal act bills, which were not passed into law, demon- strates a fundamentally different approach to shoreline armoring. A thorough eral analysis of the legislative record leaves little doubt that Coastal Act section six 30235 intended to protect only those structures existing at the time of the Til, passage of the Coastal Act.. bill, The Coastal Alliance consisted of a coalition of environmental groups itia- specifically formed to push for comprehensive legislation for the preserva- tion tion of the California coast." Unfortunately, legislative efforts to pass com- iosi- prehensive coastal conservation bills were repeatedly killed off in committee by special interest groups.66 In 1972, frustrated by the lack of success in the nis- legislature, the Coastal Alliance took a strong coastal bill that had died in the committee, stripped it of its "compromise" amendments, and presented the a to bill to the public as Proposition 20." The Coastal Act was a bill written by sted environmentalists, not developers or legislative representatives.68 mia Proposition 20, the California Coastal Zone Conservation Act of 1972, created one state-level Coastal Commission and six regional Coastal Com- missions, which were to oversee development and planning until a compre- hensive Coastal Act could be enacted.69 Additionally, the Coastal Commis- sions were to "[pjrepare a comprehensive, coordinated, enforceable [coastal tion development] plan for the orderly, long-range conservation and management inly of the natural resources of the coastal zone,"70 and "on or before December 1, iree 1975,... submit [the plan] to the legislature for its adoption and implemen- op- tation."71 Many of the recommendations and findings included in the 1975 the California Coastal Plan were implemented into the California Coastal Act, vo- primarily because the coastal act bill, SB 1277 (Smith-Beilenson), supported ise" by conservationists, was enacted over competing developer-friendly bills.72 The policies and recommendations of the Coastal Plan and, subsequently, SB 1277 (Coastal Act) were intended to protect natural resources over de- lfor- velopment.73 ich- rus-3TT 65. See Adams, supra note 54, at 1026. ianl 66. See id. at 1029-32 (recounting legislative efforts to pass a coastal bill in 1970-1972). 67. Id. at 1033. 68. See generally id. at 1019. 69. CAL. PUB. RES. CODE § 27001(d) (1972) repealed by Coastal Act of 1976. Uli- 70. CAL. PUB. RES. CODE §27001(b) (1972) repealed by Coastal Act of 1976. tive 71. CAL. PUB. RES. CODE § 27320(c) (1972) repealed by Coastal Act of 1976. 72. SB 1277 (Smith, D-Saratoga) (1976). The competing bills AB 3875 (Keene) and AB 3402 (Cullen) .were respectively characterized as a "bulldozer in sheep's clothing" and a trie "bulldozer without even the sheep's clothing." Press release from the Planning and Conserva- 3ulf tion League (July 26, 1976) (on file with author). ific 73. See, e.g., SB 1277 30001 (a) ('That the California coastal zone is a distinct and valu- able natural resource belonging to all the people and exists as a delicately balanced ecosys- tem"); See California Coastal Plan (1975) at 19 (explaining that property rights are not abso- 264 CALIFORNIA WESTERN LAW REVIEW [Vol. 38 2 C. Legislative Intent as Determined by the 1975 California Coastal Plan The California Coastal Plan of 1975 (Coastal Plan), mandated by Propo- sition 20, became the primary basis for SB 1277 (Smith-Beilenson), which was eventually adopted as the Coastal Act of 1976.74 The importance of the Coastal Plan is explicitly recognized in Coastal Act section 30002(a), which states, "The California Coastal Zone Conservation Commission ... has pre- pared a plan for the orderly, long-range conservation, use and management of the natural, scenic, cultural, recreational, and man-made resources of the coastal zone." Coastal Act section 30002(b) states, "Such plan contains a se- ries of recommendations which require implementation by the Legislature and that some of those recommendations are appropriate for immediate im- l plementation as provided for in this division while others require additional c review." It is evident from the language, however, which recommendations I contained in the 1975 Coastal Plan required additional legislation for future l implementation and which recommendations were codified within the Act.75 s By comparing the language of the Plan with that of the Coastal Act, it is clear that the Plan with regard to bluff setbacks and shoreline protection was c codified. l The California Coastal Plan also sheds light on what the Commissioners and Legislature considered important in 1976. The first indication of concern c about seawalls appears in the "Major Findings" section of the Plan. The pur- pose of the Plan is evident from its title: Protect Against Harmful Effects of ' Seawalls, Breakwaters, and Other Shoreline Structures. It states: "Seawalls, ( breakwaters, groins, and other structures near the shoreline can detract from the scenic appearance of the oceanfront and can affect the supply of beach sand."76 The Plan limits the construction of shoreline structures to those nec- essary to protect existing buildings and public facilities and for beach protec- tion and restoration. Special design considerations were proposed to ensure continued sand supply to beaches, to provide for public access, and to mini- mize the visual impact of the structures.77 This language (as well as other language encompassed in Policy 19 of the Coastal Plan ) is very similar to the language encompassed in section 30235. Policy 19 states: lute...." Zoning laws have been upheld by the courts since 1926). See Coastal Act § 30007.5 (2001) ("in carrying out the [Coastal Act]... conflicts [shall] be resolved in a manner which on balance is the most protective of significant coastal resources."). . 74. Coastal Act § 30002 (2001). 75. See, e.g., California Coastal Plan 84 (1975) (Policy 68) ("[I]t is recommended that State legislation be enacted to assure that, if for any reason new structures ... are built in high geologic hazard areas... there shall be no public assistance for such construction or reconstruction." (emphasis added)). 76. Id. at 18. 77. Wat45. ol.38 2001] CONFLICT IN THE CALIFORNIA COASTAL ACT 265 'Ian Revetments, breakwaters, groins, harbor channels, seawalls, cliff retaining walls, and other such construction that alters natural shoreline processes Topo- shall be permitted only when designed to eliminate or mitigate adverse which impacts on shoreline sand systems and when required (1) to maintain pub- of the uc recreation areas or to serve necessary public service ... where there is i • , no less environmentally harmful alternative, or (2) to protect principal structures of existing development that are in danger from present erosion •S pre- where the coastal agency determines that the public interest would be bet- ement ter served by protecting the existing structures than in protecting the natu- of fljg ral shoreline process.78 5 a se-,|ature Policy 19 is instructive in that it is clearly codified in Coastal Act sec- te jm_ tion 30235.79 Policy 19 demonstrates that the authors of the Plan were aware [tional of the problems associated with shoreline protection, that protecting private atjons property may be in conflict with the public interest, and that shoreline pro- future tection should only be granted if it was in the public's interest even if the Act75 structure already existed prior to the Act! Thus, according to the Coastal t jt js Commissioners in 1975, the Coastal Act would grant shoreline protection ,Q was only if (1) adverse effects were mitigated, (2) it protected an existing struc- ture, and (3) it was in the public's interest. joners However, assuming that the Commission was unclear with regard to the mcem definition of "existing" within Policy 19, other sections of the Coastal Plan e pur_ leave little doubt that shoreline protection was not appropriate for develop- ,cts Qf ment subsequent to the enactment of the Coastal Act. For example, Policy wajjs 67, Geologic Safety Review and Regulation for New Development, states: , , All proposed structures for human occupancy in [an area] of high geologicDeactl hazard shall be reviewed and regulated to avoid risk to life and property:gnec- rotec- (a) areas of high geologic hazard include seismic hazard areas,... unsta- msure ble bluff and cliff areas, beaches subject to erosion, and others; (g)replacement structures in locations where previous structures have been rendered unfit for human occupancy by geologic instability shall only be 19 of permitted if they can successfully withstand the same instability.80 sction Policy 68, Prevent Public Subsidy for Hazardous Developments, states: It is recommended that State legislation be enacted that if for any reason new structures are built in high geologic areas ... there shall be no public 0007.5 1 which 78. Id. 79. Coastal Act § 30235: e. ,.*, [s]eawalls ... and other such construction that alters natural shoreline processes ion a m shall be permitted when required to serve coastal-dependent uses or to protect ex- isting structures or public beaches in danger from erosion, and when designed to eliminate or mitigate adverse impacts on local shoreline sand supply. Id. • 80. California Coastal Plan at 87-88 (codified as Coastal Act § 30211). 266 CALIFORNIA WESTERN LAW REVIEW [Vol. 38 2 assistance for such construction or reconstruction and no presumption of public liability for property loss.81 Policy 70, Regulate Bluff and Cliff Developments for Geologic Safety, states: ct. Bluff and cliff developments shall be permitted if design and setbacks are adequate to assure stability and structural integrity for the expected eco- *• nomic lifespan of the development and if the development will neither : create nor contribute significantly to erosional problems or geologic insta- £ bility ... bluff protection works may be permitted only in accordance with policy 19. With that exception, no new lot shall be created or new. struc- * ture built that would increase the need for bluff protection works.82 ' Policy 70, which is codified as Coastal Act section 30253, has a very important characteristic: it refers back to policy 19 (codified as section * 30235). This demonstrates the Legislature's intent that Coastal Act sections ^ 30235 and 30253 be interpreted together. The practical consequence for ^ coastal landowners is that if they violate the setback requirement under '> Coastal Act section 30253, they should not be able to argue that they deserve ' protection under Coastal Act section 30235 (seawalls for existing struc- tures).83 « Finally, there is also substantial evidence in the Coastal Plan, in addition ' to the specific policy recommendations, that the Commissioners understood 1 the coastal processes, the costs to the public, and the solutions.84 For exam- ' pie, the plan explicitly states that sand replenishment was very expensive.85 It ( is clear that the Commissioners understood the private property rights issues ' and instead chose to protect public rights.86 There is little doubt that the au- ( thors of the Coastal Plan never intended to permit seawalls for development ' built after the Coastal Act. < 81. Id. at 88. 82. Id. at 89. 83. See Coastal Act § 30007.5 (2001) ("[Conflicts [within the Coastal Act are to] be re- solved in a manner which on balance is the most protective of significant coastal resources."). 