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HomeMy WebLinkAbout2010-05-25; City Council; 20245 part 1 of 2; Appeal of Goetz SeawallCITY OF CARLSBAD - AGENDA BILL 11 20,245AB# MTG. DEPT. CED 5/25/10 APPEAL OF GOETZ SEAWALL CDP 09-13/SUP 09-05 DEPT. DIRECTOR CITY ATTORNEY CITY MANAGER RECOMMENDED ACTION: That the City Council ADOPT Resolution No. 2010-126 upholding the Planning Commission's APPROVAL of Coastal Development Permit CDP 09-13, Special Use Permit SUP 09-05 and the determination that the project is exempt from the California Environmental Quality Act. The project is a post Emergency Coastal Development Permit for the construction of a 97-foot long by 17 to 24-foot tall bluff-colored and textured seawall along the coastal bluff and below the residences located at 5323 and 5327 Carlsbad Boulevard located on the west side of Carlsbad Boulevard and northerly of Cerezo Drive in the Mello II Segment of the Local Coastal Program and in Local Facilities Management Zone 3. ITEM EXPLANATION: Project Application(s) CDP 09-13 SUP 09-05 Administrative Approvals Planning Commission Approved (appeal filed) ,App roved (appeal filed) City Council X X X = Final City decision -making authority •= requires Coastal Commission approval On April 7, 2010, the Planning Commission conducted a public hearing on the Goetz Seawall project to permanently authorize the construction of the seawall. On or about December 19, 2008, a 50 foot long by 32 foot high coastal bluff failure occurred at 5323 and 5327 Carlsbad Boulevard. An additional bluff failure occurred on December 30, 2008. On April 16, 2009, the Planning Director issued an Emergency Coastal Development Permit (CDP 09-07) to allow for the construction of the seawall. The Emergency CDP was brought before the City Council on June 16, 2009 for consideration and the City Council determined they would not intervene in the matter, upholding the Planning Director's decision to issue the emergency permit. Pursuant to Section 21.201.190 of the Carlsbad Municipal Code, the Planning Director is authorized to issue an emergency CDP if an emergency exists that requires action more quickly than procedures for Minor or Regular CDPs to prevent or mitigate loss or damage to life, health, property or essential public services and the proposed emergency CDP is consistent with the provisions of the City's Local Coastal Program (Mello II). Emergency CDPs are considered temporary permits and are conditioned to require the application for a follow-up Regular CDP. The Regular CDP is required to permanently authorize the construction of the seawall. DEPARTMENT CONTACT: Van Lynch 760-602-4613 van.lynch(q)carlsbadca.gov FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED *D D D D CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER -SEE MINUTES D D D D Page 2 The Planning Commission heard a presentation from Planning Staff and discussed the merits of the seawall and approved the project [4-1-2 (Dominguez opposed; Schumacher/Montgomery absent)]. A brief statement providing project details was made by the applicant and five people from the public (Surfrider and Coastal Environmental Rights Foundation) spoke at the Planning Commission hearing. A full disclosure of the Planning Commission's actions and a complete project description and staff analysis of the proposed project are included in the attached minutes and Planning Commission staff report. On April 19, 2010, an appeal of the Coastal Development Permit, Special Use Permit and CEQA determination was filed by Todd Cardiff (on behalf of all appellants - Surfrider Foundation and Coastal Environmental Rights Foundation). The Section below identifies the specific objections of the appeal filed and includes the staff response to each item. Please refer to the appeal filed, which is attached as Exhibit 6, for the complete text of the reasons for the appeal. A. Appellant - "Violation of CEQA - The CDP and SUP are discretionary decisions requiring the preparation of an EIR under CEQA." The emergency seawall permit was temporary and does not provide a vested right to continue the seawall in that location. Staff Response - The Emergency CDP for the seawall is statutorily exempt from CEQA pursuant to Section 15269. The issuance of a follow-up regular Coastal Development Permit and Special Use Permit for the seawall, as required by the emergency CDP, is however not a "project" within the meaning of CEQA and does not require CEQA review. That is, the permit does not cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment as the construction of the seawall has already been completed under the emergency CDP and is not proposed to be changed with the issuance of the regular CDP and SUP. B. Appellant - Substantial evidence - Petitioners provided substantial evidence that the seawall may have a significant effect on the environment. Staff Response - Evidence was provided that indicated that the construction of the seawall will limit the amount of sand contribution from erosion of the coastal bluff to the beach. The CDP for the seawall has been conditioned to contribute to a sand replenishment program to offset the impacts of the project. C. Appellant - The City failed to conduct any safety review to determine whether the seawall was necessary to protect the public beach. Staff Response - The coastal bluff failed and deposited an estimated 150 cubic yards on the beach. If there was anybody on the beach at that location during the bluff failure, there could have been serious injuries or fatalities as a result of the bluff failure. There is regularly active public use of the beach at the base of the bluff and the geotechnical engineer's report indicates that without a seawall, there is a great likelihood of continuous bluff failures. D. Appellant - There has never been a seawall granted under Public Resource Code section 30235 of an LCP to protect people on a public beach. 2. Page 3 Staff Response - The seawall is in place to protect the public from bluff failures while people are on the beach, which is a coastal dependant use. Seawalls are permitted when protecting a coastal dependant use. E. Appellant - Seawalls, through the process of passive erosion will narrow and destroy a beach, blocking public access. The City cannot make the findings required to approve the seawall. Staff response - A beach will narrow because of the lack of sand in the beach system (littoral Cell). Public access will not be blocked as public access is provided to the beach via a public stairway to a point further west (seaward) than the location of the seawall. The adjacent beaches are narrower than the subject site because of their very resistive bluff material which keeps them from eroding. The project site provides more beach area than the adjacent properties. F. Appellant - The project cannot maintain a 25 feet of dry beach access in front of the seawall. Staff Response - The beach at this location is subject to tidal influence and has not maintained 25 feet of dry sand beach. The cove area at this location does provide more beach than the adjacent properties which project further out to the west than the subject property. A sand beach is determined by the amount of sand being placed on the site through the natural sand transport system (Oceanside Littoral cell). Various sand replenishment projects are in the works at this time. G. Appellant - The seawall is not the most environmentally sensitive option for the site. There are other options accomplishing the alleged goals, such as grading the bluff that are more environmentally friendly. Staff Response - Grading the bluff would ultimately accelerate the erosion of the bluff, still causing bluff failures as the base of the bluff continues to erode. For instance, with the upper portion graded in a stepped or slope condition, the base would still erode to ultimately form a bluff condition. Artificially induced erosion would reduce the existing top of slope setback for the existing structures and may hasten the warrant for a seawall for the protection of the existing improvements. H. Appellant - The Municipal Code violates the Constitution by charging a non-waiverable appeal fee that is 3 times the amount that it costs to file a lawsuit, thereby depriving people a viable method of redressing their grievances and file suit. Staff Response - The $1000 appeal fee was approved by the City Council in the "City of Carlsbad Fee Schedule -Development Related Service Fees June 2007" with a supporting itemization in the "City of Carlsbad, California Cost Detail Worksheet Fiscal Year 2006-2007" and "City of Carlsbad, California -Revenue and Cost Summary Worksheet Fiscal Year 2006- 2007" (which demonstrate that even with a fee of $1,000 the City is still not recovering the entire actual cost of processing an appeal.). This includes staff time in preparing an agenda bill for the appeal and the necessary reviews by various staff members. "The $1,000 fee is refundable if appeal is won." ("City of Carlsbad, California -Revenue and Cost Summary Worksheet Fiscal Year 2006-2007"). In Friends of Glendora v. City of Glendora (March 1, 2010) 182 Cal. App. 4th 573, the court upheld a $2,000 City charge for appeal to the 3 Page 4 City Council stating that "We decline to interpret CEQA as requiring that agencies such as the City waive any and all of their customary fees for filing administrative appeals of decisions, simply because the appeal is based on CEQA." Neither C.M.C. 21.54.150 nor the Development Fee Schedule were challenged as unconstitutional when approved or adopted and the time for doing so has elapsed. FISCAL IMPACT: No fiscal impacts to the City have been identified. All required improvements and maintenance needed to serve this project will be funded by the Developer. ENVIRONMENTAL IMPACT: The issuance of an emergency CDP for the construction of the seawall is exempt from CEQA review. CEQA does not apply to actions necessary to prevent or mitigate an emergency. Per CEQA, "emergency" includes such occurrences as fire, flood, earthquake, or other soil or geologic movements. The bluff failure and continued bluff failures constituted an emergency. The city filed a Notice of Exemption for the emergency CDP project which was the construction of the seawall with the County of San Diego on June 22, 2009. The issuance of a follow-up regular Coastal Development Permit and Special Use Permit for the seawall, as required by the emergency CDP, is not a "project" within the meaning of CEQA and does not require CEQA review. That is, the permit does not cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment as the construction of the seawall has already been completed under the emergency CDP and is not proposed to be changed with the issuance of the regular CDP. EXHIBITS: 1. City Council Resolution No. 201°-126 2. Location Map 3. Planning Commission Resolutions No. 6677 and 6678 4. Planning Commission Staff Report, dated April 7, 2010 (without resolutions) 5. Draft Excerpts of Planning Commission Minutes, dated April 7, 2010 6. Appellant appeal request 7. Correspondence dated April 6 and 7, 2010 8. Report titled "Comparison of short-term seacliff retreat measurement methods in Del Mar, California" submitted to Planning Commission 9. Report titled "Processes of coastal bluff erosion in weakly lithified sands, Pacifica, California, USA" submitted to Planning Commission. 1 RESOLUTION NO. 2010-126 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, DENYING THE APPEAL OF THE 3 PLANNING COMMISSION'S DECISION TO APPROVE A COASTAL DEVELOPMENT PERMIT AND SPECIAL USE 4 PERMIT FOR THE POST EMERGENCY COASTAL DEVELOPMENT PERMIT APPROVAL FOR THE 5 CONSTRUCTION OF A 97-FOOT LONG BY 17 TO 24-FOOT TALL BLUFF-COLORED AND TEXTURED SEAWALL ALONG 6 THE COASTAL BLUFF AND BELOW THE RESIDENCES LOCATED AT 5323 AND 5327 CARLSBAD BOULEVARD 7 LOCATED ON THE WEST SIDE OF CARLSBAD BOULEVARD AND NORTHERLY OF CEREZO DRIVE IN THE MELLO 8 SEGMENT OF THE LOCAL COASTAL PROGRAM AND IN LOCAL FACILITIES MANAGEMENT ZONE 3. 9 CASE NAME: GOETZ SEAWALL CASE NO.: CDP 09-13/SUP 09-05 10 WHEREAS, pursuant to the provisions of the Municipal Code, the Planning Commission did, on April 7, 2010, hold a duly noticed public hearing as prescribed by law and approved a Coastal Development Permit 09-13 and Special Use Permit 09-05 for the construction of a seawall; and14 WHEREAS, the appellant on April 19, 2010 timely filed an appeal with the City Clerk; 1 ta/ 22 16 WHEREAS, after providing the opportunity for all persons both in favor and opposed to testify on the appeal and having considered all documents, reports, correspondence and other18 evidence and having duly deliberated on the appeal. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 21 " 1. That the above recitations are true and correct. 23 2. That the findings of the Planning Commission in Resolutions No. 6677 and 6678 on file with the City Clerk and incorporated herein by reference constitute the findings 24 of the City Council in this matter except that the amount required by the developer to deposit of an in-lieu fee shall be $2,469 which about was inadvertently omitted from Planning Commission 25 Resolution No. 6677. 26 3. That the appellant's appeal is denied with prejudice and that the appellants shall bear their costs of appeal. 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. This action is final the date this resolution is adopted by the City Council. The provisions of Chapter 1.16 of the Carlsbad Municipal Code, "Time Limits for Judicial Review" shall apply: "NOTICE TO APPLICANT" This action may be appealed to the California Coastal Commission since it is a development between the sea and the first public road paralleling the sea. (Public Resources Code section 30603(a)(1)). Any party who desires to challenge the City Council's action by seeking judicial review must first obtain a final decision on the merits from the California Coastal Commission. Exhaustion of this administrative remedy is a prerequisite to any legal action. The City Council shall toll the time for any action challenging its decision until after a final decision on the merits is obtained from the California Coastal Commission. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the25tb day of MAY 2010, by the following vote, to wit: AYES: Council Member? Lewi?, Kulcbin, Hall, Packard and Blackburn NOES: None. ABSENT: None. , ayor ATTEST: LOT^RAIN^M. W^qjD, City Cferk (SEAL) -2- SITEMAP NOT TO SCALE Goetz Seawall CDP 09-13/SUP 09-05 1 PLANNING COMMISSION RESOLUTION NO. 6677 2 A RESOLUTION OF THE PLANNING COMMISSION OF THE 3 CITY OF CARLSBAD, CALIFORNIA, APPROVING COASTAL DEVELOPMENT PERMIT CDP 09-13 FOR A POST 4 EMERGENCY COASTAL DEVELOPMENT PERMIT 5 APPROVAL FOR THE CONSTRUCTION OF A 97-FOOT LONG BY 17 TO 24-FOOT TALL BLUFF-COLORED AND 6 TEXTURED SEAWALL ALONG THE COASTAL BLUFF AND BELOW THE RESIDENCES LOCATED AT 5323 AND 5327 7 CARLSBAD BLVD LOCATED ON THE WEST SIDE OF CARLSBAD BLVD AND NORTHERLY OF CEREZO DRIVE S IN THE MELLO II SEGMENT OF THE LOCAL COASTAL 9 PROGRAM AND IN LOCAL FACILITIES MANAGEMENT ZONE 3. 10 CASE NAME: GOETZ SEAWALL CASE NO.: CDP 09-1311 12 WHEREAS, Dean and Barbara Goetz and Marshall Sylver, "Developers," and 13 "Owners," have filed a verified application with the City of Carlsbad regarding property 14 described as 15 Lots 2 and 3 of Parcel Map MS 98-01, in the City of Carlsbad, 16 County of San Diego, State of California, according to map thereof no. 18236, filed in the Office of the County Recorder of 17 San Diego, April 13,1999 as file number 1999-0247276 18 ("the Property"); and 19 WHEREAS, said verified application constitutes a request for a Coastal 20 Development Permit as shown on Exhibits "A" - "K" dated March 3, 2010, on file in the 22 Planning Department, GOETZ SEAWALL - CDP 09-13, as provided by Chapter 21.201.040 23 of the Carlsbad Municipal Code; and 24 WHEREAS, the Planning Commission did, on April 7, 2010, hold a duly noticed 25 public hearing as prescribed by law to consider said request; and 26 WHEREAS, at said public hearing, upon hearing and considering all testimony 27 and arguments, if any, of all persons desiring to be heard, said Commission considered all factors28 relating to the CDP. 1 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning 2 Commission of the City of Carlsbad as follows: -1 A) That the foregoing recitations are true and correct. 4 <- B) That based on the evidence presented at the public hearing, the Commission APPROVES GOETZ SEAWALL - CDP 09-13 based on the following findings 6 and subject to the following conditions: Findings; 7 1. That the proposed development is in conformance with the Certified Local Coastal Program and all applicable policies in that a) there is no present or historic evidence of 9 agricultural use of the property; b) all portions of the seawall structure are below the elevation of the existing bluff top, and therefore the seawall does not obstruct 10 views of the pacific ocean as seen from public lands or public rights-of-way; c) the project is consistent with the City of Carlsbad HMP, which has been developed so as to implement and be consistent with all provisions of the LCP; d) the seawall has 12 been constructed to eliminate the potential of further coastal bluff failure promoting public safety, and avoiding the negative geologic and economic effects of significant 13 bluff failures and construction of the seawall followed the National Pollution Discharge Elimination System (NPDES) standards; e) the site is not geologically 14 stable and the proposed seawall project will prevent further bluff failure and the . , seawall is the most environmentally sensitive option for the site; and f) the existing residential project has previously recorded a 10 foot wide vertical beach access 16 easement, constructed a stairway to the beach from the bluff top to the beach, and recorded an irrevocable offer to dedicate lateral beach access easement (Doc No. 17 2000-0346365) in accordance with the LCP Policy 7 - Shoreline Access, to provide lateral public access along the shoreline. in 2. The proposal is in conformity with the public access and recreation policies of Chapter 3 of the Coastal Act in that the existing residential project has previously recorded a 10 20 foot wide vertical beach access easement, constructed a stairway to the beach from the bluff top, and recorded an irrevocable offer to dedicate lateral beach access 21 easement (Doc No. 2000-0346365) in accordance with the LCP Policy 7 - Shoreline «„ Access, to provide vertical and lateral public access along the shoreline. There is no loss of beach as the wall was placed at the toe of the existing bluff. The seawall does 23 not obstruct or interfere with the passage of people along the beach at any time. The existing beach area is and has been subject to tidal action and does not provide 24 twenty-five feet of dry sandy beach at all times of the year. 25 3. The project is consistent with the provisions of the Coastal Resource Protection Overlay 25 Zone (Chapter 21.203 of the Zoning Ordinance) in that the project will adhere to the City's Master Drainage Plan, Grading Ordinance, Storm Water Ordinance, Standard 27 Urban Storm Water Mitigation Plan (SUSMP), and Jurisdictional Urban Runoff Management Program (JURMP) to avoid increased urban runoff, pollutants, and soil 2% erosion. No native vegetation is located on the subject property. The site does contain PC RESO NO. 6677 -2- steep slopes (coastal bluffs) which are stabilized by the construction of the seawall to 2 prevent accelerated erosion caused by wave action and bluff failures. 3 4. The project is consistent with the provisions of the Coastal Shoreline Development Overlay Zone (Chapter 21.204 of the Zoning Ordinance) in that the seawall does not modify the public lateral access to the public beach. The seawall was built as far landward, at the base of the existing coastal bluff base, as possible to maintain the extent of the usable beach area and to continue to allow lateral beach access. The 6 seawall does not obstruct or interfere with the passage of people along the beach at any time. 7 5. The project has been conditioned to make a contribution to a beach sand replenishment program that would address the sand volume impacts from the 9 seawall and denial of sand to the littoral cell. 10 6. The issuance of the subsequent Coastal Development Permit does not qualify as a project under CEQA and no further environmental review is required. The issuance of the follow up CDP will not cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment as the seawall was constructed under the CEQA emergency permit 13 issued on June 10, 2009 and no further work is required. The issuance of the emergency Coastal Development Permit was exempt from CEQA as "Specific actions necessary to prevent or mitigate an emergency" are exempt from CEQA. (§ 1, 21080, subd. (b)(4).). 'Emergency' means a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or 16 mitigate loss of, or damage to, life, health, property, or essential public services. 'Emergency' includes such occurrences as fire, flood, earthquake, or other soil or 17 geologic movements, as well as such occurrences as riot, accident, or sabotage. 1 8 7. The Planning Commission has reviewed each of the exactions imposed on the Developer , o contained in this resolution, and hereby finds, in this case, that the exactions are imposed to mitigate impacts caused by or reasonably related to the project, and the extent and the 20 degree of the exaction is in rough proportionality to the impact caused by the project. 21 Conditions: 22 1. If any of the following conditions fail to occur, or if they are, by their terms, to be 23 implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to 24 revoke or modify all approvals herein granted; deny or further condition issuance of all future building permits; deny, revoke, or further condition all certificates of occupancy issued under the authority of approvals herein granted; record a notice of violation on the property title; institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. No vested rights are gained by Developer 27 or a successor in interest by the City's approval of this Coastal Development Permit. 28 2. Staff is authorized and directed to make, or require the Developer to make, all corrections and modifications to the Coastal Development Permit documents, as necessary to make PCRESONO. 6677 -3- them internally consistent and in conformity with the final action on the project. 2 Development shall occur substantially as shown on the approved Exhibits. Any proposed development, different from this approval, shall require an amendment to this approval. 3 3. Developer shall comply with all applicable provisions of federal, state, and local laws and regulations in effect at the time of building permit issuance. 4. If any condition for construction of any public improvements or facilities, or the payment 6 of any fees in-lieu thereof, imposed by this approval or imposed by law on this Project are challenged, this approval shall be suspended as provided in Government Code Section 7 66020. If any such condition is determined to be invalid, this approval shall be invalid unless the City Council determines that the project without the condition complies with all requirements of law. 9 5. Developer/Operator shall and does hereby agree to indemnify, protect, defend, and hold 10 harmless the City of Carlsbad, its Council members, officers, employees, agents, and representatives, from and against any and all liabilities, losses, damages, demands, claims and costs, including court costs and attorney's fees incurred by the City arising, directly 12 or indirectly, from (a) City's approval and issuance of this Coastal Development Permit, (b) City's approval or issuance of any permit or action, whether discretionary or 13 nondiscretionary, in connection with the use contemplated herein, and (c).Developer/Operator's installation and operation of the facility permitted hereby, 14 including without limitation, any and all liabilities arising from the emission by the . _ facility of electromagnetic fields or other energy waves or emissions. This obligation survives until all legal proceedings have been concluded and continues even if the City's 16 approval is not validated. 17 6. Developer shall submit to the Planning Department a reproducible 24" x 36" mylar copy of the Site Plan reflecting the conditions approved by the final decision-making 18 body. 19 7. Developer shall include, as part of the plans submitted for any permit plancheck, a 20 reduced legible version of all approving resolution(s) in a 24" x 36" blueline drawing format (including any applicable Coastal Commission approvals). 22 8. This approval is granted subject to the approval of the SUP 09-05 and is subject to all conditions contained in Planning Commission Resolution No. 6678 for those other 23 approvals incorporated herein by reference. 24 9. Developer shall pay the citywide Public Facilities Fee imposed by City Council Policy #17, the License Tax on new construction imposed by Carlsbad Municipal Code Section 5.09.030, and CFD #1 special tax (if applicable), subject to any credits authorized by 26 Carlsbad Municipal Code Section 5.09.040. Developer shall also pay any applicable Local Facilities Management Plan fee for Zone 3, pursuant to Chapter 21.90. All such 27 taxes/fees shall be paid at issuance of building permit. If the taxes/fees are not paid, this approval will not be consistent with the General Plan and shall become void. 28 PC RESO NO. 6677 -4- 10. Developer shall submit to the City a Notice of Restriction executed by the owner of the 2 real property to be developed. Said notice is to be filed in the office of the County Recorder, subject to the satisfaction of the Planning Director, notifying all interested 3 parties and successors in interest that the City of Carlsbad has issued a Coastal Development Permit and Special Use Permit by Resolutions No. 6677 and 6678 on the property. Said Notice of Restriction shall note the property description, location of the c file containing complete project details and all conditions of approval as well as any conditions or restrictions specified for inclusion in the Notice of Restriction. The 6 Planning Director has the authority to execute and record an amendment to the notice which modifies or terminates said notice upon a showing of good cause by the Developer 7 or successor in interest. o 11. The Developer shall make a deposit of an in-lieu fee amount of $XX to SANDAG to 9 fund beach sand replenishment as mitigation for the identified direct impacts of the shoreline protective device on beach sand supply and shoreline processes over the 10 20-year design life of the project. The applicants shall amend the subject permit before the end of the 20-year design life to either remove the seawall or extend the mitigation fee based on the proposed life of the seawall which should correspond to 12 and not exceed the remaining life of the existing structures on the properties. 13 12. The respective property owners shall be solely responsible for the maintenance and upkeep of the seawall structure in its approved state and must be maintained for the 14 estimated life of the seawall. The permittees shall monitor the condition of the ;. seawall annually. The monitoring will ensure that the permittees and the City are aware of any damage to or weathering of the seawall and can determine whether 16 repairs or other actions are necessary to maintain the seawall in its approved state. The seawall shall be kept free of any graffiti. The applicants shall submit to the 17 Planning Director for review and written approval, a monitoring program prepared by a licensed civil engineer or geotechnical engineer to monitor the performance of the seawall which requires the following: 19 a. An annual evaluation of the condition and performance of the seawall 20 addressing whether any significant weathering or damage has occurred that would adversely impact the future performance of the structure. This 21 evaluation shall include an assessment of the color and texture of the seawall __ comparing the appearance of the structure to the surrounding native bluffs. 23 b. Annual measurements of any differential retreat between the natural bluff face and the seawall face, at the north and south ends of the seawall and at 20-foot 24 intervals (maximum) along the top of the seawall face/bluff face intersection. The program shall describe the method by which such measurements shall be 25 taken. 26 c. Provisions for submittal of a report to the Planning Director by May 1 of each 27 year (beginning the first year after construction of the project is completed) for a period of three years and then, each third year following the last annual report, 2% for the life of the approved seawall. However, reports shall be submitted in the Spring immediately following either: PC RESO NO. 6677 -5- 1. An "El Nino" storm event - comparable to or greater than a 20-year storm. 2 2. An earthquake of magnitude 5.5 or greater with an epicenter in San Diego 3 County. 4 Thus, reports may be submitted more frequently depending on the occurrence of the above events in any given year. Each report shall be prepared by a licensed civil, geotechnical engineer or geologist. The report shall contain the measurements and evaluation required in 7 sections a, and b above. The reports shall also summarize all measurements and analyze trends such as erosion of the bluffs or changes in sea level and the ° stability of the overall bluff face, including the upper bluff area, and the impact of the seawall on the bluffs to either side of the wall. In addition, each report shall contain recommendations, if any, for necessary maintenance, repair, 10 changes or modifications to the project. 11 e. An agreement that the permittees shall apply for a coastal development permit within 90 days of submission of the report required in subsection c. above for any necessary maintenance, repair, changes or modifications to the project recommended by the report that require a coastal development permit. 14 The permittees shall undertake monitoring in accordance with the approved monitoring program. Any proposed changes to the approved monitoring program shall be reported to the Planning Director. No changes to the monitoring program ,,r shall occur without an amendment to this coastal development permit unless the Planning Director determines that no amendment is legally required. 17 13. The permittees shall maintain the permitted seawall in its approved state. Maintenance of the seawall and return walls shall include maintaining the color, texture and integrity. Any change in the design of the project or future additions/reinforcement of the seawall beyond exempt maintenance as defined in 20 Section 13252 of the California Code of Regulations to restore the structure to its original condition as approved herein, will require a coastal development permit. 21 However, in all cases, if after inspection, it is apparent that repair and maintenance is necessary, including maintenance of the color of the structures to ensure a continued match with the surrounding native bluffs, the permittees shall contact the Planning Director to determine whether a coastal development permit or an amendment to this permit is legally required, and, if required, shall subsequently 24 apply for a coastal development permit or permit amendment for the required maintenance. 25 14. The seawall is in a hazardous location and is not a permanent structure. The seawall is not approved in order to accommodate future redevelopment of the site in 27 the same location. If a new home or residential addition is proposed in the future, it must be located in an area where the development is consistent with the applicable 28 LCP requirements regarding geologic safety and protection from hazards as if the PC RESO NO. 6677 -6- seawall does not exist. Future structures would be required to maintain the existing 2 established 45-foot bluff top setback. 3 Engineering; Note: Unless specifically stated in the condition, all of the following conditions, upon the <- approval of this proposed development, must be met prior to approval of a building or grading permit whichever occurs first. 6 General 7 15. Prior to hauling dirt or construction materials to or from any proposed construction site within this project, Developer shall apply for and obtain approval from, the City Engineer 9 for the proposed haul route. Fees/Agreements 16. Developer shall cause property owner to execute and submit to the City Engineer for recordation, the City's standard form Geologic Failure Hold Harmless Agreement. Grading 13 17. Based upon a review of the proposed grading and the grading quantities shown on the site 14 plan, a grading permit for this project is required. Developer shall prepare and submit plans and technical studies/reports, for City Engineer review, and shall pay all applicable ' grading plan review fees per the City's latest fee schedule. 18. Developer shall comply with the City's Stormwater Regulations, latest version, and shall 17 implement best management practices at all times. Best management practices include but are not limited to pollution treatment practices or devices, erosion control to prevent silt runoff during construction, general housekeeping practices, pollution prevention and educational practices, maintenance procedures, and other management practices or devices to prevent or reduce the discharge of pollutants to stormwater, receiving water or 20 stormwater conveyance system to the maximum extent practicable. Developer shall notify prospective owners and tenants of the above requirements. 21 19. Prior to the issuance of grading permit or building permit, whichever occurs first, 22 Developer shall submit for City approval a Tier 2 Storm Water Pollution Prevention Plan 23 (TIER 2 SWPPP). The TIER 2 SWPPP shall be in compliance with current requirements and provisions established by the San Diego Region of the California Regional Water 24 Quality Control Board and City of Carlsbad Requirements. The TIER 2 SWPPP shall address measures to reduce to the maximum extent practicable storm water pollutant 25 runoff during construction of the project. 26 27 28 PC RESO NO. 6677 -7- Engineering: 2 Note: Unless specifically stated in the condition, all of the following conditions, upon the 3 approval of this proposed development, must be met prior to approval of a building or grading permit whichever occurs first. 4 r General 6 17. Prior to hauling dirt or construction materials to or from any proposed construction site within this project, Developer shall apply for and obtain approval from, the City Engineer 7 for the proposed haul route. Fees/Agreements 9 18. Developer shall cause property owner to execute and submit to the City Engineer for recordation, the City's standard form Geologic Failure Hold Harmless Agreement. 10 Grading , 2 19. Based upon a review of the proposed grading and the grading quantities shown on the site plan, a grading permit for this project is required. Developer shall prepare and submit 13 plans and technical studies/reports, for City Engineer review, and shall pay all applicable grading plan review fees per the City's latest fee schedule. 14 20. Developer shall comply with the City's Stormwater Regulations, latest version, and shall implement best management practices at all times. Best management practices include 16 but are not limited to pollution treatment practices or devices, erosion control to prevent silt runoff during construction, general housekeeping practices, pollution prevention and 17 educational practices, maintenance procedures, and other management practices or devices to prevent or reduce the discharge of pollutants to stormwater, receiving water or stormwater conveyance system to the maximum extent practicable. Developer shall notify . n prospective owners and tenants of the above requirements. 20 21. Prior to the issuance of grading permit or building permit, whichever occurs first, Developer shall submit for City approval a Tier 2 Storm Water Pollution Prevention Plan 21 (TIER 2 SWPPP). The TIER 2 SWPPP shall be in compliance with current requirements and provisions established by the San Diego Region of the California Regional Water Quality Control Board and City of Carlsbad Requirements. The TIER 2 SWPPP shall 23 address measures to reduce to the maximum extent practicable storm water pollutant runoff during construction of the project. 24" 25 26 27 28 PC RESO NO. 6677 -7- 15 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE Please take NOTICE that approval of your project includes the "imposition" of fees, dedications, reservations, or other exactions hereafter collectively referred to for convenience as "fees/exactions." You have 90 days from date of final approval to protest imposition of these fees/exactions. If you protest them, you must follow the protest procedure set forth in Government Code Section 66020(a), and file the protest and any other required information with the City Manager for processing in accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or annul their imposition. You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning, zoning, grading, or other similar application processing or service fees in connection with this project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a NOTICE similar to this, or as to which the statute of limitations has previously otherwise expired. PASSED, APPROVED, AND ADOPTED at a regular meeting of the Planning Commission of the City of Carlsbad, California, held on April 7, 2010, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: Chairperson Douglas, Commissioners Baker, L'Heureux and Nygaard Commissioner Dominguez Commissioner Montgomery and Schumacher jurBprson CARLSBAD PLANNING COMMISSION DON NEU Planning Director PC RESO NO. 6677 1 PLANNING COMMISSION RESOLUTION NO. 6678 2 A RESOLUTION OF THE PLANNING COMMISSION OF THE 3 CITY OF CARLSBAD, CALIFORNIA, APPROVING A FLOODPLAIN SPECIAL USE PERMIT SUP 09-05 FOR THE 4 CONSTRUCTION OF A 97-FOOT LONG BY 17 TO 24-FOOT 5 TALL BLUFF-COLORED AND TEXTURED SEAWALL ALONG THE COASTAL BLUFF AND BELOW THE 6 RESIDENCES LOCATED AT 5323 AND 5327 CARLSBAD BLVD LOCATED ON THE WEST SIDE OF CARLSBAD BLVD 7 AND NORTHERLY OF CEREZO DRIVE IN THE MELLO II SEGMENT OF THE LOCAL COASTAL PROGRAM AND IN 8 LOCAL FACILITIES MANAGEMENT ZONE 3. 9 CASE NAME: GOETZ SEAWALL CASE NO.: SUP 09-05 10 WHEREAS, Dean and Barbara Goetz and Marshall Sylver, "Developers," and i ^ "Owners," have filed a verified application with the City of Carlsbad regarding property 13 described as 14 Lots 2 and 3 of Parcel Map MS 98-01, in the City of Carlsbad, County of San Diego, State of California, according to map thereof no. 18236, filed in the Office of the County Recorder of 16 San Diego, April 13,1999 as file number 1999-0247276 17 ("the Property"); and 1° WHEREAS, said verified application constitutes a request for a Floodplain 19 Special Use Permit as shown on Exhibits "A" - "K" dated March 3, 2010, on file in the 20 Planning Department, GOETZ SEAWALL - SUP 09-05, as provided by Chapter 21.110 of the 21 Carlsbad Municipal Code; and 23 WHEREAS, the Planning Commission did on April 7, 2010, hold a duly noticed 24 public hearing as prescribed by law to consider said request; and 75 WHEREAS, at said public hearing, upon hearing and considering all testimony 26 and arguments, if any, of all persons desiring to be heard, said Commission considered all factors 27 relating to the Floodplain Special Use Permit. 28 n 1 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning 2 Commission of the City of Carlsbad as follows: 3 A) That the foregoing recitations are true and correct. 4 <. B) That based on the evidence presented at the public hearing, the Commission APPROVES GOETZ SEAWALL - SUP 09-05, based on the following findings 6 and subject to the following conditions: Findings: 7 1. The site is reasonably safe from flooding in that there are no public or private improvements other than the seawall and stairway (SUP 96-07) which are located in 9 the coastal high hazard area and are designed to withstand high velocity waters, including coastal and tidal inundations and tsunamis. Fill material is not being used 10 as structural support of the seawall as the foundation of the seawall is anchored into bedrock (Tertiary Santiago Formation) and the top of the seawall is at an elevation of 23 feet above mean sea level (msl) and cannot be overtopped by wave action or tsunamis as determined by analysis using the US Army Corps of Engineers Automated Coastal Engineering System. 13 The proposed project does not create a hazard for adjacent properties or structures as there are no improvements, other than the public access stairway which has been ,. designed to withstand high velocity waters in the flood hazard area, and the seawall does not increase the base flood elevation. The adjacent properties have a more 16 exposed and elevated Tertiary Santiago Formation which better protects the coastal bluffs from erosion. 17 3. That the seawall will protect human life by protecting beachgoers from future bluff 18 failures. 19 4. The bottom of the seawall is located at an elevation of 7.69 feet above msl and is 20 landward of the reach of the mean high tide which is 5.36 feet msl. The base flood elevation is 9 feet msl. 21 . The proposed project does not reduce the ability of the site to pass or handle a base flood of 100-year frequency in that the seawall replaces the existing bluff and will not affect 23 the base flood elevation and the proposed project taken together with all the other known, proposed, and anticipated projects will not increase the water surface elevation of 24 the base flood more than one foot at any point. 6. The Planning Commission has reviewed each of the exactions imposed on the Developer 26 contained in this resolution, and hereby finds, in this case, that the exactions are imposed to mitigate impacts caused by or reasonably related to the project, and the extent and the 27 degree of the exaction is in rough proportionality to the impact caused by the project. 28 PC RESO NO. 6678 -2- Conditions: 2 1. If any of the following conditions fail to occur, or if they are, by their terms, to be 3 implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to revoke or modify all approvals herein granted; deny or further condition issuance of all future building permits; deny, revoke, or further condition all certificates of occupancy issued under the authority of approvals herein granted; record a notice of violation on the 6 property title; institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. No vested rights are gained by Developer 7 or a successor in interest by the City's approval of this Special Use Permit. 2. This approval is granted subject to the approval of the CDP 09-13 and is subject to all conditions contained in Planning Commission Resolution No. 6677 for those other approvals incorporated herein by reference. 10 Staff is authorized and directed to make, or require Developer to make, all corrections and modifications to the Special Use Permit document(s) necessary to make them internally consistent and in conformity with final action on the project. Development shall occur substantially as shown in the approved Exhibits. Any proposed development, 13 different from this approval, shall require an amendment to this approval. 14 4. If any condition for construction of any public improvements or facilities, or the payment of any fees in-lieu thereof, imposed by this approval or imposed by law on this Project are challenged, this approval shall be suspended as provided in Government Code Section , 66020. If any such condition is determined to be invalid, this approval shall be invalid unless the City Council determines that the project without the condition complies with 17 all requirements of law. 18 5. Developer/Operator shall and does hereby agree to indemnify, protect, defend, and hold harmless the City of Carlsbad, its Council members, officers, employees, agents, and representatives, from and against any and all liabilities, losses, damages, demands, claims 2Q and costs, including court costs and attorney's fees incurred by the City arising, directly or indirectly, from (a) City's approval and issuance of this Special Use Permit, (b) City's 21 approval or issuance of any permit or action, whether discretionary or nondiscretionary, in connection with the use contemplated herein, and (c) Developer/Operator's installation 22 and operation of the facility permitted hereby, including without limitation, any and all »_ liabilities arising from the emission by the facility of electromagnetic fields or other energy waves or emissions. This obligation survives until all legal proceedings have been 24 concluded and continues even if the City's approval is not validated. 25 26 27 28 PC RESO NO. 6678 -3- \Q 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE Please take NOTICE that approval of your project includes the "imposition" of fees, dedications, reservations, or other exactions hereafter collectively referred to for convenience as "fees/exactions." You have 90 days from date of final approval to protest imposition of these fees/exactions. If you protest them, you must follow the protest procedure set forth in Government Code Section 66020(a), and file the protest and any other required information with the City Manager for processing in accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or annul their imposition. You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning, zoning, grading, or other similar application processing or service fees in connection with this project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a NOTICE similar to this, or as to which the statute of limitations has previously otherwise expired. PASSED, APPROVED, AND ADOPTED at a regular meeting of the planning Commission of the City of Carlsbad, California, held on April 7, 2010 by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: Chairperson Douglas, Commissioners Baker, L'Heureux and Nygaard Commissioner Dominguez Commissioner Montgomery and Schumacher , Cimcp*rson CARLSBAD PLANNING COMMISSION ATTEST: DON NEU Planning Director PC RESO NO. 6678 -4- The City of Carlsbad Planning Department A REPORT TO THE PLANNING COMMISSION Item No. P.C. AGENDA OF: April 7, 2010 Application complete date: September 1, 2009 Project Planner: Van Lynch Project Engineer: Steve Bobbett SUBJECT: CDP 09-13/SUP 09-05 - GOETZ SEAWALL- A post Emergency Coastal Development Permit approval for the construction of a 97-foot long by 17 to 24- foot tall bluff-colored and textured seawall along the coastal bluff and below the residences located at 5323 and 5327 Carlsbad Blvd located on the west side of Carlsbad Blvd and northerly of Cerezo Drive in the Mello II Segment of the Local Coastal Program and in Local Facilities Management Zone 3. I. RECOMMENDATION That the Planning Commission ADOPT Planning Commission Resolution Nos. 6677 and 6678, APPROVING a Coastal Development Permit (CDP 09-13) and Special Use Permit (SUP 09-06) based on the findings and subject to the conditions contained therein. II.INTRODUCTION The project is a post Emergency Coastal Development Permit for the construction of a 97-foot long by 17 to 24 -foot tall bluff-colored and textured seawall along the coastal bluff and below the residences located at 5323 and 5327 Carlsbad Blvd located on the west side of Carlsbad Blvd and northerly of Cerezo Drive. The 1.01 acre project site, consisting of two residential single family lots, is currently developed with two single family detached residences. The project complies with all applicable city standards and staffs recommendation of approval with conditions is supported by the analysis as follows. m- PROJECT DESCRIPTION AND BACKGROUND On or about December 19, 2008, a 50 foot long by 32 foot high coastal bluff failure occurred at 5323 and 5327 Carlsbad Boulevard. An additional bluff failure occurred on December 30, 2008. In total, the coastal bluff retreated approximately five feet and deposited roughly 150 cubic yards of soil onto the beach which is used by the public. The likely cause of failure is due to the weakly cemented and relatively cohesionless geologic formation (terrace deposit) which is inherently unstable. Additionally, an unusually heavy rain event likely saturated the terrace deposit adding weight and decreasing the strength properties causing the bluff to fail. The new seawall is to prevent further bluff failures, protecting the beach and the beach-going public. On April 16, 2009, the Planning Director issued an Emergency Coastal Development Permit (CDP 09-07) to allow for the construction of the seawall (described below). This permit expired on May 16 2009 due to failure to exercise and comply with the conditions of the permit. On June 10, 2009 the Planning Director issued another Emergency Coastal Development Permit (CDP 09-11) to allow the construction of the seawall. Pursuant to Section 21.201.190(E) of the 0 CDP 09-13/SUP 09-05 - GOETZ SEAWALL April?, 2010 Page 2 Carlsbad Municipal Code, the CDP was brought before the City Council on June 16, 2009 for consideration and the City Council determined they would not intervene in the matter, upholding the Planning Director's decision to issue the emergency permit. The wall was completed on or about September 18, 2009. The repair work, consisting of a sculpted, colored, and textured, reinforced shotcrete wall anchored in place with tiebacks, is to prevent the ongoing and progressive bluff failure. The base of the seawall follows the location of the base of the bluff so there is no loss of beach area. The seawall height ranges from 17 feet (25 feet above mean sea level) at the southern end to 21 feet (29 feet above mean sea level) at the northern end. The maximum wall height is 24 feet located 80 feet north of the southern end. The existing bluff top is 40 feet above mean sea level. Between the top of the seawall and the bluff top is a 1:1.5 fill slope. The slope is landscaped to prevent erosion. The site is adjacent to single family homes to the north, Carlsbad Blvd and single family homes beyond to the east and a concrete public access stairway from the bluff top to the beach and vacant State Lands to the south. The beach and Pacific Ocean are to the west of the site. The seawall and beach, landward of the mean high tide line, are owned by Mr. Goetz and Mr. Sylver. The stairway is located on Syiver's property with a public access easement for the use of the stairway by the public. Several alternative designs were analyzed for the stabilization of the coastal bluff. A rip rap revetment would reduce the lower bluff erosion; however, the rip rap would not reduce the effects of the ongoing upper bluff failures which pose a threat to occupants on the beach. The revetment would also require long term maintenance and take up a large portion of the useable beach area for the footprint of the revetment. Geobags are geotextile fabric bags filled with sand which could be placed and stacked similar to the rip rap revetment. However, this system is more temporary and would also take up a large portion of the useable beach area for the footprint of the structure. It would also have the same lack of coverage as the rip rap revetment and would not protect from future bluff failures. The shotcrete, tied-back structure that was implemented is regarded as the design that would provide the greatest amount of bluff protection and safety for the public, would not encroach onto the useable beach area, minimize visual impacts, and require the least maintenance over the life of the structure. Pursuant to Section 21.201.190 of the Carlsbad Municipal Code, the Planning Director is authorized to issue an emergency CDP if an emergency exists that requires action more quickly than procedures for Minor or Regular CDPs to prevent or mitigate loss or damage to life, health, property or essential public services and the proposed emergency CDP is consistent with the provisions of the City's Local Coastal Program (Mello II). Emergency CDPs are considered temporary permits and are conditioned to require the application for a follow-up Regular CDP. The Regular CDP is required to permanently authorize the construction of the seawall. The site is located within the appeal area of the Mello II Segment of the Coastal Zone, and any final decision of the City of Carlsbad on this Regular CDP is appealable to or by the California Coastal Commission. The City previously filed a Notice of Final Action with the California Coastal Commission on April 16, 2009 and June 16, 2009 for the issuance of the emergency CDP. The project requires a Special Use Permit because the project site is located within Zones VE and AE of the Special Flood Hazard Area as shown on the Flood Insurance Rate Map. Zone AE CDP 09-13/SUP 09-05 - GOETZ SEAWALL April?, 2010 Page 3 includes areas subject to 100 year flood inundation with a base flood elevation of nine feet. Zone VE areas are subject to coastal flooding with a velocity hazard (wave action). The existing single family homes located on the project site were constructed in late 2002 and 2003 (CDP 01-11 and CDP 01-13). IV. ANALYSIS The proposed project is subject to the following plans, ordinances and standards as analyzed within the following section of this staff report: A. General Plan Land Use Element -Residential Low Medium (RLM) General Plan Land Use Designation; B. One-Family Residential (R-l) Zone (CMC Chapter 21.10); C. Floodplain Management Regulations (Chapter 21.110 of the Carlsbad Municipal Code); D. Coastal Development Permit Regulations for the Mello II Local Coastal Program (LCP) Segment, the Coastal Resource Protection Overlay Zone, and the Coastal Shoreline Development Overlay Zone (Chapters 21.201, 21.203, and 21.204 of the Zoning Ordinance); E. Habitat Preservation and Management Requirements (Chapter 21.210 of the Carlsbad Municipal Code); and F. Growth Management Ordinance (Local Facilities Management Plan Zone 3). The recommendation for approval of this project was developed by analyzing the project's consistency with the applicable regulations and policies. The project's compliance with each of the above regulations and policies is discussed in detail in the sections below. A. General Plan The project site has a General Plan Land Use designation of RLM (Residential Low-Medium Density). The seawall project does not change the area of property or the density of the project site which was previously found to be consistent with the General Plan. The seawall project is also not subject to specific goals, objectives or action programs of the Land Use, Circulation, Noise, Housing, Parks and Recreation, or Arts elements of the General Plan. The project complies with all the remaining applicable elements of the General Plan as described in Table A below: CDP 09-13/SUP 09-05 - GOETZ SEAWALL April?, 2010 Page 4 TABLE A - GENERAL PLAN COMPLIANCE ELEMENT USE, CLASSIFICATION, GOAL, OBJECTIVE OR PROGRAM PROPOSED USES & IMPROVEMENTS COMPLY Public Safety Require a Special Use Permit for all development within the 100 year flood plain. Require installation of protective structures or other design measures to protect proposed buildings and development sites from the effects of flooding or wave action. The project applicant is processing a Floodplain SUP. The seawall does not change the flood water elevations or negatively impact other properties. The seawall is designed to protect the subject property from tidal and wave action. The seawall will prevent future bluff failures to minimize injury, loss of life, and property damage. Yes Open Space & Conservation To preserve, protect and enhance those areas of the City that provide unique and special open space functions, including, but not limited to, cultural and visual amenities, active and passive recreational uses, landmarks, buffers between incompatible land uses, wildlife habitats, and unique and desirable vegetation. The seawall maintains public access to open space lands (public beaches) that are used for recreational uses. The seawall has been designed with sculpted, colored and textured reinforced shotcrete to emulate the appearance of a natural coastal bluff face to preserve the unique and special beach resource in the City. Yes Utilize Best Management Practices for control of storm water and to protect water quality. The project conforms to all NPDES requirements. Yes B. One-Family Residential (R-l) Zone The seawall is located in the rear yard area of the one-family residentially zoned project site. The seawall replicates the natural topography of the site and therefore does not need to adhere to structure setbacks or height requirements. C. Floodplain Management Regulations (Chapter 21.110 of the Carlsbad Municipal Code) The seawall project site is located within the special flood hazard areas as shown on the Flood Insurance Rate Maps and requires the processing of a Special Use Permit. Zones VE (coastal tidal and wave action) and AE (flooding) are inundated by the 100 year flood with a base flood elevation of nine feet. The permit is to review the project for protection of public health, safety and welfare and to minimize public and private losses due to flooding. CDP 09-13/SUP 09-05 - GOETZ SEAWALL April?, 2010 Page 5 With the construction of the seawall, remaining threats to public or private improvements from flooding on this property are minimized. Within Zone AE, a setback is required for all new development from the ocean or other water body to create a safety buffer. The existing residences are built upon land which is above the base flood elevation and are not subject to flooding. The existing residential structures were adequately setback from the coastal bluff top (45 feet), to account for bluff top retreat, for the useful life of the structures. Only the lower bluff portion of the property is subject to flood impacts. The seawall is designed to withstand wave action and will not be overtopped by a tsunami per the wave run-up study prepared by GeoSoils, Inc. for the project. The purpose of the seawall is to protect persons on the beach from further bluff failures. D. Coastal Development Permit Regulations for the Mello II Local Coastal Program (LCP) Segment, the Coastal Resource Protection Overlay Zone, and the Coastal Shoreline Development Overlay Zone (Chapters 21.201, 21.203, and 21.204 of the Zoning Ordinance) 1. Mello II LCP Segment The project site is located entirely within the Mello II Segment of the Local Coastal Program and is within the California Coastal Commission appeal jurisdiction. The site is also located within and subject to the Coastal Resource Protection Overlay Zone (Chapter 21.203), and the Coastal Shoreline Development Overlay Zone (Chapter 21.204) of the Carlsbad Municipal Code. The seawall does not obstruct views of the coastline as seen from public lands or the public right-of- way, nor otherwise damage the visual beauty of the coastal zone. The seawall has been sculpted, textured, and colored to emulate the existing bluff colors and bluff topography. The seawall also has a varied wall height to further soften the visual effect of the seawall. No agricultural uses currently exist on the site or within the area. According to IGC, Incorporated, 1991, Geotechnical investigation and bluff retreat study, the subject site is not located within any Earthquake Fault Zones as created by the Alquist-Priolo Act, nor are there any known major or active faults on or in the immediate vicinity of the site. Liquefaction or seismically induced settlements are not considered a hazard. The report also states that there is no evidence of large ancient landslides existing on the subject site. The report does identify that several feet of coastal bluff-edge retreat could occur at one time or over a short period of time. 2. Coastal Resource Protection Overlay Zone The project is consistent with the provisions of the Coastal Resource Protection Overlay Zone (Chapter 21.203 of the Zoning Ordinance) in that the project adhered to the City's Master Drainage Plan, Grading Ordinance, Storm Water Ordinance, Standard Urban Storm Water Mitigation Plan (SUSMP) and Jurisdictional Urban Runoff Management Program (JURMP) to avoid increased urban run-off, pollutants, and soil erosion during project construction. The overlay zone is intended to protect sensitive resources. The construction of the seawall was in an area of steep coastal bluffs that did not support native vegetation. There was minor grading to remove material for the foundation of the seawall. All spoils were used for fill behind the seawall. There are no prime agricultural lands on or near the site. CDP 09-13/SUP 09-05 - GOETZ SEAWALL April?, 2010 Page 6 3. Coastal Shoreline Development Overlay Zone Seawalls and other such construction that may alter natural shoreline processes are conditionally permitted uses when required to protect public beaches from erosion. In this instance, the public beach is being protected from potential significant bluff failures depositing earthen material onto the beach (and thereby helping to maintain the shoreline as a unique recreational and scenic resource), promoting public safety, and avoiding the negative geologic and economic effects of significant bluff failures. Beach replenishment Chapter 21.204.040 of the Carlsbad Municipal Code provides and Section 30235 of the Coastal Act requires that the shoreline protection be designed to eliminate or mitigate adverse impacts on local shoreline sand supply. Several adverse impacts to public resources have been associated with the construction of shoreline protection. The natural shoreline processes referenced in Section 30235, such as the formation and retention of sandy beaches, can be altered by construction of a seawall, since bluff retreat is one of several ways that beach area and beach quality sand is added to the shoreline. Generally speaking, this retreat is a natural process resulting from many different factors such as erosion by wave action and eventual collapse, saturation of the bluff soil from ground water causing the bluff to slough off, and natural bluff deterioration from wind and rain. When a seawall is constructed on the beach at the toe of the bluff, these natural processes may be impeded. Some of the effects of a shoreline protective structure on the beach such as scour, end effects and modification to the beach profile are temporary or difficult to distinguish from all the other actions which modify the shoreline. Seawalls also have non-quantifiable effects to the character of the shoreline and visual quality. However, some of the effects that a structure may have on natural shoreline processes can be quantified. Three of the effects from a shoreline protective device which can be quantified are: 1) loss of the beach area on which the structure is located; 2) the long-term loss of beach which will result when the back beach location is fixed on an actively eroding shoreline (passive erosion); and 3) the amount of material which would have been supplied to the beach if the back beach or bluff were to erode naturally. The seawall, given its location in the back of a natural cove on private property, and further landward from adjacent natural bluff structures, will not have a significant impact on the longshore transport of sand, will not cause significant passive erosion, and it does not occupy public beach area. The seawall was built as far landward, parallel to and at the base of the existing coastal bluff, as possible to maintain the existing extent of the usable beach area and to continue to allow lateral beach access. There is no loss of beach as the wall was placed at the toe of the existing bluff. The seawall does not obstruct or interfere with the passage of people along the beach at any time, and as stated above it improves public safety. The existing beach area is and has been subject to tidal action and does not provide twenty-five feet of dry sandy beach at all times of the year. The project is not able to increase the extent of the beach to provide a permanent twenty-five feet of dry sandy beach as area does not exist within the cove for the creation of such a beach that would not be susceptible to wash and erosion from wave action. Public access to the bluff top and vertical beach access had previously been provided by the construction of the existing concrete stairway at the southern edge of the property. The previous development of the site has recorded an irrevocable offer of dedication (IOD) for lateral beach access. The eastern extent of the IOD CDP 09-13/SUP 09-05 - GOETZ SEAWALL April?, 2010 Page 7 begins at the base of the stairway and proceeds north, parallel to the bluff. There is area between the IOD and the base of the bluff/seawall which is not included in the IOD. Because there is no loss of beach area or access, there is no requirement for mitigation for public access or loss of recreational opportunities. The San Diego Association of Governments (SANDAG) has adopted the Shoreline Preservation Strategy for the San Diego region and is currently working on techniques toward its implementation. The Strategy considers a full range of shoreline management tactics, but emphasizes beach replenishment to preserve and enhance the environmental quality, recreational capacity, and property protection benefits of the region's shoreline. Funding from a variety of sources will be required to implement the beach replenishment and maintenance programs identified in the SANDAG Strategy. In San Diego County, SANDAG has agreed to administer a program which would identify projects which may be appropriate for support from the beach sand replenishment fund, through input from the Shoreline Erosion Committee which is made up of representatives from all the coastal jurisdictions in San Diego County. The Shoreline Erosion Committee is currently monitoring several large scale projects, both in and out of the coastal zone, they term "opportunistic sand projects" that will generate large quantities of beach quality material suitable for replenishing the region's beaches. The purpose of the account is to aid in the restoration of the beaches within San Diego County. One means to do this would be to provide funds necessary to get such "opportunistic" sources of sand to the shoreline. In the event the City of Carlsbad had a beach sand replenishment project, the City would request funds from the account to assist in the funding of a project, subject to approval by SANDAG and the California Coastal Commission and consistent with the Beach Sand Mitigation Fund qualifications. The project has been conditioned to make a contribution to a beach sand replenishment program that would address the sand volume impacts from the seawall and denial of sand to the littoral cell as discussed above. The applicants applied the calculations that the California Coastal Commission has used for the past decade to estimate mitigation for these impacts. The In-Lieu Beach Sand Mitigation calculations applied in this analysis only address the value of the sand that will not be contributed by the bluffs to the littoral cell due to the construction of the seawall. The amount of beach material that would have been added to the beach if natural erosion had been allowed to continue at the site for the life of the seawall has been calculated to be approximately 823 cubic yards. At an estimated sand cost of $3.00 per cubic yard (provided by the applicant, and based on the rate of cost from the last regional sand replenishment program), this sand would have a value of $2,469.00. The project has been conditioned to require the applicants to deposit an in-lieu fee of $2,469.00 to SANDAG to fund beach sand replenishment as mitigation for the identified direct impacts of the proposed shoreline protective device on beach sand supply and shoreline processes over the 75-year design life of the project. Provision for Maintenance Chapter 21.204.040 requires a provision for maintenance of any seawalls be included as a condition of approval. If the proposed wall were damaged in the future (e.g. as a result of wave action, storms, etc.) it could threaten the stability of the site, which could lead to the need for more bluff alteration. In addition, damage to the seawall could adversely affect the beach by resulting in debris on the beach and/or creating a hazard to the public using the beach. Therefore, in order to find the proposed seawall consistent with the Coastal Act, the condition of CDP 09-13/SUP 09-05 - GOETZ SEAWALL April?, 2010 PageS the seawall in its approved state must be maintained for the estimated life of the seawall. Further, in order to ensure that the permittee and the City know when repairs or maintenance are required, the permittee must monitor the condition of the seawall annually. The monitoring will ensure that the permittee and the City are aware of any damage to or weathering of the seawall and can determine whether repairs or other actions are necessary to maintain the seawall in its approved state. Chapter 21.204.100, Site plan review criteria, in addition to Section 30251 of the Coastal Act states, in part: The scenic and visual qualities of coastal areas shall be considered and protected as a resource of public importance. Permitted development shall be sited and designed to protect views to and along the ocean and scenic coastal areas, to minimize the alteration of natural land forms, to be visually compatible with the character of surrounding areas, and, where feasible, to restore and enhance visual quality in visually degraded areas. The seawall has been sculpted, textured and colored to create a generally attractive appearance which is compatible with the surrounding natural coastal bluff environment. The texture and sculpting of the seawall provides a roughness to blend the wall into the existing landscape as opposed to an otherwise flat retaining wall surface and appearance. The seawall incorporates natural colors to resemble the bluffs color and undulates to follow the toe of the existing bluff. The existing stairway is also colored an earthen tone. No ocean views from the nearest public street, Carlsbad Blvd, are biased as the top of the seawall is below the edge of the bluff top. There are no significant natural features to retain or incorporate into the seawall. A condition has been added that requires the applicant and future property owners to acknowledge that future redevelopment of the site cannot rely on the subject seawall for its protection. In other words, the proposed seawall is in a hazardous location and not a permanent structure. The seawall is not approved in order to accommodate future redevelopment of the site in the same location. If a new home or residential addition is proposed in the future, it must be located in an area where the development is consistent with the applicable LCP requirements regarding geologic safety and protection from hazards as if the seawall does not exist. Future structures would be required to maintain the existing established 45-foot bluff top setback. The project is consistent with the provisions of the Coastal Shoreline Development Overlay Zone (Chapter 21.204 of the Zoning Ordinance) in that the seawall does not modify the public lateral access of the public beach. E. Habitat Preservation and Management Requirements (Chapter 21.210 of the Carlsbad Municipal Code) The project site is located along the shore of the Pacific Ocean which is identified in the City of Carlsbad's HMP as developable. According to the City of Carlsbad's Habitat Management Plan, the project site is not located within a habitat core or linkage area. The project site is fully developed with structures and exotic landscapes with no native or sensitive habitats in the actual construction area. Overall, the project site does not support any high-quality biological resources, nor does the seawall project conflict with any local policies or ordinances protecting biological resources, or any provisions CDP 09-13/SUP 09-05 - GOETZ SEAWALL April?, 2010 Page 9 of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or State habitat conservation plan. F. Growth Management Ordinance (Local Facilities Management Plan Zone 3). The proposed project is located within Local Facilities Management Zone 3 in the northwest quadrant of the City. The seawall project does not have any impacts on public facilities. V. ENVIRONMENTAL REVIEW The issuance of an emergency CDP for the construction of the seawall is exempt from CEQA review. CEQA does not apply to actions necessary to prevent or mitigate an emergency. Per CEQA, "emergency" includes such occurrences as fire, flood, earthquake, or other soil or geologic movements. The bluff failure and continued bluff failures constituted an emergency. The city filed a Notice of Exemption for the emergency CDP project which was the construction of the seawall with the County of San Diego on June 22, 2009. The issuance of a follow-up regular Coastal Development Permit and Special Use Permit for the seawall, as required by the emergency CDP, is not a "project" within the meaning of CEQA and does not require CEQA review. That is, the permit does not cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment as the construction of the seawall has already been completed under the emergency CDP and is not proposed to be changed with the issuance of the regular CDP. Comments were received from Tom Cook, Dustin Rosa, Todd Cardiff, representing Surfrider Foundation, and Coast Law Group representing the Coastal Environmental Rights Group. The California Coastal Commission was sent notification and no response was received. Comments were focused on the loss of beach sand, sand mitigation, public access, and the need for further environmental review. The loss of beach sand is not significant in the scope of the whole bluff erosion and beach nourishment process. The bluff is estimated to contribute .2% to the Oceanside Littoral Cell. The City of Carlsbad has conditioned the project to contribute to a beach sand replenishment program. Public recreational opportunities and access to the beach has not changed with the development of the seawall. ATTACHMENTS: 1. Planning Commission Resolution No. 6677 (CDP) 2. Planning Commission Resolution No. 6678 (SUP) 3. Location Map 4. Background Data Sheet 5. Disclosure Statement 6. Exhibits "A - K" dated March 3, 2010 (previously distributed). 7. Sand Mitigation Fee Calculation for Goetz Emergency Seawall, Geosils Inc, March 30, 2010 8. Axelson Corn letter RE: Sand Mitigation fee calculation dated March 30, 2010 9. Correspondence from Mr. Dean Goetz dated December 23, 2008. 10. Correspondence from Tom Cook, dated February 16-18, 2010. 11. Correspondence from Dustin Rosa, dated February 18, 2010. 12. Correspondence from Todd Cardiff, dated February 18, 2010 (w/o attachment, see below) 13. Correspondence from Todd Cardiff, dated February 27, 2010 (w/attachments) CDP 09-13/SUP 09-05 - GOETZ SEAWALL April?, 2010 Page 10 14. Correspondence from Coast Law Group, dated March 2, 2010 (email attachment www.slc.ca. gov/reports/sea_level_report.pd) 15. Correspondence from Jeff Woolson, dated March 3, 2010. 16. Correspondence from Mr. and Mrs. Tindall, dated March 23, 2010 SITEMAP NOT TO SCALE Goetz Seawall CDP 09-13/SUP 09-05 BACKGROUND DATA SHEET CASE NO:CDP 09-13/SUP 09-05 CASE NAME: GOETZ SEAWALL APPLICANT: Dean Goetz and Marshall Svlver REQUEST AND LOCATION: A post Emergency Coastal Development Permit approval for the construction of a 97-foot long by 17 to 24-foot tall bluff-colored and textured seawall along the coastal bluff and below the residences located at 5323 and 5327 Carlsbad Blvd LEGAL DESCRIPTION: Lots 2 and 3 of Parcel Map MS 98-01. in the City of Carlsbad. County of San Diego, State of California, according to map thereof no. 18236. filed In the Office of the County Recorder of San Diego. April 13. 1999 as file number 1999-0247276. APN: 210-120-33 and 34 Acres: 1.01 (for both lots) Proposed No. of Lots/Units: N/A GENERAL PLAN AND ZONING Existing Land Use Designation: Residential Low-Medium (RLM) Proposed Land Use Designation: N/A Density Allowed: 3.2 Density Proposed: N/A Existing Zone: R-1-7.500 Proposed Zone: N/A Surrounding Zoning, General Plan and Land Use: Zoning General Plan Current Land Use Site North South East West R-l-7 R-l-7 OS R-l-7 OS ,500 ,500 ,500 RLM/OS RLM/OS OS RLM OS Single Single Open CA) Single Pacific family family Space family Ocean home home (State home of LOCAL COASTAL PROGRAM Coastal Zone: [X] Yes [~~| No Local Coastal Program Segment: Mello II Within Appeal Jurisdiction: {X] Yes ("""] No Coastal Development Permit: 13 Yes O No Local Coastal Program Amendment: I I Yes [X] No Existing LCP Land Use Designation: RLM/OS Proposed LCP Land Use Designation: N/A Existing LCP Zone: R-l Proposed LCP Zone: N/A . Revised 01/06 PUBLIC FACILITIES School District: Carlsbad Water District: Carlsbad Sewer District: Carlsbad Equivalent Dwelling Units (Sewer Capacity): N/A ENVIRONMENTAL IMPACT ASSESSMENT [^) Categorical Exemption, 15269 Emergency exemption for seawall constructiQn. i I Negative Declaration, issued Certified Environmental Impact Report, dated Other: Emergency 53Revised 01/06 City of Carlsbad Planning Department DISCLOSURE STATEMENT Applicant's statement or disclosure of certain ownership interests'on all applications which will require discretionary action on the part of the City Council or any appointed Board, Commission or Commiftea, The following information MUST be disclosed at the lime of application submitta!. Your project cannot be reviewed until this information is completed. Please print, 1. 2. APPLICANT (Not tha applicant's agent) Provide 'the COMPLETE, LEGAL names and addresses of ALL persons having a financial interest in the application. !f the applicant includes a corporation or partnership. Include the names, title, addresses of ail Individuals owning more than 10% of the shares, IF NO INDIVIDUALS OWN MORE THAN 10% OF THE SHARES, PLEASE INDICATE NON-APPL'ICABLE (N/A) IN THE SPACE BELOW. If a pubjjo!y-owned corporation., include tha names, titles, and addresses of the corporate officers. (A separate page may be attached if necessary.) Person Ccrp/Part_ Title _ Address 5"3a3 Address OWNER (Not the owner's agent) Provide the COMPLETE. LEGAL names and addresses of ALL persons having any ownership1 interest in the property involved. Also, provide the nature of the tegal ownership (i.e, partnership, tenants In common, non-profit, corporation, etc,). If the ownership includes a corporation or partnership. Include tha names, title, addresses of all individuate owning more than 10% of the shares. IF NO INDIVIDUALS OWN MORE THAN 10% OF THE SHARES, PLEASE INDICATE NON-APPLICABLE (N/A) IN THE SPACE BELOW, If a publicly-owned corporation, include the names, titles, and addresses of the corporate officers. (A separate page may be attached if necessary.) .. ,. 6«..