84. See, e.g., California Coastal Plan. "Bluff Protective works are costly and involve problems ... these measure can be extremely costly, may be unsightly in the cases of retain- ing walls, may interfere with access along the shore, may require continual sources of sand for replenishment... a decrease in sand supply ... when artificial protective measures inter- fere with natural bluff erosion process." Id. at 89. 85. See id. at 44 (noting that replenishing Doheny State Beach cost over $1 million). 86. See, e.g., Policy 19 (protection of private property would only be allowed when the Commission holds that protecting the existing structure is in the public interest). /ol. 38 of Safety, ire ler ta- ith JC- a very section ections )ce for under leserve struc- ddition ;rstood exam- ive.85 It issues the au- jpment 2001]CONFLICT IN THE CALIFORNIA COASTAL ACT 267 D. Direct Legislative History Argues Against a Liberal Construction of "Existing" The legislative evolution of the bill that was enacted as the Coastal Act, SB 1277, provides strong evidence that the insertion of "existing" into sec- tion 30235 was a distinct policy choice made by the legislature in 1976.87 Early versions of SB 1277 stated in section 30204 (later renumbered section 30235), "Revetments, breakwaters, groins . .. seawalls, cliff retaining walls and other such construction that alters the natural shoreline process shall be permitted when required to serve coastal-dependent uses or to protect struc- tures, developments, beaches, or cliffs in danger from erosion "8S The early version of SB 1277 did not include the word "existing" before "structure" and would have allowed any structure or even "developments, beaches or cliffs in danger from erosion" to have a seawall. However, this was quickly modified in committee. The next version struck the phrase "de- velopments, and cliffs in danger from erosion" from the bill and on January 19, 1976, in what became the final version of section 30235, the word "exist- ing" was inserted before "structures." To further emphasize the importance of the addition of "existing," the competing bills, which were considered the "developer friendly" Coastal Act bills,89 did not add the word "existing" before "structure" and included the protection of cliffs as a legitimate reason to permit seawalls. For example, AB 3875 section 30007 reads, "[S]eawalls ... shall be permitted when re- quired to serve coastal-related uses or to protect structures, developments, beaches or cliffs in danger from erosion. . .'>9° Obviously, the competing coastal act bills could have resulted in the complete armoring of almost the entire California coast and would have entitled any structure in danger from erosion a seawall. However, SB 1277 was enacted" and, therefore, was the intent of the legislature. The Smith-Beilenson bill (SB 1277) inserted the word "exist- ing" into the Coastal Act in committee, because it intended to distinguish be- tween structures built after 1976 and those structures built before 1976 that warranted protection. To interpret the language otherwise would give effect to versions of coastal act bills that were not enacted. 87. S.B. 1277 (Ca. 1976). 88. S.B. 1277 (Ca. 1975). 89. See Press Release of the Planning and Conservation League, supra note 72. 90. A.B. 3875 § 30007 (Ca. 1975). 91. Coastal Act § 30000 et seq. (2001). 268 CALIFORNIA WESTERN LAW REVIEW [Vol. 38 20 E. Textual Analysis Requires that "Existing " be Interpreted as a Grandfather Clause. Tt ou As already stated, Coastal Act section 30235 is currently interpreted by vie the Coastal Commission as mandating shoreline armoring when a structure is is in danger from erosion, regardless of when the structure was built. While de this may seem to be a reasonable interpretation, close textual analysis indi- m< cates that the current interpretation does not conform to the intent of the en Legislature when writing the Coastal Act. Coastal Act section 30235 states: Cc tiv Revetments, breakwaters, groins, harbor channels, seawalls, cliff retaining 3Q walls, and other such construction that alters natural shoreline processes - _„. shall be permitted when required to serve coastal-dependent uses or to ™ protect existing structures or public beaches in danger from erosion, and tne when designed to eliminate or mitigate adverse impacts on local shoreline on sand supply. Existing marine structures causing water stagnation contrib- fa uting to pollution problems and fish kills should be phased out or up- graded where feasible.92 tui It is standard in statutory construction that every word is important and rec is given effect.93 One could possibly argue that the words "existing struc- cai tures" were intended to distinguish between protecting empty lots from lots s"( having structures already on them. Such interpretation, however, would not "ei necessitate adding "existing" before "structures." The statute without the £ modifying adjective "existing" would have this meaning. In other words, the *e word "structures" precludes protecting future structures, without requiring the word "existing." Taking the prior argument to the extreme, a structure se( would deserve protection moments after completion; as soon as there were J" four walls, a roof, and dry paint. Furthermore, the every-completed- st structure-is-"existing" interpretation would bring Coastal Act section 30235 ^ into conflict with Coastal Act section 30253. Coastal Act section 30253(2) states: "[New development shall] neither l° create nor contribute significantly to erosion ... or in any. way require the °* construction of protective devices that would substantially alter natural land- no1 forms along bluffs and cliffs."94 If the interpretation requires protection of "^ structures regardless of when they were built, the setback requirements of Coastal Act section 30253 are meaningless. Coastal landowners would be ten encouraged to ignore setback requirements, because they were guaranteed a seawall as soon as their "existing" structure was in danger from erosion. 92. Coastal Act § 30235 (2001) (emphasis added). 93. NORMAN J. SINGER, 2A SUTHERLAND STATUTORY CONSTRUCTION § 46.06, at 119-20 (5th ed. 1992). 94. Coastal Act § 30235(2) (2001). 31.38 2001]CONFLICT IN THE CALIFORNIA COASTAL ACT 269 ;dby icture tfhile indi- >f the it and 5truc- a lots d not it the s, the tiring icture were .eted- 0235 jither e the land- Dn of its of id be ;ed a This cannot have been the intention of the drafters of the Coastal Act. The setback requirement for new development is mandatory and unambigu- ous: "New development shall [not] require the construction of protective de- vices."95 The only way to keep section 30235 consistent with section 30253 is to distinguish "new development" from "existing." In other words, new development (after 1976) shall not be allowed a seawall; existing develop- ment (prior 1976) shall be permitted to have a seawall when in danger from erosion. Furthermore, Coastal Act section 30007.5 requires "conflicts [within the Coastal Act] be resolved hi a manner which on balance is the most protec- tive of significant coastal resources."96 Coastal Act sections 30235 and 30253 were intended to be interpreted together.97 But even if they were not part of the same subset of policies, Coastal Act section 30007.5 requires that they be interpreted in a manner most protective of the coastal resource. The only way to bring them out of conflict is to interpret "existing structures" as those structures already existing at the time of the Coastal Act. Finally, "existing" is used twice in section 30235; once before "struc- tures" and once later in the statute: "[SJeawalls. . .shall be permitted when required ... to protect existing structures.. . . Existing marine structures causing water stagnation contributing to pollution problems and fishkills should be phased out or upgraded where feasible."98 Statutory construction demands, at the very least, consistency within a section.99 It seems clear the legislature was intending to phase out marine structures presently existing at the time of the passage of the Coastal Act. Any other interpretation would be absurd. Thus, in order to interpret the word "existing" consistently within section 30235, necessitates a grandfather clause interpretation of "existing." The intentional placement of "existing" as a modifying adjective before "structures" must mean existing before 1976 (passage of the Coastal Act). Any other statutory construction would simply not require the word. In summary, there are three reasons why any textual analysis must come to the conclusion that "existing" must be interpreted as existing at the time of the Coastal Act. First, the alternative interpretation of "existing" would not necessitate the inclusion of the word "existing" in the statute. Second, the alternative interpretation would be inconsistent with other sections of the Coastal Act. Finally, the alternative interpretation would create an inconsis- tency within Coastal Act section 30235. 19-20 95. Coastal Act § 30253 (2001) (emphasis added). 96. Coastal Act § 30007.5 (2001). 97. See interplay between Coastal Plan policy 19 and policy 70, supra pp. 264-66. 98. Coastal Act § 30235 (2001) (emphasis added). 99. See SINGER, supra note 93, § 46.06, at 120. 270 CALIFORNIA WESTERN LAW REVIEW [Vol.38 2 IV. CASELAW tiCoastal homeowners often believe that they have a Constitutional prop- erty right to protect their property from erosion by building a seawall.100 Any change in current Coastal Act policy with regard to shoreline armoring, or a Coastal Commission decision denying a seawall to a particular property owner, will be challenged as an unconstitutional legislative taking. The pre- eminent case for legislative takings is Lucas v. South Carolina Coastal Council,™ where the U. S. Supreme Court held that "[compensation is re- quired] where the State seeks to sustain regulation that deprives land of all economically beneficial use."102 Justice Scalia, writing for the majority, went on to warn, "[A]ny limitation so severe cannot be newly legislated or de- de creed (without compensation), but must inhere in the title itself, in the re- is strictions that background principles of the State's law of property and nui- m sance already place upon land ownership."103 Thus, any regulation that "j deprives a landowner of all economically beneficial use of his property, and ti< is not based in a State's background property laws, requires compensation in ^ order to be considered Constitutional. California has not litigated whether denying a landowner permission to ^ build a seawall amounts to a legislative taking, but indirect case law would tl seem to indicate that a seawall ban would not be considered a taking. Fur- Cl thermore, courts in other states have directly held that there is no Constitu- P tional right to build shoreline armoring.104 w North Carolina, in Shell Island Homeowners Ass'n v. Tomlinson,1"5 dealt directly with whether a ban on the construction of a "permanent hardened v erosion control structure" was Constitutional.106 In Shell Island, the North l' Carolina Court of Appeals ruled that North Carolina's "hardened structure n rule,"107 which denied permanent shoreline armoring for a hotel, did not ^ti b 100. See, e.g., Whalers Village Club v. Cal. Coastal Comm'n, 173 Cal. App. 3d 240, 252 (1985) (noting that the respondent believes they have a "[Constitutional] right to protect one's Q home from destruction")- On a personal note, at the many Coastal Commission hearings I have attended, I have yet to meet a coastal homeowner who did not declare they have a Con- stitutional right to a seawall. 