\<M-TA. (3"f fi ft Person Deo i^ Goetz. Title )iwt _ __ Title S"3 £?._... M Address & Iy0 Address __Of , CA 1635 Faraday Avonua • Carlsbad, CA 92QOB-73I4 »{76D| 602-5600 • FAX (750) 6D2-8S59 * wvw.ci.oailsbad.c£u3 3. NON-PROFIT ORGANIZATION OR TRUST If any person identified pursuant to (1) or (2) above Is a nonprofit organization or a,trust, list the names and addresses of ANY person serving as an officer or director of 1ne non-profit organization or as trustee or beneficiary of the. Won ProfitTTrusL Title Address Non Profit/Trust Title Address 4. Have you had more than $500 worth of business transacted with any member of City staff, Boards, Commissions, Committees and/or Council \vithln ihe past twelve (12) months? Yes )Xj No If yes, please indicate person(s):,. NOTE; Attach additional sheets if necessary. I certify that all the above information is true and correct to the best of my knowledge. Slgnatips owvvner/date ,ft*< Signature of applicanEfoate Print or type name of owner Print or type name of applicant .. o,nnvner7pppl!carit's agent if applicable/date Print or type name of owner/applicant's agent H:ADMIN\CDUNTERVDISCIOSUR5 STATEMENT 12/06 Page 2 of 2 DEANA.GOETZ ^ ATTORNEY ATLAW THE OCEAN BUILDING 603 NORTH COAST HIGHWAY 101 SOLANA BEACH, CALIFORNIA 92075 (858) 481-8844 Fax (858) 481-2139 EMAIL: dEoetzl2@gmall.com December 23,2008 City of Carlsbad Building Department Attention: Planning Director, Don Neu 1635 Faraday Avenue Carlsbad, CA 92008 Re: Bluff Collapse at 5323 Carlsbad Blvd Dear Mr. Neu: • , I am addressing this letter to you since we have discussed this matter on the telephone. I am sending a copy of the letter to all of the persons listed below. If this matter should be handled , by someone other than yourself, please advise. The purpose of this letter is to provide important public safety information and to ask for guidance and help from the City of Carlsbad. My wife, Barbara, and I are the owners of the property located at 5323 Carlsbad Blvd., Carlsbad, CA. I am also representing Marshall Sylvcr who owns the adjacent properly located at 5327 Carlsbad Blvd., Carlsbad, CA., on this matter. On December 19 or 20th a portion of our bluff collapsed. I estimate that a section of earth about 4-6 feet deep and 40-50 feet wide and 35-40 feet high collapsed onto the beach. If anyone had been standing, sitting or walking below the bluff at that time, they would have probably been killed. I have photos of the fallen earth for you to view, if you are interested. Also, you could go down to the beach and see ijt for yourself. I think it is indisputable that this collapse of the bluff would have killed or seriously injured anyone who may have been walking, sunbathing or just relaxing below the bluff. Fortunately, no one was below the bluff when it collapsed so no one was injured. Mr. Don Neu Planning Director City of Carlsbad December 23,2008 Page 2 Mr. Sylver's adjacent bluff looks very much like mine looked before it collapsed. Therefore, there is reason to believe that his bluff may soon collapse in a similar manner and that our bluff may collapse even further. I have contacted David Skelly, a California bluff expert, civil engineer and oceanographer, regarding this matter. He has inspected the property and informed us that the bluffs on our property could collapse at any time. This is a public safety issue which we believe must be addressed on an emergency basis. Some steps heed to be taken to insure the safety of the people who use this beach. We have discussed public safety solutions with Mr. Skelly and we are willing, able and prepared to immediately engage in a bluff stabilization and reconstruction project to ensure that the people using the beach on our property will be safe. We are willing to do this even though it will be extremely expensive because we do not want any one to be injured or killed because our bluffs collapsed. We are willing to take the expensive steps that are necessary to allow people to be able to continue to safely use this beach area without the fear and real danger of havbg the bluff collapse on top of them. We are prepared to immediately begin construction of a bluff stabilizer which will prevent any further bluff collapses which endanger the lives of beach users. We will thereby provide for a safe use of the beach by the public. We are in the process of preparing the plans for a bluff stabilizer which we will submit as required by the City of Carlsbad. We are asking for the City of Carlsbad to expedite our permit application so that this bluff stabilizer can be constructed before someone gets injured or killed. I would like to schedule a meeting as soon as possible to submit our preliminary plans to the appropriate City planners or engineers for preliminary discussion and approval. Please call me and let me know when we can have this meeting. I will make myself available to fit your schedule.--We would like to .submit our plans tmd obtain-approval in the shortest possible time. Hopefully, this matter can be given an emergency priority and can be approved within a few weeks. We believe time is of the essence since lives are at stake. In the meantime we are asking for guidance, direction and support from the City regarding how this dangerous situation should be handled. We are going to obtain additional warning signs and place them at the staircase and in other areas around the bluff. However, it has been our experience that beach users tear down almost every sign we erect. .» We would like your input on what should be done and what we can do without violating any easements or good will. We don't want to close the staircase. However, does the City think it would be appropriate in light of the dangerous situation? Would it be appropriate to close access to the entire cove area and place warning barricades at the dangerous bluff area? 31 Mr. Don Neu Planning Director City of Carlsbad December 23,2008 Page 3 We are not empowered to take any of these steps but the City of Carlsbad can do so. We do not want to act without proper authority so we need your guidance, direction and approval. Please advise us in this regard as soon as possible. We will not proceed with anything other than additional sign placement until we hear from you and are empowered to act by you. 1 look forward to your response and the rapid approval of our construction of the bluff stabilizer which will Qnce again make this a safe, beach. Thank you for your anticipated "review of this urgent matter of public safety. We look forward to meeting with the City officials to solve this public safety problem as soon as possible. Your assistance will be appreciated. Best regards, DeanJGoetz DAG/km cc: Ronald Ball, City Attorney Bud Lewis, Mayor Ann Kulchin, City Council Matt Hall, City Council Mark Packard, City Council Keith Blackburn, City Council Bob Johnson, City Engineer \\Deans-computer\dean's files\Lawofc\DAO\BcachHouse\Sea Wall\Ietters\city carls 12 2208.wpd » Original Message » From: tom.m.cook@gmail.com [mailto:tom.m.cook@gmail.com] On Behalf Of » torn cook » Sent: Tuesday, February 16, 2010 7:52 AM » To: Van Lynch » Subject: Geotz Seawall Comments » » Mr Lynch: » » I would like to comment negative declaration of the Geotz Seawall. » First, since I have not commented to you or the City of Carlsbad, my » name is Tom Cook, I work as a programmer/analyst at Scripps » Institution of Oceanography, with a group that does coastal » oceanographic research called the Coastal Observing Research and » Development Center. I received a MS in Physical Oceanography from » University of Miami, which focused on coastal oceanographic » processes, and I've been working in the field of coastal oceanography » for over 10 years. I can provide my CV if you need. » » Public funds have been going towards maintaining beach width for » years. This has been deemed a necessity by coastal municipalities and » the state of California for economic health. It is inconsistent for » the municipalities, like Carlsbad, to accept public funds for » projects to widen the coast, but then allow the wishes of a private » party to stop a major component of the beach making process by » allowing the construction of another seawall. Seawalls starve » adjacent beaches of the sediment they require to maintain the » existence of a beach, which is a major part of the Southern » California coast, and one that provides for the economic health of the region. » » In my opinion, the initial study ignores recent research which » supports the concept that erosion of coastal bluffs is a major » contributor to local beaches. Please see one example, "Coastal Bluffs » Provide More Sand To California Beaches Than Previously Believed" » (http://www.sciencedaily.com/releases/2005/10/051016085958.htm), » which describes recent research from UCSD which has quantified the » amount of beach sand that comes from coastal bluffs. As the title of » the article states, their research shows that the composition of » beach sand within the Oceanside littoral cell, is heavily consists of » sand from erosion of the bluffs. The researchers measured the erosion » of bluffs using state of the art instrumentation and techniques, » which was used to estimate the composition of beach sand from various » sources. Their results showed that bluff erosion provided 67% of the » sediment that was present on the beach in the Oceanside cell. This » estimate is greater than those found in previous studies, and is well » accepted within the scientific community. » » Another issue that was excluded from the Negative Declaration, is the » erosion caused by the seawall itself. This can be broken into two » categories, termed passive and active erosion. Active erosion refers » to an increase in erosion due to wave reflection from the seawall, » which may cause scour at the base of the seawall and to adjacent » beaches near the sides of the seawall. Active erosion is a » contentious issue, but it still warrants a mention in permitting these projects. » Passive erosion is found along actively eroding coastlines, which » applies to most of the California coast during this time of sea level » rise. As the water level increases, a beach in front of an unarmored » bluff will continue to exist due to the input of sediment from the » erosion of the cliffs. When you fix the bluff with a seawall, the the » increasing water level will cause the beach in front of the seawall » to disappear, while the adjacent shoreline will continue to move » landward. Therefore, this (and every) seawall will rob the seaward » beach of sediment. » » When you permit a seawall, you are allowing the wishes of the » property owner to supersede those of the common good. Given » increasing evidence of sea level rise and a municipality where it is » easy to obtain a seawall permit, you can easily imagine that the » coast will eventually turn into a long concrete wall, with little to » no possibility for public access and recreation. And most » importantly, no beaches can exist in this scenario. » » Please reconsider this declaration. » Sincerely, » Tom Cook » San Diego, CA Van Lynch From: Dustin Rosa [dustinrosa@sbcglobal.net] Sent: Thursday, February 18, 2010 3:56 PM To: Van Lynch Subject: RE: Negative Declaration for Goetz Seawall (Case No. CDP 09-13) Dear Mr. Van Lynch: As a concerned citizen and beach goer, I wanted to share the following comments regarding the Goetz Seawall in Carlsbad, California. This project is a significant nuisance to the natural environment and the countless beach goes who frequent Terramar Beach and therefore warrants the professional opinion of an Environmental Impact Report. Not only was die Goetz Seawall unnecessary, it has and will continue causing premature erosion of die cliffs and shoreline to the north and south. In fact, since the construction of the seawall, significant portions of bluff located directly to the north have either broken off or have been seriously weakened. If you visit the site, you will notice significant fractures/fault lines in the bluffs located directly to the north. This seawall is not intended to protect lives, it's true nature is to protect the two homes that sit on top and contribute to the premature erosion of adjacent beach areas. Both property owners (Geotz and Sylver) would like their fellow citizens to think that they are protecting beach goers, when in reality, they are simply trying to protect their own property from the ocean. They, themselves chose to live on a coastal bluff, therefore, they must be willing to live with the consequences of their decisions. Instead, the construction of this seawall has forever changed the natural environment and has negatively impacted nearby property owners and beach goers. For the reasons above, I urge you and the City of Carlsbad to not issue or adopt a Negative Declaration and instead, prepare an Environmental Impact Report (EIR) to thoroughly study the adverse effects of this project. Sincerely, Dustin Rosa 355 Carlsbad Village Dr. Carlsbad, CA 92008 TODD T.CARDIFF,ESQ. ATTORNEY AT IAW 121 BROADWAY SUITE 358 SAN DIEGO CA 92101 T 619 54S 5123 F 619 546 5133 caTdiff1aw@cox.net February 18,2010 Planning Department City of Carlsbad ATTN: Van Lynch 1635 Faraday Avenue Carlsbad, CA 92008 Van.lynch@carlsbadca.gov Delivered via first class mail and email jCITY OF CARLSBAD ! FEB 19 2010 RE: Geotz Seawall (CDP 09-13) Comments on Negative Declaration Dear Van Lynch, Thank you very much for your time and accepting these comments. I am a member of the Advisory Board of the San Diego Chapter of the Surfrider Foundation. The Surfrider Foundation is a non-profit, grassroots organization dedicated to the preservation of the world's ocean's waves and beaches. We have over 50,000 members in 90 chapters world-wide, including in Japan, Brazil, Australia and Europe. The San Diego Chapter is the largest and oldest chapter in the United States. First, we request the City of Carlsbad hold the comment period open for another twenty days. I was informed today that Dustin Rosa, one of the activists that opposed the project did not receive notice of the negative declaration/initial study. He was one of the original opponents of the emergency seawall permit and spoke at the City Council. His comments should be considered. In addition. I am informed and believe that the Coastal Commission has not had a chance to submit comments within the 20 day time frame, and has not been consulted regarding the impacts of this seawall. (Pub. Res. Code § 21080.3.) Clearly, the Coastal Commission, which has appeal jurisdiction over the seawall, and has original jurisdiction to the south and below mean high-tide line, should have been consulted regarding the impacts the seawall would have on State's lands. Secondly, it appears that the initial study is deficient in its review of the significant impacts of seawalls. Seawalls eventually destroy beaches through" a process called passive erosion. Passive erosion is defined as the loss of beach caused by fixing in place the back end of the beach on an eroding shoreline. The high tide continues to migrate landward, but the natural erosion of the bluff is stopped by the seawall. The dry sand area of the beach is squeezed and lost when the migrating high-tide intersects with the seawall. Eventually, as the beach continues to erode, there is no dry sand even at medium to low tides. This is especially disconcerting at the location of this project. The project is located just north of a public access stairway. The public will eventually lose access traveling north along the beach. While the seawall may not immediately block access, the eventual loss of the beach is a given, and will block off anything to the north of stairway. There is a significant impact on recreation. In addition to passive erosion, seawalls have "end effects" meaning that seawalls actually increase the erosion to the natural bluff at the end of the seawall. There is nothing in the initial study which describes these end effects and how it proposes to mitigate such effects. I also note that there is nothing in the initial study which describes the niitigationTor..theloss of sand Jhatwould jiormajly.bjs. contributed to the beach through erosion. However, it should be noted that all the current sand mitigation programs are not effective in mitigating the loss of beach. First, the SANDAG mitigation program is not guaranteed to put sand at the project site. In addition, such massive sand replenishment project cost 17 million dollars and was only effective at widening the beach for five years. This seawall must consider the impacts over the life of the structure. Finally, as indicated in my earlier correspondence, a cumulative analysis of the impacts caused by seawalls should be conducted. The loss of sand, beach access and wildlife habitat is significant. It is very important for the City to prepare an EIR to determine whether the risks to the beachgoers is so great that they wish to approve a seawall (as opposed to one of the many alternatives) that will destroy the beach. To aid in your analysis of potential impacts, I have attached a law review article published in 2007 by Meg Caldwell and Crag Segall in Ecology Law Quarterly. Meg Caldwell was chair of the California Coastal Commission and director of the Natural Resources Law and Policy Program at Stanford Law School. Please consider her analysis of seawalls. Sincerely, Todd T. Cardiff, Esq. 43 GeoSoils Inc. March 30,2010 Mr. Dean Goetz Mr. Marshal] Sylver 5323 Carlsbad Blvd Carlsbad, CA 92108 SUBJECT: Sand Mitigation Fee Calculation for Goetz Emergency Sea Wall, City of Carlsbad CDP 09-11 Dear Mr. Goetz and Mr. Sylver: At your request, GeoSoils Inc (GSI) is pleased to provide the foregoing sand mitigation fee ("SMF") calculation for seawall installed in front of 5323 and 5327 Carlsbad Boulevard, Carlsbad, CA. This calculation uses the guideline formula that has been employed by the California Coastal Commission for recent seawall projects in Solana Beach and Encinitas, California, Unlike those projects, because your seawall is located entirely on private property and significantly landward of both the mean high tide line and the high water mark, there is some question about the applicability of this formula in this case. That being said, my assignment is merely to describe the formula, place a value on its many variables, 1 and to undertake the math required to derive a dollar amount. We have done that here. I. The SMF Formula The California Coastal Commission employs the following formula as its guideline for determination of the SMF for seawall projects in Southern California: Sand Mitigation Fee = Sand Cost x Vt Sand Cost is the cost, per cubic yard of sand, of purchasing and transporting beach quality material to the project vicinity [$ per cubic yard]. Derived from the average of three written estimates from sand supply companies within the project vicinity that would be capable of transporting beach quality material to the subject beach, and placing it on the beach or in the near shore area. Vt is the sum of Vb, Vw> and Ve as further described below. Vt=Vb+Vw+Ve 5741 Palmer Way, Suite D, Carlsbad, CA 92010 wo s-6014 760-438-3155 GeoSoiis Inc. Vb is the amount of beach material that would have been supplied to the beach if natural erosion continued, or the long-term reduction in the supply of bluff material to the beach, over the life of the structure; based on the long-term average retreat rate, design life of the structure, percent of beach quality material in the bluff, and bluff geometry (cubic yards], Vb = (S x W x L) x [(R x hs) + (l/2hu x (R + (Rcu - R«)))]/27. Vw is the volume of sand to rebuild the area of beach lost due to long-term erosion (Vw) of the beach and near-shore, resulting in stabilization of the bluff face and prevention of landward migration of the beach profile; based on the long-term regional bluff retreat rate, and beach and near shore profiles (cubic yards). Vw = Aw x v Ve is the volume of sand to rebuild the area of beach lost due to encroachment by the seawall; based on the seawall design and beach and near shore profiles (cubic yards). Ve = Ae x v LEGEND S Fraction of beach quality material in the bluff material, based on analysis of bluff material to be provided by the applicant. W Width of the property to be armored (ft). L The length of time the back beach or bluff will be fixed or the design life of the armoring without maintenance (yr.). For repair and maintenance projects, the design life should be an estimate of the additional length of time the proposed maintenance will allow the seawall to remain without further repair or replacement. R The retreat rate which must be based on historic erosion, erosion trends, aerial photographs, land surveys, or other acceptable techniques and documented by the applicant. The retreat rate should be the same as the predicted retreat rate used to estimate the need for shoreline armoring. hs Height of seawall from base of bluff to the top, in feet. £ hu Height of unprotected upper bluff, from the top of the Bluff Retention Device to the crest of the bluff, in feet. 5741 Palmer Way, Suite D, Carlsbad, CA 92010 wos-wu 760-438-3155 GeoSoils Inc. RCU Predicted rate of retreat of the crest of the bluff, during the period that the seawall would be in place, in feet per year, assuming no seawall were installed. This value can be assumed to be the same as R unless the applicant provides site-specific geotechnical information supporting a different value. Res Predicted rate of retreat of the crest of the bluff, in feet per year, during the period that the seawall would be in place, assuming the seawall has been installed, This value will be assumed to be zero unless the applicant provides site-specific geotechnical information supporting a different value. v Volume of material required, per unit width of beach, to replace or reestablish one foot of beach seaward of the Bluff Retention Device; based on the vertical distance from the top of the beach berm to the seaward limit of reversible sediment movement (cubic yards/ft, of width and feet of retreat). The value of v is often taken to be 1 cubic yard per square foot of beach. If a vertical distance of 40 feet is used for the range of reversible sediment movement, v would have a value of 1.5 cubic years/square foot (40 feet x 1 foot x 1 foot/27 cubic feet per cubic yard), If the vertical distance for a reversible sand movement is less than 40 feet, the value of v would be less than 1.5 cubic yards per square foot. The value of v will vary from one coastal region to another. A value of 0.9 cubic yards per square foot has been suggested for the Oceanside Littoral Cell (Oceanside Littoral Cell Preliminary Sediment Budget Report, December 1997, prepared as part of the Coast of California Storm and Tide Wave Study). Atv The area of beach lost due to long-term erosion is equal to the long- term average annual erosion rate (R) times the number of years that the bluff will be fixed (L) times the width of the property that will be protected (W), in feet per year, and determined by the following formula: Aw = RxLxW Ae The encroachment area of the Bluff Retention Device which is equal to the width of the Bluff Retention Device (W) times its seaward encroachment (E) and is determined by the following formula: Ae = W xE. E Encroachment by seawall, measured from the toe of the bluff or back beach to the seaward limit of the protection (ft.) 5741 Palmer Way, Suite D, Carlsbad, CA 92010 wo s-eou 760-438-3155 GeoSoils inc. II. Application of SMF Formula to the Goetz Seawall Project The values for each of the SMF formula variables are set forth below, along with an explanation. Variable Value Discussion 65/100 The bluff is composed of two distinct soil materials. The lower few feet of the wall is Santiago Formation and the upper ~30 feet is Quaternary Terrace deposits. Samples of each of these materials were taken and analyzed for the percent sand. The Santiago Formation is primarily clay with about 30% sand. The Quaternary Terrace deposits are primarily sands with about 75% sand content. Using a weighted average across the bluff, the area of the relevant area of the bluff is approximately has a percent sand of 65%. W 85 feet The width of the property (bluff) armored is 85 feet, based upon survey data. The actual length of the seawall is longer because it is not straight but aesthetically curved to follow the natural bluff line. 75 years From an engineering perspective, and based on the training and experience of the undersigned, the design life without maintenance for this seawall is estimated to be 25 years. With reasonable maintenance, however, the seawall can last up to 75 years. R 0.16ft/yr The long-term bluff retreat rate is determined by looking at the changes in the bluff at the two subject properties, retreat rates on nearby properties, and the referenced 2006 United States Geological Survey (USGS) report. Retreat rates reported in site-specific geotechnical investigations [circa 1991) on nearby properties to the north range from 0.22 ft/yr to 0.4 ft/yr. These retreat rates were used to establish the bluff top setback requirement for new development at those properties. By contrast, however, the USGS report is a recent comprehensive report that covers the coast of California and specifically this location using survey data from as early as the 1890s through the present time. The USGS report shows that this particular section of bluff has not retreated over the last 115 years. This stability relative to other seacliffs in 5741 Palmer Way, Suite D, Carlsbad, CA 92010 wos-eou 760-438-3155 GeoSoils Inc. hs hu Rcu Res V Ae E Sand Cost 22 feet 11.5 feet 0.16ft/yr 0 0 0 0 $3/yd3 North San Diego County is likely due to the fact that this section is at the back of cove and significantly landward of both the mean high tide line and the high water mark. Figure 1 shows the USGS summary data plots and the location of the subject seawall. That being said, the bluff did fail in December 2008 prompting the emergency repairs. Using the USGS bluff retreat rate of 0 feet over the period from 1890 to 2006 along with the approximate 6 feet of retreat from the well documented failure in 2008, the actual retreat rate is calculated to be 6 ft over 120 years. This translates to an average annual retreat rate of 0.05 feet. That being said, the Coastal Commission has used 0.27 feet per year for other recent projects. Although dissimilar to these projects, to be conservative, we have chosen the midway point between the actual rate [0,05) and the Commission's number (0.27) to come up with 0.16 as the annual retreat rate for this site. The average height is based on direct measurements. This is taken from a direct measurement. This value is always assumed to be the same as R unless the applicant can demonstrate otherwise. This value is always assumed to be zero unless the applicant can demonstrate otherwise. This variable is not applicable in this case because the seawall is entirely on private property, and will likely remain so for the duration of its 75-year design life. This variable is not applicable in this case because the seawall is entirely on private property. That is to say there is no encroachment. This variable is not applicable in this case because the seawall is entirely on private property. That is to say there is no encroachment. Sand replenishment projects occur only a large-scale (i.e., in excess of 100,000 cubic yards), regional basis where sand is obtained through offshore dredging methods and deposited 5741 Palmer Way, Suite D, Carlsbad, CA 92010 wos-eou 760-438-3155 GeoSoils Inc. on the beach. To be effective, sand replenishment projects must be done a large scale as small deposits are more easily subject to erosion from wave action, wind, and rain. SANDAG's 2001 sand replenishment project utilized this methodology and put a massive volume of sand on the beach for approximately $2.10 per cubic yard. If performed today, this cost would likely be $3.00 per cubic yard. HI. Calculation Vb =CSxWxL)x[(RxhO + (l/2hux[R+[Rcu-Rcs)])]/27 =823 yds3 Ve = Aexv =WxExv = 0yds3 Vw -Aw xv =RxLxWxv = 0 yds3 V, Sand Mitigation Fee = Vt x Sand Cost, or 823 x $3 = 823 yds3 « $2,469. The opportunity to be of service is sincerely appreciated. If you should have any questions, please do not hesitate to contact our office. Respectfully submitted, GeoSoils, Inc. David W. Skelly MS, PE RCE#47857 Reference USGS 2006 "National Assessment of Shoreline Change Part 3: Historical Shoreline Change and Associated Coastal Land Loss Along Sandy Shorelines of the California Coast", Open File Report 2006-1219 5741 Palmer Way, Suite D, Carlsbad, CA 92010 wo s-6014 760-438-3155 TOPOGRAPHIC SURVEY OF A PORTION Of PARCELS Z & 3 OF PU 18236 AND POINSETTIA BEACH, UNIT I, liAP NO, 3C97 tsat era at* uru ur run amt FtWI£-*MOl 2 _ _,., — ..— I -—— — - I i< — ~— 3jx' "•/- ^*- • •"- 3 .«_.J— — • 5*.| 5 i -X // -IM - tioftniiroxiusi «ti«i ::&. IK1V* WAN KWt IM «*W SUMCWfSHK;»t MUCH, wnjy rot MI SJ»«T n tt»«C iCKH IMM WOS 0 WiEWO VH A *PC X ITT «u «to n H a*UK« tw n amur to «ii O*MI IXMI IP TO ecufo a fDUW f«A$S CM* STMfTD OiB-ll/11 Kti M (DflDC a KFH MOW CMlf. SUM QOWDB.HX . N nc sajsnrsi auauvit Or BE JWCKK UK PAitUM JWRCOil COPY AXELSON CORN 1220 N. COAST HIGHWAY 101, SUITE 120 Encinitas, CA 92024 760-271-2600 (VOICE) • 760-454-1886 (FAX) March 30, 2010 Van Lynch City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Re: Goetz Seawall, CDP 09-13, SUP 09-05 Dear Mr. Lynch: We represent Dean Goetz and Marshall Sylver with respect to the above-referenced project. Per the City's request, the engineer of record, David Skelly, MS, PE of GeoSoils, Inc., has calculated a sand mitigation fee, using the Coastal Commission's sand mitigation fee guideline formula. The sand mitigation fee formula and Mr. Skelly's calculations are described in his letter of even date. Based on this formula, the sand mitigation fee has been calculated to be $2,469. This does not include a credit for the approximately 150 cubic yards that fell to the beach in December 2008. However, the applicants respectfully reserve the right to include that in the total calculation at a later time if the circumstances deem that necessary. For the record, the applicants oppose the imposition of any sand mitigation fee on this project for a number of reasons. The primary reason is that the project is entirely on private property and the theorized impacts, if any, are merely to their own land. Unlike other cases where the beach and bluff are publicly owned, the applicants here not only own the bluff, they own the beach all the way to the mean high tide line. Accordingly, they should not be required to compensate the public for the value of property "it had no right to appropriate without payment." Ehrlich v. City of Culver City (1996) 12 Cal.4tfi 854, 883. The seawall merely retains the applicants' private property, including the sand contained within the bluff. The public does not have a right to this sand merely because this sand might gradually find its way onto their privately owned beach. Secondly, this fee, as calculated using the Commission's formula, requires an upfront payment for the total cost of all sand within the privately-owned bluff even though under natural conditions the sand would meter out of the bluff on an incremental basis. For this reason, the fee should either be discounted for present value or amortized over the life of the wall or permit, whichever is less. If you choose to discount the fee for present value, I believe that can be worked out between the applicants and City staff after the Planning Commission hearing with the Planning Commission's approval. Respectfully submitted, Jonathan Corn Van Lynch From: tom.m.cook@grnaii.com on behalf of torn cook {tcook@mpl.ucsd.edu] Sent: Monday, February 22, 20104:41 PM To: Van Lynch Subject: Re: FW: Geotz Seawall Comments Thanks for that info. Is this at 1208 Carlsbad Village Drive 6pm? On Thu, Feb 18, 2010 at 5:19 PM,, Van Lynch <Van.Lynch@carlsbadca.gov> wrote: > Mr. Cook., The Negative Declaration will be considered at a public hearing before the Planning Commission scheduled on March 3, 2010. > > Sincerely, > > Van Lynch > > Original Message > From: tom.m.cook@gmail.com [mailto:tom.m.cook@gmail.com] On Behalf Of > torn cook > Sent: Thursday, February 18, 2010 4:22 PM > To: Van Lynch > Subject: Re: FW: Geotz Seawall Comments > > Mr Lynch, > Thanks for the thoughtful reply and I appreciate the opportunity to > comment on this project. I'm still hoping you reconsider the negative > declaration, as seawalls interrupt natural processes mandatory to > maintain beaches, even if it is a small contribution relative to the > cell as a whole. > Regards, > Tom Cook > > On Thu, Feb 18, 2010 at 9:47 AM, Van Lynch <Van.Lynch@carlsbadca.gov> wrote: » Mr. Cook, The discussion seems to be the coastal process and the relationship sand has on the bluff erosion process. The project CEQA analysis comes down to whether or not the bluff erosion contribution to the littoral cell (environment) is significant or cumulatively significant or not in terms of CEQA. The project is not armoring an extensive section of coast, but 94 feet of coastal bluff and the analysis is that if that change or impact on the environment is significant or not. The seawall does inhibit the input of sand into the system, but at a rate or quantity that would not be considered significant (from my understanding of the information provided - and I'm not a coastal process expert by any means), 150 Cubic yards was estimated as the last mass wasting event and does not compare (in terms of CEQA significance) to 86,000 cubic meters per year (http://www.csc.noaa.gov/cz/2007/Coastal_Zone_07_Proceedings/PDFs/Poster_Abstracts/3150.Chena ult%20Grandy.pdf) or .2% (with cubic meter being larger than cubic yard and I did not convert). There is also not set a level of significance by which to determine significance as there is for other environmental factors. Carlsbad has put in place programs (opportunistic sand replenishment program) by which to add sand to the beach where opportunities arise from other development projects which mitigates the loss of sand through other means or natural processes. This program is to my knowledge is not meant to mitigate for other losses, but to take advantage of opportunities to secure material that qualifies for beach material when available. Sandag also has a sand replenishment program which is, probably the replenishment referenced in the study above and supplies much more sand. » Thank you for the references, its interesting reading and heips me to understand the sand transport processes. » » Sincerely, » » Van Lynch » » ..... Original Message ----- » From: torn. m.cook@gmail.com [mailto:tom.m.cook@gmail.com] On Behalf Of » torn cook » Sent: Wednesday, February 17, 2010 5:51 PM » To: Van Lynch » Subject: Re: Geotz Seawall Comments » » Mr Lynch, » I thank you for the quick reply to my comments. I do have a couple of » comments regarding the engineer's reply, » » I would like to ask the engineer to clear up my misunderstanding of » his comment on bluff erosion and its contribution to sediment within » the Oceanside cell. At first, the engineer states that bluff erosion » (I think he means the sediment contribution due to bluff erosion) has » increased in recent years, but then states there is little or no » contribution from bluffs (erosion). In my opinion, this statement is » based on conjecture and not actual studies or research. If his point » is that some years don't have an input of sediment due to bluff » erosion, then I'd like to point out that dry years have little to no » input of sediment from rivers. This is- the case regardless .of damming » of rivers, and part of what is accepted as "natural processes". » » Additionally, I'd like to point out recent work from Carla Chenault » Grandy and Gary Griggs from the University of California, Santa Cruz, » who show that due to beach nourishment, the average amount of » sediment within the Oceanside cell, is higher now than it was before » river damming occurred. Given this, I believe it is valid to make the » claim that the contribution of bluff erosion has not increased due to » the damming of rivers and coastal landscaping, as sediment input due » to beach nourishment offsets that removed from the system by dams. » » Please see: > > http : //www . esc . noaa . gov/cz/2007/Coastal_Zone_07_Proceedings/PDFs/Post » er_Abstracts/3150.Chenault%20Grandy.pdf » » Regards, » Tom Cook » » On Wed, Feb 17, 2010 at 9:47 AM, Van Lynch <Van.Lynch@carlsbadca.gov> wrote: >» Mr. Cook, The below is in response to your email regarding the Goetz Seawall project posting of the Negative Declaration. This response is mostly from the applicants consultant engineer. >» The contribution of littoral material due to bluff erosion will vary with changing beach width and wave energy. Bluff erosion has increased over the years as a result of damming of rivers and the hard-scape/landscape of bare land. In some years little if any bluff erosion occurs and therefore there is little or no contribution from bluffs. S3 >» The location of this seawail is at the back of the beach above the highest water elevation (USACOE jurisdiction). The wall is also entirely on private property. The bluff did substantially erode in December 2008 which led to the seawall construction. It should be noted that the primary emergency was to protect the beach going public. This immediate area is highly used by the public due to access and usable beach at most stages of the tide. >» >» In terms of active erosion, the seawall is a hard vertical structure just like the bluff. The wall will mechanically act like the bluff. In terms of passive erosion, it should be noted that the section of shoreline only has a thin veneer of sand which overlays cobbles and a wave cut platform. The cobbles and wave cut platform do not erode like beach sands, so the concept of passive erosion does not play as large a role as one may think. Also the location of the wall at the very back of the beach, over 50 feet back from the bluff line on the properties to the north and the State Park to the south. Please see attached photo taken after the latest large storm event. The photo does not show any signs of scour and you can see how the wall ties into the adjacent very resistant bluff base. >» >» Sincerely, >» >» Van Lynch >» >» Original Message >» From: tom.m.cook@gmail.com [mailto:tom.rn.cook@gmail.com] On Behalf >» Of torn cook >» Sent: Tuesday, February 16, 2010 7:52 AM »> To: Van Lynch >» Subject: Geotz Seawall Comments >» >» Mr Lynch: »> >» I would like to comment negative declaration of the Geotz Seawall. >» First, since I have not commented to you or the City of Carlsbad, my >» name is Tom Cook, I work as a programmer/analyst at Scripps >» Institution of Oceanography, with a group that does coastal >» oceanographic research called the Coastal Observing Research and >» Development Center. I received a MS in Physical Oceanography from >» University of Miami, which focused on coastal oceanographic >» processes, and I've been working in the field of coastal >» oceanography for over 10 years. I can provide my CV if you need. »> >» Public funds have been going towards maintaining beach width for >» years. This has been deemed a necessity by coastal municipalities >» and the state of California for economic health. It is inconsistent >» for the municipalities, like Carlsbad, to accept public funds for >» projects to widen the coast, but then allow the wishes of a private >» party to stop a major component of the beach making process by >» allowing the construction of another seawall. Seawalls starve >» adjacent beaches of the sediment they require to maintain the >» existence of a beach, which is a major part of the Southern >» California coast, and one that provides for the economic health of the region. >» >» In my opinion, the initial study ignores recent research which >» supports the concept that erosion of coastal bluffs is a major >» contributor to local beaches. Please see one example, "Coastal >» Bluffs Provide More Sand To California Beaches Than Previously >» Believed" »> (http://www.sciencedaily.com/releases/2005/10/051016085958.htm), >» which describes recent research from UCSD which has quantified the ) s>» amount of beach sand that comes from coastal bluffs. As the title of >» the article states., their research shows that the composition of >» beach sand within the Oceanside littoral cell, is heavily consists >» of sand from erosion of the bluffs. The researchers measured' the >» erosion of bluffs using state of the art instrumentation and >» techniques, which was used to estimate the composition of beach sand >» from various sources. Their results showed that bluff erosion >» provided 67% of the sediment that was present on the beach in the >» Oceanside cell. This estimate is greater than those found in »> previous studies , and is well accepted within the scientific community. »> Another issue that .was excluded from the Negative Declaration, is >» the erosion caused by the seawall itself. This can be broken into >» two categories, termed passive and active erosion. Active erosion >» refers to an increase in erosion due to wave reflection from the >» seawall, which may cause scour at the base of the seawall and to >» adjacent beaches near the sides of the seawall. Active erosion is a >» contentious issue, but it still warrants a mention in permitting these projects. >» Passive erosion is found along actively eroding coastlines, which >» applies to most of the California coast during this time of sea »> level rise. As the water level increases, a beach in front of an >» unarmored bluff will continue to exist due to the input of sediment >» from the erosion of the cliffs. When you fix the bluff with a »> seawall, the the increasing water level will cause the beach in >» front of the seawall to disappear, while the adjacent shoreline will >» continue to move landward. Therefore^, this (and every) seawall will >» rob the seaward beach of sediment. >» When you permit a seawall, you are allowing the wishes of the >» property owner to supersede those of the common good. Given >» increasing evidence of sea level rise and a municipality where it is >» easy to obtain a seawall permit, you can easily imagine that the >» coast will eventually turn into a long concrete wall, with little to >» no possibility for public access and recreation. And most >» importantly, no beaches can exist in this scenario. >» Please reconsider this declaration. >» Sincerely, >» Tom Cook »> San Diego, CA 55 Van Lynch From: Dustin Rosa [dustinrosa@sbcglobal.net] Sent: Thursday, February 18, 2010 3:56 PM To: Van Lynch Subject: RE: Negative Declaration for Goetz Seawall (Case No. CDP 09-13) Dear Mr. Van Lynch: As a concerned citizen and beach goer, I wanted to share the following comments regarding the Goetz Seawall in Carlsbad, California. This project is a significant nuisance to the natural environment and the countless beach goes who frequent Terramar Beach and therefore warrants the professional opinion of an Environmental Impact Report. Not only was the Goetz Seawall unnecessary, it has and will continue causing premature erosion of the cliffs and shoreline to the north and south. In fact, since the construction of the seawall, significant portions of bluff located directly to the north have either broken off or have been seriously weakened. If you visit the site, you will notice significant fractures/fault lines in the bluffs located directly to the north. This seawall is not intended to protect lives, it's true nature is to protect the two homes that sit on top and contribute to the premature erosion of adjacent beach areas. Both property owners (Geotz and Sylver) would like their fellow citizens to think that they are protecting beach goers, when in reality, they are simply trying to protect their own property from the ocean. They, themselves chose to live on a coastal bluff, therefore, they must be willing to live with the consequences of their decisions. Instead, the construction of this seawall has forever changed the natural environment and has negatively impacted nearby property owners and beach goers. For the reasons above, I urge you and the City of Carlsbad to not issue or adopt a Negative Declaration and instead, prepare an Environmental Impact Report (EIR) to thoroughly study the adverse effects of this project. Sincerely, Dustin Rosa 355 Carlsbad Villa.se Dr.•c1- Carlsbad, CA 92008 To DO T. CARD IFF, ESQ. ATTORNEY AT LAW 121 BROADWAY SUITE 358 SAN DIEGO CA 92101 T 619 546 5123 F 619 546 5133 cardifflaw@cox.net February 18,2010 Planning Department City of Carlsbad Aim Van Lynch 1635 Faraday Avenue Carlsbad, CA 92008 Van.lynch@carlsbadca.gov Delivered via first class mail and email RE: Geotz Seawall (CDP 09-13) Comments on Negative Declaration Dear Van Lynch, Thank you very much for your time and accepting these comments. I am a member of the Advisory Board of the San Diego Chapter of the Surfrider Foundation. The Surfrider Foundation is a non-profit, grassroots organization dedicated to the preservation of the world's ocean's waves and beaches. We have over 50,000 members in 90 chapters world-wide, including in Japan, Brazil, Australia and Europe. The San Diego Chapter is the largest and oldest chapter in the United States. First, we request the City of Carlsbad hold the comment period open for another twenty days. I was informed today that Dustin Rosa, one of the activists that opposed the project did not receive notice of the negative declaration/initial study. He was one of the original opponents of the emergency seawall permit and spoke at the City Council. His comments should be considered. In addition, I am informed and believe that the Coastal Commission has not had a chance to submit comments within the 20 day time frame, and has not been consulted regarding the impacts of this seawall. (Pub. Res. Code § 21080.3.) Clearly, the Coastal Commission, which has appeal jurisdiction over the seawall, and has original jurisdiction to the south and below mean high-tide line, should have been consulted regarding the impacts the seawall would have on State's lands. Secondly, it appears that the initial study is deficient in its review of the significant impacts of seawalls. Seawalls eventually destroy beaches through a process called passive erosion. Passive erosion is defined as the loss of beach caused by fixing in place the back end of the beach on an eroding shoreline. The high tide continues to migrate landward, but the natural erosion of the bluff is stopped by the seawall. The dry sand area of the beach is squeezed and lost when the migrating high-tide intersects with 51 the seawall. Eventually, as the beach continues to erode, there is no dry sand even at medium to low tides. This is especially disconcerting at the location of this project. The project is located just north of a public access stairway. The public will eventually lose access traveling north along the beach. While the seawall may not immediately block access, the eventual loss of the beach is a given, and will block off anything to the north of stairway. There is a significant impact on recreation. In addition to passive erosion, seawalls have "end effects" meaning that seawalls actually increase the erosion to the natural bluff at the end of the seawall. There is nothing in the initial study which describes these end effects and how it proposes to mitigate such effects. I also note that there is nothing in the initial study which describes the mitigation for the loss of sand that would normally be contributed to the beach through erosion. However, it should be noted that all the current sand mitigation programs are not effective in mitigating the loss of beach. First, the SANDAG mitigation program is not guaranteed to put sand at the project site. In addition, such massive sand replenishment project cost 17 million dollars and was only effective at widening the beach for five years. This seawall must consider the impacts over the life of the structure. Finally, as indicated in my earlier correspondence, a cumulative analysis of the impacts caused by seawalls should be conducted. The loss of sand, beach access and wildlife habitat is significant. It is very important for the City to prepare an EIR to determine whether the risks to the beachgoers is so great that they wish to approve a seawall (as opposed to one of the many alternatives) that will destroy the beach. To aid in your analysis of potential impacts, I have attached a law review article published in 2007 by Meg Caldwell and Crag Segall in Ecology Law Quarterly. Meg Caldwell was chair of the California Coastal Commission and director of the Natural Resources Law and Policy Program at Stanford Law School. Please consider her analysis of seawalls. Sincerely, Todd T. Cardiff, Esq. TODD T.CARDIFF,ESQ. ATTORNEY AT l&W 121 BROADWAY SUITE 358 SAN DIEGO CA 92101 T619 546 5123 F 619 546 5133 cardifflaw@cox.net Delivered via Overnight MailFebruary 27,2010 Planning Commission City of Carlsbad C/0 Van Lynch 1635 Faraday Avenue Carlsbad, CA 92008 RE: Opposition to Goetz Seawall COP 09-13 Honorable Planning Commission, Please accept these comments in lieu of my testimony for the March 3, 2010 hearing. I will not be able to attend the Planning Commission hearing, and would like to further comment on the project on behalf of both myself and as a member of the Advisory Committee for the San Diego Chapter of the Surfrider Foundation. A. The Public Must Have a Complete Record to Review this Project My first concern is the record. Attached to the staff report and initial study are only four letters: My letter, dated February 18,2010, Tom Cook's email dated February 16, 2010, Dustin Rosa's email dated February 18,2010 and Dean Geotz's letter dated December 23, 2008. Numerous additional submissions are missing. For example, upon receipt of the initial study on January 27, 2010,1 immediately wrote Mr. Lynch an email commenting on the initial study, and on the project. This email correspondence is part of the record and part of the public's comments on the initial study. It should be part of the record and packet submitted to the Coastal Commission. In addition, my email on January 27, 2010 contained an attachment regarding a study on the impacts of seawalls on shorebirds and shoreline marine organisms which came to the conclusion that seawalls have significant adverse impacts to the birds and marine organisms. [Jenifer Dugan and David M. Hubbard, "Ecological Response to Seawalls" 74(1] Shore and Beach 10 [2006].] This appears to be missing from the record. In addition, my letter of February 18, 2010 included an article by Meg Caldwell and Craig Segall, which discusses the impacts of seawalls. Carlsbad Planning Commission RE: Geotz Seawall February 27,2010 Page 2 of 11 on the shoreline and the applicable laws concerning seawalls. (Caldweil and Segall, "No Day at the Beach: Sea Level Rise, Ecosystem Loss, and Public Access Along the California Coast" 2007 Ecology Law Qtrly 533.) My letter submission also included a number of articles about the study by Scripps Scientists Young and Ashford which found that more than 50% of the shoreline sand supply came from bluff erosion. These enclosed attachments are missing from the packet being circulated to the public and planning commission. Also missing is my correspondence and the correspondence of others sent to the City regarding the proposed emergency permit and the impacts of seawalls. Incredibly, the City thought it was important to include Mr. Geotz's correspondence from December 23, 2008, but not the public's objections to the emergency permit. If there were any comments from the Coastal Commission on the emergency seawall, such comments should have been included as well. It is important that these materials are attached to the initial study and presented to both the public and the Planning Commission. As noted by the Supreme Court, The data in an EIR must not only be sufficient in quantity, it must be presented in a manner calculated to adequately inform the public and decision makers, who may not be previously familiar with the details of the project. Information scattered here and there in EIR appendices, or a report buried in an appendix, is not a substitute for a good faith reasoned analysis.... [Vineyard Area Citizens for Responsible Growth, Inc, v. City of Rancho Cordova (2007J 40 Cal. 4th 412, 442 (internal quotations omitted.) There is absolutely no reason that the standards for a negative declaration should be any different. The comments that I submitted, including the enclosures, should have been attached to the initial study for both,the public and the decisionmakers1 review. (Pub. Res. Code § 21003.1; Pub. Res. Code § 21005.) The Planning Commission must consider the adequacy of the negative declaration based on a review of the whole record. (Pub. Res. Code § 21080.] The current record appears to be improperly narrow. Carlsbad Planning Commission RE: Geolz Seawall February 27,2010 Page 3 of 11 B. The City Has not Properly Investigated the Impacts of Seawalls. Much to my disappointment, the City has not even performed a very basic investigation regarding the impacts of seawalls. There is no discussion in the staff report or the initial study about active erosion, impoundment loss, end effects (increased erosion to the adjacent bluff], and most importantly passive erosion. Passive erosion is described in a comprehensive book on the California Coastline by Gary Griggs, Ph.D., Director of the Institute of Marine Sciences: Wherever a hard structure is built along a shoreline undergoing long-term net erosion, the shoreline will eventually migrate landward behind the structure. The effect of this migration will be the gradual loss of beach in front of the seawall or revetment as the water deepens and the shoreline moves landward Although homes or other buildings may be temporarily saved, the public beach is lost. The process of passive erosion is a result fo fixing the position of the shoreline on an otherwise eroding stretch of coast and independent of the type of seawall constructed. As the amount of coastal armoring increases in California, passive erosion and the resulting loss of beach through placement of these protective structures are going to become increasingly significant. (Griggs, Patsch S. Savoy, LIVING WITH THE CHANGING CALIFORNIA COAST (2007] at pp.133-134.] Meg Caldwell, the former chair of the Coastal Commission, describes passive erosion this way: 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 Co! Carlsbad Planning Commission RE: Geotz Seawall February 27, 2010 Page 4 of 11 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, vital public space, and a landscape that is central to California's quality of life. (Caldwell and Segall, "No Day at the Beach: Sea Level Rise, Ecosystem Loss, and Public Access Along the California Coast" 2007 Ecology Law Qtrly 533), In addition, the City of Solana Beach, just 10 miles to the south, certified a Master EIR on seawalls, identified "Significant Unavoidable Impacts" caused by seawalls: "Continuous sand repienishment...would be the only feasible way to reduce impacts to recreation and lateral public access to less than significant levels." (Solana Beach Master EIR, Solana Beach Shoreline and Coastal Bluff Management Strategies, [Project No. 323530000], p. 6-1; See also 7-1, (identifying irreversible changes as "potential loss of recreational habitat"] Carlsbad already has significant coastal armoring. Rheinhard Flick, Coastal Engineer with the Department of Boating and Waterways, notes in his description of the Carlsbad Shoreline, "The 4,000-foot-long Carlsbad Seawall was built in 19S8 to protect the Coast Highway and underlying utilities." (Rhienhard Flick, "Dana Point to the International Border" in Griggs, Patsch S. Savoy, LIVING WITH THE CHANGING CALIFORNIA COAST (2007] at pp. 491-493.] The City must consider both the direct, indirect and cumulative impacts of the seawall. The current seawall must be analyzed in the context of this 4,000 foot seawall installed by the City of Carlsbad in 1988. There are numerous scientific articles which discuss the impacts of seawalls on the beach. The City must go out and do the proper research. I have attempted to point the City in the correct direction, but it is not the public's duty to perform the environmental investigation. (Sundstrom v. County of MendocinoC\QQ&} 202 Cal. App. 3d 296,311.) "CEQA places the burden of environmental investigation Carlsbad Planning Commission RE: Geotz Seawall February 27,2010 Page 5 of 11 on government rather than the public" (Id.] It is not Surfrider's job to prepare the proper coastal studies demonstrating the impacts of seawalls. To make faithful execution of this duty contingent upon the vigilance and diligence of particular environmental plaintiffs would encourage attempts by agencies to evade their important responsibilities. It is up to the agency, not the public, to ensure compliance with [the environmental control statute] in the first instance. [County of Inyo v. City of Los Angeles, 71 Cal. App. 3d 185 at 205 (quoting City of Davis v. Co/eman(Qth Cir. 1975] 521 F.2d 661, 678].] The City must perform its own environmental due diligence. Please prepare an EIR as required. C. Neither the Coastal Act, nor the Carlsbad LCP Permits Seawalls to Allegedly Protect the Public Beach. The pertinent portion of Carlsbad's LCP, states: Revetments, breakwaters, groins, harbor channels, 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. As a condition of approval, permitted shoreline structures may be required to replenish the beach with imported sand. (CMC§ 21.204.040(6].] Carlsbad's LCP essentially mimics the language regarding seawalls-in the Coastal Act, which states: Revetments, breakwaters, groins, harbor channels, 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 Carlsbad Planning Commission RE: Geotz Seawall February 27,2010 Page 6 of 11 protect existing structures or public beaches in danger from erosion and when designed to eliminate or mitigate adverse impacts on local shoreline sand supply. (Pub. Res. Code § 30235.) An LCP may be more restrictive than the Coastal Act, but it cannot be less restrictive. "The Coastal Act sets the minimum standards and policies with which local governments within the coastal zone must comply." [Yost v. Thomas {1984], 36 Cal. 3d 561, 572.) Thus, while the City Carlsbad may interpret its LCP to be more protective of significant coastal resources, it cannot interpret it LCP in a manner in conflict with the Coastal Act. In this case, the seawall was built to protect houses that were recently built and not entitled to a seawall under the Coastal Act or LCP. Under the Coastal Act, a structure is only entitled to a seawall if it is tn imminent danger from erosion and the impacts to the seawall are mitigated. Clearly, Geotz and Sylver, possessing homes that are more than 45 feet from the bluff edge, are not entitled to a seawall. Thus, they are attempting to justify protecting their backyard under the guise of a public safety issue. As discussed in Living with the Changing California Coast, "Seawalls and revetments are designed and built to protect property and structures on dunes, bluff, or cliffs and not to protect public beaches. To our knowledge, a seawall has never been built to protect or save a beach." [Living with California's Changing Coastline at p. 135.] It would be truly unprecedented if Carlsbad's LCP [or the Coastal Act] was interpreted in a manner that permitted someone to build a seawall under the guise of protecting the beach. Seawalls destroy beaches. It would make no sense to permit a property owner to build a seawall to protect the beach that will eventually be lost because of the construction of a seawall. In, addition, anyone could get a seawall, no matter how far back their existing structure was located, or how recently the structure was built, despite the requirements of section 30253, that new development not in any way require the construction of a shoreline protective device. [See also CMC § 21.204.110[B](8] & (15].] Carlsbad Planning Commission RE: Geotz Seawall February 27,2010 Page 7 of 11 Coastal Act section 30935 has never been interpreted in the manner that would permit a homeowner to allegedly protect the home based on the alleged threat to the public. As discussed by Charles Lester, the Deputy Director of North and Central California districts of the California Coastal Commission, [S]horeline protection structures such as seawalls or revetments shall be approved if an existing development is threatened by erosion, if the structure is the necessary response, and if the impacts to the local shoreline sand supply are eliminated or mitigated. For example, the law would not allow a seawall to be built for a threatened development if the development could be easily relocated out of harm's way. (Living with California's Changing Coastline at p. 139-140.] The Coastal Commission has not ever interpreted Section 30235 to permit a homeowner to build a seawall based on an alleged threat to the beach below. There are simply to many better and less impactful options for allegedly protecting public safety. D. The Findings Cannot Be Made to Permit the Seawall Because the Public Beach Will Eventually Destroy the Beach. Carlsbad LCP states: Provisions for the maintenance of any permitted seawalls shall be included as a condition of project approval. As a further condition of approval, permitted shoreline structures shall be required to provide public access. Projects which create dredge spoils shall be required to deposit such spoils on the beaches if the material is suitable for sand replenishment. Seawalls shall be constructed essentially parallel to the base of the bluff and shall not obstruct or interfere with the passage of people along the beach at any time. [CMC § 21,204.040 [emphasis added).] CaS Carlsbad Planning Commission RE: GeotzSeawall February 27, 2010 PagcSof H Considering the impacts of passive erosion and sealevel rise, it is doubtful that a seawall could be designed and mitigated to not interfere with public access at any time. In addition, Carlsbad's LCP further states, "Developments shall be conditioned to provide the public with the right of access to a minimum of twenty-five feet of dry sandy beach at all times of the year," [CMC § 21.204.060 (a][1 ].) There is no finding that the development has been conditioned to provide this kind of dry sand buffer. Nothing in the resolutions requires the project to maintain a 25 foot dry sandy beach for the life of the project. Quite frankly, once analyzed, it is questionable whether such finding could be made. It will be very expensive, if not impossible to maintain a 25 foot dry sandy area. Passive erosion will destroy the beach. In addition, the Resolution claims that an easement for public access burdens the property. (Doc No. 2000-0346365,] The seawall will reduce public access impacting the easement and is therefore inconsistent with such easement. The seawall application should be denied. E. The Project Was Never Necessary to Protect: the Public Beach. First of all, anyone who believes that Mr. Geotz built a $500,000 seawall to protect the public should have their head checked. This is a thinly veiled excuse for a seawall to protect the applicants' back yard. The project will likely never be approved by the Coastal Commission. Simpiy put, there are no existing structures in danger from erosion in this case. The Planning Commission needs to ask some very pointed questions to the applicants and their engineers. These include: 1. Did the bluff collapse in December of 2008 decrease the risk of a future significant bluff collapse? Carlsbad Planning Commission RE: Geotz Seawall February 27,2010 Page 9 of jj 2. Is it passible to reduce the probability of even a minor bluff collapse with less intrusive means (ie., grading the bluff to its angle of repose, upper bluff stabilization.] Undoubtedly, the applicant's engineers wilt be very vague and non-responsive. If they are honest, they will discuss the angle of repose and explain that, once a bluff collapses, it is less likely to collapse in the near future. Coastal bluffs erode in an episodic manner. The bluff will have very minor erosion for years and years, and then a bluff collapse will occur, as in December of 2008 in this case, where allegedly five feet of bluff collapsed. The collapses return the bluff to its approximate "angle of repose", which means that the top and bottom of the bluff are situated at such an angle that the soil and bluff material is not likely to continue to collapse. The fact that the bluff collapsed in 2008 makes it less likely that the natural bluff constitutes a danger to the public. It is highly unlikely that the bluff was a significant risk to the public to justify the emergency seawall in the first place. When was the last time that anyone was killed or injured by a bluff collapse below 5323 or 5327 Carlsbad Blvd? When was the last time that anyone was injured by a bluff collapse in the City of Carlsbad? How often are beach goers injured by bluff collapses in the City of Carlsbad? To my knowledge there has been no actuarial risk analysis of the chances that a beachgoer will be injured by a bluff collapse. Any risk analysis should consider the following facts: San Diego County has experienced five deaths from bluff collapses in 15 years. Three deaths have occurred at Torrey Pines State Beach, which has very high, loosely consolidated bluffs. One death occurred at South Carlsbad State Beach when a man was sleeping in a cave on the upper portion of the bluff, approximately 8 years ago. According to a Department of Boating and Waterways, 8 million people visit North County Beaches every year. Using simple math, what are the chances that any particular person is killed? More importantly, what are the chances of injury or death from this bluff (33 ft. high?] In addition, as indicated by the previous bluff collapse at the project site, most collapses occur in the winter, during storm events with periods of Col Carlsbad Planning Commission RE: Geotz Seawall February 27,2010 Page 10 of It high waves, in conjunction with high tides, when beach attendance is at a minimum, and access is very limited. A number of beach collapses occur at night, which also has very little beach attendance. While any death is regrettable and unfortunate, whether it is from a car accident, bike accident, skateboard or heart attack, the risk of such account must be taken into account and weighed against the consequences before taking action. There has been no risk analysis that has determined the statistical likelihood that anyone will be hurt by a bluff collapse on the beach below the Geotz and Sylver residence. Before the City condemns the beach to death, it should consider the actual [not perceived] risk of injury or death on the beach at Terramar Beach, CONCLUSION I respectfully request that the City prepare the proper analysis and environmental investigation with and EIR, and review this seawall in a manner that is open and fair to the public. The public must understand what it will be losing. The City should not attempt to hide the impacts. Prepare a proper risk analysis before making any judgment on this seawall, and consider the actual impacts caused by shoreline protective devices. Thank you for your time. Sincerely, Todd T, Cardiff, Esq. Enclosures: 1... Griggs, Patsch S. Savoy, LIVING WITH THE CHANGING CALIFORNIA COAST (2007). (Selected Excerpts] 2. Email from Todd T. Cardiff to Van Lynch (January 27, 2010.] Carlsbad Planning Commission RE: Geotz Seawall February 27,2010 Page II of 11 3. Jenifer Dugan and David M. Hubbard, "Ecological Response to Seawalls" 74(1] Shore and Beach 10 (2006). 4. Caidwell and Segall, "No Day at the Beach: Sea Level Rise, Ecosystem Loss, and Public Access Along the California Coast" 2007 Ecology Law Qtrly 533. 5. Todd T. Cardiff, "Conflict in the California Coastal Act: Sand and Seawalls", 38 Cal. W. Law Rev. 255 (2001 ] 6. Selected Newspaper Articles: A. Science Daily, "Coastal Bluffs Provide More Sand to California Beaches than Previously Believed" (Oct. 22, 2005] B. Terry Rodgers, "Sifting County's Shifting Sand" SignonSanDiego.com (Union TribuneKOctober 13, 2005] C. Christina S. Johnson, "The Making of a Natural Sandy Beach" North County Times (April 8, 2006] Exhibit 1 GARY GRIGGS ! KIKI PATSCH j LAURET SAVOY LIVING WITH THE CALIFORNIA COAST Figure 7.21 Almost all protective structures produce a visual impact. Photo by Gary Griggs and Kiki Patsch. should be spent in efforts to stabilize the position of an otherwise eroding.; coastline. The continued widespread reliance on protective structures and the'; controversies they generate result in part from the limited, ambiguous,1 •: and often conflicting policies set forth in the California Coastal Act of: 1976. The reason for part of this uncertainty is that at the time the Coastal. Act and the interpretive guidelines were written, the state was in the midst; of a 3O-year period of modest storm and wave climate; coastal erosion and El Nino events were not major concerns. Over the past several decades, • however, concern has increased regarding the direct impacts of seawalls or revetments on beaches. As the percentage of armored coastline has increased in recent years, the general public has become more aware of the visual and access impacts of shoreline armoring. As of 2000, some sort of armoring structure "protected" almost 30 percent of the coastline of Santa Cruz County, and 34 percent of the entire 234 miles of the combined coastlines of Ventura, Los Angeles, Orange, and San Diego counties. For anyone who frequents the beach, it is not difficult to notice the increasing amount of rock and concrete along the shoreline. In the 21 years between 1971 and 1992, the extent of armoring along California's coast increased 400 percent. Visual impacts are perhaps those noticed by most people. ' 130 LIVING WITH THE CHANGING CALIFORNIA COAST C7.ZZ Many seawalls—depending upon their height, length, and configuration, l^.as their location on the beach profile—will restrict cither vertical access to the lor horizontal access along the shoreline at high tide. Photo by Gary Griggs and ?t*^" ' ' Ithough these impacts are a somewhat subjective issue, there are numcr- isting structures that many would say detract from the natural ience they desire when walking along the shoreline (Figure 7.21). At $X>thcr extreme are the newer cliff stabilization projects designed to fprriic the natural rock that makes up the local cliffs and, where well done, f evdifficult to recognize. ;Many older large seawalls and revetments limit or restrict beach access |i.Eure 7-11); this is an area where the California Coastal Commission has j|(in extremely vigilant. There arc ways in which access can be built into "|walls, although this is far more difficult with large revetments. Beach RESPONDING TO COASTAL HAZARDS 131 132 Figure 7.23 A concrete panel wall has been used to protect the weaker terrace deposits at Lighthouse Point in Santa Cruz, rather than using riprap that would have extended to beach level and covered the beach (see Figure 7.24). Photo by Gary Griggs and Kiki Patsch, access will remain a concern and must be resolved in individual coastal armoring proposals. Where erosion of coastal cliffs provides a significant portion of the region's beach sand, armoring the bluff and halting or slowing erosion will reduce the sand supply. The perceived cumulative impact of seawalls on sand supply reduction led the California Coastal Commission to develop a policy in 1997 requiring a sand mitigation fee to be paid by property owners requesting permission to armor their particular bluffs. The amount of sand that would be removed or prevented from ending up in the beach or littoral system annually as a consequence of the construction of a seawall can be cal- culated if one knows the length of cliff to be armored, the height of the cliff, the average annual rate of cliff retreat, and the percentage of the material making up the cliff that is of beach sand size. Along the California coast, however, rivers and streams supply most of the sand for the state's beaches. A recent study, completed in 2002, of the Santa Barbara beach compartment (which extends from the Santa Maria River to Point Mugu) indicates that throughout the entire 144 miles of this littoral cell, erosion of the cliffs con- tributes less than i percent of the total beach sand supply. In the Oceansidc littoral cell, which extends from Dana Point to La Jolla, about n percent of the total beach sand along this region is supplied by clifTerosion. Reduction LIVING WITH THE CHANGING CALIFORNIA COAST $17.04 The placement of riprap will cover a large area of beach. Photo by Gary ^and Kiki Patsch. ach sand supply through armor emplacement is therefore a potential but the significance of this impact varies geographically depending important the erosion of the cliffs is in contributing sand to the ics of the particular cell. nply placing a protective structure on the beach will, depending on its ,,n.d shape, cover a given amount of beach sand (known as placement [I'jf this structure is a vertical, relatively narrow seawall, the amount of "i lost is very small. Some walls are built only on die upper portions of /.where they protect the more credible marine terrace sediments and ifbre don't impact the beach directly (Figure 7.23). On the other hand, if /etment is built on the beach, due to the height normally required to pre- fnt-wave overtopping and the slope necessary to develop a stable configu- ppn, the wall may extend 20 to 50 feet seaward, in some cases completely jnngthc usable beach (Figure 7.24). There are trade-offs in using riprap ^protect eroding cliffs. The ongoing erosion, which may threaten private ics or public infrastructure, can be temporarily reduced or controlled ig riprap, but the public beach is going to suffer a loss; the amount of loss jtt ninction of the size and footprint of the protective structure built. gAn additional seawall impact is termed passive erosion. Wherever a hard icture is built along a shoreline undergoing long-term net erosion, the 'dine will eventually migrate landward behind the structure. The effect migration will be the gradual loss of beach in front of the seawall or RESPONDING TO COASTAL HAZARDS 134 Figure 7.15 Passive erosion at Stillwcll Hail in central Monterey Bay. A beach stil! exists to cither side of the riprap where there is no armor, but the beadi in front of the riprap lias been lost. Photo by Gary Griggs and Kiki Patsch. revetment as the water deepens and the shoreline moves landward (Figure 7.25). This has also been called the peninsula effect because the armored area becomes a peninsula over time. Passive erosion has been a very con- tentious issue along the Atlantic Coast, where offshore barrier islands are migrating landward as sea level rises, except where the coastline has been fixed with seawalls. Passive erosion has also been recently documented in Oregon, Washington, and in the Hawaiian Islands. Although homes or other buildings maybe temporarily saved, the public beach is gradually lost. The process of passive erosion is a result of fixing the position of the shore- line on an otherwise eroding stretch of coast, and is independent of the type of seawall constructed. As the amount of coastal armoring increases in California, passive erosion and the resulting loss of beach through place- ment of these protective structures are going to become increasingly signif- icant issues. The potential for a seawall or revetment to cause or accelerate beach ero- sion has also been the source of considerable controversy over the past two decades. The general perception is that building an impermeable seawall along a shoreline will lead to wave reflection and therefore beach erosion in front of the seawall. A similar concern involves reflection from the ends or sides of walls; it is believed that the construction of a solitary structure will LIVING WITH THE CHANGING CALIFORNIA COAST increase me tauoi make intuitive sense, an 8-ycar-long study completed in 1996 that e impacts of several different types of seawalls and revetments fxljacent beaches in northern Monterey Bay indicated that although there cai moderate-scale winter impacts, there were no permanent effects beaches or cliffs studied. This study took place, however, along a «toh of coastline that has a high littoral drift rate and is not undergoing r net Jong-term erosion but docs undergo expected seasonal beach ;. While riprap revetments have often been judged by permitting :o be more permeable and therefore expected to have less impact on Siches tl'an "impermeable" seawalls, tin's has not been supported by field gejVations and surveying. Thus, the issue of the direct effects of seawalls reflection, and therefore beach erosion, needs to be evaluated in {•specific location. Similarly, if a structure is to be built directly against •ijjasc of an eroding bluff, the design or treatment of the end sections to be carefully considered so that wave energy will not be reflected to tie adjacent properties, thereby increasing erosion in those areas. are receiving more national attention ns their economic and reational importance continues to grow and as the issue of coastal ero- ;Or retreat begins to affect more public and private property and dcvel- iitient. The terms beach erosion and coastal erosion arc often used angcably in these discussions and in requests for government assis- icic and protection permits. There is an important distinction between ;e terms, however. Beach erosion refers to the permanent or long-term beach sand or reduction in beach width. Beach erosion can be Sliced or reversed if the natural supply of sand is returned or replenished, jastal erosion, on the other hand, is the retreat of the cliff or bluff edge Lis an irreversible, unidirectional process, at least within our lifetimes. jfttistics on beach usage and tourist dollars have often been used to justify icqastal protection." Seawalls and revetments are designed and built to pro- |«ctproperty and structures on dunes, bluffs, or cliffs and not to protect \PflbIic beaches. To our knowledge, a seawall has never been built to protect fir. save a beach. RETREAT OR RELOCATION OF A STRUCTURE ."'cniativc response to a threatened house or structure on an eroding or cliff is to relocate or remove the structure. There are many sites p^S the coast of California where there are no other reasonable or acccpt- &we alternatives. If the threatened property is large enough to nccommo- H!|ate the structure being moved back far enough to significantly extend its RESPONDING TO COASTAL HAZARDS 135 Figure 7.16 Ongoing failure oflaose biufTs at Padfica is beginning to threaten a large apartment complex. Photo by Gary Griggs and Kiki Patsch, lifetime, this should definitely be considered. The size, condition, and phys- ical setting of the dwelling are critical considerations that need to be assessed by a professional house mover and possibly a structural engineer. During the winter of 1983, as a result of 30 to 50 feet of rapid bluff retreat at Pacifica, a three-story building was moved away from its oceanfront site, as were 23 mobile homes (Figure 3.6). An adjacent row of bluff-top homes was also threatened by cliff erosion during the 1983 winter, but the decision was made to construct a revetment at the base of the highly erodiblc bluff (Figure 7.6). In the intervening years, specifically during the severe El Nino event of 1997-98, the revetment settled and collapsed, and failed to protect the bluffs from waves. Houses were undermined (Figure 3.8) and began to collapse, and before the winter was over, they were demolished (Figure 5.6). Here relocation would have been a better solution. A large apartment com- plex sits on the same eroding bluff a few thousand feet up coast and faces identical problems but without the option of relocation (Figure 7.26). The cost of moving a house may be far less than that of a major coastal protection structure or the cost of repair if nothing is done. In addition, there is no guarantee that a permit for a seawall or other type of protective structure will be approved, [f your parcel is not large enough to relocate the 136 LIVING WITH THE CHANGING CALIFORNIA COAST n^i- on-sitc, another parcel will obviously nave to DC purcnasea. ^cation may still be more economical in the long run, however, depend- n'fe on the magnitude of the erosion problem and the costs of providing rahB"tcrm erosion protection. Typical moving costs for a moderate-sized i&ucture may ^c ;n t|le rallge Of $2.4,000 to $32,000 (based on a 2,000- iSuare-foot house and 2003 moving costs of $ii-i6/sq. ft.). ^Relocation likely has not been seriously considered by most threatened nfront property owners simply because of their desire to preserve their Btuue and setting at any cost. The increasing frequency and magnitude of El jiijifio events and coastal damage since 1978, as well as a clearer appreciation ijEglobal warming and continuing sea-level rise, have altered our percep- tions about coastline stability and may lead more occanfront property own- »J'ihs well as permitting agencies to give relocation and retreat a higher q|cjrity in the future. The initial and recurring costs of providing protec- Jm under these conditions may eventually exceed the value of a structure Ifcithe cost of its relocation. It is important, therefore, to look at the real ;, and at the advantages and disadvantages of all responses to coastal fqsion. FUTURE Ittually every coastal community experiences the same dilemma: incrcns- (j coastal populations, existing and proposed oceanfront development, ris- mjgsea level, and a recent history of expensive natural disasters affecting the tal zone, with more predicted in the future. Whether it's nor'easters in £iv; England, hurricanes on the south Atlantic Coast, or El Nino events on £ Pacific Coast, we know that losses to oceanfront development will con- e to increase as coastal development intensifies and property values rise. [though there are no easy answers, the need exists for long-term, balanced folicics. We are going to have to look at sustainable solutions, which may be different from the approaches that have guided us for so long. DESPONDING TO COASTAL HAZARDS 137 CHAPTER EIGHT AN OVERVIEW OF CALIFORNIA'S COASTAL HAZARDS POLICY CHARLES F. LESTER INTRODUCTION The California Coastal Act is California's primary coastal hazards law. This law establishes two key policies for shoreline development. First, it requires that new development avoid coastal hazards if possible. Second, it specifi- cally allows shoreline protection structures, such as seawalls and rock revet- . merits, to be built for existing development that is threatened by coastal erosion, but only if there is no other reasonable way to protect the develop- ; ment. These policies reflect a basic objective to minimize the construction of shoreline protection structures because of their negative impacts on the • coastal environment, which include blocking public access to the beach, loss of beach area, degrading scenic views, and preventing the erosion of sedi- ments from the bluffe or cliffs that helps to maintain California's beaches. Although the Coastal Act is straightforward in concept, applying its poli- cies to development proposals has been challenging. Difficulties range from technical issues, such as methods for quantifying erosion rates and risks, to more basic human challenges, such as rational planning and regulation in a policy area characterized by emergency response. The private property along California's coast is also some of the most valuable in the world, which heightens the potential for political conflict when new shoreline developments are being considered. Coastal hazards policy involves high stakes, and nothing will provoke a clash between public and private per- spectives like a proposal to build a new seawall. IH'CALIFORNIA COAblAL HA^AKUi FRAMEWORK CALIFORNIA COASTAL ACT ft..