101. See Ronald H. Rosenberg, The Non-Impact of the United States Supreme Court Regulatory Takings Cases on the State Courts: Does the Supreme Court Really Matter?, 6 FORDHAM ENVTL. L.J. 523, 543 (1995) (calling Lucas "the much-heralded [takings] case"). Lucas has been discussed or cited in 2525 cases (citation history as of July 5, 2001, in WESTLAW, KC citations). / 102. 505 U.S. 1003, 1027 (1992). 103. Id. at 1029. 104. See, e.g., Shell Island Homeowners Ass'n v. Tomlinson, 134 N.C. App. 217 (1999); Stevens v. City of Cannon Beach, 317 Or. 131 (1993). 105. Facts at Shell Island Homeowners Ass'n v. Tomlinson, 124 N.C. App. 286 (1999). 106. Shell Island, 134 N.C. App. at 220. Plaintiffs argued "[t]he protection of property from erosion is an essential right of property owners." Id. at 228. 107. 15ANCAC7H.0308(a)(l)(B). Vol. 38 2001]CONFLICT IN THE CALIFORNIA COASTAL ACT 271 J prop- .100Any ig, or a roperty he pre- loastal a is re- 1 of all y, went or de- the re- ad nui- )n that ty, and ition in sion to would g, Fur- >nstitu- 03 dealt rdened North ructure lid not 140, 252 ;ct one's :arings 1 : a Con- e Court itter?, 6 I case"). '-001, in (1999); 1999). >roperty amount to a regulatory taking, inverse condemnation, and was not a viola- tion of equal protection or due process.108 The court noted: [P]laintiffs have failed to cite to this Court any persuasive authority for the proposition that a littoral or riparian landowner has a right to erect hard- ened structures in statutorily designated areas of environmental concern to protect their property from erosion and migration ... [t]he owner of the riparian land thus loses title to such portions as are so worn or washed away or encroached upon by the water.... Its title was divested by "the sledge hammering seas, the inscrutable tides of God."'09 The court further explained that the "hardened structure rule" was not denial of due process or equal protection, because the right to build a seawall is not a fundamental right under the Constitution, and the hardened structure rule is "clearly rationally related to the legitimate government end.""0 Fi- nally, almost as a side-note regarding Lucas, the court found that the regula- tions were in place when the hotel (the original structure) was permitted, and therefore there was no compensable taking by reason of the regulations.1" Oregon took a different tact in defending the Oregon Beach Bill. OAR 736-20-010(6) states, "[P]ermit applications for beachfront protective struc- tures seaward of the beach zone line (the dry sand vegetation line), will be considered only where development existed on January 1, 1977. The pro- posed project will be evaluated against the applicable criteria included within [the beach bill]."112 The Oregon Beach Bill's restriction of seawalls was challenged in Ste- vens v. City of Cannon Beach.1" The plaintiff, relying on Lucas, claimed that the denial of a seawall amounted to a legislative taking because the "ordi- nance deprive[d] them of all economically viable use of their property."114 The interesting part of Stevens is not simply the fact that the Court rejected the plaintiffs arguments, concluding that there was not a legislative taking, but how the Court reached its conclusion. In Oregon, the public has a common law and statutory right to use the dry sand area of the beach.115 The Court explained: Permanent erosion control structures may cause significant adverse impacts on the value and enjoyment of adjacent properties or public access to and use of the ocean beach, and, therefore, are prohibited. Such structures include, but are not limited to: bulkheads; seawalls; revetments; jetties; groins and breakwaters. As cited in Shell Island, 134 N.C. App. at 219. 108. Shell Island, 134 N.C. App. at 231-33. 109. Id at 228 (citations omitted). 110. Hat233. 111. Wat231. 112. Stevens v. City of Cannon Beach, 317 Or. 131, 145 (1993). 113. Id. at 146. 114. Id. at 147. 115. See id. at 138 (quoting Thornton v. Hay, 254 Or. 584 (1969)). 20C272 CALIFORNIA WESTERN LAW REVIEW [Vol.38 When plaintiffs took title to their land, they were on notice that exclusive enc use of the dry sand areas was not part of the "bundle of rights" that they acquired, because public use of dry sand areas "is so notorious that notice ™s' of the custom on the part of persons buying land along the shore must be cor presumed."116 pat CitThe Oregon Supreme Court, applying language from Lucas, held that j^a compensation was not required because the "plaintiffs have never had the sor property interests that they claim were taken by [the regulation]."117 Thus, the cor Oregon Supreme Court held, even under the strict standards of Lucas, that a ban on seawalls did not amount to a legislative taking of property under the not U.S. Constitution. C0 Although there have not been any cases in California that directly deal ga with the denial of a seawall,"8 case law seems to indicate that there is no Sj0 Constitutional right to a seawall."' For example, in Whaler's Village Club v. un( Cal. Coastal Comm'n™ the Court of Appeals stated, "a fundamental right to y^ protect one's property under the [California] Constitution (CAL. CONST., art. tne 1 sec. I)121 is not the equivalent of a vested right to protect property in a par- wa ticular manner where the method chosen is one that is regulated by govern- on] ment."122 The Court went on to point out, "It is now a fundamental axiom in jov the law that one may not do with his property as he pleases; his use is subject jja, to reasonable restraints to avoid societal detriment... ."I23 pe] 116. Stevens, 317 Or. at 143 (citations omitted). . ne 117. Id. Stevens relied heavily on Lucas, which held: lat Where the state seeks to sustain regulation that deprives land of all economically Pel beneficial use, we think it may resist compensation only if the logically antecedent t>u inquiry into the nature of the owner's estate shows that the proscribed use interests pre were not part of his title to begin with. Lucas, 505 U.S. at 1027. 118. California courts have generally battled over whether the Coastal Commission could enforce conditions, such as mitigation or dedications of easements, in exchange for a seawall. See Whaler's Village Club v. Cal. Coastal Comm'n, 173 Cal. App. 3d 240, 261 (1985) (holding that because seawalls were likely to exacerbate erosion of the public beach, a Per dedication of an -easement was an appropriate condition). Contra Surfside Colony v. Cal. Coastal Comm'n, 226 Cal. App. 3d 1260 (1991) (holding that there was not a sufficient nexus between the private community's revetment and erosion to the public beach to justify a public did access easement). 119. See Barrie v. Cal. Coastal Comm'n, 196 Cal. App. 3d 8 (1987). (ho 120. Whaler'sVillage,173Cai.App.3dat240. put 121. CAL. CONST, art. 1, § 1 ("Inalienable rights: All people are by nature free and inde- 261 pendent and have inalienable rights. Among these are enjoying and defending life and liberty, dec acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.") (emphasis added). 122. Whaler's Village, 173 Cal. App. 3d at 252-53. See also Barrie, 196 Cal. App. 3d at 18 (holding that there is no vested right in an emergency seawall and upholding Whaler's Vil- 13. lage). 123. Whaler's Village, 173 Cal. App. 3d at 253 (citing People v. Byers, 90 Cal. App. 3d 140,147-48 (1979); HFH, Ltd. v. Super. Ct., 15 Cal. 3d 508, 515 (1975)). J [Vol. 38 2001]CONFLICT IN THE CALIFORNIA COASTAL ACT 273 ixclusive that they lat notice ; must be :as, held that lever had the .""7 Thus, the Lucas, that a ;rty under the t directly deal ;at there is no Wage Club v. nental right to u CONST., art. iperty in a par- ted by govern- .ental axiom in s use is subject ;conomically ly antecedent I use interests In Scott v. City of Del Mar, the City declared that shoreline armoring encroaching upon the public's land was a nuisance per se.lu The plaintiff re- fused to remove their encroachments and sought to recover under inverse condemnation when the City forcibly removed the plaintiffs seawall and patio.125 The Court of Appeals denied relief to the plaintiff and upheld the City's right to legislatively declare seawalls nuisances per se, stating, "Del Mar's abatement of the encroachments [seawalls] on public land was a rea- sonable exercise of its police power, which does not give rise to an inverse condemnation action."126 Unfortunately, in California, the right to build shoreline armoring has not been litigated. Most of the cases have questioned whether the Coastal Commission properly imposed conditions when permitting a seawall.127 In Barrie v. Cal. Coastal Comm'n, the issue was whether the Coastal Commis- sion could compel a homeowner to relocate their seawall that had been built under an emergency permit.128 Although, the court noted in Barrie: "An indi- vidual has no vested right to protect property in a particular manner where the method chosen is one that is regulated by [the] government,"129 the court was not determining whether there was a general right to build a seawall, but only whether there was a vested right to a seawall in the specific location al- lowed by an emergency permit.130 The court held that homeowners do not have a vested right to a seawall at a location allowed under an emergency permit.131 Similarly, in Whaler's Village Club v. Cal. Coastal Comm'n, the court held that there was not a Constitutional right to own property free from regu- lation, and was simply determining whether the conditions placed on the permit for the seawall were reasonable.132 The court stated, 'The original building permits for construction of residences did not give respondent a preexisting right to unregulated new construction. Moreover, the [Coastal] )astal Commission , in exchange for a App. 3d 240, 261 the public beach, a ide Colony v. Cal. )t a sufficient nexus h to justify a public .ature free and inde- iing life and liberty, ig safety, happiness, 196 Cal. App. 3d at ilding Whaler's Vil- ;rs, 90 Cal. App. 3d 124. 58 Cal. App. 4th 1296, 1305 (1997). The city declared the encroachments nuisances per se because the seawalls increased erosion and they blocked public access. Id. at 1306. 125. Id. at 1301. 126. Id. at 1307. The court also held that diminution in value for removing the seawalls did not amount to a compensable taking. Id. 127. See Surfside Colony v. Cal. Coastal Comm'n, 226 Cal. App. 3d 1260, 1260 (1991) (holding that there was an insufficient nexus between the city's revetment and erosion to the public beach to justify a public access easement). Cf. Whaler's Village, 173 Cal. App. 3d at 261 (holding that because seawalls were likely to exacerbate erosion of the public beach, a dedication of an easement was an appropriate condition). , 128. Barrie v. Cal. Coastal Comm'n, 196 Cal. App. 3d 8, 8 (1987). 129. Id. at 15 (quoting Whaler's Village). 130. The seawall encroached fifteen feet onto public land. Barrie, 196 Cal. App. 3d at 13. 131. Id. at 18. 132. Whaler's Village, 173 Cal. App. 3d at 253-54. 274 CALIFORNIA WESTERN LAW REVIEW [Vol. 38 2001] Commission did not deny them the right to construct a revetment. The ques- tion is only the reasonableness of the conditions attached."133 Thus, the right to protect one's home with a revetment or a seawall has not been decided in California. One could reasonably argue that, according to Whaler's Village, there is a right to protect one's home from erosion un- der the California Constitution,134 but that right is qualified by regulations on how, when, and where the shoreline armoring will be built.135 But other lan- guage in Whaler's Village appears to contradict this line of reasoning: "Re- spondent's 'right' to construct a new such revetment in a coastal area, an area of public trust, is not a right 'already possessed' or 'legitimately re- quired.' Respondent's use of its property must be subject to 'reasonable re- straints to avoid society detriment,""36 which would seem to preclude dam- aging the public's property by building a seawall. Furthermore, it is clear from Scott v. City of Del Mar that seawalls and revetments may be declared a nuisance per se.™ However, in Scott the sea- walls and revetments were encroaching upon public land.138 Does legislative power to declare seawalls a nuisance per se extend to seawalls and revet- ments completely on private land?139 The Supreme Court has upheld ordi- nances against private land use on the basis of a public nuisance.140 It is likely that a policy relying on both the public trust doctrine and nui- sance principles to ban seawalls would pass Constitutional muster. The leg- islative history of the Coastal Act indicates that the legislature was con- cerned with the considerable adverse impacts of shoreline armoring when Coastal Act section 30235 was being formulated.141 Furthermore, as demon- strated by the review of cases above, both within California and in other states, protecting one's home with shoreline armoring is not a fundamental, Constitutional right. Finally, the simple fact that other states ban seawalls142 should indicate that California would have little Constitutional difficulty in 133. 134, 135. 136. 137. 138. Id. CAL. CONST, art 1, § 1. Whaler's Village, 173 Cal. App. 3d at 253-54. Id. at 253 (citations omitted). 58 Cal. App. 4th at 1305-06. Id. at 1306. 139. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1026 (1992) (warning that "a noxious-use justification [for regulation] cannot be the basis for departing from our categorical rule that total regulatory takings must be compensated")'. 140. See, e.g., Hadacheck v. Sebastian, 239 U.S. 394 (1915) (prohibiting brickyard in Los Angeles because of noxious fumes); Goldblatt v. Hempstead, 369 U.S. 590 (1962) (pro- hibiting mining operation that was interfering with water supply). 141. See California Coastal Plan 89 (1975). 142. Tina Bernd-Cohen & Melissa Gordon, STATE COASTAL MANAGEMENT EFFECTIVENESS EM PROTECTING BEACHES, DUNES, BLUFFS, ROCKY SHORES: A NATIONALOVERVIEW (1998) (Oregon. South Carolina, North Carolina and Maine ban shoreline armor- ing)- Tl contim the lar would as sug; Comrr L single permit missio seawa of the A such 2 landsc to den arethi A "Exist theCc with t before passag spared helps A sion i: major terns 2 delive ies su track: 142 144 [Vol. 38 2001]CONFLICT IN THE CALIFORNIA COASTAL ACT 275 lent. The ques- r a seawall has that, according )m erosion un- regulations on But other lan- easoning: "Re- oastal area, an egitimately re- 'reasonable re- preclude dam- at seawalls and n Scott the sea- Does legislative /alls and revet- as upheld ordi- ice.140 octrine and nui- auster. The leg- ature was con- armoring when lore, as demon- ia and in other a fundamental, > ban seawalls142 nal difficulty in 26 (1992) (warning departing from our ibiting brickyard in S. 590 (1962) (pro- •AL MANAGEMENT )REs: A NATIONAL an shoreline armor- either correctly interpreting the Coastal Act or amending the Coastal Act to ban seawalls. V. OPTIONS There are three ways to change the current status quo and prevent the continued wallification of the California coast. The first option is to change the language in the Coastal Act through the legislature. The second option would be for the California Coastal Commission to interpret the Coastal Act as suggested above. The third option is to bring litigation against the Coastal Commission, mandating a correct interpretation of the Coastal Act. Legislative repair of the Coastal Act would require the substitution of a single word. Changing Coastal Act section 30235 to read, "Seawalls MAY be permitted," instead of "SHALL be permitted," would give the Coastal Com- mission discretion in determining whether to permit specific homeowners a seawall. It would be up to the Coastal Commission to determine the merits of the specific seawall application. A tough discretionary seawall policy would encourage better options such as removal or modification of the structure, better erosion resistant landscaping, and more sensible setbacks. However, it will always be difficult to deny specific homeowners protection in the form of a seawall when they are threatened with the loss of their homes. Another possible legislative fix would be to simply define "existing." "Existing" could be defined as anything that was built before the passage of the Coastal Act, which would have much the same effect as I have suggested with the reinterpretation. "Existing" could also be defined as anything built before some specific date. Even if "existing" was given a date set after the passage of the Coastal Act, at the very least, there would be some areas spared from the adverse impacts of future seawalls. This option would not help Southern California, which is, at present, extensively developed. A legislative solution is fraught with pitfalls. First of all, the beach ero- sion issue is not as clear-cut as it is in some states on the East Coast. The majority of sand on the East Coast is derived from lateral sand transport sys- tems and the large continental shelf.143 On the West Coast, rivers and streams deliver the majority of the sand.144 Furthermore, there have been some stud- ies suggesting that Pacific storms have become more powerful and now track farther south than in previous decades, which by implication is exacer- -143. DEAN, supra note 1, at 22. 144. Griggs et al., supra note 21, at 14. 276 CALIFORNIA WESTERN LAW REVIEW [Vol. 38 2001] bating erosion.145 Finally, on the East Coast, hurricanes periodically destroy large sections of coastal development.14* On the West Coast, although large storms do land, they do not have the same force as hurricanes.147 Coastal destruction from large storms is local- ized and the dangers of building on the coast seem much more manageable (e.g. the possibility of building a seawall to protect a home).148 Thus, the ma- jority of people in California, who do not live directly on the coast, seem oblivious to the folly of building on the coast and the public costs of shore- line armoring. It will be difficult to gam broad public support to ban sea- walls. Another danger to opening up the Coastal Act to amendment through legislative action is the power of the coastal development interests. Coastal developers and property-rights groups, such as the Pacific Legal Foundation, already have been seeking to weaken the Coastal Act through amendment and the courts.149 AB 2310 (D-Ducheny) is a prime example of the power of the development interests.150 AB 2310, as originally drafted, would have de- nied the Coastal Commission jurisdiction to review wetlands development that had an approved Habitat Conservation Plan.151 Habitat Conservation Plans would have become a back door to development inconsistent with the Coastal Act. Although AB 2310 was eventually weakened before adoption, it demonstrates the danger of amending the Coastal Act in the face of well- funded and well-connected opposition. Any amendment that denied protection for coastal landowners would be challenged as an unconstitutional legislative taking. Although the Constitu- tional challenges may eventually fail, the amendment would be held up in- definitely in court pending challenge. One possible way to avoid Constitu- tional problems would be to include a compensation clause. However, this would also be fraught with difficulty.152 What is the worth of a coastal prop- 145. David E. Graham, Making Bigger Waves: Stronger Storms Raise Risk for S.D. Coastline, SAN DIEGO UNION-TRIBUNE, Feb. 4, 2001, at Bl (citing a study by UCSD's Scripps Institute of Oceanography that waves are larger and more destructive than in the past). 146. See generally DEAN, supra note 1, at 134-54 (recounting damage from numerous hurricanes on the Eastern and Gulf Coasts). 147. Griggs et al., supra note 21, at 23. 148. See generally id. at 24 (discussing climate change and the mild climate from 1946 to 1976). 149. See, e.g., Marine Forests Society v. Cal. Coastal Comm'n, No. OOAS00567 (Sacra- mento Sup. Ct., filed Jan. 31, 2000) (appeal filed May 8, 2001); Terry Rodgers, Coastal Panel Ruled Unconstitutional: Judge Finds Board Oversteps Authority, SAN DiEGO UNION-TRIBUNE, Apr. 27, 2001, at A3. 150. See Seema Meeta, New Wetlands Bill Would Check Bolsa Chica Ruling, L.A. TIMES, Feb. 25, 2000, at B14. 151. Terry Rodgers, Coastal Control is the Subject of Revived Bill, SAN DIEGO UNION- TRIBUNE, May 16, 2000, at A3. 152. See Gary Griggs & Laurel Savoy, Shoreline Protection and Engineering, in LIVING WITH THE CALIFORNIA COAST 46, 74 (Gary Griggs & Lauret Savoy eds., 1985) (noting some erty in dar worth mill of the hon may be ui lawsuits a owner rect Finall gerous foi propositioi carries hu^ advantage cials who 1 owners are tie underst On th ment whic shoreline z sues that s dams, floo the sand si by shorelii casual obs< beach will It requires armoring c ened by er able and di of the proble: 153. Bui ultimately co nique." I diss 154. Thi but has not b 155. At three seawal Homes." 156. Co mission] hav seawall]" (cc 157. Set sand-starved 158. Se, long-term ph 159. Te: 160. DE which was si [Vol. 38 2001]CONFLICT IN THE CALIFORNIA COASTAL ACT 277 iically destroy :o not have the torms is local- re manageable Thus, the ma- te coast, seem costs of shore- art to ban sea- dment through :erests. Coastal jal Foundation, gh amendment )f the power of vould have de- ,s development t Conservation sistent with the efore adoption, te face of well- vners would be h the Constitu- be held up in- ivoid Constitu- However, this a coastal prop- lise Risk for S.D. y UCSD's Scripps i the past), ge from numerous climate from 1946 OAS00567 (Sacra- ers, Coastal Panel o UNION-TRIBUNE, hica Ruling, L.A. '.AN DIEGO UNION- neering, in LIVING 985) (noting some erty in danger from erosion? Many coastal lots have extremely large homes worth millions of dollars: would compensation include the fair market value of the home without erosion problems? Ultimately, a compensation scheme may be unworkably expensive and would drain State resources because of lawsuits aimed at increasing the amount of compensation a coastal land- owner received from condemnation proceedings.153 Finally, finding a State representative to carry a bill is difficult and dan- gerous for the political career of anyone who undertakes this daunting proposition.154 The coastal landowners' mantra, "save our homes," clearly carries huge emotional and political appeal.155 The coastal landowner has the advantage of a simplistic argument that is difficult to counter even for offi- cials who have a deep understanding of the issue.156 In addition, coastal land- owners are wealthy and politically savvy, whereas the general public has lit- tle understanding of the issues or the costs involved. On the other side, beach advocates have a complicated, esoteric argu- ment which does not boil down easily into a slogan. The damage caused by shoreline armoring takes longer to explain and includes a number of side is- sues that seem to support the coastal landowners' perspective. For example, dams, flood-control works, sand mining, and development in general reduce the sand supply before the sand reaches the coastline.157 The damage caused by shoreline armoring is gradual in many cases and is not obvious to the casual observer.13* However, without shoreline armoring, even a sand-starved beach will maintain a recreational beach, because the shoreline will erode.159 It requires a deep understanding of the issues to understand why shoreline armoring costs more, in the long run, than the worth of the property threat- ened by erosion.160 Thus, in my opinion, a legislative fix is clearly unwork- able and doomed to failure. of the problems with condemnation or acquisition programs). 