-. " ••• .:|iflic California Coastal Act of 1976 requires statewide planning and regiila- ? tion for development in hazardous areas, including strict regulation of pro- 'ppscd shoreline protection structures, such as seawalls and revetments. ^Although the California Coastal Commission is the primary regulatory factor in this policy arena, local governments play an important role through >-the development of local coastal land use plans and ordinances. Hazard Avoidance for Now Development Coastal Act requires that new development minimize risks from coastal--.Sards. Section 30253 states in part: vclopmcnt shall: (l) Minimize risks to life and property in areas of high geologic, flood, ijdnd fire hazard. (2)Assurc stability and structural integrity, and neither create nor con- ^ttibulc significantly to erosion, geologic instability, or destruction of the site jffpr surrounding area or in any way require the construction of protective fftdevices that would substantially alter natural landforms along bluffs and fc- iis policy specifically requires that new development not be premised on ^construction of a shoreline protective device such as a seawall. Thus, sec- '30253 makes property owners assume the risks of developing along the t by requiring that new development be located and designed to be safe JHiput artificial means of protection from the forces of the ocean. This pirement is an explicit effort to stop the proliferation of seawalls, rcvct- and other shoreline structures that cumulatively degrade the coastline. ^Protecting Existing Development '*&. H^ Coastal Act also sets standards for when and how to protect existing Jsyeloprncnt from coastal hazards. Section 30235 states in part: pRevetments, breakwaters, grains, harbor channels, seawalls, cliff retaining walls, ||,tMd oilier such obstruction that alters natural shoreline processes shall be per - when required to serve coastal-dependent uses or to protect existing ires or public beaches in danger from erosion, and when designed to Pj^s ulate or mitigate adverse impacts on local shoreline sand supply. s'ji. |5jVccording!y, shoreline protection structures such as seawalls or revct- |tts shall be approved if an existing development is threatened by erosion, 138 CALIFORNIA'S COASTAL HAZARDS POLICY if the structure is the necessary response, and if the impacts to the local shoreline sand supply are eliminated or mitigated. For example, the law would not allow a seawall to be built for a threatened development if the development could be easily relocated out of harm's way. Impact Mitigation In addition to regulating proposed shoreline structures, the Coastal Act jl requires that any resource impacts of a new shoreline structure be fully mit- (1 igated. Section 30235 specifically addresses mitigation for sand supply •'?! impacts, but other Coastal Act policies protect public beach access, scenic viewsheds, natural shoreline processes, coastal and marine habitats, and '| shoreline recreational activities, such as surfing. For example, a proposed sj sloping revetment that covers up the public beach (Figure 7.24) may have to be redesigned as a vertical seawall to minimize beach encroachment. Visual :| impacts may have to be addressed through changes in the texture and color-'* of materials used in constructing a seawall (Figure 7.19). Local Coastal Programs The Coastal Act requires that local governments adopt local coastal pro-;| grams (LCPs). The act recognizes that local governments remain on frontline of coastal resource protection, and that they are the central actors;| in local land use planning and regulation. LCPs must include policies and;! ordinances that reflect the Coastal Act requirements, and the Coastal,^ Commission is responsible for reviewing and certifying LCPs as consistent with the Coastal Act. Once an LCP is certified, much of the CoastalJ Commission's responsibility to regulate new coastal development in that| city or county through a permitting process is delegated back to the local| government. An LCP will typically identify minimum cliff- or bluff-top setbacks ; procedures to ensure that new development is not located in a hazardoUS|| area. For example, the Santa Cruz County LCP has detailed criteria : development on coastal bluffs and beaches, including requirements that development demonstrate the stability of the site, in its "pre-developmertt; condition," for a minimum of 100 years as determined by either a gcologt-,: cal hazards assessment or a full geological report. Development must be s?t| back from the bluff edge a minimum of 25 feet. LCPs should also includes standards for approving new shoreline structures, and the Santa Cru| County LCP has detailed rules that limit construction of shoreline protcC| tion structures to situations where there is a "significant threat" to an c: ing structure or where adjacent parcels arc already similarly protecte<| Consistent with Coastal Act section 30235, the LCP also requires that ^ LIVING WITH THE CHANGING CALIFORNIA COAST pj.ppljcat.ions for shoreline protection mciuciu a coinprcnt.-ii.sivc mim/aia ui ^Alternatives to a shoreline protection structure, including an evaluation of ^location or partial removal of !hc threatened structure. jwj -Finally, LCPs should include requirements for impact avoidance and i. For example, the Santa Cruz County LCP specifically requires shoreline protection structures not "reduce or restrict public beach i, adversely affect shoreline processes and sand supply, adversely recreational resources, increase erosion on adjacent property, create ifa.significant visual intrusion, or cause harmful impacts to wildlife or fish "liiibitat, archaeological or paleontologic resources." The LCP further '||(juires that shoreline protection structures use building materials that " id with the color of natural materials in the area and meet approved peering standards, that construction impacts be minimized, and that ilications include a permanent monitoring and maintenance program line structure. are a critical component of the California policy framework for feline development. They provide valuable local guidance for applying [^general requirements of the Coastal Act, particularly for locating and ling new development. In practice, though, most shoreline protection ire proposals are reviewed by the Coastal Commission because they •fcften located in the commission's retained original permit jurisdiction, ' fcindudes tidelands between the mean high and low tides. In addition, 'pastal Commission has appellate authority over locally issued coastal (opment permits along the shoreline.iV •' |V JIER FEDERAL AND STATE POLICY Bother federal and state governmental agencies may also be involved in management of development in hazardous coastal areas and in the reg- ion of proposed shoreline protection structures. Because of the com- ply of the regulatory environment, close coordination and cooperation Jng public agencies and private project proponents is important to ~*~ve implementation of coastal erosion policy. AGENCIES AND PROGRAMS ||;°T the more significant federal programs influencing California's ^.hazards policy is the National Flood Insurance Program (NFIP), pemented by the Federal Emergency Management Agency (FEMA). This gffni provides federally backed flood insurance for property in haz- , if the community in which the property is located has adopted pprehensive flood management program designed to minimize flood fS>;- • ife CALIFORNIA'S COASTAL HAZARDS POLICY 141 142 risks through land use planning and regulation. Federal law sets specific standards that must be met in these community programs, such as ensuring that the lowest floor of all new structures is elevated to or above the base flood elevation as estimated for a mo-year storm event. In practice, these standards are often reflected in LCPs as requirements for locating and designing new development in hazardous areas. Because the NFIP provides significant financial incentives to private development interests through federally subsidized insurance, the program directly influences develop- ment trends. Without the availability of hazard insurance, the value of coastal property would no doubt be reduced, which might in turn reverse the trend toward increased property investment in hazardous areas. The U.S. Army Corps of Engineers is another important federal agency in coastal management. The Corps is potentially involved as an applicant in the actual construction of shoreline structure projects, and also has regula- tory responsibilities for projects that affect U.S. navigable waters. In addi- tion to the Army Corps, the federal Marine Sanctuary Program within the National Oceanic and Atmospheric Administration (NOAA) is involved in the regulation of shoreline structures, such as along the Central Coast of California, where the Monterey Bay National Marine Sanctuary has author- ity over projects that may alter the seabed of the sanctuary. The MBNMS works closely with the California Coastal Commission to integrate its con- cerns into the permitting process of the commission. Finally, depending on the impacts of specific projects, other federal agencies that may be involved in coastal erosion regulation include the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, both of which protect endangered and threatened species found in the shoreline environment. STATE AGENCIES AND PROGRAMS In addition to the California Coastal Commission, several other state agen- cies play an important oversight role for development along the shoreline. The California State Lands Commission (SLC) may be involved if a pro- posed structure would be placed on state lands, which are generally consid- ered to be those tide and submerged lands between the ordinary high water mark, or mean high tide, and 3 nautical miles out to sea. When a project is proposed or approved on state lands, the proponent must get SLC approval and rnay be required to enter into a lease for the ongoing use of state lands. Usually, however, the SLC docs not require a lease, and it may not require a permit, given the uncertainty in establishing the boundary between private and stale lands. Other state agencies that may be involved in shoreline structure propos- als, depending on the potential impacts of a project, include the Regional LIVING WITH rite CHANGING CALIFORNIA COAST Quality Control Boards and the Department of Fish and Game. The ffcaiifornia Department of Boating and Waterways may also play an impor- it role in the review, planning, design, funding, and construction of protective works funded by the state. frj IMPLEMENTATION ISSUES i*{fjie Coastal Commission and local governments have permitted thousands 'i of new developments along the California shoreline since 1976, the vast y of which have been single-family homes. They also have approved fiiany new shoreline structures to protect existing development. For cxam- le, a 1995 commission study found that over i linear miles of new coastal Armoring had been approved in Santa Cruz County between 1978 and 1993. die Malibu shoreline, nearly 3 miles of new armoring was approved itween 1978 and 1996. Many more repair and maintenance projects have teen approved for existing seawalls and revetments. The Coastal irnmission infrequently denies a proposed development, and the major- ty' of its effort is focused on crafting conditions for approval that cither iiodify project designs or require other mitigations to address the impacts the proposal. In Malibu, for example, 85 percent of the proposed shorc- te armoring projects were approved between 1978 and 1996. The high approval rate for shoreline structures is not surprising, given tthc Coastal Act says that shoreline protection structures "shall be per- tted" when necessary to protect existing development in danger from ision. Still, few are enamored of the proliferation of seawalls and revet- ,ts and their significant impacts on the public beach resources and nat- ttal landforms of California's coast. The approval of new development in .Qicline locations, or the consideration of a new shoreline protective cc, is not taken lightly by the commission or the public. At the same , California's coastal real estate is some of the most desirable property lhe world, and substantial investments have been made in residential and commercial developments. Most of the coastal erosion policy challenges raced by the commission and local governments are rooted in this basic ten- between the desire of the public to maintain and protect the natural coast, and the desire of private property interests to protect omes and investments. tl KQEOI.OGICAL UNCERTAINTY-. EVALUATING L EROSION RISKS &£<: assessment lies at the heart of Coasta! Act policies to locate new devel- opment out of harm's way, and to limit the construction of new shoreline CALIFORNIA'S COASTAL HAZARDS POLICY 1-13 protection structures. LCPs typically require that new development be set back far enough from the bluff edge to ensure its safety for some identified "economic life," usually from 50 to 100 years. To do this, geological reports are needed to identify the erosion rates and risks at specific coastal loca- tions. Similarly, the decision to approve a shoreline structure turns first and foremost on a finding that existing development is "in danger" from ero- sion. Unfortunately, geological risk assessments are subject to significant uncertainty and interpretation, making it difficult to guarantee that new development will indeed be safe without the need for shoreline protection over its life. The case of the Cliffs Hotel in the City of Pismo Beach is a good exam- ple of this problem (see CCC Appeal A-3-PSB-98-O49). In 1983 the Coastal Commission approved a permit to build the Cliffs Hotel on a 75-foot-high cliff. Based on the applicant's geological analysis, which established the ero- sion rate at the site at 3 inches per year, the hotel was required to be set back 100 feet from the cliff edge, which the commission found to be more than adequate to provide the hotel with 100 years of stability. The Commission further required that the cliff-top area and beach below be dedicated for public access, and prohibited any future development in this setback area except for public access improvements. As with much of the shoreline development that the commission had approved, the agency also required that the Cliffs Hotel property owners acknowledge and assume the high risks of developing on the cliff-top location. The hotel was subsequently built and opened for business (Figure 8.1). As early as 1996, however, the Cliffs Hotel owners sought approval of a revetment from the City of Pismo Beach under the certified LCP. The stated purpose of the revetment was to protect a sewage-holding tank that had been built in the protected easement area, contrary to the original approval for the hotel. After the City approved the proposed revetment, the project was appealed to and denied by the Coastal Commission as inconsistent with both the LCP and the prior restrictions placed on the hotel development. Soon after this project denial, however, the City of Pismo Beach approved an emer- gency permit for the Cliffs Hotel to construct a revetment in anticipation of the 1997-98 El Nino, and rock was placed on the beach below the hotel with- out commission review. The required follow-up permit for this emergency revetment approval was eventually appealed to and heard by the Coasts! Commission, which again denied a permit to construct die revetment. Ultimately, the commission prevailed in litigation and was able to compel the removal of the revetment and restoration of the beach below the hotel. Although there were a number of difficult issues with the proposed Cliffs Hotel revetment project, including the fact that the rock had been placed in 144 LIVING WITH THE CHANGING CALIFORNIA COAS1 j|Figurc 8.1 The Cliffs Hotel in the city of Pismo Beach. Photo © 2001-1004 Kenneth 3'atld Gabriclle Adclrnan, California Coastal Records Project, www.Californiacoastline.arg. eviously deed-restricted setback areas, one of the main issues that the 'commission addressed was whether the Cliffs Hotel was actually at risk ;6pm cliff erosion. The applicants asserted that the hotel was indeed at risk, ittsed on an evaluation of new geological data and an estimated erosion rate of 4 feet per year, as opposed to the 3 inches per year estimated at the time fif the original approval of the hotel. The commission evaluated the geolog- data somewhat differently, noting that the applicant's latest erosion s.. . - were based on an episodic loss of 6 feet of bluff averaged over an 18- |inonth period. Naturally, this led to an exaggerated erosion rate. In addition I'to; this variability in estimates, the commission noted that even with acccpt- i^ance of the revised erosion rate, the hotel would not be directly threatened f:fpr another 19 years, leading the commission to conclude that there was no ||!Jmminent "danger" to the hotel. The commission's review of the Cliffs Hotel and proposed revetment iiproject illustrated the variability that is often encountered in geological cal- r estimates of bluff retreat rates. Table 8.1. adapted from the corn- Cliffs Hotel findings, summarizes the various estimates that had iPeen made through the Cliffs Hotel project history. This type of variability uncommon in the world of geological consulting, and much of it is to technical difficulties in estimating erosion rates. Problem areas Delude the scale, resolution, and time span of the stereo aerial photographs CALIFORNIA'S COASTAL HAZARDS POLICY 145 TA6LE 8.1 CtlFFS HOTEL RETREAT RATE GEOTECHNICAL REPORT ESTIMATED RETREAT RATE SOONEST THE HOTEL WOULD QE UNDERCUT Cliffs Hotel original geotechnical report supporting 100-foot setback 1998 consultant report and 1979 draft EIR report for the area Cliffs Hotel geotechnical report for A-3-PSB-96-100 seawall project (denied 12/96) Long-term documented erosion since 1955 at the Cliffs Hotel site Cliffs Hotel emergency permit geotechnical report adjusted for seasonal accuracy Cliffs Hotel emergency permit geotechnical report in support of city revetment approval 3 inches per year 312 years 12 inches per year 13 inches per year 14 inches per year 2.1 feet per year 4 feet per year 78 years 72 years 67 years 37 years 19 years used; the skill and experience of the interpreter; the methods used to mea- sure die position of the cliff or bluff edge; and the complexities of local geo- logical conditions and crosional processes. For example, the likelihood of large episodic cliff collapse events, which can happen instantly in the case of a rockfall or extend over the course of a single severe storrn season, compli- cates the calculation of long-term average cliff retreat. Apart from technical challenges, the uncertainties inherent in calculating iff or bluff erosion rates has meant that geological analyses are vulnerable to interpretation by the consultants and geotechnical experts who are typi- cally involved with shoreline projects. This vulnerability works against the policy objective of ensuring that development is restricted to safe locations in order to avoid the need for shoreline protection. In another commission permit appeal, a new cliff-top home was approved by the City of Pismo Beach in 1997, with a setback based on the consultant's erosion rate estimate of 3 inches per year. Virtually before the paint was dry on the new house, however, the homeowner was pursuing a seawall to protect the house based on new geotechnicat evaluations arguing that the erosion rate at the site was closer to 2 feet per year (based on an epISOCUC CrOSlOn events kJUU d ic-iivcidgm^ ui <n-tu,u I.IIIL icuc.iL -?'j over time). A seawall was eventually approved by the commission to protect :. the now "existing" house, a mere six years after the house had been "'approved (CCC Appeal A-3-PSB-O2-oi6). \ In recognition of the problem of geological uncertainty in the dciermi- -•' .nation of erosion rates, and the potential abuses of the geological or gco- V technical evaluation process, the commission has begun to impose a more v rigorous version of the "assumption of risk" condition than it lias histori- ''.'•-• cally imposed on coastal developments. This condition requires that '•• landowners agree to a permit condition and associated property deed f. restriction that prohibits future shoreline protection structures for the v -development being approved. Although it remains to be seen how this ^restriction will fare in future legal challenges to its application, the approach '^''effectively requires the landowner to assume the risks of coastal develop- by agreeing to abide by the initial geological determination that a pro- posed building site will be "safe" for a stated period of time, without the * for a seawall or revetment. IS AN EXISTING STRUCTURE? jpSiitcc 1976 the Coastal Commission has had to decide what constitutes an ^"existing structure" for purposes of Coastal Act section 30235. Early in its llhistory the commission drew a clear distinction between primary struc- ^tures, such as residences or commercial buildings, and secondary or acccs- iipry structures, such as a bluff-top gazebo or a storage building. This was jfdone to make clear that seawalls and revetments would not be approved to Iprotect just any structure, but only those that represented a significant and&''''fjprimary use of land, such as a private home. A different challenge has arisen in the consideration of existing develop- g.nients that are not clearly "structures." Some private property owners feel pSlat shoreline protection should be available for the backyards that sit ||jt>etween their homes and the cliff edge. Questions also have been raised |g about whether a golf course is a structure for the purposes of section 30235, & and whether trails and other "nonstructural" public access features, such as g^:bluff-top public open space, should be considered structures worthy of ""^shoreline protection. S|}..-Thc biggest question concerning existing structures, though, is whether i that was built after 1976 should be considered to be "existing," C^nd thus eligible for shoreline protection under section 30235. A strong case <>!/?an be made that Coastal Act sections 30253 and 30235 should be read Ipogether as establishing a firm date—January i, 1977—after which new t is not eligible for shoreline protection. Development that was 146 LIVING WITH THE CHANGING CALIFORNIA COAST CALIFORNIA'S COASTAL HAZARDS POLICY 107 in existence as ot the date that the Coastal Act became lavv, it is argued, should be considered "existing development;" whereas development •)! approved and constructed after this date would necessarily have had to have been found consistent with section 30253, and thus should not have been premised on the need for a future shoreline protective device. The commis- sion generally has not implemented the Coastal Act in this way, however, | and in some cases has approved shoreline protection for development that vl was approved after 1976, under the theory that it was "existing" development at that time and thus is protected under section 30235. This weaker inter- pretation of the Coastal Act has worked against the policy objective of lim- iting the approval of new shoreline structures. THE ECONOMIC LIFE OF STRUCTURES AND "PLANNED RETREAT" Most LCPs rely on minimum cliff- or bluff-top setbacks to ensure that new development is located in a "safe" place. The typical approach is to estimate the erosion or "retreat" rate at the development site and then cal- culate the distance that would guarantee the safety of the structure for a given period of time. This time is usually set somewhere between 50 and 100 years, which represents the likely economic life of the project. In the- ory, this ensures that no new shoreline structures will be built at the loca- tion of the new development for the life of the project. And once the project reaches the end of its economic life (and is presumably removed), a new project would also have to be set back safely and not be allowed to have a shoreline structure. Overall, this approach should support a system of "rolling" setbacks or "planned retreat" from California's eroding coast- lines, at least in those locations that were undeveloped when the Coastal Act was adopted. In practice, planned retreat has proven very difficult to implement. In addition to the already discussed difficulty of accurately projecting cliff or bluff retreat rates, which may lead to inadequate initial setbacks, a more fundamental problem with this approach is the assumption that structures have an economic life in the first place. The Coastal Commission has only been in existence since the 19705, so it does not have any experience with whether structures approved under the "set back for economic life" approach, will actually be required to be removed at the end of the originally assumed economic life. The commission docs have experience, however, with redevelopment trends in the coastal zone, which suggest that aging structures do not really die so much as metamorphose into "new and improved" structures in the same place. Thus, an increasing challenge along the coastline is how to regulate the redevelopment of buildings that, under planning unu xuunig uom-ciji^, nu^m. u^ ...j,,.,.^.^-. .. .. Iforming" because they are not set back sufficiently from the bluff edge, or -because they have shoreline structures that predate enactment of the fCoastal Act or an LCP. This problem is particularly vexing for those interested in pursuing v"planncd retreat" as a strategy in eroding urbanized areas. Although many S LCPs have ordinances that require nonconforming structures to meet cur- ? rent regulatory standards when they are being redeveloped, the requirement is usually triggered only beyond some threshold level of redevelopment. For prexample, reconstruction of a building close to a bluff edge in the same loca- ;*tion may be allowed as long as no more than 50 percent of the exterior or ^'interior walls arc altered or reconstructed in the process. Similarly, some 'minimal expansion in building size might be allowed without the owner fjiaving to bring the entire building into conformance. Thus, it is not ^uncommon to see nonconforming structures essentially be redeveloped, ^through progressive changes that incrementally comply with the zoning iodes. Over time, an old structure is rebuilt, and nonconforming bluff set- -backs or old seawalls remain unchanged. Ultimately, preexisting urban illevelopment patterns ensure that existing shoreline armoring will remain, |svhereas new shoreline structures will be needed for development that effec- tively never retreats to a safe setback distance. It is particularly difficult to .^ required setbacks and "no seawall" provisions in urban areas Ifthat are substantially built out and already protected by armoring. It also seems unreasonable to some to deny the last few unprotected properties in an urban area the same protection enjoyed by the rest of the neighborhood. iThe commission has recognized this situation in the past through imple- < mentation of a "string-line" setback method—essentially allowing infill development to be located at a distance from the bluff consistent with adja- ^ cent existing development setbacks, regardless of the hazards. Notwithstanding the difficulties of implementing coastal erosion policies in urban areas, there is renewed interest in planned retreat in California. In 2.003 the California Resources Agency released a draft policy for coastal ero- sion that emphasized the need to avoid new or modified development in hazardous areas, as well as the need to relocate or even eliminate threatened Existing coastal development (where feasible). Unfortunately, due to the state • budget crisis of 2003-4, this draft policy was never finalized or implemented. Local communities such as Solana Beach arc debating new rules to imple- ment planned retreat. They are struggling with die question of whether a planned retreat policy would result in an unconstitutional taking of private property. Some argue that prohibiting substantial redevelopment in haz- ardous locations is a taking of private property because it would interfere 148 LIVING WITH THE CHANGING CALIFORNIA COAST CALIFORNIA'S COASTAL HAZARDS POLICY with a reasonable investment-backed expectation to redevelop the property. Others argue that property owners with an existing use of land are not enti- tled to more development, particularly if it means the degradation of public resources—the beach, for example—by the often associated seawall or revet- ment. This legal issue is a challenging one. PLANNING THROUGH EMERGENCY RESPONSE A significant amount of permit activity for shoreline structures occurs under emergency or extreme winter conditions. Studies of coastal develop- ment trends in the Monterey Day region illustrate how most of the new and expanded riprap on beaches was placed during significant storm years, par- ticularly the El Nines of 1978-79 and 1982-83. Commission data clearly shows spikes in permit activity associated with these periods as well as the 1997-98 El Nino. Emergency situations typically do not allow for adequate project review to confirm consistency with the Coastal Act or LCPs, and most emergency shoreline projects involve the placement of riprap on the beach with varying degrees of attention to design and impact mitigation. In some cases, emergency shoreline structures have even been placed on top of previously required public access dedications. Unfortunately, once riprap is placed on the beach, it becomes very difficult to either remove it or require alternative shoreline protection design. The Coastal Commission's regulations define an "emergency" as "a sud- den unexpected occurrence demanding immediate action to prevent or mitigate loss or damage to life, health, property or essential public services." Applying this definition is difficult, particularly when an emergency permit request is being made during a major storm event. Emotions are running high, and given the lack of time to address important planning questions, such as the real risks to the structure, or the proper emergency response, pressures bear on the commission and local governments to take a cautious approach and allow the emergency shoreline structure. After the storm has passed, it may become apparent that the risks were not as great as originally perceived, or that the response went well beyond that needed to address the emergency event. The commission is also subject to pressure to give emer- gency approvals for revetments in cases where, it is argued, there is insuffi- cient time to analyze alternatives or to design and build a more appropriate shoreline protective device before the next big winter storms, or where funding would be lost if approvals are not given. These so-called emergen- cies are really planning failures on the part of the project proponent. Implementing rational coastal hazard or protection policy is particularly difficult in areas where local governments themselves have significant stretches of public land along the coastline. For example, the cities of ,, ,- Figure 8.2 Riprap placed under emergency conditions nlong the West Cliff Drive area |f|;j-of Santa Cruz during the 1997-58 El Nino. Photo €> 2001-2004 Kenneth and Gabricllc Hi. iAdclman, California Coastal Records Project, www.Catiforniaco3stiinc.org. fcCarmcl-by-the-Sca and Santa Cruz have significant public access to the i|ji shoreline and also cliffs that are subject to erosion. Although great efforts j4\-have been made by both communities to protect these resources, responses ||have sometimes occurred in an ad hoc fashion, through emergency response. jg^Along West Cliff Drive in Santa Cruz, significant amounts of riprap have p'been placed on pocket beaches through emergency permitting (Figure 8.2). prlhcsc revetments protect cliff-top recreation' areas, but they have also Jjferesulted in the cumulative loss of beach area and impacts to the scenic char- H acter of West Cliff. In recognition of this dilemma, the City has an LCP pol- ^Is'fey that requires a comprehensive shoreline management plan to better |![;iint!cipate and reconcile the competing coastal resource issues along West feCliff For example, such a plan might identify those areas where relocation or *,;.i.' . £&!v redesign of bluff-top amenities might be feasible and preferable over the long p.run to the placement of rock on the beach below. Similarly, the plan could |Hidentify those areas likely to need shoreline protection in the near future; and '^..the planning, design, and funding of vertical structures that would minimize encroachment and aesthetic impacts might be pursued well in • of the inevitable winter storm events and associated erosion. -. Comprehensive coastal protection plans require considerable financial I resources, however, and it is not easy for local governments to : such efforts. The lack of comprehensive planning and funding for 150 LIVING WITH THE CHANGING CALIFORNIA COAST CALIFORNIA'S COASTAL HAZARDS POLICY 15 more expensive, tailor-made erosion responses leads to a situation where the easiest and least expensive response for local governments is to place rock or riprap in those locations where bluff-top amenities are about to suc- cumb to coastal erosion. More generally, the problem of emergency shore- line response highlights a deeper tension in the Coastal Act between die need to avoid shoreline protection structures by limiting them to identified "dangerous" situations, and the need to plan ahead for appropriate coastal erosion response. Although emergency response is not a good way to max- imize protection of resources, there may be some truth in the observation that waiting to approve shoreline structures until there is an imminent threat to a structure makes it more likely that agencies will be responding to coastal erosion in an emergency situation. IMPACT ASSESSMENT AND MITIGATION FOR SHORELINE STRUCTURES The Coastal Act requires that the impacts of shoreline structures be avoided, minimized, and mitigated. Some of these impacts are fairly easy to address, cither through design changes or mitigation measures. For example, to reduce the beach encroachment of a structure, the commission frequently requires that a vertical seawall, not a sloping revetment, be used where fea- sible. Another common mitigation measure to address the visual impacts of a seawall or bluff stabilization is to require that they be colored and textured to look like a natural bluff. Recent projects in Pebble Beach (Figure 7.20) and Santa Cruz (Figure 7.19) illustrate how far the technologies for replicat- ing natural bluff features in shoreline stabilization projects have come. Other shoreline structure impacts, however, have proven more challeng- ing to address. The effects of shoreline structures on sand supply and beaches are perhaps the most difficult. Coastal Act Section 30235 specifically requires that impacts to local shoreline sand supply be eliminated or miti- gated. The commission has identified three types of such impacts that need to be addressed by projects. First, many coastal protection structures, and riprap revetments in particular, encroach onto sandy beaches, resulting in the physical loss of beach area. Second, by design, shoreline structures stop coastal bluff erosion, thus cutting off a potential source of sand that would otherwise feed local beaches in the littoral cell. Third, studies have shown that fixing the position of the back edge of the beach on a retreating coast- line with a seawall causes passive erosion and ultimately the loss of the sandy beach in front of the structure, as the shoreline continues to move landward on either side of the structure. Taken together, these three impacts may cumulatively result in the degradation or even loss of entire stretches of beaches in urban areas. In Monterey Day, approximately 25 acres of beach have been covered by shoreline structures. The specter ot glottal climate change and associated sea-level rise makes the problem of shrinking beach areas that much worse. The commission has used a methodology to address sand supply impacts that relies on the quantification of the beach sand covered, retained, and subject to passive erosion. For example, a proposed revetment might cover several thousand square feet of sand, retain hundreds of cubic yards of sand behind it that would have otherwise supplied the beach, and cause the long- term loss of sandy beach in front of the structure through passive erosion. Other than the encroachment, these impacts generally cannot be avoided or minimized through design changes and thus must be mitigated for the commission to be able to approve the project under the Coastal Act. The most effective application of this mitigation methodology has occurred in San Diego, where the commission and the San Diego Association of Si governments have established an in-iieu fee program. Property owners that (fibuild new seawalls pay a fee in an amount that reflects the estimated cost of ^•putting the identified lost sand back into the natural system. These fees are £then to be used to finance a comprehensive beach sand replenishment pro- •gram for the region. The reliance on a mitigation fee, in lieu of an actual ^individual sand replenishment requirement, also recognizes that sand ^replenishment mitigation projects on the scale of the individual borne site sfare difficult to design, and of questionable value in terms of actually accom- ng beach replenishment. jjjte :.Othcr areas of California do not have established regional sand supply Ijsplenishmcnt programs; to do so requires significant funding, technical mstttdy, and political support for regional or subrcgional beach erosion By '&;•; _~!|RMponse. Beach replenishment programs raise significant questions about aether effective shoreline response is even possible in any particular cir- jjcumstance. Because of this, the commission has not been able to effectively fetise the sand supply impact methodology and in-lieu fee approach in other of the coast. In a few circumstances mitigation fees have been col- |Iccted, but the implementation of an actual sand supply project has not yet tfccurred. Again, this is in part because of recognition that an individual, ^one-time sand supply effort to mitigate the effects of a single seawall would prove ineffective in addressing the actual long-term sand supply |ifflpacts of a project unless they were based on more comprehensive coastal l|?Ps'on studies and analysis of sand supply dynamics in the specific area. It is infeasible for such studies and projects to be completed by individual H^Because of the difficulties in addressing sand supply impacts of individ- .Jfr:Pr°Jects> these impacts have sometimes gone unaddrcssed in regulatorySt." 