153. But see id. Griggs notes the limited resources of state and local governments, but ultimately concludes "condemnation may well become an increasingly common control tech- nique." I disagree for the reasons stated above. 154. The Surfrider Foundation has approached a number of coastal state representatives but has not been successful in finding an "author" to carry an anti-seawall bill. 155. At the Coastal Commission hearing on March 13, 2001, a hearing that included three seawall permits, coastal landowners arrived with large buttons exclaiming "Save our Homes." 156. Coastal Commissioner Dettloff commented, "I do not think we [the Coastal Com- mission] have the guts to tell someone their house is going to fall into the Ocean [and deny a seawall]" (comments during the Coastal Commission hearing March 13, 2001). 157. See Stone, supra note 25, at 708. Seawalls, however greatly exacerbate erosion on a sand-starved beach. Terchunian, supra note 29, at 68. 158. See Pilkey & Wright, supra note 18, at 44 ("[S]eawall impact on beaches is often a long-term phenomenon"). 159. Terchunian, supra note 29, at 67-68. 160. DEAN, supra note 1, at 16 (citing a report by Orrin H. Pilkey and James D. Howard which was submitted to President Reagan in 1982). 278 CALIFORNIA WESTERN LAW REVIEW [Vol. 38 The second option is for the Coastal Commission to reinterpret the Coastal Act. Interpreting "existing" as only allowing protection to those structures built before the Coastal Act, although the correct interpretation, would require an incredible act of bravery on the part of the Coastal Com- mission. It will always be difficult to deny a homeowner protection when their property is clearly in danger.161 Furthermore, the controversy over "ex- isting" will continue. For example, does the small beach house that existed at the time of the Coastal Act deserve protection as an "existing structure" after it has been "remodeled" into a mansion? How much of the original structure must be remodeled before a structure is considered "new development"? One option, which seems to be the current policy of the Coastal Com- mission, is to require deed restrictions in return for a development permit on a coastal bluff. Common deed restrictions include an admission of the dan- ger of building in a geologically hazardous zone, a release of liability for the Coastal Commission and a promise not to build shoreline protection in the future, in return for a coastal development permit.162 As of this date, the Coastal Commission has not enforced deed restrictions denying shoreline armoring.163 One purpose of deed restrictions is to counter the lack-of-knowledge ar- gument. Although knowledge, or lack thereof, of the true consequences of unwise coastal development is not an element for consideration in a shore- line armoring permit, showing intentional or negligent disregard for coastal hazards may be crucial in the fight to deny shoreline armoring. In other words, knowledge and intent legally have no significance, but may be the critical element in providing courage to the Coastal Commission in denying shoreline armoring. Presently, the coastal landowner provides a sympathetic image to the Coastal Commission by claiming that bluff erosion conditions were un- known at the time of development (i.e., did not violate Coastal Act section 30253 setback provisions). For example, in a recent case hi Solana Beach, six property owners claimed that new information, a clean sand lens un- known at the time of building, created the need for immediate shoreline pro- tection.16* Likewise, in the Cliffs Hotel appeal in Pismo Beach, the Hotel claimed that undiscovered natural springs increased erosion (presumably to counter the accusation that the green, cliff-top lawn was exacerbating ero- sion).165 Deed restrictions address this concern by providing constructive 161. See id. at 68. 162. See, e.g., Coastal Commission Staff Report CDP 6-99-103 (noting that some of the properties included deed restrictions specifically denying the ability to build shoreline armor- ing). 163. Cf. Ojavan Investors v. Cal. Coastal Comm'n, 26 Cal. App. 4th 516, 527 (1997) (upholding deed restrictions for transfer development credits). 164. CDP 6-99-103. 165. See Staff Report, A-3-PSB-98-049 (Cliffs Hotel Appeal). [Vol. 38 reinterpret the ection to those t interpretation, 3 Coastal Com- >rotection when versy over "ex- e that existed at structure" after riginal structure jlopment"? s Coastal Com- ment permit on >ion of the dan- liabih'ty for the rotection in the f this date, the trying shoreline F-knowledge ar- onsequences of tion in a shore- gard for coastal loring. In other but may be the sion in denying .c image to the tions were un- stal Act section Solana Beach, . sand lens un- 5 shoreline pro- ;ach, the Hotel (presumably to acerbating ero- ig constructive g that some of the d shoreline armor- i 516, 521 (1997) 2001]CONFLICT IN THE CALIFORNIA COASTAL ACT 279 knowledge to the coastal landowner that they are taking the risk and encour- aging proper setback. Another way to show constructive knowledge for those properties that do not include deed restrictions would be to investigate other legal instru- ments for those properties that have been significantly remodeled and sold. California law requires disclosure of geologic conditions upon sale of the house.1" These documents, while not having a legal bearing regarding shore- line armoring, will have an enormous effect on the sympathy factor for the homeowner. The Coastal Commission, if it accepts the "grandfather clause" interpretation of section 30235, may be less likely to use their discretion to grant a permit when they believe a homeowner intentionally, or negligently, built too close to the bluff edge. The final option is activist litigation against the Coastal Commission. In essence, coastal advocates must ask the judiciary to correctly interpret sec- tion 30235 and order the Coastal Commission to follow the "new" interpre- tation. Thus, changing the interpretation of the Coastal Act would require the Coastal Commission to continue to approve permits for shoreline armoring and coastal activists bringing suit against the Coastal Commission seeking a writ of mandamus.167 This would require certain conditions to correctly target the interpretation of "existing" under the section 30235.IM First, the structure would need to be in imminent danger from erosion. There has been no case law that challenges the need for the structure to be in danger from erosion, and the Coastal Commission appears to routinely deny permits for structures not in danger from erosion.169 A successful case de- cided on this aspect of section 30235 would have virtually no impact on the current practices, because most homeowners who request a seawall are clearly in danger from erosion. However, the structure should not be in im- mediate harm sufficient to qualify for an emergency permit. Second, the property would ideally not include deed restrictions. Al- though deed restrictions are desirable if the Coastal Commission wishes to deny seawall applications, they essentially are a waiver of one's rights under the Coastal Act.170 Furthermore, deed restrictions have been upheld in the coastal zone.171 A successful suit upholding deed restrictions would not have an impact on current shoreline development practices. A best-case scenario for bringing a lawsuit would be a case where the issue was focused solely on whether the structure could be considered exist- ing. Thus, the facts of the case would ideally include: a primary structure 166. CAL. Civ. CODE § 1102.6 (2001). 167. This concept was formulated through discussions with Doug Ardley, Esq. (Surfer's Environmental Alliance) and Mark Massara, Esq. (Coastal Director of the Sierra Club). 168. A victory or loss on other issues would not have a policy-changing effect. 169. See, e.g., Defendant's Brief at 4, Cliffs Hotel v. Cal. Coastal Comrn'n, CV 080283. 170. Ojavan Investors v. Cal. Coastal Comm'n, 26 Cal. App. 4th 516, 527 (1997). 171. Id. 280 CALIFORNIA WESTERN LAW REVIEW [Vol. 38 £\J\J J built after 1976, clearly in danger from erosion; no previous shoreline armor- ing; a design that adequately mitigates adverse impacts; and approval from ^ers' the Coastal Commission. lanw This would be the preferable course of action for a number of reasons. c First, there is a reasonable possibility that the court will rule that "existing" °PW does in fact indicate an intent to protect only structures built before 1976 and that the Coastal Commission is violating the Coastal Act by approving shoreline armoring for any other structures. co"f If the court found otherwise, it would not change the current approval Poir practices of the California Coastal Commission. In other words, an adverse ^ ruling only preserves the status quo, although admittedly it would not allow the Coastal Commission to reinterpret the Coastal Act on its own. However, an adverse ruling that "existing" means any primary structure existing at the ^ time of being in danger of erosion would not preclude a legislative fix. 1S' a I believe that those who argue that the courts are not an appropriate ? venue to change the interpretation of section 30235 have not adequately as- ™P sessed the dangers of a legislative fix, the political climate, or the relatively f* low risk of litigation on this matter. A worst-case scenario of litigation ' would expend the time, effort and monetary resources of coastal advocates, but would not preclude other options. There are other benefits as well. For example, if the Coastal Commis- sion does deny a permit based on the fact that the structure was built after 1976, the Coastal Commission will be defending its interpretation of "exist- ing" from wealthy landowners and private property rights groups. Coastal advocates will not be able to control who the defense attorney will be, nor how passionately the Coastal Commission will defend.172 Although coastal advocates will be able to intervene as a defendant, there will be less control regarding the narrow issues presented. If the coastal advocate is the plaintiff, the issue going up for review can be intentionally kept narrow and the qual- ity of the lawyer can be controlled. VI. CONCLUSION Seawalls protect private property at the expense of the public beach. The purpose of this Comment was two-fold. First, I intended to inform the casual reader about the physical problems associated with seawalls and the current legal considerations regarding shoreline armoring. Second, I in- tended to provide tools to practitioners, policy makers, and decision-makers who wish to begin charting a course that fully protects the public's beach. — The right to shoreline armoring is a highly contentious issue. Local and state officials often feel compelled to permit seawalls regardless of the ad- (191 172. Ordinarily, the Attorney General defends the Coastal Commission. Sam Overton, . Esq., Dan Olivas, Esq., and Jamee Jordan Patterson, Esq. (Deputy