152 LIVING WITH THE CHANGING CALIFORNIA COAST CALIFORNIA'S COASTAL HAZARDS POLICY 153 151 actions because no feasible mitigation was available. Some argue that this should not be a concern because the impacts of shoreline structures on sand supply are minimal relative to the impacts of sediment sources such as rivers and streams. Although more study is needed, recent research has shown how the importance of bluff sand may vary. In the Santa Barbara lit- toral cell, for example, cliff erosion contributes less than i percent of the total sand supplied to the beaches of the cell, because of the presence of four large sand-producing rivers. In contrast, bluff erosion contributes approxi- mately 12 percent of the beach sand in the Oceanside cell. Without further study, though, it is difficult to dismiss the potential cumulative impact of shoreline structures on the beach environment in some littoral cells. The lack of comprehensive analysis and establishment of regional or subregional sand supply mitigation programs to address impacts to beaches is a major challenge to successful implementation of the Coastal Act's shoreline struc- ture policy. THE BIG PICTURE: SOCIAL COST/BENEFIT ANALYSIS AND PRESERVATION OF THE NATURAL SHORELINE The issues discussed thus far are ultimately rooted in the fundamental con- flict created by our decisions to put homes, buildings, and roads along coastlines that are eroding. From a social history standpoint, California's urban coastal development is relatively young. Many of the eroding bluff areas that are now at the center of conflicts concerning new seawall devel- opment were relatively undeveloped as little as 50 years ago (Figure 8.3). But many coastal urban areas are close to being built out, and few vacant lots remain. Redevelopment of aging structures in hazardous areas is now a common concern for the commission and local development. Maintaining Highway i and other scenic coastal roads in the face of coastal erosion is a continuing and growing challenge. Increasingly we seem to be at a crossroads along the coast in terms of "big picture" decisions on how to respond to coastal hazards. From a social investment standpoint, significant sums of money have been and continue to be directed to development in hazardous coastal areas. Federally subsi- dized insurance is available for communities that have development in haz- ardous areas. Federal monies also arc available for shoreline protection projects with defined goals of stopping coastal erosion. Current California law says that the commission shall permit shoreline protective measures for structures in danger from erosion if there is no other feasible, less environ- mentally damaging alternative. LIVING WITH THE CHANGING CALIFORNIA COAST Uc 8-3 (A) East Cliff Drive area of Santa Cruz in i<j28, showing a lack of cliff-top •Wlppment. (B) East C!iiT Drive area of Santa Cruz in 1975, with all oceanfront prop- "f developed with homes. Courtesy of County of Santa Cruz. But there is a social cost to the economic investment in shoreline devel- opment, and this is the cumulative degradation of our coastline through the ' proliferation of protection structures and all of the impacts that follow. Recent studies have established the immense economic value of California's coastline and beaches in terms of direct tourism dollars coming to local communities, indirect positive impacts on California's economy, and asso- ciated contributions to federal tax revenues. Although it is difficult to quan- tify, there is an impact on the social value of California's coastline, and specifically its beaches, from shoreline structure development. Few would disagree, for example, that the intrinsic value of an unaltered natural shore- line, with a full sandy beach, is greater than that of the urban beach covered with an eclectic array of riprap, seawalls, concrete debris, and other relics of our ongoing battle with coastal erosion (Figure 7.1). Protecting our natural coastlines fay avoiding shoreline armoring is thus an important part of the social economics of beaches. More fundamentally, how we choose to respond to coastal erosion relates directly to our quality of life along the shoreline. Are urban areas destined to be fully armored, with little or no natural bluff, beach, or other shoreline features? Or are there ways to main- tain natural coastlines where most of us live and work, through erosion responses that do not involve artificial shoreline structures? The Coastal Commission has taken a strong proactive stance on the restoration of natural shoreline features and processes in situations where it seems feasible. For example, when the U.S. Army proposed the demolition of Stillwell Hall, an aging building located on a eroding bluff on Monterey Bay, the commission asked that as part of the demolition project, the Army also clean up the beach below, where tons of riprap have been dumped over the years in a failed attempt to save Stillwell Hall from the sea (Figure 7.25), In cases involving the placement of emergency revetments to protect Highway i (Figure 8.4), the commission has required that the California Department of Transportation pursue long-term highway realignment projects or bridge alternatives, to move the highway out of the active ero- sion zone and thus enable restoration of the natural shoreline. These cases represent policy decisions to require social investment in shoreline restora- tion and planned retreat, so that the coastline can continue to evolve and function naturally, without interference from human-made structures. Urban areas present a significant challenge to policymakers with respect to "big picture" choices and social economics. For some, it is easiest to focus on the need to protect existing private and public investments on the shore- line, and simply accept the eventual armoring of most of our urban areas. Under this view, little "natural" coastline will remain in these areas over the long run, and large-scale beach replenishment or the construction of groins 150 LIVING AMTH THE CHANGING CALIFORNIA COAST is arc 8 4 Riprap being placed to protect California State Highway i south of adcro Creek in San Matco County. Photo <9 1001-2004 Kenneth and Gabriclic an, California Coastal Records Project, iwnv.Californiacoastline.org. be the only options available to maintain sandy beaches in front of oreimc protective devices. Another vision, though, would focus on the ssibilities of investing in planned retreat and shoreline restoration at the funmunity, state, and federal levels. In this long view, economic incentives (id commitments, as well as legal requirements, would need to be changed significantly to establish an economic and social context more conducive to Ipolicy of shoreline retreat. The typical shoreline erosion project analysis focuses on the erosion risks Kto existing public or private development, and the feasibility of alternatives Fto a shoreline protective device. The analysis presumes a social objective of protecting the existing development and then limits the potential ways to achieve this objective by eliminating "infeasible" alternatives. Although fea- * Sibthty analysis often includes a technical component (i.e., whether an alter- native technically can be accomplished), it also often boils down to a conclusion that certain alternatives arc not economically feasible because .the/ cost too much for the project proponent to implement. For example, the alternative of removing part of a residence at risk, although technically feasible, is usually deemed too costly and otherwise unreasonable to ask of private homeowners. More fundamentally, presuming that the protection of existing dcveiop- k. mem is the social policy objective and eliminates the alternative of planned CALIFORNIA'S COASTAL HAZARDS POLICY Figure 8.5 Area proposed for bluff stabilization along the Pleasure Point area of fiast Cliff Drive in Santa Cruz. Photo © 2002-2004 Kenneth and Gabrielle Aciclmari, California Coastal Records Project, www.CaHforniacoastlinc.org. retreat from the start, then a comparison of the social costs and benefits of planned retreat versus shoreline armoring is never really developed in full. Although the regulatory process of the commission and local governments presumably mitigates the individual project impacts or "social costs" of a seawall, piecemeal implementation of shoreline protection projects does not really allow for more comprehensive analysis of the cumulative social costs and benefits of long-term coastal erosion response alternatives. For example, in 2003 the U.S. Army Corps of Engineers and the Redevelopment Agency of Santa Cruz County proposed a shoreline protec- tion project for a portion of East Cliff Drive along northern Monterey Bay. The project proposed the armoring of approximately 1,100 linear feet of bluff to limit long-term erosion risks to the existing East Cliff Drive and public utilities (Figure 8.5). Although the proposed bluff stabilization proj- ect would entail significant environmental impacts, it would also protect the public space between the bluff edge and the first row of private homes, in addition to the roadway and the sewer and water lines. If the structure were not built, it was argued, the eventual result would be not only the loss of these public amenities, but also the construction of seawalls, ultimately, to protect the inland private development when it should become endan- gered—the same end result of an armored shoreline without the public benefits. 158 LIVING WITH THE CHANGING CALIFORNIA COAST ssfc ?lj;i The Army Corps completed a requisite cost-ocncnt analysis in i'/aiternativcs ;n order to meet the project objective. The analysis assumed ^tliat protection of East Cliff Drive was the project objective, and planned retreat was not included as an alternative for more detailed analysis. The f;i£o$t-benefit anaivs;s was limited to comparing the costs of project con- i—struction and maintenance on one hand, and certain quantifiable benefits the other (the avoidance of costs to relocate public utilities in the s Roadbed, and the costs of delay and additional travel distances for motorists 4':-from necessary detours once East Cliff Drive was closed). '!£•':' Within the limited universe of alternatives considered to meet the proj- f >cct objective, the Army Corps was able to identify a full armoring alterna- Xtiye that maximized the net economic benefits. This is not the same exercise, /however, as analyzing and comparing the social costs and benefits of ed retreat, or a beach replenishment project, with the armoring alter- aiatives and the no-project alternative. Such an analysis would need to iden- Itify not only the relatively quantifiable costs and benefits of each alternative, tut also the costs and benefits that are difficult to quantify, such as the social :t>enefit of maintaining an unarmored shoreline or of maintaining bluff-top s'access amenities. In the case of a planned retreat, the costs of eventually ip.kcquiting and demolishing existing private development inland of East Cliff :forive to allow for long-term erosion, and the relocation of the public bluff- "tbp space would need to be considered. T,-,.It is not clear that more comprehensive cost-benefit analyses in cases Isuch as the East Cliff Drive project, if they could be completed at all, would ?•'* '-•".•lead to different outcomes in responding to identified coastal erosion prob- Jerns. But the lack of broader policy analysis certainly means that planned pretreat or other potential erosion responses that do not involve armoring not be fully considered, and thus not taken seriously enough in cotn- |i munity deliberations about how to respond to coastal erosion. The first step 5*'-in pursuing a planned retreat policy is to identify more completely the range |fcV|'pf feasible long-range alternatives, and to analyze more fully their social ;,;i,,costs and benefits, even if this analysis relies on broad assumptions. Such g;', analysis may in fact help communities better identify project objectives that K: maximize environmental benefits to the community while minimizing the &..exposure of private development to coastal hazards. ^CONCLUSION: DIRECTIONS FOR POLICY REFORM |^; The major challenges faced by the Coastal Commission and local govern- jpr mcnts in implementing the California Coastal Act suggest potential reforms fethat might improve the policy response to coastal erosion in California. The CALIFORNIA'S COASTAL HAZARDS POLICY goal of these suggested policy changes would DC to increase trie ptc.sci vuuun and restoration of natural shorelines while reducing the exposure of devel- opment to coastnt hazards. • Strengthen the "line in the sand" against new shoreline structures. Clarification of existing law is needed to ensure that new shoreline protective devices are limited to developments that exist currently. This could be accomplished through amendments to LCPs declaring that new development approved after the date of enactment of the amendments shall not be eligible for per- manent shoreline protection. LCPs also should require that new develop- ment abide by a "no future seawail" condition for as long as it is in existence. • Clarify geotcchnical analysis requirements. LCPs should require that geo- technical reports submitted in support of applications for new shoreline development and shoreline structures address the risks associated with development proposals, and specify whether and to what degree structures are in danger. Training seminars for the professional geotechnical consult- ing and local planning community concerning the needs of regulatory decisionmakers and the requirements of the Coastal Act and LCPs would be useful in this regard. • Strengthen restrictions on the redevelopment of structures. Financial incentives to maintain private development in hazardous areas must be minimized. Further restricting redevelopment options for noncon- forming structures and other development along the shoreline through planning and zoning will facilitate planned retreat by limiting the increase in value of coastal properties located in hazardous areas. Minimal redevelopment of shoreline structures should be allowed absent full conformance with setback and strict engineering require- ments. Design alternatives for new development that would facilitate planned retreat, such as relocatable or movable structures, should be evaluated. Developments approved with an assumed economic life should be required to be retired, through explicit legal agreement, at the end of the identified time period. • Conduct comprehensive subregional planning. The California Department of Boating and Waterways has identified regional planning as a critical step in developing meaningful beach replenishment projects tailored to the unique conditions of California's various shoreline areas. The California Resources Agency has also recently recommended that a California Coastal Sediment Master Plan be developed, which would include regional identification and assessment of erosion risks and mech- anisms to protect shorelines and beaches. This master plan approach is 160 LIVING WITH THE CHANGING CALIFORNIA COAST 'Corps of Engineers, with the participation of die Coastal Commission ana if'otlicr agencies. Regional knowledge concerning sand supply, iittoral drift Crates, and long-term changes in beach width, beach dynamics, and cumu- i lative impacts is necessary to establish effective mitigation programs and K measures for individual shoreline protection projects. This should include £ identification of public access and recreation improvement projects that *'* could be supported through in-lieu fee programs. Better knowledge of & regional and site-specific erosion trends would support more specific ?'' planning for necessary shoreline response to minimize the need for emcr- E gency actions. Subregional planning would also provide a context for bet- , ter evaluating "big picture" options for urban areas with eroding I?'coastlines, as well as a context for improved governmental coordination * and dedsionmaking. LCPs provide a useful framework for such planning. ?I < Increase public investment in restoration of natural coastlines and processes, ''and planned retreat. Financial assistance is needed to support identified [ft shoreline restoration and planned retreat opportunities, such as relocating ^Highway i in areas where it is under attack from erosion and where it is "•feasible to do so. Money is needed to support local government shoreline 11 planning, design, and construction of state-of-the-art projects that mini- ize impacts to other coastal resources. Restoration funding should be ^"pursued to support relocation or elimination of existing development in ^hazardous areas. mEltminate financial incentives for hazardous development and armoring. A F corollary to increased restoration funding is to eliminate financial inccn- lives that promote continued location of, or investment in, development in hazard zones. Changes to the National Flood Insurance Program and opportunities for increased pre-hazard mitigation (planned retreat) I* should be pursued. Federal and stale beach restoration programs should j*1 be required to fully evaluate and, where appropriate, provide funding for nonstructural beach erosion response alternatives. ' Investigate beach replenishment strategies to avoid shoreline armoring. JH',;'.'Sediment management for the purpose of beach replenishment is poten- |fe v tially a critical component of a comprehensive response plan to coastal ' erosion, and more research and planning is needed to determine whether it is a feasible alternative to armoring of the shoreline. Large volumes ot J||';Y. sand may be necessary, there may be significant impacts associated with jp:..; exploiting the sand sources themselves (such as removal of upstream |ji;- dams), and the feasibility, life span, and thus long-term effectiveness of i^j beach replenishment are uncertain. Nonetheless, further investigation is CALIFORNIA'S COASTAL HAZARDS POLICY CHAPTER TWENTY DANA POINT TO THE INTERNATIONAL BORDER REINHARD FLICK INTRODUCTION The const and beaches are the San Diego regions most important natural assets. When we think of the region's positive image, we most often think of the climate and the shoreline. Beaches arc by far San Diego's largest attrac- tion, and we depend on the sand beaches to buffer homes, businesses, and: public improvements from impact and inundation by ocean waves. Most of the San Diego shoreline consists of narrow beaches backed by steep seacliffs. The beaches and cliffs have for thousands of years been sub- ject to erosion from waves abetted by a rising sea level. During the stormy ; period of 1884 to 1893, the U.S. Coast and Geodetic Survey noted, "New ero-, sion during each winter storm is the characteristic feature of this coast." Beach and cliff erosion have become a vexing problem in the San Diego region, particularly in places that have been densely developed since the end of World War II. In light of better understanding, much coastal development now appears to have been less than prudent, especially in the long term. This is true of both public and private improvements that were built too low, too close to the beach, or with insufficient setback from the cliff edge. Awareness of local erosion problems increased after severe storms and flooding occurred during the winters of 1978, 1980, 1982-83, 1988, and 1997-98. The El Nino winter of 1982-83 was notable for the consecutive or "cluster" storms that produced heavy rainfall, elevated sea levels, and high, long-period waves. These events produced hundreds of millions of dollars in damage in California, with a proportional share in San Diego. The most important factor that characterizes the San Diego coast is the regional geology, especially the tectonic history. The next most important fac- tors are the relevant coastal processes, those physical mechanisms that alter 474 \ ^ana PI. SanOnoIro^Ti-Nuclear GeneratingSanMaleoPi. ^f-^. sialion • Ocoanside CarlsbadOCEANSIDE LITTORAL CELL •«.Leucadia •Encinitas iCardillSolans Beach • La Jolla '-- MissionSayMISSION BAY LITTORAL CELL Zuntga PI. Jolty'Loma SILVER STRAND LITTORAL CELL Figure 20.! San Diego lilUir.ii cells: Occanside, Mission Bay, and Silver Strand. the shoreline and add or remove sand. The most important of these arc waves. Tides, sea-level changes, weather, and climate also play a role, making waves more or less severe and modulating the amount of sand reaching the beaches. The San Diego region can be divided into three littoral cells, or beach com- partments. The littoral cell concept brings together the important elements of geography, nearshore processes, sand supply, and \vave forces. From north to OANA POINT 10 THE INTERNATIONAL BORDER 475 20.04 CAMP PENOLETON MARINE CORPS BASE 1 inch equals i miie A. A sandy boach reaches across the mouth of Las Flores Greek, which occupies Las Pulgas Canyon. The creek is incised into the flat, gently southwest- sloping marine terrace. The beach is subject to erosion during high wave and !lood conditions. This area is undeveloped and there are no shoreline protection structures. It is reserved (or Camp Pendleton military purposes, and except for a freeway off-ramp leading to a viewpoint, it is not accessible to the public. B. A relatively wide and sandy beach with active dunes lies on the spit across the wetland that forms the mouth of the Santa Margarita River. A delta forms at the river mouth during peak river discharge and may persist lor years. The area is subject to beach retreat during high wave conditions and to flooding after heavy rainfall. This beach is stable and has accreted because of the influence of the breakwater at Oceanside Harbor just to the south. Hazard Level r~~i Stable: low risk |%jyil Caution: moderate risk HUH Hazard: high risk Erosion Rates O Inches per year mum Shoreline Environment i-iV"-?: Sartdy boach •£,"' Beach backed by marsh y.;'v\v' Beach backed by dunes Cliff or bluff fronted by beach Rocky coast with no beach cises and was Ouni vvitn iwu MU.UI jti.,^ lv , the time, little attention was devoted to understanding the environmental consequences, including rapid infilling with sand and interruption of the sand supply to down-coast beaches. The larger north breakwater was started in 1942 to prevent rapid channel clogging. Construction of the civilian small craft harbor south of the boat basin was begun in 1958 with completion of several extensions of the north breakwater. By 3963, when the harbor was completed, about 6.8 million cubic yards of dredged sand had been placed on the adjacent benches. The sand considerably widened the beaches immediately adjacent to the harbor, but had little or no beneficial effect for any appreciable distance to the south. The breakwaters stabilized the harbor beaches, as well as the stretch up lo 5 miles to the north, and the harbor has been a major economic benefit to Oceanside. However, the breakwaters also caused a severe redistribution of sand dial has contributed to beach erosion toward the south, and large volumes of sand have also been diverted offshore. Oceanside Beach is a moderately wide, sandy beach near the harbor in the north that gradually narrows toward the south, disappearing about a mile from the south harbor jetty. It is backed by park facilities, an access road called The Strand, businesses, motels, and numerous beach bungalows. The erosion and flooding risk varies, depending on the development in danger, and on the amount and quality of shore protection. Maintenance dredging :of Oceanside Harbor provides an average of several hundred thousand cubic yards of sand to various parts of the beach on an annual or two-year cycle. Large volumes of cobbles underlie the beach sand veneer and become exposed when the sand is stripped away. Large cobbles were picked up by the great storm waves of the early 19805 and thrown against the low-lying ocean- front structures, This battering produced considerable erosion and damage .in areas where construction lias occurred directly on the former beach. South Oceanside has a narrow, fine-grained sand and cobble beach that is generally at moderate to high risk of erosion and flooding during storms. Flooding, wave overtopping, and projectile damage from cobbles occurred during the storms of 1941,1978,1980, and 1983, prompting construction of a long, high riprap revetment of heavy stone. CARLSBAD TO DEL MAR The northern part of Carlsbad is fronted by a narrow, fine-grained sand beach backed by 30- to 6o-foot-high cliffs that are susceptible to wear from runoff, groundwatcr, and animal burrowing, in addition to wave erosion. The cliff tops are intensively developed, and a wide variety of shoreline protection exists. The 4,ooo-foot-long Carlsbad Seawall was built in 1988 to protect the DANA POINT TO THE INTERNATIONAL BORDER I CONTRIBUTORS REiNHARD FLICK Reinhard Flick is staff occanographer with the California Department of Boating and Waterways and a research associate at Scripps Institution of Oceanography, UCSD. He received his BS in physics from Cooper Union in 1970, and a Ph.D. in oceanography from Scripps Institution of Oceanography in 1978. Dr. Flick conducts research; manages the California Department of Boating and Waterways Oceanography program at Scripps; lectures; and provides expert consulting in the areas of tides, sea level fluc- tuations, waves, beach processes and erosion, and coastal storm damage. Me was the 2002 recipient of the American Shore and Beach Preservation Association Morrough P. O'Brien Award. KIM FULTON-BENNETT Kim Fulton-Bennett is a science writer presently working at the Monterey Bay Aquarium Research Institute (MBARI) in Moss Landing, California. His academic background includes an undergraduate degree in Earth Sciences and Environmental Studies, as well as a master's degree in Earth Science from the University of California at Santa Cruz. He has worked in a wide variety of fields, including geological consulting, land use planning, teaching, and technical writing, and has carried out research in marine geol- ogy, marine biology, and aquaculturc. GARY GRIGGS Dr. Griggs has been a professor of Earth Sciences at the University of California, Santa Crux, since 1968 and has served as chairman of the uepartment ot tarui sciences, lie is presently the director of the Institute- of Marine Sciences and also the chair of the University of California Marine' Council. He was a senior Fulbright scholar in Greece and has also con-/ ducted collaborative marine research in Italy and New Zealand. His research over the past 35 years has focused on coastal hazards and land use planning along the California coast, and includes work on coastal erosion, littoral cells and sediment budgets, coastal protection structures and their effec- tiveness and impacts, and the effects of large coastal engineering structures on the shoreline. He was the 2003 recipient of the American Shore and Beach Preservation Association Joe Johnson Award. Dr. Griggs has written or co-written over 135 articles published in professional journals as well as five books: Geologic Hazards, Resources, and Environmental Planning; Living with the California Coast; Coastal Protection Structures and Their Effectiveness; California's Coastal Hazards: A Critical Assessment of Existing Land-Use Policies and Practices; and Formation, Evolution, and Stability of Coastal Cliffs: Status and Trends. KAREN GROVE Karen Grove received her Ph.D. in geology from Stanford University in 1989 and lias been a professor of Geology and Oceanography at San Francisco State University since then. She studies sediments along the coast of California and teaches a variety of geosdence classes. CHERYL HAPKE Cheryl Hapkc received her undergraduate degree in Geology from the University of Pittsburgh, a master's degree from the University of Maryland in 1992, and a Ph.D. in Geology from the University of California, Santa Cruz, in 2002. From 1997 to 2005, Dr. Hapkc's research focused on issues of coastal erosion and coastal hazards along the California coast and in Hawaii while she was employed by the U.S. Geological Survey at their Pacific Science Center in Santa Cruz. She is now working as a coastal geologist with the USGS Patuxent Wildlife Research Center, stationed at their Coastal Field Station at the University of Rhode Island. CHARLES F. LESTER Charles F. Lester is the deputy director for the North Central Coast and Central Coast districts of the California Coastal Commission, a stale agency that plans for and regulates development along California's coast. Charles received his bachelor's degree in Geochemistry from Columbia College in iti^*a?$l CONTRIBUTORS New York City. He attended the University of California at Berkeley, receiv- ing a J.D. from Boall Hall School of Law in 1989 and a Ph.D. in Jurisprudence and Social Policy in 1992. Charles's doctoral dissertation evaluated the implementation of the federal offshore oil and gas program. Before coming to the Coastal Commission, Charles was a professor of Environmental Policy and Law at the University of Colorado at Boulder from 1993 to 1997. His areas of expertise include coastal and environmen- tal policy, law and politics, governance and public law, coastal zone man- agement; and environmental sustainabiiity. DOROTHY MERR1TTS Dorothy Merrills, a professor in the Department of Earth and Environment at Franklin Marshall College in Lancaster, Pennsylvania, is a geologist with expertise in coastal gcomorphology, streams, rivers, and other landforms, and in the impact of geological hazards and human land use on landscapes. Her research in tectonics and topography focuses on active faulting, defor- mation, and base-level change, and particularly on the landforms of marine terraces {coral and wave-cut), longitudinal stream profiles, fluvial terraces, fault scarps, and alluvial fans. Dr. Merrills has served as a scientific advisor to the South Korean government (Korean institute of Geology, Mining, and Materials) on coastal tectonics, marine terraces, and earthquake hazards from 1999 to the present. She is the lead author of an introductory textbook titled Environmental Geology: An Earth Systems Approach. ROBERT M. NORRIS Robert M. Norris is a professor emeritus at the University of California, Santa Barbara, where he taught for <10 years. His undergraduate training was at UCLA and was followed by 2.5 years in the Navy, where he was involved in the Iwo Jima and Okinawa actions. After the war, he earned a master's degree at UCLA and, taking advantage of his sea-going experiences and the newly developed field of marine geology, went to Scripps Institution of Oceanography and earned a Ph.D. under Francis P. Shcpard in 1951. His research interests are varied and include numerous studies of coastal ero- sion, shelf sedimentation, and Quaternary environments. He is co-author of Tlic Geology of California. ANTONY R. ORME Antony R. Orme (Ph.D. 1961, University of Birmingham, England) is professor of Geography at the University of California, Los Angeles, and cditor-in-chicf CONTRIBUTORS ibit2 Todd T. Cardiff, Esq. From: Todd T. Cardiff, Esq. [todd@tcardifflaw.com] Sent: Wednesday, January 27, 2010 1:29 PM To: 'van.lynch@carlsbadca.gov' Subject: Geotz Seawall Comments Attachments: Ecological Response to Seawalls.pdf Van, I just received the initial study. Did this just come out? What is the best way to submit comments? Can I assume that the City wilt accept email comments and attachments? When did the Notice of Preparation go out? Also, I have only received the Notice of Intent to Adopt a Negative Declaration and the initial study checklist. Is there a more thorough discussion available? Please let me know as soon as possible. A couple of quick questions and comments - First, did the City of Carlsbad ("City") consider the cumulative impacts of the all the past and future seawalls in the Oceanside littoral cell? The cumulative impacts are enormous. I have a powerpoint from Young and Ashford presentation to the ABSPA which indicates that 50% of the current beach sand in San Diego is from bluff erosion. (The ppt file is too big to attach.) Will you please review Young and Ashford's research paper on bluff erosion and include it in your study. The cumulative loss of bluff sand due to seawalls in San Diego is enormous. Also, did the City consider the impacts of sea level rise in conjunction with seawall? Did you consider the effects of passive erosion on the beach? Any time a seawall is placed on the back end of an eroding beach, it stops the natural erosion process. The back end of the beach is fixed in place by the seawall, but the high-tide line continues to move shoreward. The dry sand area of the beach is squeezed between the ambulatory mean high-tide line moving landward and the nonmoving seawall. Eventually the public has no dry sand area for public access. Public access along the beach is eventually cut-off, impacting recreation. This impact has been dubbed "passive erosion" by coastal geologists. In a natural system, the bluff retreats over time providing more dry sand area at the back end of the beach. A dry sand area of the beach is maintained. The only way to mitigate the impact from passive erosion is to prevent the high-tide line from moving eastward. Do you have any evidence that beach replenishment will be sufficient to prevent the hightide line from migrating eastward? Do you know if this is even possible? Has the City or anyone else calculated the amount of sand necessary to prevent the landward migration of the high tide line? If so, please include it as support for your initial study. In addition, has the City considered the significant impacts of sand replenishment? Considering that the Goetz Seawall is adjacent to important surfing resources, including a very popular reef break, the impacts of sand replenishment on surfing resources is critical. Sand replenishment may change the contour of the reef, changing the wave from one that consistently peels, to a wave that closes out (breaks all at once). Sand replenishment may not be advisable at this location, especially if the amount of sand to maintain the beach width is significant. The initial study claims that the seawall is necessary to protect the beach. When was the last time that anyone was killed or injured by a bluff collapse below 5323 and 5327 Carlsbad Blvd? When was the last time that anyone was injured by a bluff collapse in the City of Carlsbad? How often are beach goers injured by bluff collapses in the City of Carlsbad? When was the public access stairway installed? Has the City prepared an actuarial risk analysis to estimate the chances that someone is going to be injured by a bluff failure at the project site? If, according to the Department of Boating and Waterways, there are 8 million people who visit San Diego North County beaches a year, what is the - likelihood that any single beachgoer is going to be injured or killed by a collapsing bluff in Northern San Diego County? It appears that San Diego has had 5 deaths in North County in 15 years. Three deaths have occurred at Torrey Pines State Beach, which has very high, loosely-consolidated bluffs. In addition, bluff collapses generally occur in the winter during high-tide events combined with high surf, normally during significant storm events. This is a time when beach attendance is very scarce, if not absent. In addition, a number of collapses have occurred during night, when, again, beach attendance is extremely limited. If the seawall is being pitched as a public safety measure, please provide the statistical analysis to show that statistical likelihood of someone being killed or injured at this location is significant. Of course, any accidental death is regrettable, but without an actuarial risk analysis, there is no support for the claim that the seawall is necessary to protect the public beach. Clearly, no one was injured during the last bluff collapse at this location. Has the City considered or analyzed the impact of the seawall on marine and wildlife? As stated in the article attached Jenifer Dugan and David M Hubbard, "Ecological Response to Seawalls" 74(1) Shore and Beach 10 (2006), seawalls substantially reduce both the diversity and abundance of both intertidal organisms and shorebirds. Certain fish also lay eggs in the intertidal zone (ie. grunion). The City should consider the cumulative impact of this seawall in conjunction with other seawalls in the area with regard to intertidal species, fish and shorebirds. I have attached such article for your convenience. The initial study did not include a section which identified who the City sent the Notice of Preparation or initial study. If you have not done so, please consult with Fish and Wildlife Service, State Parks, California Coastal Commission, Department of Fish and Game, State Lands Commission and other responsible and trustee agencies. (Pub. Res. Code section 21080.3.) I do not believe that the initial study is legally adequate. Please review the numerous resources which discuss the impacts of seawalls. Seawalls have already be found to have significant unmitigable impacts in Solana Beach. Why would this seawall be any different. I would highly suggest reviewing Griggs, Patsch & Savoy "Living with the Changing California Coast" which discusses the impacts of seawalls. The City's environmental review must be able to distinguish between the impacts of passive erosion, active erosion, placement loss, and impoundment, just to name a few. Please ensure that I receive all notices for this project. 1 also specifically request to be served to Notice of Determination, if and when this project is approved. Thanks for allowing me to comment. I look forward to helping the City of Carlsbad identify the impacts, and consider the alternatives to this seawall. Remember that Mr. Geotz does not have a vested right to a seawall. He has a temporary permit, which does not create any right to maintain the seawall. (See Barrie v. Cat. Coastal Comm'n, 196 Cal. App. 3d 8,8 (1987).) Clearly, the structures are not at risk and not entitled to shoreline armoring. The seawall permit should be denied and the seawall should be removed. These are just initial comments and questions. I intend to more thoroughly comment on the initial study later. Again, please let me know ASAP, if there are additional environmental documents prepared by the City other than the Initial Study Checklist. Thank you. Todd T. Cardiff, Esq. LAW OFFICE OF TODD T. CARDIFF 121 Broadway, Ste. 358 San Diego, CA 92101 Tel: (619)546-5123 Fax:(619)546-5133 The information contained in this email message is intended only for {he personal and confidential use of the recipient(s) named above. This message is an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited, if you have received this communication in error, please notify us immediately by email, and delete the original message. 95 Kxhihit Ecological Responses to Coastal Armoring on Exposed Sandy Beaches By Jenifer E. Dugan David M. Hubbard Marine Science Institute University of California Santa Barbara, CA 93106 j_dugan@lifesci.ucsb.edti ABSTRACT We develop a conceptual mode! for assessing potential ecological responses to coastal armor- ing that incorporates the presence, extent and functioning of multiple intertidal zones, as we!) as changes in beach width in general. We propose that ecological responses to the narrowing of beaches associated with coastal armoring are related to changes in the widths and the dynamics of the different intertidal zones of the beach and that, as habitat narrows in response to armoring, imcrtidal zones are lost disproportionately from the upper beach. The reduction and loss of inlertidal zones, along with expected changes in the deposition and retention of macrophyte wrack, are predicted to depress the diversity and abundance of macrain- vertebrates on armored beaches. The combination of reductions in I) habitat. 2) accessibility at high tides, and 3) macroinvcrtebratc prey availability is predicted to reduce biocompiexity and affect the use of armored beaches by shorebirds. We investigated several predictions of our mode! using comparisons of armored and unartnorcd segments of narrow bluff-backed sandy beaches in southern California. Our results supported those predictions and revealed some unexpected responses to ar- moring. Inlertidal zones were fewer and narrower where armoring was present compared to adjacent unarmorcd segments. This was evident in the absence of the upper intertidat zones on armored segments of coastline and narrower mid-inlertidal zones on armored segments. The standing crop of maerophyte wrack was significantly greater (one to nearly three orders of magnitude) on unannored segments than on armored segments. Shorcbirds responded to coastal armoring as predicted by our model with significantly lower species richness (2.3 times) and abundance (>3 limes) on armored segments of beach. All 13 species of shorebirds observed were more abundant on unannored seg- ments than on armored segments. Although not predicted by our model, the three species of gulls observed also responded to coastal armoring with significantly lower abundance (4.7 times) on ar- mored segments. We predict thai the amount of interaction between a coastal armoring structure and the coastal processes of waves and (ides will affect the ecological responses to the struc- ture. Our model provides a framework that could be used in investigating ecological responses to coastal armoring of other types and tidal heights and in other coastal regions. The accelerated loss of beaches associated with rising sea levels and the implications of our results indicate further investigation of ecological responses to coastal armoring is needed. ADDITIONAL KEYWORDS: biodiversity, California, intertidat zones, seawall, shorebirds, macrophyte wrack INTRODUCTION Coaslal armoring, involving the placement of hard structures and walls constructed of a variety of materials, has been applied to reduce threats to coastal structures for centuries (Charlier et al 2005). The extent of coastal armoring varies regionally, with higher prevalence generally found on populous developed coastlines (Nordstrom 2004). California, where approximately 10 per- cent of the coastline has been armored with rock, concrete, and wood during the past century (Griggs 1998), illustrates this trend. The application of coastal armoring has not declined over time, as exemplified by California where the extent of coastal armoring increased by over 400 percent in the 2! years between 1971 and 1992 (Griggs 1998). Coastal armoring, including seawalls and rock revetments, has been shown to reduce intertidal beach widths through the processes of placement loss, passive erosion, and increased erosion directly seaward of structures (Griggs 1998, 2005, Hall and Pilkey 1991, Tail and Griggs 1990). These effects on the intertidal beach appear to be related to the hardened faces of armoring structures, which act to reflect rather than dissipate wave energy as well as the initial placement loss and the con- straints imposed on natural migration of the shoreline by the structures. Despite the use of armoring on coast- lines for centuries and numerous studies of the physical effects of this form of shore protection, the ecological responses of beach communities to armoring are poorly documented and understood. As a consequence of this lack of information, ecological effects are often not considered in decision-making or coastal policy. Intertida! zonation on exposed sandy beaches is extremely dynamic due to the highly mobile nature of the sandy sub- strate, the intertidal animals and the re- sources on which these animals depend (McLachlan and Jaramillo 1995, Brown and McLachlan 1990). In general, two to three different intertidal zones inhabited SlffiF ZONE Figure 1. Profile of an exposed sandy beach showing the intertidal and supralittoral zones investigated in this study. The relative locations of major invertebrate types, accumulations of macrophyte wrack and ephemeral coastal strand vegetation are indicated. Air-breathing invertebrates can Include talitrid amphipods, onlscoidaan isopods, insects, and arachnids. Invertebrates with gills can include hippid crabs, isopods, amphipods, bivalves, gastropods, and polychaetes. 