Attorneys General covering " Central and Southern California) have competently defended the Coastal Commission. [Vol. 38 ; shoreline armor- nd approval from amber of reasons, lie that "existing" t before 1976 and let by approving • current approval vords, an adverse t would not allow ts own. However, tire existing at the islative fix. ot an appropriate lot adequately as- •-, or the relatively tario of litigation :oastal advocates, Coastal Commis- ire was built after relation of "exist- s groups. Coastal Drney will be, nor Although coastal 'ill be less control ate is the plaintiff, row and the qual- 2001]CONFLICT IN THE CALIFORNIA COASTAL ACT 281 verse impacts. I have heard on multiple occasions Coastal Commissioners lamenting that the law requires them to permit yet another seawall, and in certain circumstances the Commissioner is correct. However, for new devel- opment, built after 1976, there is no requirement to permit a seawall under the Coastal Act. Other states have enacted complete bans on seawalls that have survived constitutional challenges.173 California case law, although not directly on point, seems to indicate that there is no constitutional right to build a sea- wall.174 Therefore any reinterpretation or amendment to section 30235 would likely also survive a legal challenge. The Coastal Commission is finding it increasingly difficult to find the middle ground. It is impossible to ignore the fact that 150 miles of seawalls is, at the very least', having a disastrous cumulative impact on the availability of the recreational beach. Yet, the emotional appeals of homeowners are also impossible to ignore. Ultimately, compromise is not possible.175 As Orrin H. Pilkey and Kathrine Dixon remind us: "you can have houses or you can have beaches; you cannot have both."176 the public beach, ided to inform the > seawalls and the ig. Second, I in- d decision-makers public's beach, s issue. Local and ;ardless of the ad- lission. Sam Overton, leys General covering I Commission. 173. See generally Shell Island Homeowners Assoc. v. Tomlinson, 134 N.C. App. 217 '(1999); Stevens v. City of Cannon Beach, 317 Or. 131 (1993). 174. See Whaler's Village Club v. Cal. Coastal Comm'n, 173 Cal. App. 3d 240 (1985); Barrie v. Cal. Coastal Comm'n, 196 Cal. App. 3d 8 (1987); Scot: v. City of Del Mar, 58 Cal. App. 4th 1269 (1997). 175. PE.KEY & DIXON, supra note 5, at 53. 176. Id. Exhibit 5 Print Version :.Page 1 of4 Editions of the North County Times Serving San Diego and Riverside Counties Monday, April 10,2006 Contact Us NCTJMES, News Search Web Search Home News Sports Send News Blogs Photos Subscribe Calendar Homes Job Classified Search Advertising Home Delivery Reader Services Traffic Stocks Business Opinion Entertainment Features Columnists Cor Subscribe Previous Issues Letters Obituaries Place An Ad Send Feec Monday, April 10, 2006 Last modified Saturday, April 8, 2006 7:36 PM PDT The making of a natural sandy beach By: CHRISTINA S. JOHNSON - For the North County Times It is a common belief that naturally flowing rivers in Southern California are a major source of beach sand, replenishing grains washed to sea by heavy surf and high tides. As a corollary, dams and other human activities changing the natural course of rivers have been seen as robbing beaches of new sand, contributing to beach erosion and intensifying the need for replenishing beaches through engineered beach nourishment projects. The long-standing canon of beach dynamics, that rivers supply beaches with sand, may be overstated and overly simplistic, says Escondido resident Neal Driscoll, a professor in the Geosciences Research Division at Scripps Institution of Oceanography, who has California Sea Grant support to study sedimentation patterns Lookm9 north from the °ceanside MunidPal Pier in San Diego and Orange counties. "I am not saying rivers are an unimportant source of sand," Driscoll said. "I am saying they may not be a major source of sand." on Tuesday morning during high tide, surf washes up high on Oceanside's sandy beach. BILL WECHTER Staff Photographer Order a copy of this photo Visit our Photo Gallery As a result, dams and urbanization may not have altered the region's sand budget in the way, or to the degree, that researchers had previously imagined. Past studies of beach processes led scientists to estimate that rivers bring as much as 90 percent of sand to beaches and that dams, therefore, cut off an equal amount of the coveted material. This estimate, Driscoll said, may be too high. Driscoll is not alone in his theory that rivers have been ill-cast as the lead player in maintaining sandy beaches. Coastal engineers at UC San Diego led by professor Scott Ashford, a resident of Encinitas, recently used laser- imaging techniques to create highly detailed digital maps of the shape of coastal bluffs in San Diego County. - Analyses of the changes in the bluffs' shape over time let them compute the volume of material shed by the cliffs. Assuming that all eroded cliff material was sand and went to beaches, coastal cliff erosion could supply more Print Version:. ( . (~ Page 2 of 4 than half of all sand on some beaches in Southern California, they reported. That would make coastal bluff erosion the single most important natural sand source, and it would imply that sea walls, riprap and other hard structures built to halt bluff erosion contribute to the narrowing of sandy beaches and might be doing so faster than thought. This discovery, which is being more fully explored in an ongoing collaborative project with Sea Grant, is fully consistent with Driscoll's theory, since its basic message is that coastal bluff erosion has been an overlooked sand source. Driscoll is taking the science of sediment dispersal a step further by re-examining the role of rivers in supplying beaches with sand. "People have oversimplified many things about beach dynamics," he said. "I am going back to square one." Rivers are akin to conveyor belts, he explained. They shuttle sediments to the coast. Think of the prominent granite boulders of inland North County being slowly scoured by water and the reddish clay soils of the scrublands melted away. A lot of sediment is transported, but this is not the same as saying this sediment ends up — let alone stays — on beaches, he said. Instead, Driscoll believes that the precious sand may be destined for the bottom of the sea. A compelling piece of evidence for this idea comes from stream gauge data along rivers in semiarid climates such as Southern California, the flows through the San Luis Rey River mouth being a prime example. "Most of the time, there is no water coming out of the San Luis Rey," Driscoll said. "But when it 'goes,' it goes big. If sand is coming from the river, it has to be coming in huge pulses." These sand pulses increase the density of river water, potentially making it more dense than seawater, which is normally heavier than freshwater because of its salt. This means that at the coast, the water coming out of the river might not float atop the saltwater and drop its sediments into shallow water, where waves and tides can return sand to beaches. Instead, the water-sand slurry may sink to the bottom and move to deeper water, bypassing the near-shore system, effectively eliminating the river's ability to serve as an input of new sand. "It is like having molasses move through the water," Driscoll said. "Something heavy sinks and moves along the bottom." Southern California is prone to molasseslike river discharges, known scientifically as gravity currents, because there is not much vegetation to grip the soil in place during heavy rains. When it rains hard, the water is very effective at picking up sediments. There is a lot of erosion, and because the rivers are flowing fast, a lot of sediment can stay suspended in the water column. The theory that sediments carried by rivers might be bypassing the beach zone was first put forth by geologist Jonathan Warrick of the U.S. Geological Survey in Santa Cruz during studies of the Santa Clara River in Ventura County. He and colleagues who placed instruments on the continental shelf to acoustically and optically measure sediment concentrations and water velocities showed that the flows from the river did indeed sink to the seabed. "We saw these gravity currents moving offshore from the river mouth," Warrick said. A gravity current is a highly concentrated flow of water and sediment. "It is analogous to a mudflow on land." In a published paper on the research, Warrick hypothesized that the gravity currents observed at the Santa Clara River might be characteristic of river dynamics in general in Southern California, and that as a result, much of the sediment load in the region's rivers might be deposited directly on the adjacent continental shelf, thus representing a "loss" of a potential sand source. Warrick's field work, conducted in winter 2004, focused on documenting a gravity current in the region, at the time a first. The field studies did not attempt to examine the logical follow-up question for those interested in understanding beach-building processes; How much sand is actually contained in these currents? "We proved these flows exist," Warrick said. "But we don't know how much sand is within them. I can guarantee that there is a lot of mud. We don't know about the sand." 1140 S. Coast Highway 101 Encinitas, CA 92024 Te! 760-942-8505 Fax 760-942-8515 www.coasitewgroup.com March 2,2010 Van Lynch Via Electronic Mail Senior Planner van.lynch@carlsbadca.gov Planning Department City of Carlsbad 1635 Faraday Avenue Carlsbad, CA ZIP 92008 Re: Comments of Coastal Environmental Rights Foundation CDP 09-13/SUP 09-05 - Goetz Seawall Regarding the Carlsbad Planning Commission's consideration of CDP 09-13/SUP 09-05 - Goetz Seawall ("Project"), please accept the following comments on behalf of the Coastal Environmental Rights Foundation (CERF), a nonprofit environmental organization founded by surfers in North San Diego County and active throughout California's coastal communities. CERF was established to aggressively advocate, including through litigation, for the protection and enhancement of coastal natural resources and the quality of life for coastal residents. We respectfully request that the Planning Commission deny certification of the proposed Negative Declaration and that the City accept this correspondence as formal notice of CERF's intention to seek a petition for writ of mandamus should the post hoc Project approvals move forward as proposed. PROCEDURAL OBJECTION The history of Project approval indicates the City has a flawed system for assessing foreseeable bluff failures and likely requests for shoreline armoring. Our understanding is that the Applicant sought and received an emergency permit for seawall construction, and then failed to comply with emergency permit conditions. This simple fact belies the Applicant's claims of emergency in the first place. Given the Applicant's repeated strenuous assertions of public safety concerns, coupled with his professional experience as a personal injury attorney, one would expect him to act swiftly and legally in the face of such an impending danger to the public. That he did not reflects his overestimation (if not outright misrepresentation) of the alleged severity of public safety concern. On a related note, the fact that the coast is eroding is not a secret. Every owner of a bluff top residence is keenly aware of this fact, as are regulators at both the City and Coastal Commission. As such, every bluff owner should be made aware of the likelihood that someday coastal armoring will be desired, and as such, CEQA compliance for such projects should be undertaken well in advance of such so-called emergency conditions. Given the media attention to global climate change and likely sea level rise, any claims that coastal erosion is not reasonably foreseeable would be nonsensical. As such, no emergency permits should ever be issued for coastal armoring.1 1 Public Resources code section 21060.3 defines an emergency as: "A sudden, unexpected occurrence, involving a clear an imminent danger, demanding immediate action to prevent or mitigate loss or, or damage to, life, health, property, or essential public services." Emergency exceptions are reserved for when there is a sudden, unexpected occurrence "which the lead agency simply cannot complete the requisite paperwork within the time constraints of CEQA... For example, if a dam is ready to burst or a fire CERF Comment Letter CDP 09-13/SUP 09-05 - Goetz Seawall March 2, 2010 Page 2 of 3 Nonetheless, the damage is done and the shoreline has been armored. Consistent with City of Carlsbad and Coastal Act requirements, the applicant must now thoroughly assess and mitigate the likely significant impacts to result from fixing the back end of an eroding beach. LEGAL CONSTRAINTS TO NEGATIVE DECLARATION APPROVAL For a number of reasons, the City cannot legally approve the project under the California Environmental Quality Act. First and foremost, it is virtually unheard of in this day and age for a municipality to seek to approve a coastal development project without any mitigation measures whatsoever. As the City is well aware, there is an extremely low threshold for requiring preparation of an Environmental Impact Report (EIR) under CEQA. An EIR is required whenever substantial evidence in the record supports a fair argument that significant impacts may occur. Even if evidence in the record suggests such impacts will not, an.EIR must still be produced, [citations omitted] In the matter at hand, there are a plethora of significant environmental impacts that will occur from this seawall, all of which must be studied in an Environmental Impact Report.2 These impacts generally include aesthetics, biological resources, geologic stability of surrounding bluffs, recreational impacts on the beach and in the water, and cumulative impacts. Most importantly, the Project will have significant impacts resulting from the permanent fixing of the back of the beach. These so-called "passive erosion" impacts are well documented. See e.g. Passive erosion: Gary Griggs, "California Needs a Coastal Hazards Policy" California Coast and Ocean, Vol. 14, No. 3, Autumn 1998: "Where such a structure is built along a shoreline that is undergoing long-term net erosion, . the effect will be the gradual loss of beach in front of the structure as the shoreline migrates landward beyond it. Private structures may be temporarily saved, but the public beach is lost." Clearly , the loss of a public beach is a significant unmitigable environmental impact warranting production of an EIR. And while the full impacts from passive erosion are indeed unmitigable, there are nonetheless mitigation measures which much be adopted. For instance, there will be a net loss of sand supplied by eroding bluffs which will be armored.3 This amount of sand can be calculated by utilizing any number of reports detailing erosion rates in the region. For instance, the "Report on In-Lieu Fee Beach Sand Mitigation Program: San Diego County" available from the California Coastal Commission at http://www.coastai.ca.gov/pgd/sand1.html is a starting point. The City of Solana Beach has spent considerable effort developing a model for assessing impacts and mitigation obligations relative to is raging out of control [the emergency exception is appropriate." Western Municipal Water Dist. v. Superior Court, 187 Cal. App. 3d 1104, 1111 (1986). 2 Please note, the City's failures in this matter closely track those of the City of Solana Beach in Surfrider v. Smerican, San Diego Superior Court, North County Branch, Case No. GIN 020308. The City would be well served to review that case file, as attorneys now with Coast Law Group successfully required preparation of an Environmental Impact Report and payment of attorneys' fees. 3 Previous assertions by consultants that eroding bluffs in San Diego County do not contribute significantly to beach sand quantities have been refuted. See e.g. Coastal Bluffs Provide More Sand To California Beaches Than Previously Believed, ScienceDaily (Oct. 22, 2005), available at: http://www.sciencedaily.com/releases/2005/10/051016085958.htm CERF Comment Letter CDP 09-13/SUP 09-05 - Goetz Seawall March 2, 2010 Page 3 of 3 passive erosion. The City is encouraged to contact Solana Beach and investigate further the appropriate framework to be applied in this case. Because the emergency CDP will certainly be appealed to the Coastal Commission, it is in the City's and Applicant's interests to provide a legally defensible analysis and mitigation package. We understand the City is contemplating a continuance of this matter pending additional CEQA review. We strongly urge you to direct the Applicant to conduct a full EIR. Anything short of a full EIR will result in litigation. Please do not hesitate to contact me with questions or concerns. Sincerely, COAST LAW GR Marco A. Gonzalez Attorneys for CERF cc: Client Surfrider Foundation Staff Report to the California State Lands Commission December 2009 AND MADE SYTOE ON March 3, 2010 Carlsbad Planning Commission RE: Goetz Seawall CDP 09-13/SUP 09-05 Dear Planning Commission, I am unable to attend the hearing tonight based a previous commitment but I would like this to be entered into the record regarding the above referenced matter. I have lived in Terramar since 1993. To truly appreciate the entire matter before the Planning Commission, one must go back to the late 1990's when Mr. Jenson purchased the land from Carltas for the unbelievably low price of $750,000. The question that came to mind was, "Why so cheap?" Even for the late 90's that was very little money for water front acreage of that size. I spoke with the director of real estate for Carltas at the time and I was told, "That lot is way too unstable for any more than one house and that house would need to be on the north end of the lot. No way can you build three houses on that lot. That's why we sold it". Carltas had engineering reports to base their decision on and Carltas is no amateur when it comes to development, as the Planning Commission is well aware. Fast forward a few years to the early 2000's when Mr. Jenson (a lawyer) with the assistance of another lawyer (one that the Planning Commission is used to seeing regarding development in Carlsbad) was in front of the Planning Commission asking to subdivide the one lot into three lots. They presented to staff and Commission engineering reports stating that the cliff was stable and could support three houses. Many attended that hearing and testified to the current erosion and future erosion if three homes were built on that bluff. To the professional and layman alike, it was clear that erosion was isolated on this little cove. That's WHY there IS a cove at this location.. .massive erosion! Not one person objected to the building of one house. It was the building of three houses that was unreasonable. I was one of many that warned the cliffs were unstable and I was admonished by a member of the Planning Commission for even suggesting that an engineer/geologist would sign off on a report he knew was erroneous. "Young man, engineers do not sign off on erroneous reports", he said to me. Despite the pleadings of many, the Planning Department Staff and Planning Commission accepted the engineering report at face value without any further due diligence and the subdivision was approved. Mr. Jenson built his house at 5319 Carlsbad Blvd. (on the stable part of the bluff it should be noted) and sold off the other lots at extraordinary prices that paid for the construction of his home and more. I don't begrudge the Goetz's or Mr. Marshall, for building the seawall. I would do the same thing if I was in their position. I don't even begrudge Mr. Jenson for his brilliant real estate play. I do take issue with the Planning Commission and the City Council that were so eager to please that they approved the subdivision and subsequently approved the temporary emergency sea wall permit at the expense of the public. The City of Carlsbad wholly adopted the California Coastal Zone Act of 1972 and therefore, in essence, becomes the Coastal Commission and given all rights associated with that role. Its primary responsibility is to protect the general public by enforcing the rules of the California Coastal Act. To those who much is given, much is expected. I'm sure the Planning Commission and City Council will hear plenty of testimony regarding the detrimental effect of seawalls on the rest of the coastline. There will be more testimony about the construction of seawalls being a "taking" of public property. All true, but what can we do about the current situation? That cliff existed for millions of years and within 5 years, the cliff has failed so that a "public safety issue" was created and the City felt a seawall was necessary. There were no structures on that property just 10 years and the City of Carlsbad had the opportunity to reasonably exercise their role as administrator of the Coastal Act and they failed miserably. "Oops, sorry." is not good enough. The City should reimburse Goetz for the cost of the sea wall as well as the cost to remove it. If the homes fail, the City should be responsible for those costs as well. If the seawall stays, the City of Carlsbad needs to compensate the public for lost recreational opportunities associated with the taking of the land. Further, the California Coastal Commission needs to examine the process of handing over authority to cities that "wholly adopt the Coastal Act" and the consequences for cities that sign on the dotted line and then proceed to sell out the public by not enforcing the Act. Sincerely, Jerf Woolson 5345 Los Robles Drive Carlsbad, CA 92008 760-438-8054 3/23/2010 Community & Economic Development Departmen City of Carlsbad Planning Department Re: Goetz Seawall The Planning Commission and Planning Department are to be commended for their approval of an Emergency Coastal Development Permit for the Goetz Seawall. Thank you for your common sense response to the property owner's needs. Thank you also to the property owner for financing what is now a safer public beach area below your property. Sincerely, Mike and I&6ne Tindall 5350 Los Robles Drive CarIsbad,CA 92008 Exhibit 6 Coastal Bluffs Provide More c d To California Beaches Than Previou-1 •• Believed Page 1 of 3 ScienceDa//y Your source for the latest research news AT&T Yahoo! High Speed Internet Exprt Web address: http://www.sciencedaily.com/releases/2005/10/051016085958.htm Source: University of California - San Diego Posted: October 22, 2005 Coastal Bluffs Provide More Sand To California Beaches Than Previously Believed Coastal geologists have assumed for years that sediment-laden rivers that enter the Pacific Ocean along the Central and Southern California coast supply up to 90 percent of the sand on the region's beaches. However, new research by two independent groups of UCSD scientists indicates that what had been thought to be a minor source of sand — erosion from coastal