10 Shore & Beach Vol. 74, No. 1, Winter 2006, pp. 10-16 by distinct groups of mobile animals are present on mosi exposed sandy beaches (McLachlan and Jaramillo 1995). These zones generally correspond to the rela- tively dry sand/substrate of the upper in- tertidal zone at and above the drift line, the damp sand of the middle intertidal zone and the wet or saturated sand of the lower intertidal zone (Figure 1), In addition, a supralittoral or coastal strand zone exists at the extreme high water level on many beaches (Figure I). Unlike rocky shores, the location of these zones and of the diversity of organisms that inhabit them changes with the tides, wave conditions, and the seasons. We propose thai ecological responses to the narrowing of beaches associated with coastal armoring can be estimated from the widths and dynamics of the differ- ent intertidai zones of the beach. Loss of habitat area alone can have clear ecologi- cal consequences in many coastal ecosys- tems (e.g., wetlands, riparian corridors and reefs). For beaches, we hypothesize that as habitat narrows in response to armoring, intertidal zones are lost disproportionately, resulting in a sequence of ecological im- pacts. We predict that the loss of intertidal beach habitat caused by coastal armoring proceeds from the upper beach to the lower beach. The supra] itloral zone and sand-stabi- lizing coastal strand vegelation may be strongly and immediately affected by the placement loss, accelerated erosion and the narrowing of the beach associated with armoring, processes that can result in the rapid elimination of this zone. Be- low this, the rich zone of drying and damp sand around the drift-line inhabited by air-breathing crustaceans and insects could also be greatly reduced or elimi- nated. The retention of wrack and other drift material would likely decline as this zone narrows, and depositional dynamics shift, reducing the primary food source for wrack consumers and the wrack-based beach food web. The narrowing and loss of the mid-intertidal zone and associated animals such as isopods, arnphipods, and polychaeles is also predicted to occur on armored beaches. The saturated sand of the low intertidal zone would be expected to persist the longest; but impacts on the intertidai species of this zone, such as sand crabs and clams, could also occur. The survival of these mobile animals is likely to be negatively affected by restric- tions on their upward migration with tides and wave events (Jaramillo el al 2000) imposed by the narrowing beach in front of the armoring structure. macro!nverlebrales (Dugan et al. 2003) than ungroomed beaches. The rich invertebrate communities of southern California beaches are important as prey fora remarkably diverse and abun- dant shorebird assemblage, particularly during spring and fall migrations and over the winter months with over 26 differ- ent species observed in numbers that can exceed 1000 individuals knr'(McCrary and Pierson 2000, Hubbard and Dugan 2003, Dugan et al. 2003). The diversity and abundance of shorebirds on southern California beaches has been positively correlated with the diversity and abun- dance of macroinvertebrate prey and with macrophyte wrack in this region (Dugan 1999, Dugan et al. 2003) and others (Tarr andTarr 1987). Using existing information on eco- logical communities of exposed sandy beaches, we hypothesized that changes in the width and extent of intertidal zones could affect the diversity, abundance, and structure of the iniertidal community with most distinct effects on the upper zones of the beach. These effects could in turn reduce the prey resources available to shorebirds and their use of beach habi- tats. Based on this conceptual model, we investigated several ecological responses predicted from the loss of intertidal and supralittoral beach habitat associated with coastal armoring, including the reduction or loss of intertidal zones and associated organisms, reduced accumulation of mac- rophyte wrack and reduced shorebird use. We tested these predictions using paired observations of intertidal zones, wrack and shorebird use of armored and unarmored coastal segments of beaches in southern California. METHODS Study area This study was conducted on wave- exposed intertidal beaches al four sites located between Gaviola and Goleta in southern Santa Barbara County, Califor- nia. The coastline of this region consists primarily of narrow, bluff-backed beaches perched on wave-cut platforms that are interspersed with stream mouths, rocky points and a variety of coastal armor- ing structures (e.g., Habel and Armstrong 1978). The study region experiences a mixed semi-diurnal microtidal regime. Seasonal and episodic variation in wave climate and strong longshore transport drive changes in sand levels altering mix- tures of sand, cobbles, boulders, and rocky substrates in the intertidal zone (e.g.. Hub- bard and Dugan 2003). These beaches are in the Santa Barbara Littoral Cell where estimated average net longshore transport rates of sand range from 400 to 900 yards-' per day from west to east for this portion of this cell (Bascom 1980). Many beaches on this coast experience large inputs and high standing crops of macrophyte wrack from nearshore kelp forests reefs, and surfgrass beds (Dugan el al. 2003). All of the study sites were narrow, biuff-backed open coast beaches as de- scribed above and would be considered intermediate in morphodynamic slate (e.g.. Short 1996) with seasonally variable wave heights (significant breaker heights = 0.3 to 2.5 m) and moderately fine sand (mean grain sizes = 0.216 to 0.256 mm)(Dugan and Hubbard 2004). None of the study sites are subject to beach grooming. Each of the four study sites consisted of two segments: 1) a segment of shoreline immediately seaward of an intertidal con- crete seawall (hereafter the armored seg- ment) and 2) an unarmored bluff-backed segment of shoreline adjacent to the ar- mored segment of the same length and with similar orientation (the unarmored segment). The unarmored segments were either upcoast or downcoast of the ar- mored segments, depending on coastal ori- entation and presence of other structures. During the study period, the four seawalls chosen for study interacted with the ma- jority of high tides but were out of range of the wave wash on most low tides. The lengths and mean heights of the four sea- walls used in the study are given in Table 1. The concrete seawalls chosen for study were all massive, nearly vertical structures, with some gentle landward slope near the bases, that have been in place for at least 60 years. The study sites were surveyed and all data collected during August and September 2005, a time of year when sand levels are generally at their annual maxima in this region and shorebird visitation is high (Hubbard and Dugan 2003). We collected data on three ecological aspects on each armored and unarmored segment of beach: 1) width and extent of iniertidal zones, 2) standing crop (wet bio- mass) of accumulated macrophyte wrack, and 3) diversity and abundance of shore- birds, gulls and other birds. To avoid pos- sible end effects associated with armoring structures, we only measured habitat zones and wrack in the middle 50 percent of each segment. For each segment, we measured the distance (to the nearest O.I m) from the landward limit of intertidal habitat (sea-- wall or bluff) to the high tide strand or a Shore & Beach Vol. 74, No. 1, Winter 2006, pp. 10-18 11 H .-!.:;,.,, •7(1 J7i( Pt) 1050 IS ',(1,5 with armoring was tested with repeated measures ANOVA. The distribution of shorebird species relative to coastal armoring was exam- ined with the Sign lest (Zar 1 984). Table 1. Lengths and mean heights (± standard deviation) of seawalls and adjacent unarmored shoreline segments used in the study (mean heights are based on measurements from five to seven locations in the middles 50 percent of each armored segment in September 2005). Seawalls are listed from east to west as in the figures. Beach names indicate locations of nearby landmarks, not the names of seawalls or their owners. driftline and lo the water table outcrop on five to seven transects during low tide in September 2005 (Figure I). The hypoth- esis that inlerlidal zone widths differed between armored and unarmored segments was examined with two-way analysis of variance (ANOVA). To estimate the standing crop of wrack, we measured the mass of macroalgae and seagrass deposited on three randomly lo- cated shore-normal transects located within the central 50 percent of each segment on a single sampling date in September 2005. We collected all exposed and buried wrack in a !-m wide strip across the intertidai zone and sorted it by type including: fresh and dried Macrocystis pyrifera, Egregia menziesii, Pliyllospadut spp., Zostera spp., red algae, green algae and other brown algae. All wrack was weighed in the field with a spring scale. The hypothesis that the standing crop of wrack differed between armored and unarmored segments was examined with two-way ANOVA. We also noted the presence or absence of driftwood on each segment. We counted and identified all birds pres- ent, including shorcbirds. gulls, and other birds, on intertidai sand or rocks, or on seawalls on the armored and unarmored segments at each site during low tides on eight dales between Aug. 19 and Sept. 30, 2005. Counts of paired segments of coast were always made on the same lide and date. Data were summarized as abundance and species richness for alt birds observed. Means and standard errors of species rich- ness and abundance of shorcbirds, gulls and other birds were calculated for each segment and shoreline type. Raw abun- durice data were adjusted to densities per km of shoreline for comparisons. The hypothesis that the species richness and abundance of shorebirds and gulls varied RESULTS Intertidai Zonation The intertidai zones of ail beach segments we mea- sured were relatively narrow with overall widths from the up- per beach limit to the water table outcrop ranging from 4. 1 m to 1 5.4 m on armored segments and 6.5 m to 28.7 m on unarmored segments of jjeach. No coastal strand zone was pres- ent on the study beaches in 2005. We also observed fewer intertidai boulders (large naturally occurring rocks of greater than 256 mm diameter) seaward of the armored segments compared to unarmored bluff- backed segments. Intertidai zones were fewer and narrow- er where armoring was present compared lo adjacent unarmored segments (Figure 2). This was manifested in the absence of the upper intertidai zones on armored seg- ments of coastline (Figure 2, 3a). In every comparison, Ihe driftline occurred at the base of or on the seawall itself on armored segments, indicating the elimination of the upper and supralittoral intertidai zones on armored segments (Figure 2, 3a). On un- armored sections, at least a narrow upper intertidal zone was present at every site (Figure 3a). The distance from the upper beach lim- it to the water table outcrop was narrow- er (47 percent to 60 percenQfor armored compared to adjacent unarmored segments (Figure 2, 3b). This distance differed sig- nificantly among ar- mored and unarmored segments and among the four sites (two- way ANOVA, n = 40: Type: F = 98.41, p< 0.00 1, Site: F= 14.51, p<O.OOi,Typex Site: F= 1.19. p = 0.330). Wrack The distribution of drift material, wrack, and driftwood, present during our surveys varied between armored and unarmored segments. The macrophyte wrack in our sur- veys consisted primarily of brawn macroal- gae and surfgrass and amounts varied con- siderably among the four sites and among transects. Driftwood deposits were present on the four unarmored segments studied, but no driftwood was observed along any of the armored segments during the study period. The standing crops of macrophyte wrack (wet biomass per meter of shoreline) were very low on all ihe armored segments dur- ing the study period. The standing crop of wrack was one to nearly three orders of magnitude greater on unarmored segments (881 g m'! to 9351 g nr1) than on armored segments (6 g nr' to 37 g m"1) (Figure 4). The standing crop of wrack was signifi- cantly greater on unarmored bluff-backed segments than on armored segments but did not differ significantly among the four beach sites (2 way ANOVA, n = 24, Type: F = 5.60, p = 0.031, Site: F = 0.88, n = 24, p = .474, Type x Site: F = 0.88, p = 0.47). Birds Overall, we observed a tola! of 3,961 birds of 27 species, including shorebirds, gulls and other birds, in eight counts at each of four sites (4.7 km of shoreline to- tal per count) (Table 2). Birds were more abundant and more diverse on unarmored segments than on armored segments with seawalls. Mean abundance was 4.3 times higher on the unarmored segments (164 ± 234 individuals km'1) than on the armored segments (38 ± 83 individuals km'1). The mean species richness of birds (per count) was 2.1 times higher for unarmored seg- ments than for armored segments. Figure 2. This view looking east along an old concrete seawall on the Gaviota coast at tow tide illustrates the attenuation of Interttdal zones on a beach seaward of coastal armoring. 12 Shore & Beach Vol. 74, No. 1, Winter 2006, pp. 10-16 Figure 3. Mean widths (+ one standard error, n = 5) of intertidal zones in meters at low tide far unarmored (grey bars) and armored (white bars) segments of coastline at four beaches: (a) mean widths of the zone between the driftline and the upper beach limit,( * indicates the absence of this zone) (b) mean widths of the beach between the upper beach limit and the water table outcrop (wet/dry line). The names of the beaches given on the x axis Indicate nearby landmarks. mored segments (Table 2). The mean spe- cies richness (per count) of shorehirds was 2.3 times higher for unarmored segments than for segments with seawalls (Figure 5). Overall, the abundance of shorebirds was more than three times greater on un- armored segments (24.3 ± 12.6 individuals km-') than on armored segments (7.5 ± 7.5 individuals knr1) (Figure 6). The species richness and abundance of shorebirds was significantly greater on unarmored seg- ments than on armored segments of beach (Repeated Measures ANOVA, n = 8, Rich- ness: F= 15.971, p= 0.007; Abundance: F = 13.194. p = 0.011). All 13 species of shorebirds observed were more abundant on unarmored seg- ments than on armored segments (Sign Test, p < 0.001) (Table 2). The four most abundant species of shorebirds accounted for 90 percent of the total shorebird abun- dance: Spotted Sandpiper, Actltis macu- lata, 51 percent; Willet, Catatroplionts inornatus, 15 percent; Wandering Tattler, 13 percent; and Killdeer, Charadrius vo- ciferiu 11 percent. Of these species, large proportions of all individuals observed were found on unarmored segments (70 percent, 91 percent, 85 percent, and 95 percent respectively). Gulfs Although not predicted by our model, gults also responded to coastal armoring. We observed a total of 3,378 gulls of three species in the eight surveys (Table 2). All three species of gulls were recorded on armored and unarmored segments of beach (Table 2); most of them were loafing. Mean TaMeL* .uul ftltst tv-lis til ('.111 :i jnil St-i 3(>. JW>5.lN^)ad)H It fVtMMS NA.ML M'MllS. 'ft (Id :y| anJ cccuncruc (number <tf links fT2-*i"> i>!' <Jw« * n5 ;-:tKJKii 4li*S Ui»rfn*5?vJ N^rMrfiil-* 4tJ' lvi.'ft N^l nJ !n (xf R.)R ik'n^ttici > ixi=. XKI.M.1 <l i'J 11 ii!K Ad*. I" v, n M i MM>KI ,'llii:i\ O'.'LI.S Wrvinr, t,j-(J iUrL.-i.*-.-£V-it- U f^'hiii7*t <*uJI t'.irw.^i ^1 I «l'M.S • MM *,.& f'i!»:jli€ «'Xi It." Figure 4. Mean wet blomaas of macrophyte wrack (+ one standard error, n =3) in grams at low tide for unarmored (grey bars) and armored (white bars) segments of coastline at 4 beaches. SUorebirds Shorebirds responded to coastal "armor- ing as predicted by our model. We ob- served a lolal of 514 shorcbinis of 13 species in the 8 surveys (Table 2). Most of the shorebirds observed were foraging actively. A total of 13 species of shorebi rds . ~ " " ~ ———————— were recorded on unarmored se»ments Table2-Abundance(ascounls)andoccu"-ence{numberoftimesPresent)ofshorebirds,were ruoraca on unarmoao segments, guj!S| and other birds in paired surveys of armored and unarmored segments of beachwhile only eight species were seen on ar- •,«,»«,„,,« A.,* 10 -nn •:»„, onne tu^ ^>.,,t^.» „>, b~ .•-_-.•.,:-..»between Aug, 19 and Sept, 2005. (Not adjusted to per Nm densities.) Shore & Beach Vol. 74, No. 1, Winter 2008, pp. 10-15 13 Figure 5. Mean species richness of shorebirds (+ one standard error, n = 8} during fail migration (or unarmored (grey bars) and armored (white bars) segments of coastline at four beaches. species richness did not vary significantly between armored and unarmored segments. Overall, the mean abundance of gulls was 4.7 times higher for unarmored segments (136.7 t 234.8 individuals km'1) than for armored segments (29.3 ± 83.8 individuals krtr1) (Table 2). The species richness of gulls did not vary significantly with coastal armoring (Repealed measures ANOVA, n = 8. F = 2.7, p = 0.151). The abundance of gulls was significantly greater on unar- mored segments than on armored segments of beach (Repeated Measures ANOVA, n = 8, F= 18.880, p = 0.005). Other birds A response to armoring was also ap- parent for a variety of other species of birds observed including seabirds (cormo- rants, California Brown Pelican), herons (Great Blue Heron, Great Egret, Green Heron) and terrestrial birds (e.g., Black- Phoebe, Song Sparrow, American Crow, Rock Dove). Low numbers of other bird species were observed with a total of 69 individuals of 11 species recorded in our surveys (Table 2). Overall, twice as many species of other birds were observed on unarmored segments (10 species) as on armored segments (five species) of beach (Table 2) however, this difference was not statistically significant (Repeated measures ANOVA. n = 8. F = 4.531, p = 0.077). The abundance of other bird species was gen- erally quite low, but varied with coastal armoring. The overall mean abundance of other birds was 2.3 limes higher on unarmored segments (3.2 ± 3.0 individuals km'1) than on armored segments (1.4 ± 2.0 individuals km'1) but did not differ signifi- cantly with armoring (Repeated measures ANOVA, n = 8, F = 3.465, p = O.I 12). DISCUSSION Narrowing of beaches in front of coastal armoring was evident in both the upper Figure 6. Mean abundance of shorebirds (+ one standard error, n = 8) during fall migration for unarmored (grey bars) and armored (white bars) segments of coastline at four beaches. and the middle intertidal zones of the beach. Upper intertidal zones appeared to be most affected by armoring with the zone of the beach located above the drift- line eliminated from the armored segments of beach, even in late summer. The effects on intertidal zones would be expected to be stronger during the winter and spring months when intertidal sand levels de- cline (e.g., Hubbard and Dugan 2003). A well-designed BACt (Before After Control Impact - e.g., Schroeter et al. 1993) study of the short-term responses (20 months) to a newly constructed seawall did not find a significant effect of the seawall on the distance between the driftline and the low tide level of the beach (Jaramillo et al. 2002), This contrasting result for effects on the intertidal zone may be due in part to the young age of the seawall studied by Jaramillo et a!. (2002) compared to the old structures studied here. Importantly, their" study did not compare the zone widths above the driftline where the most extreme differences were observed in our study. The coastal strand zone and associated vegetation did not exist on most of lite narrow beaches we studied and was never observed on the armored segments. The effects of coastal erosion and sea level rise on-this restricted zone (e.g., Feagin et al. 2005) combined with armoring impacts bode poorly for the survival of the coastal strand zone on coastlines that are both retreating and developed. The tack of iiiterlidal boulders seaward of the armored segments compared to un- armored bluff-backed segments suggests a reduced supply and/or higher longshore transport of boulders occurs in front of seawalls. This result could be examined in more detail and has important implications for both coastal sediment supply (e.g., Runyan and Griggs 2003) and the biocom- plcxity of the inlertidal zone. Our results support the prediction that upper intertidal beach zones are lost and mid-intcnidal zone are reduced in front of coastal armoring structures. The upper intertidal zone, specifically the driftline, shifts from the beach to the armoring structure with clear consequences for the ecology of the beach, including reduced biodiversity, abundance and prey for shorebirds. Rich, three-dimensional infau- nal beds of the driftline are eliminated and are replaced by the steep two-dimensional habitat of the seawall, which may support a low diversity of some rocky shore spe- cies (e.g., Chapman 2003, Chapman and Bulleri 2003) but has little or no resource value for shorebirds. The damp sand zone of the beach was also significantly narrow- er on armored segments of coast compared with adjacent unarmored segments. This result implies reduced habitat for inverte- brates and more restricted foraging areas for shorebirds on armored coastlines. In addition to macroinvertebrates, the high intertidal zone around the driftline is nesting habitat for several species of fish; including the California grurtion (Leiires- thes lentiis) on open coastlines and Surf Smelt (Hypomesus pretiosits) and Pacific Sand Lance (Aminodytes hexapterus) on protected shores, who lay their eggs in this zone during peak spring high tides to in- cubate in the sand through the neap tides. Negative effects of armoring on embryo survival have been reported for the surf smell in Puget Sound (Rice 2003) and might be expected for California grunion. The reduction or loss of this high intertidal zone associated with coastal armoring re- ported here has clear consequences for reproduction of beach-dependent fish spe- cies. The importance of Pacific sand lance and surf smelt as forage fish for salmon and seabirds have stimulated efforts to identify and protect spawning beaches from coastul armoring and other human impacts in the Puget Sound area (Reeves et al. 2003). Wrack is a key resource for beach in- vertebrates (Brown and McLachlan 1990). Availability of macrophyte wrack can af- fect diversity and abundance of intertidal animals including shorebirds (Dugan el al 2003). An average of 37 percent (range = 14 percent to 55 percent) of the inver- tebrate species on beaches of the study region were wrack-associated forms and overall species richness of the community was positively correlated with the stand- ing crop of wrack (Dugan et al. 2003). We predict that the loss of this habitat zone ob- served on armored segments in this study has likely resulted in a significant reduc- Shore & Beach Vol. 74, No. 1, Winter 2006, pp, 10-16 lo\ lion of intertidal diversity and an alteration of community structure and function. The abundance of" talitrid amphipods was posi- tively associated with wrack cover (Dugan et al. 200.1) and this important crustacean can reach densities exceeding 90,000 in- dividuals rrf1 on unarmorcd bluff-backed beaches (Dugan ct al, unpublished). The significant reduction in the standing crop of this key resource found on ar- mored beaches is expected to have strong negative effects on biodiversity and abun- dance of wrack-associated invertebrates, including talitrid amphipods, isopods, and beetles, as well as the entire intertidal community and food web of the beach. Our results also suggest that the accumula- tion of wrack may be affected by coastal armoring on other shore types including boulder, cobble, rock shelf, and estuarine shorelines thus affecting a variety of inter- lidal food webs. Our results fit our prediction that the distribution of shorebirds on beaches dur- ing fall migration responds negatively to the presence of coastal armoring. The significant responses of species richness and abundance of shorebirds to armoring was evident even during low tide surveys when the greatest amount of habitat was available. We expect the differences in shorebinl distributions would be greater during high tides and when sand levels are reduced during winter and spring. The response of shcrcbirds to coastal armor- ing exceeded that predicted by the loss of habitat area alone, suggesting that other factors — including prey abundance and diversity, availability of high tide refuges, and olhcr landscape factors — also con- tribute to the observed response. Loss of habitat for migration staging, foraging, and wintering has been implicated in the declines of populations of many species of shorebirds in North America and is a major concern for shorebird conservation planning (Brown et al. 2001). Our results were also consistent with the prediction that visually searching shore- birds, such as plovers (e.g., killdccr and black-bellied plovers), were strongly af- fected by beach changes associated with armoring. This may be related to the dis- proportionate reduction of the zones above and around the driftline where the prey for these species concentrate in stranded wrack. Although not predicted by our concep- tual model, gulls, scabirds, waders, and other birds also responded negatively to coastal armoring in this study. Factors associated with armoring that may be af- fecting this wider variety of birds require further investigation. The seawalls observed in this study were old, primarily vertical structures that interacted with tides and waves daily, even in the late summer when sand levels arc expected to be greatest on this coastline (e.g., Hubbard and Dugan 2003). These walls were associated with significant de- pression in several ecological elements of the beach community. Ecological re- sponses to other forms of coastal armor- ing may differ. Seawalls or other coastal armoring structures that experience more or less interaction with waves and tides could produce different results. We predict that the ecological effects of any armoring structure will increase with the amount of interaction between the structure and the intertidal processes of waves and tides, whether this is due to initial placement or subsequent erosion of the beach. CONCLUSIONS Our study results suggest that the altera- tion of sandy beaches by coastal armor- ing causes significant ecological responses of intertidal beach communities including overall loss of habitat, the loss and reduc- tion of intertidal zones, altered wrack de- position and retention, and reduced diver- sity and abundance of macroinverlcbrates, shorebirds, gulls, and other birds. The combination of rising sea levels predicted by climate change models (e.g., Kend- all et al 2004) and the increasing extent of coastal armoring (already >10 percent of the coast in California (Griggs 1998) will accelerate beach loss and increase ecological consequences for sandy beach communities and shorebirds in many re- gions. The ecological responses to coastal armoring we found indicate that further and more detailed research is needed on this question. We predict that the amount of interaction between a coastal armor- ing structure and the coastal processes of waves and tides will affect the ecological responses to the structure. Our conceptual model provides a framework that could be used in investigating ecological responses to coastal armoring of other types and tidal heights and in other coastal regions. ACKNOWLEDGMENTS We gratefully acknowledge S. Bull, M. James, G. Osherenko, and D. Revell for their encouragement and valuable discus- sions about this study. The deliberations of the Goiela Beach Working Group orga- nized by Santa Barbara County provided the inspiration for this study. We also thank L. Ewing and four anonymous re- viewers whose suggestions improved our manuscript. This research was supported by a grant from the A.S. Students Shore- line Preservation Fund of the University of California at Santa Barbara and by the Santu Barbara Coastal Long Term Ecolog- ical Research project (NSF Cooperative Agreement 00CE-9982105). Shore 4 Beach Vol. 74, No. 1, Winter 2006, pp. 10-16 15 REFERENCES Bascom. W.. 1980. Wive* ami Beach**. Anchor Press/Doubleday. New York. 366 pp.Brown, A. and A. Mctachlan, 1990. The Ecology of Sandy Shores. Elsevier Science Publishers, Amsterdam. 340 pp. Brown. S.C., C. Hickey, B. Harrington, R. Gill (eds.). 2001. The US. Shore/tiro" Conservation Plan (21"1 edition). Manomct: Manomet Center for Conservation Sciences. Chapman. M.G., 2003. "Paucity of mobile species on constructed seawalls: effects of urbanization an biodiversity." Marine Ecology Progress Sf ries, 254. 21 -29. Chapman, M.G. and F. Bulleri, 2003. "Intertidal seawalls: new features of landscape in imertida! environments." Lantl.tcop<i and Urban rtanninx, 62. 159-172 Charlicr. R.H.. M.C.P. Chaineux. and S. Morcos, 2005. "Panorama of the history of coastal protection." Journal <>J Coastal Research, 21(1), 79-111. Dugan. j. .. 1999. "Utilization of sandy beaches by shorebircis: relationships to population characteristics of macrofauna prey species and beach morphodynamics." Draft Final Report. Minerals Management Service, UC Coastal Marine Institute. Dugan, I.E., D.M. Hubbard, J.M. Engle. D.L Martin, D.M. Richards, G.E. Davis. K.D. Lafferty. R.F. Ambrose, 2000, "Macrofauna communities of exposed sandy beaches on the Southern California mainland and Channel Islands." Fifth California Islands Symposium. MMS 99-0038.339-3*5. Dugan. I.E., D.M. Hubbard, M. McCrary, and M. Picrson. 200.1. "The response of macrofauna communities and shorebirds to macrophylc wrack subsidies on exposed beaches of southern California." Esiiiurine. Coastal ami Shelf Science. S8S, 133-148. Dugan. J.E. and D.M. Hubbard. 2004. "Factors affecting sandy beach use by shorebirds in the Santa Maria Basin and vicinity." Draft Final Study Report to MMS, OCS Study t MMS 2004-012. 127 pp. Feagin. R.A.. DJ. Sherman and W.E, Gram, 2005. "Coastal erosion, global sea-level rise, and the loss of sand dune plant habitats." Frontiers in Ectiln^v anil the Envinimmnt, 7(3). 359-364. Griggs, G.B.. 1998. 'The armoring of California's coast." Pp. 515-526 in California and theWorld Ocean '97. Conference Proceedings, O.T. Magoon, H. Converse. B. Baird and M. Miller-Hcnson {eds.) American Society of Civil Engineers. Virginia. Griggs, G.B.. 2005. "California's retreating coastline: where do we go from here?" Pp. 121-125 In: California and the World Ocean. Conference Proceedings, October 2002, Santa Barbara, CA, O.T. Magoon, H. Converse, B. Baird and M. Miller-Henson {eds.) American Society of Civil Engineers. Virginia. Hubbard. D.M.. and J.E Dugan, 2003. "Shorebird use of an exposed sandy beach in southern California." Extuarlue, Coastal anil Shelf Science. 58S. 169-182. Habel,J.S. andG.A. Armstrong. 1978./t.Me.v.vm«if anil alias of shoreline erosion along lite California cmist. State of California, Dept. of Navigation and Ocean Development, Sacramento, CA 277 pp. Hail. M.J. and O.H. Pilfcey. 1991. "Effects of hard stabilization on dry beach widths for New Jersey." Journal of Coastal Research. 7(3), 771-785. Jaramillo. E., J. Dugan, and H. Conlreras. 2000. "Abundance, tidal movement, population structure and burrowing rate of Emerilit analnga (Stimpson 1857) (Anomura, Hippidae) at a dissipativc and a reflective beach in south central Chile." Marine Ecology Napoli. 21 (2), 113-127. Jaramillo, E, H. Comrcras, and A. Bellinger, 2002. "Beach and faunal response to the construction of a seawall in a sandy beach of south central Chile." Journal nf Coastal JfecntrvA, 18(3). 523-529. Ken<lall,M.A..M.T. Burrows, A J. Southward, and SJ. Hawkins, 2004. "Predicting the effects of marine climate change on the invertebrate prey of the birds of rocky shores." lltix, 146 (SI), 40-47 McCrary, M and M. Pierson. 2000, "Influence of human activity on shorcbird beach use in Ventura County, California." Proceedings of Fifth California Islands Symposium. OCS Study MMS 99-0038,424 - 427. McCrary, M. and M. Pierson, 2002. "Shorebird abundance and distribution on beaches in Ventura County. California." Final Report. OCS Study MMS 2000-010.72 pp. McLachlan, A. and E Jaramillo, 1995. "Zonation on sandy shores." Oceanography and Marine BMogy: an Annual Review. 33,305-335. Nordstrom, K.E 2004. Beaches anil dime* nf developed coasts. Cambridge, UK. Cambridge University Press. Rice, C. 2003. "Effects of shoreline modi (kalian on spawning habitat of surf smell (Hypom&iu pntinsus) in Pugei Sound, Washington." Abstract front the 2003 Georgia Basin/Puget Sound Research Conference. Reeves. B, B. Bookhcin, and H. Berry. 2003. "Using ShoreZone inventory data to identify potential forage lish spawning habitat." Abstract from the 2003 Georgia BasinfPugct Sound Research Conference. Runyan, K.B. and G.B. Griggs, 2003. "The effects of armoring seacliffs on the natural sand supply to the beaches of California." Journal nf Coastal Research. 19(2). 336-347. Schroeter. S.C., J.D. Dixon, J. Kaslendiek. and R.O. Smith. 1993. "Delecting the ecological effects of environmental impacts: a case study of kelp forest invertebrates." Ecalogital Applications. 3(2), 331-350. Short. A.D., 1996. "Theroie of wave height, period, slope, tide range and embaymentisatian in beach classifications: a review." Rtviita Cliilena tie ftisloria Natural. 69,589-604. Tail, J.F. and G.B. Griggs, 1990. "Beach response to the presence of a seawall: a comparison of field observations." Share and Beach. 58(2), 11-28. Tarr, J.G. and P.W. Tarr, 1987. "Seasonal abundance and the distribution of coastal birds on the northern Skeleton Coast. South West Africa/Namibia." Madm)ua IS, 63-72. Zar, J. H.. 1984. Bioilatiuictil Analysts. 2" Edition, Prentice-Hall Inc. Englewo'od Cliffs, New Jersey, 718pp. 16 Shore & Beach Vol. 74, No. 1, Winter 2006, pp. 10-16 I03 Id-Exhibit 4 u / / 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 Maliasky. Alice Reynolds, Casey Roberts, Matt Rodriguez, Hope Schmeltzer, 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. * 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. 533 105 534 ECOLOGY LAW QUARTERLY [Vol. 34:533 c. Public Nuisance 557 3. The California Statutory Puzzle: Reconciling the Public Trust and the Coastal Act 558 -] 4. Permit Conditions as Rolling Easements 564 '| 5. Takings and Rolling Easements in California 567 a. Implementing Rolling Easements: Examples from Other States 570 b. Rolling Easements as Economic Assets 574 c. Living Shorelines and Public Access Measures.'. 576 Conclusion 578 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, and'| increased coastal erosion.1 The California Coastal Commission and predecessor regional commissions have worked to protect the state's^ coastal resources since the Commission's creation by voter initiative is 1972 and formalization in the California Coastal Act of 1976. Climate! change-induced sea level rise presents the Commission—and all those| who use and value the state's coastal resources—with a stark new set i challenges.2 As sea level rises, pressure to armor the coast will grow. The bhi and cliffs of the California coast may appear stable, but they are, in manyj places, riven with faults, joints, and fractures, and are often composed < unstable rock. Battering winter storms and high tides have and continue to cause bluff collapse and the loss of structures built up bluffs. Property owners, if allowed to do so, will attempt to forestall the 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 fro the public by massive shoreline protection structures. Where estua marshes, which provide significant nursery habitat for many ma 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 CAY AN ET AL., CAL. CLIMATE CHANGE CTR., PROJEC FUTURE SEA LEVEL (2006) [hereinafter PROJECTING FUTURE SEA LEVEL RISE], 2. While both "global warming" and "climate change" are used interchangeably in 1 popular press, we use the term "global wanning" to refer to the direct increase in temperati associated with increasing greenhouse gas concentrations. By "climate change," we mean 1 larger complex of changes in weather patterns associated with this warming. 2007] M? ^ YAT THE BEACH 535 Yet, the California Coastal Commission and the state of California :can begin now to plan for sea level rise. Although future warming may be ^reduced if major global efforts are initiated soon, it cannot be wholly 'prevented, thereby imposing significant responsibilities upon the ^stewards of the coast. Sea level rise is an enormously complex public policy problem; this Article is intended only as a starting point for what should be an extended statewide conversation. We first place the problem in 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 bodies should consider adopting, ranging from carefully planning new \ development, to restricting armoring privileges of existing development, to designing unavoidable armoring structures for minimal ecological j 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, | engineering expertise must be brought to bear to ensure that coastal i protection devices minimize environmental damage. F Structures located on urban peripheries and in rural areas may often £ threaten important ecological or social values. Here, the Commission can I defend and continue to deploy an existing network of "no future ~ armoring" permit conditions and litigate to defend the state's public trust I 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. . 