bluffs and cliffs — could account for about half of the region's beach sand. Various types of concrete surfacing and reinforcement of bluffs as well as layering large boulders as rip-rap along the base of bluffs tend to "armor" them, slowing or preventing such erosion. Determining the source of sand, according to the researchers, is the logical first step in any effort to preserve Southern Californian beaches. In a paper to be presented October 12 during the annual meeting of the American Shore and Beach Preservation Association in San Francisco, Adam Young, a Ph,D. candidate in UCSD's Jacobs School of Engineering, will report the unexpectedly high contribution of coastal bluffs and cliffs to the supply of beach sand. Young, who has also submitted his results to the Journal of Coastal Research, used laserscanning technology to generate a series of 3-D topographical maps that quantified coastal bluff erosion with a high degree of accuracy during the past six years. Based on the volume of material that has fallen from the bluffs during the study period, Young concluded that half of the beach sand in the Oceanside Littoral Cell, a 50-mile stretch of California coast from La Jolla north to Dana Point, was likely derived from the bluffs. Jacobs School of Engineering professor Scott Ashford and Ph.D. candidate Adam Young used a highly accurate laser scanning technology to measure the contribution of coastal bluffs to the supply of beach sand in a 50-mile stretch of Southern California beach. (Image courtesy of University of California - San Diego) Ads by Google Advertise on this site Flu Armour Leader in Bird Flu Preparation Individuals, I*'/Tmi1i0c & Kit C7*j^?oc^»c Coastal Bluffs Provide More " ^d To California Beaches Than Previo'-'v Believed Page 2 of 3 In recognition of his research, which was funded by FluArmour com j~* 1 • f • <•* ^^ t •*• T * • f r^ 1 • e- t *' *y **••*• lilAflt.lt I V\sW I • \s\SlftrCalifornia Sea Grant, the University of California s : Coastal Environmental Quality Initiative, and UCSD's Boost Immune System 437% Center for Earth Observations and Applications, the New Advanced Immune System Support! Low American Shore and Beach Preservation Association on Wholesale Prices - Order Online Oct. 11 will present its 2005 Education Award to RBResources.net Young. In addition, the California chapter of the _-. „_ _ association will present its 2005 Robert L. Wiegel 300mW Burning Lasers Coastal Studies Scholarship to Young, also in Blue, Red Green Laser Pointers Slash, Light recognition of his bluff erosion research. Matches Pop Balloonswww. wickedlasers. com "While keeping in mind that six years is only a brief Lactoferrin for colds snapshot in the life of the Southern California coastline, As an MD, I have used this natural cure for our results call into question the conventional wisdom years. Learn how it works. that coastal bluffs don't contribute much to the www. drerika. com beaches," said Scott Ashford, a professor of structural engineering at UCSD and Young's faculty advisor. Namyang Aloe - Alochung® "Adam's results should alert all groups interested in the Strengthens your immune system that makes preservation and development of Southern California's *>" heal™er everyday. beaches that the assumptions they have been using to www.nyaloe.com identify the supply of beach sand should now be re- examined." Ashford said decades-old photographs of the Southern California coast taken from the ground and the air also have documented the steady pace of erosion. However, he said the photographs lack the precision and accuracy of the laser scanning technique called L1DAR, an acronym for light detection and ranging. Ashford said the 3-D maps generated by LJDAR permitted Young to calculate the unexpectedly high volume of bluff material that has fallen onto beaches during the study period. "A new question we're interested in now is "What if we stopped armoring the bluffs and cliffs and allow them to erode naturally?'" Ashford said. "Would such a moratorium be enough to replenish the beaches? We need to do more work to address a range of questions like that." At the wave washed western edge of the campus, Neal Driscoll, a geology professor at UCSD's Scripps Institution of Oceanography, and graduate student Jennifer Haas have studied the same 50-mile stretch of beach north, but with a completely different technique. The Scripps team used a mineralogical fingerprinting technique. They compared sand grains collected from beaches in the study area to grains taken from coastal bluffs, rivers, and from dredged material that the San Diego Regional Beach Sand Project used to replenish the region's disappearing beaches. After examining the population of sand grains on beaches in the La Jolla area, the Scripps team determined that sea cliffs must be an important source of sand to those beaches. Based on their observations, Haas and Driscoll concluded that 50 percent of the sand came from erosion of the bluffs and cliffs. Haas successfully defended her master's thesis in spring 2005. "What is exciting to me is that both our engineering group at the Jacobs School and the geology group at Scripps took completely different approaches, but arrived at the same conclusion, which is that bluffs and cliffs appear to be a much more important source of sand in the Oceanside Littoral Cell than had been previously believed," Ashford said. Coastal Bluffs Provide More .c~^d To California Beaches Than Previous1 v Believed Page 3 of 3 The Scripps team found a type of clear-quartz grains in the coastal cliffs, but collected predominantly frosted quartz sand grains in the rivers and offshore borrow sites from which sand has been dredged for placement on erosion-prone beaches. "In La Jolla, the beaches have a large proportion of clear quartz, which indicates that the cliffs are a significant source of beach sand," Driscoll said. "There's just no other way around it." Driscoll and Ashford agree that Central and Southern California rivers carry a huge amount of sandy sediment to the Pacific Ocean during seasonal downpours. "When the rains come, the majority of the sediment discharge occurs during an extremely small percent of the time," Driscoll said. "Often, the sediment-laden river water is denser than seawater, so when this slurry reaches the coast, it sinks and follows the bottom, escaping the shallow water region near the shore where it could replenish sand to the beaches." In dry years there is very little sediment in Southern California rivers flowing into the Pacific. "In wet years," Driscoll said, "the rivers flow like fire hoses, with most of the sediment ending up offshore in deeper water." California Sea Grant, the largest of the 30 Sea Grant programs nationwide and administered by the University of California, recently awarded $200,000 to Ashford and Driscoll to collaborate and expand their investigation of the relationship between bluff erosion and beach sand supply in the Oceanside Littoral Cell. The Center for Earth Observations and Applications at UCSD, which partially funded Young's bluff- scanning project, was formed in 2005 with a grant from UCSD Chancellor Marye Anne Fox. John Orcutt, deputy director of scientific affairs at Scripps Institution of Oceanography, directs the center. Editor's Note: The original news release can be found here. Copyright © 1995-2006 ScienceDaily LLC — All rights reserved — Contact: editor® sciencedailv. com SignOnSanDiego.com > Ney^ ^ Science ~ Sifting county's shifting sa-, \ Page 1 of 2' SignOnSaa®tegs»com (J^ PRINTTH IS**TWWII«XeOOUNiai*.TRBUW^ X-UssSJ r Illllll IFIIJ Sifting county's shifting sands Bluff erosion primary source, studies show By Terry Rodgers UNION-TRIBUNE STAFF WRITER October 13,2005 UCSD scientists have completed two studies showing that cliff erosion produces far more sand for local beaches than previously estimated. A six-year study by engineering professor Scott Ashford and graduate student Adam Young found that bluff erosion accounted for 68 percent of the fresh sand that nature provides to the county's eroding beaches. A second study by geology professor Neal Driscoll and graduate student Jennifer Haas used a "mineralogical fingerprinting" technique to compare grains of sand on local beaches with the types of sand found in bluffs and rivers, and from material dredged offshore. Driscoll and Haas concluded that 50 percent of the sand came from erosion of the bluffs, also known as sea cliffs. The combined studies were released yesterday. They rebut the conventional wisdom often heard at public hearings CHARLIE NEUMAN"/'union-Tribune that Cliff erosion accounts for Only 10 percent to 15 Homes on South Sierra Avenue in Solana Beach sit ... ... v i i u L. atop eroding bluffs above Fletcher Cove Beach Park.percent or the sand that nature supplies to local beaches. Two new studies by scientists at UCSD found that erosion of Southern California's sea cliffs is the primary _,-.,. . ,. , , . ,, , , , , source of the region's beach sand.The findings immediately rekindled the debate over sea walls, the "armoring" of the coastline that has pitted private-property owners against opponents of such walls. "This is huge for us," said Marco Gonzalez of the San Diego chapter of the Surfrider Foundation, which views erosion as a natural process necessary to maintain sandy beaches. "It spotlights the true impact of sea walls, which are a bad long-term solution to the effects of sea-level rise and the natural processes of erosion." But Walter Crampton, a coastal engineer who represents oceanfront property owners, said the studies merely reinforce previous scientific estimates of how natural processes contribute sand to the beaches. "All it does is reaffirm everything we've said in the last - . five years," Crampton said. "Everything is the same." SignOnSanDiego.com > New- •> Science ~ Sifting county's shifting f'- "s Page 2 of 2 i V Leslie Ewing, a staff engineer for the state Coastal Commission, applauded the UCSD scientists for using "cutting-edge science and technology." However, Ewing said the new findings are unlikely to trigger major changes in coastal policy, including a 10- year-old fee the commission charges residents who want to build sea walls. Ashford and Young were able to more precisely calculate the amount of bluff erosion by comparing three- dimensional images made from a laser scanning device called LYDAR, an acronym for "light detection and UCSD scientists weal Driscoii (left) and Scott „ shared their findings on where local beaches get their ranging. sarKj Wjtn former Solana Beach Mayor Margaret Schlesinger. The same type of scanners was used to measure the crater after debris was cleared from the World Trade Center disaster in September 2001. It is also employed by forensics teams to calculate the spray from bomb blasts. Ashford agreed with other scientists that the amount of sand being supplied from eroding bluffs - the study estimated it at 76,000 cubic yards annually along about 50 miles of shoreline - is probably far less than what is needed to stabilize beaches that are already too narrow. The U.S. Army Corps of Engineers recently issued a report saying that to stop further erosion of the cliffs, 825,000 cubic yards of sand needs to be placed on the beaches in Encinitas and an additional 450,000 cubic yards in Solana Beach. •Terry Rodgers: (619) 542-4566; terry.rodgers@uniontrib.com Find this article at: httpy/www.signonsandiego.com/news/science/2CX)51013-9999-7m13bluff.html ChecK the box to include the list of links referenced in the article.