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. /0'7 NO DA YAT THE BEACH 535 Yet, the California Coastal Commission and the state of California £an begin now to plan for sea level rise. Although future warming may be teduced if major global efforts are initiated soon, it cannot be wholly prevented, thereby imposing significant responsibilities upon the stewards of the coast. Sea level rise is an enormously complex public problem; this Article is intended only as a starting point for what should be an extended statewide conversation. We first place the problem m context by discussing the basic threats posed to the coast. We then biggest a set of policy responses that the Commission and other land use |wdies should consider adopting, ranging from carefully planning new ^development, to restricting armoring privileges of existing development, po designing unavoidable armoring structures for minimal ecological fbarm. Development should be channeled away from vulnerable coastal areas through amendments to Local Coastal Programs.3 Existing fractures in the urban cores of the state present a more difficult problem; |ome form of protection will often simply have to go forward. Even then, aaagineering 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 jannoring" permit conditions and litigate to defend the state's public trust pterest in the shoreline. The Commission may also encourage the State feoastal Conservancy to purchase erosion control easements, which allow Ihe state to decide whether or not a property will be allowed to armor. re classify all of these strategies as variations on the theme of the "rolling easement," a device, rooted in statutory or common law or in conditions, that allows the publicly owned tidelands to migrate as the sea rises, thereby preserving ecosystem structure and ition. We consider the possibilities for such easements in California ^-andpast experience with them across the country. $? In cases where easements cannot be obtained and there is no other |^|>asis for permit denial, the Commission could at least require that ^armoring structures do not eliminate or impede the public's access along t&e 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, • lechanneling transportation and other infrastructure spending away from fragile coastal areas f 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 iafra notes 77-82 and accompanying text. 4. See infra notes 225-227 and accompanying text. 16 S 536 ECOLOGY LA W QUARTERLY [Vol. 34-533 help prepare the state for the challenges of the decades to Adaptation to climate change is necessary, but we need not adapt in waya 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 no fully known, predicting sea level rise is necessarily an imprecise effo However, the California Climate Change Center's 2006 reports and < assessments do provide a range of future sea levels; all possibilities wii this range require a policy response.5 Atmospheric warming in Califor will range between 3 and 10.5° F over the next century, depending up many variables within our climate system, as well as the speed with wh we are able to reduce greenhouse gas emissions.6 In the center of range—based upon steadily rising emissions over the next century- temperature increases between 5.5 and 8° F are predicted.7 The temperature increases would trigger a wide array of changes throughe 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 much: 40 percent of the snowpack may be lost.8 Water supply could fall b 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), see t U.S. ENVTL. PROT. AGENCY (EPA), THE PROBABILITY OF SEA LEVEL RISE (1996) In s 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 predicts 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 few i in the next two centuries. Id. At the time of this writing, the fourth IPCC report had not yell fully released. This report, however, does confirm that sea level rise rates have nearly double 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 > over the next thousand years, raising global sea level by about 7 meters. Id. at 17. The I of the ice sheet is poorly understood, however, and the IPCC notes that "dynamical pr< related to ice flow not included in current models but suggested by recent observations ( increase the vulnerability of the ice sheet t:o warming, increasing sea level rise." Id. This J that existing sea level rise estimates may well be Mrfe/estimates: the problem could very] be worse than we know. 6. AMY LYND LUERS ET AL., CAL. CLIMATE CHANGE CTR., OUR CHANGING CLD ASSESSING THE RISKS TO CALIFORNIA 3 (2006). 7. Id. 8. DAN CAY AN 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-lS6-SF.pdf [hereinafter SCENARIOS OF CLIMATE ( IN CALIFORNIA]. 9. /rf.atl6. 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. Id. at 19. 11. 7dat22. 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 1; 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. /cUtix. 18. Id. at 5-6. 19. Id at ix, 21; see also SCENARIOS OF CLIMATE CHANGE IN CALIFORNIA: AN OVERVIEW, supra note 8, at 10. 538 ECOLOGY LAW 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 (Gaiy Griggs et al. eds., 2005). 23. /rial 22. 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), available athttp://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). 2007] 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 i, 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 THEILER & 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/ofDO-178/. The National Oceanic and Atmospheric Administration (NOAA) gathers sea level trends and other useful data in searchable format at http://tidesandcurrents.noaa.gov/. 33. Id. 540 ECOLOGY LAW 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 cliff 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's 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 Mertidal Habitat for Shorebirds, 25 WATERB1RDS 173 1)3 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.42 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'pty- 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 a/so 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 at http://www.dbw.ca.gov/csmw/ PDF/SlageI&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-1. 44. Griggs, supra note 34, at 83,246-47. These manmade 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 LAW QUARTERLY [Vol. 34:533 seven and eleven million new residents in California.46 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 upwelling off California's coast that sustains our highly productive fisheries.48 Wanner 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 CaJ., California's Future Population (2006), http://www.ppic.org/ content/ pubs/jtf/JTFJFuturePopulationJTF.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 Climate 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 wanner temperatures will increase the cold water upwelungs 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 Qimate 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 Acctimatory Adjustments of Thermal Limits, FRONTIERS IN ZOOLOGY, Jan. 2005, available a/'httprf/www.frontiersuizoology.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., Preiadustrial to Modem Variability in Coral Reef pH, 309 SCIENCE 2204 (2005) (discussing growing acidity and threat to coral reef ecosystems). 15 2007] NO DAY AT THE BEA CH 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 hi 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, My 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. /rf.atll. 57. /datlS. 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 Cttifoveaz 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 LAW 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 COAST 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. Id. 130235. 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. /d§31105. 67. /rf.§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 LAW QUARTERLY [Vol. 34:533 giving local governments the authority to shape development in then- 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 hi 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. 7rf.§30500. 79. The Commission maintains a database of approved LCPs at http://www.coastal.ca.gov/ la/lcpstatus.html. Seea/soCAL. PUB.RES.CODE §§ 30511-30512. 80. CAL. PUB. RES. CODE §305l9.5(a). 81. /<i§ 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. Jtf.§30517.5(b)(2). 85. See supra note 79.86. CAL. PUB. RES. CODE § 30600. 12. 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 in 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.88 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://coastalha2ards.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 LAW QUARTERLY [Vol. 34:533 or coastal recreation. Such locations might include the remarkable wetlands of Elkhorn 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). 123 552 ECOLOGY LAW 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."9* 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."*7 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 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 property 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 LAW 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 Countil, 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, Patens 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 Lechuza 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. Id at 403. 103. Id at 411 (quoting State Lands Comm'n v. Superior Court, 900 P.2d 648,655 (1995)). 104. Id (quoting City of Oakland v. Buteau, 179 P. 170 (Cal. 1919)). 105. Id 106. Id 107. Id. at 404. 554 ECOLOGY LAW 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. Id at 1374. 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 (Cal. 1980). 2007] NO DAY AT THE BEACH 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."113 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 infra notes 137-159 and accompanying text. 117. See generally David J. Bederman, The Curious Resurrection of Custom: Beach Access and Judicial Takings, 96 COLUM. L. REV. 1375 (1996). 118. Wendy Oram & Clay Valverde, Note, Legal Protection of Surf Breaks: Putting the Brakes on Destruction of Surf, 13 STAN. ENVTL. LJ. 401,442 (1994) (synthesizing cases). O 556 ECOLOGY LAW 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 hi 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. 465P.2d50(Cal.l970). 120. Id. at 56. 121. Id. 122. Bedennan, 5ty/a note 117, at 1417-34. 123. Id. at 1433-34. 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 pubEc 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 exrel. 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. Id. at 100. 128. Id. 129. Id. 130. CAL. Civ. CODE § 3479 (West 2006). 558 ECOLOGY LAW 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 surf's 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 per se," 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. Id. at 323 n.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 BEACH 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. /d§ 30211. 560 ECOLOGY LAW QUARTERLY [Vol.-34:533 developments to areas that will not require seawalls.1* 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 in 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. /rf.§§ 30235,30253. 141. Id. §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 Comra'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). /3-f 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.k 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 LAW 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.157 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 fUe with authors). 158. 7rf.at20. 159. Cardiff, supra note 73, at 264-66. 564 ECOLOGY LAW 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 modem 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 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 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 LAW 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.161 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. Id. at 2. 163. See generally Alexander Brown & A. McLachlan, Sandy Shore Ecosystems and the Threats Fating 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 DA YAT 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 finauzation 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 LAW QUARTERLY [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. A/.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 DAY AT 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). N 570 ECOLOGY LAW 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.171* 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.180 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."11" Put simply, "an easement is not so inflexible that it cannot accommodate changes in the terrain it covers."182 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 Property Interests on the Coasts, 27 H ARV. 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 casements 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 also 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, 117 S.W.2d at 109. 181. A/, at 110. 182. Id. 2007] NO DAY AT THE BEACH 571 would disappear," defeating the public trust and public interest.1*3 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 Arrington 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.m 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. /datlll. 184. Id. at 112-14. 185. 5te38S.W.3d764(Tex.App.2001). 186. 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.192 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 BEA 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 landforms, 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 in "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. Id. § 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 LAW QUARTERLY [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.m 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. §§ 113A-115.1(b). 210. OR. ADMIN. R. 736-020-0010(6) (2005). 211. Mat736-020-0015-0030. 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 Sa., ECON. & THE ENVT, EVALUATION OF EROSION HAZARDS xxi, 128 (2000). 2007] NO DAY AT 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. 7datl3. 218. Id. at 13,16. 219. Id. at 12-13. 220. See Landry etal., supra note 215. 221. Id. at 121. 222. Id. 223. Id. at 11SU21. 224. Id at 121. /Iff 576 ECOLOGY LAW QUARTERLY [Vol. 34:533 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 hi 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/ljving%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/coastaydocuments/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. I Si 578 ECOLOGY LAW 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 in addressing climate change's effects—from shifts in 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. i1 S3 Fall 2001 Volume 38 Number 1 CAUFORNIA 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. frTTRODUCTION "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 j."' 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.4 Unfortunately, seawalls have a disastrous effect on the public beach.5 On an eroding beach, seawalls will eventually * J.D. Candidate, April 2002, California Western School of Law; B.A., 1995 California Polytechnic Slate 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. ]0, 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 pleadingsat 1 Calbeach Advocates v. City of Solaria Beach, Case No. G1N01G294, (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 SURFRSDER 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 Sack (he 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. PrLKEY & KATHARINE L. DrxON, THE CORPS AND THE SHORE (1996); WALLACE KAUFMAN & ORRIN PO.KEY, 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 destroy the beach, leaving no dry sand area for recreation.' Furthermore, beach replenishment projects, the primary method for restoring beaches de- stroyed by seawalls, are extremely expensive and increase the width of the recreational beach for only a very short time.7 Beaches are vital to California's economy, generating fourteen billion tourism dollars per year.' From a purely economic viewpoint, California's beaches are considerably more important to the overall economy than the property that shoreline armoring is designed to protect. Shoreline armoring 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.' 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. In 1976, when the California legislature passed the Coastal Act, the leg- islature was aware of the adverse impacts of seawalls.12 California Coastal Act section 30253 mandates that: New development shall.. . [ajssure 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." 6. Nicholas C. Kraus, The Effects of Seawalls on the Beach; An Extended Literature Re- view, Special Issue, J. COASTAL RES., 1, 4 (1988) (However, Kraus disputes whether active erosion is supported by scientific evidence.). 7. See SAN DJECO 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.). 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 California Department of Boating and Waterways). 9. For an excellent documentary film see the video by Eden Productions, LIVING ON THE EDGE (1998) (available from the Surfrider Foundation at http://www.surfrider.org, 122 S, El Camino Real, #67, San Clemente, CA 92672). 10. See Whaler's Village Club v. Cal. Coastal Comm'n, 173 Cal. App. 3d 240, 252 (1985) (landowners arguing they have a vested right to protect property). 11. CAL. PUB. RES. CODE § 30000 et. seq. (2001) [hereinafter Coastal Act § 30000 el. seq.], 12. See CALIFORNIA COASTAL PLAN 89 (1975). The California Coastal Plan was prepared prior to the coastal act pursuant to Proposition 20 (1972). See CAL. PUB. RES. CODE § 27320. 13. Coastal Act § 30253 (2001) (emphasis added). 2001] CONFLICT IN THE CALIFORNIA COASTAL ACT 257 New development must have sufficient setback from the edge of a bluff or high tide line so that a seawall is not needed in the future. Unfortunately, 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- crease in the floor area of their coastal home.15 As the shoreline erodes to within ten or fifteen feet of the house, the coastal homeowner then argues that the Coastal Act guarantees shoreline protection because their home is in imminent danger of destruction from shoreline erosion." Coastal Act section 30235 states: 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 erosion when designed to minimize or mitigate adverse impacts to shore- line sand supply. .. As Coastal Act section 30235 is currently interpreted, there is a policy conflict between the requirement that all new development have sufficient setback so that shoreline armoring is unnecessary in the future and the policy 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 within and outside of California. Finally, three options to resolve this con- flict are presented: legislative, administrative, and judicial. 14. See Gary Griggs & Lauret Savoy. Building or Buying on the Coast, in LrviN'G 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, the 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 not only provides a great view, but also allows for an increase in square footage of the house. See aha, Staff Report, Cal. Coastal Cornm'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 forry- eight inches per year). 16. See Coastal Act §30235 (2001). 17. Id. (emphasis added). 258 CALIFORNIA WESTERN LAW REVIEW [Vol.38 n. SHORELINE PROCESS AND SEAWALLS Shoreline armoring destroys the beach in three main ways: occupation loss, passive erosion, and active erosion." Occupation loss is simply the area of the public beach that is physically occupied by the seawall." Passive ero- sion is the narrowing of the beach in front of a seawall because seawalls fix in place the back end of the beach, preventing the retreat of the bluff or shoreline, while the lower beach continues to erode.20 Active erosion is sand loss caused by waves rebounding off of the seawalls themselves and scour- ing away the sand.JI The first step in understanding the damaging nature of seawalls is to un- derstand fundamental beach processes. Beaches in California are created from sediment transported to the ocean by rivers, streams, and eroding bluffs.8 Once the sand reaches the coastline, the sand is transported along the coast by side-shore currents, also called the long-shore currents or littoral drift." Beaches are sometimes characterized as rivers of sand because of this constant movement.14 Unfortunately, this river of sand is often cut-off at its source by dams, development, flood control projects, and seawalls; and once the sediment does reach the beach, it is often held up by harbors, jetties and groins." The recreational area of the beach, also called the dry sand area,7* makes up only a small portion of the total sand at a beach.17 Ninety percent of the 18. Orrin H. Pilkey & Howard L, Wright III, Seawalls Versus Beaches, Special Issue 4, JL COASTAL RES., 41,43 (1988). See also Video, Living on the Edge (Eden Productions, 1998) (available from the Surfrider Foundation) (Gary Griggs and Scott Jenkins explaining the ef- 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). 20. DEAN, supra note 1. at 53; PILKEY & DKON. supra note 5, at 40. See also Gary B. Griggs, Bringing Back the Beaches—A Return to Basics, available at http://www.wetsand.corn (last visited Nov. 15,2000). 21. See DEAN, supra note 1, at 53-55; KAUFMAN & PELKEY, supra note 5, at 208; and Griggs et al., Understanding the Shoreline, in LrvtNG WITH THE CALIFORNIA COAST 7, 22 (Gary Griggs & Lauret Savoy eds., 1985) (noting that seawalls block sand supply and cause erosion from wave rebound). 22. Griggs et al., supra note 21, at 14. Griggs also notes dial in Southern California some beaches are created and maintained by the dredging of harbors. Id. at 21-22. 23. See KAUFMAN & PO.KEY, 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. 24. See PtLKEY & DKOS, supra note 5, at 29; Griggs et al., supra note 21, at 15. 25. Katharine E. Stone, Sand Rights: A Legal System to Protect the "Shares 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)). 2001] CONFLICT IN THE CALIFORNIA COASTAL ACT 259 beach is underwater." 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,31 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.12 For example, people are often struck by how temporary the benefits of beach replenishment are." 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.53 On a natural beach, the sand will act as a shock absorber protecting the shoreline from wave energy.34 High-energy waves will take a portion of the dry sand area and coastal bluff and redistribute it underwater to form sand bars." These sand bars will cause substantial wave energy to disperse before it reaches the shoreline.35 In many areas of California, a steep narrow beach will be backed by a cliff, which will be subjected to intense wave energy." 28. See KAUFMAN & POJCEY, 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. PO.KEY & 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. TaiC, 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, 5«pranote5, at 216. 34. SAN DIEGO REGIONAL BIEACH SAND PROTECT ENVIRONMENTAL IMPACTREPORT/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. JdatS. 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 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 closer to shore and wave energy against the bluff or seawall increases.*1 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 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- ing a seawall.41 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 increased wave energy rebounding off of seawalls will exacerbate sand loss on an already depleted beach." In California, the wallification of the coast is reaching epic propor- tions.43 In 1990, seawalls armored over 130 miles of shoreline, approxi- mately 12% of California's 1,100-mile shoreline,4* 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.4' 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. 40. Id.; Nat. Res. Council, MANAGING COASTAL EROSION 24 (1990). Griggs estimates 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 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 i (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 qujckley with a seawall). See also Pilkey & Wright, supra note 18, at 59 (explaining the academic debate between active erosion and passive erosion). 45. See Video: Eden Productions, LIVING ON THE EDGE (1998) (Mark Massara, Esq., Coastal Director of the Sierra Club, coining the word "wallification"). 46. SURFRIDER FOUNDATION, STATE OF THE BEACH 10 (2000) (noting that in 1990 there 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. 2001] CONFLICT IN THE CALIFORNIA COASTAL ACT 261 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 mean high-tide line is owned by the State and held in trust for the people.47 In many areas of California, the public owns the dry sand area of the beach, but even in areas where dry sand area is privately owned, the public has the right to use the beach for access to the public land.50 If halting the natural re- treat of the coastline narrows the recreational beach and harms public prop- erty,51 should California allow property owners to protect their property at the expense of public property? Should nuisance law prevent the cumulative destruction of public property? Does it make economic sense to favor the protection of private property when public beaches are the most popular tourist destination in the United States," considering the expense of sand re- plenishment?53 III. HISTORY OF THE CALIFORNIA COASTAL ACT A. Legislative Intent In the late 1960s and early 1970s Californians became increasingly aware of the need for a comprehensive plan to conserve and preserve the State's 1,100-mile coastline.1* In 1970, less than one quarter of California's coast was legally accessible to the public," and coastal land was being sub- jected to a tremendous amount of public and private development at the ex- pense of long-term conservation.54 Development interests controlled the ma- jority of California's city and county planning commissions.1' It was evident 49. Lechuza Villas West v. Cal. Coastal Comm'n, 60 Cal. App. 4th 218, 235 (1997) ("The State owns all tidetands below the ordinary high water mark, and holds such lands in trust for the public") (citations omitted). 50. Coastal Act § 30211 (2001). 51. KAUFMAN & PDLXEY, supra note 5, at 89. 52. James R. Houston, International Tourism and U.S. Beaches, SHORE AND BEACH. Apr. 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 the coast each year). 53. See Terry Rodgers, Deficit May Reduce Beach Sand Project, SAN DtEGO UN1ON- TRIB., Feb. 24, 2001, at B5 (noting that San Diego's Association of Governments Sand Re- plenishment Project will cost over SI7 million). 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- 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 the public). 56. Id. all. 57. See id. at 119-24. "California Legislature's Joint Committee on Open Space Land 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 corrupt!ve force in government has to do with the use and development 262 CALIFORNIA WESTERN LAW REVIEW [Vol. 38 that the power to make coastal development decisions needed to be removed from local jurisdictions and vested in a statewide agency.51 Local control of coastal development decisions, in essence, amounted to uncontrolled devel- opment. Reacting to concerns by environmentalists and the impending Federal Coastal Zone Management Act,3' the California Legislature introduced six coastal act bills from 1970 to 1971, none of which passed into law.*0 In 1972, 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- tive on the ballot.*1 Proposition 20, the California Coastal Zone Conservation Act of 1972,62 passed with over 55% of the vote despite well-funded opposi- tion." Proposition 20 created one state-level and six regional coastal commis- sion boards to review all coastal development permits. In addition, the coastal commissions were to submit a detailed coastal development plan to the Legislature by December 1, 1975. Most of the policies and suggested language in the California Coastal Plan was adopted as the California Coastal Act of 1976." fi. The Legislative Record The legislative record supports the proposition that Coastal Act section 30235 was, in fact, simply a grandfather clause, intended to protect only structures existing before 1976. The legislative record displays this in three main ways. First, the Coastal Act was written by environmentalists and op- posed by industry. The intent of the bill can be gleaned from reading the 1975 Coastal Plan from this context. Second, an analysis of the textual evo- lution of the bill in the legislative record supports the "grandfather clause" of land. The developers and the building industry have been extremely destructive in Califor- 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) repeated by Coastal Act of 1976. 63. SCOTT, supra note 54, at 357. Opposition included BechteJ Corp., General Electric Co., Southern California Edison Co., Standard Oil Co. of California, Mobil Oil Corp., Gulf Oil Corp., Occidental Petrol Co., Texaco Inc., Irvine Company (developer), Southern Pacific Land Company, Teamsters and the California Real Estate Association (partial list). 64. See Coastal Act § 30002 (2001). 2001] CONFLICT IN THE CALIFORNIA COASTAL ACT 263 contention, because "existing" was intentionally inserted into the final ver- sion of the bill. Finally, a comparison of the language of the Coastal Act to the competing coastal act bills, which were not passed into law, demon- strates a fundamentally different approach to shoreline armoring. A thorough analysis of the legislative record leaves little doubt that Coastal Act section 30235 intended to protect only those structures existing at the time of the passage of the Coastal Act. The Coastal Alliance consisted of a coalition of environmental groups specifically formed to push for comprehensive legislation for the preserva- tion of the California coast.*5 Unfortunately, legislative efforts to pass com- prehensive coastal conservation bills were repeatedly killed off in committee by special interest groups.** In 1972, frustrated by the lack of success in the legislature, the Coastal Alliance took a strong coastal bill that had died in committee, stripped it of its "compromise" amendments, and presented the bill to the public as Proposition 20. The Coastal Act was a bill written by environmentalists, not developers or legislative representatives.51 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.*9 Additionally, the Coastal Commis- sions were to "(p]repare a comprehensive, coordinated, enforceable [coastal development] plan for the orderly, long-range conservation and management of the natural resources of the coastal zone,"70 and "on or before December 1, 1975,... submit [the plan] to the legislature for its adoption and implemen- tation,"" Many of the recommendations and findings included in the 1975 California Coastal Plan were implemented into the California Coastal Act, primarily because the coastal act bill, SB 1277 (Smith-Beilenson), supported by conservationists, was enacted over competing developer-friendly bills.71 The policies and recommendations of the Coastal Plan and, subsequently, SB 1277 (Coastal Act) were intended to protect natural resources over de- velopment." 65. See Adams, supra note 54, at 1026. 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. 70. CAL, PUB. RES. CODE § 27001(b) (1972) repealed by Coastal Act of 1976. 71. CAL. PUB. RES. CODE § 27320(c) (1972) repealed by Coastal Act of 1976. 72. SB 1277 (Smith, D-Saraloga) (1976). The competing bills AB 3875 (Keene) and AB 3402 (Cullen) .were respectively characterized as a "bulldozer in sheep's clothing" and a "bulldozer without even the sheep's clothing." Press release from the Planning and Conserva- tion League (July 26,1976) (on file with author), 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 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 (Sraith-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- plementation as provided for in this division while others require additional review." It is evident from the language, however, which recommendations contained in the 1975 Coastal Plan required additional legislation for future implementation and which recommendations were codified within the Act." 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 codified. The California Coastal Plan also sheds light on what the Commissioners and Legislature considered important in 1976. The first indication of concern 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.'"* 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.7' 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 Stale 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. Wat 18. 77. Id. at 45. 2001} CONFLICT IN THE CALIFORNIA COASTAL ACT 265 Revetments, breakwaters, groins, harbor channels, seawalls, cliff retaining walls, and other such construction that alters natural shoreline processes shall be permitted only when designed to eliminate or mitigate adverse impacts on shoreline sand systems and when required (1) to maintain pub- lic recreation areas or to serve necessary public service... where there is no less environmentally harmful alternative, or (2) to protect principal structures of existing development that are in danger from present erosion where the coastal agency determines that the public interest would be bet- ter served by protecting the existing structures than in protecting the natu- ral shoreline process." Policy 19 is instructive in that it is clearly codified in Coastal Act sec- tion 30235." Policy 19 demonstrates that the authors of the Plan were aware of the problems associated with shoreline protection, that protecting private property may be in conflict with the public interest, and that shoreline pro- tection should only be granted if it was in the public's interest even if the structure already existed prior to the Act! Thus, according to the Coastal Commissioners in 1975, the Coastal Act would grant shoreline protection only if (1) adverse effects were mitigated, (2) it protected an existing struc- ture, and (3) it was in the public's interest. However, assuming that the Commission was unclear with regard to the definition of "existing" within Policy 19, other sections of the Coastal Plan leave little doubt that shoreline protection was not appropriate for develop- ment subsequent to the enactment of the Coastal Act. For example, Policy 67, Geologic Safety Review and Regulation for New Development, states: All proposed structures for human occupancy in [an area) of high geologic hazard shall be reviewed and regulated to avoid risk to life and property: (a) areas of high geologic hazard include seismic hazard areas,... unsta- 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 permitted if they can successfully withstand the same instability.10 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 78. Id. 79. Coastal Act § 30235: [s]eawalls.,. and other such construction that alters natural shoreline processes 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 assistance for such construction or reconstruction and no presumption of public liability for property loss." Policy 70, Regulate Bluff and Cliff Developments for Geologic Safety, states: 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.** 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).'3 Finally, there is also substantial evidence in the Coastal Plan, in addition to the specific policy recommendations, that the Commissioners understood the coastal processes, the costs to the public, and the solutions.*4 For exam- ple, the plan explicitly states that sand replenishment was very expensive." It is clear that the Commissioners understood the private property rights issues and instead chose to protect public rights." 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. Wat 89. 83. See Coastal Act § 30007.5 (2001) nC]onflictt {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 Stale Beach cost over SI 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). 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 %vas 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." 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 "" 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," 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.. ."90 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 mat 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). /la 268 CALIFORNIA WESTERN LAW REVIEW [Vol. 38 E. Textual Analysis Requires that "Existing" be Interpreted as a Grandfather Clause. As already stated, Coastal Act section 30235 is currently interpreted by the Coastal Commission as mandating shoreline armoring when a structure is in danger from erosion, regardless of when the structure was built. While this may seem to be a reasonable interpretation, close textual analysis indi- cates that the current interpretation does not conform to the intent of the Legislature when writing the Coastal Act. Coastal Act section 30235 states: Revetments, breakwaters, groins, harbor channels, 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. Existing marine structures causing water stagnation contrib- uting to pollution problems and fish lulls should be phased out or up- graded where feasible.92 It is standard in statutory construction that every word is important and is given effect." One could possibly argue that the words "existing struc- tures" were intended to distinguish between protecting empty lots from lots having structures already on them. Such interpretation, however, would not necessitate adding "existing" before "structures." The statute without the modifying adjective "existing" would have this meaning. In other words, the word "structures" precludes protecting future structures, without requiring the word "existing." Taking the prior argument to the extreme, a structure would deserve protection moments after completion; as soon as there were four walls, a roof, and dry paint. Furthermore, the every-completed- 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 create nor contribute significantly to erosion ... or in any. way require the construction of protective devices that would substantially alter natural land- 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 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). 2001} CONFLICT IN THE CALIFORNIA COASTAL ACT 269 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,"93 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 riot 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 in a manner which on balance is the most protec- tive of significant coastal resources."** Coastal Act sections 30235 and 30253 were intended to be interpreted together.*7 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: "(S]eawalls.. .shall be permitted when required ... to protect existing structures... . Existing marine structures causing water stagnation contributing to pollution problems and fishkilis should be phased out or upgraded where feasible."9' Statutory construction demands, at the very least, consistency within a section." 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. 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. 3 8 rv. CASELAW Coastal 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,101 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."103 Justice Scalia, writing for the majority, went on to warn, "[A]ny limitation so severe cannot be newly legislated or de- creed (without compensation), but must inhere in the title itself, in the re- strictions that background principles of the State's law of property and nui- sance already place upon land ownership."105 Thus, any regulation that deprives a landowner of all economically beneficial use of his property, and 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 seem to indicate that a seawall ban would not be considered a taking. Fur- thermore, courts in other states have directly held that there is no Constitu- tional right to build shoreline armoring.101 North Carolina, in Shell Island Homeowners Ass'n v. Tomlinson,™ dealt directly with whether a ban on the construction of a "permanent hardened erosion control structure" was Constitutional.10* In Shell Island, the North Carolina Court of Appeals ruled that North Carolina's "hardened structure rule,"107 which denied permanent shoreline armoring for a hotel, did not 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 home from destruction"). On a personal note, at the many Coastal Commission hearings 1 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 Nonimpact 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. TomJinson, 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>. lib 2001] CONFLICT IN THE CALIFORNIA COASTAL ACT 271 amount to a regulatory taking, inverse condemnation, and was not a viola- tion of equal protection or due process.108 The court noted: [Pjlaintiffs 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."10* 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,"110 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, "jPJermit 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].""1 The Oregon Beach Bill's restriction of seawalls was challenged in Ste- vens v. City of Cannon Beach.m The plaintiff, relying on Lucas, claimed that the denial of a seawall amounted to a legislative taking because the "ordi- nance deprivefd] them of all economically viable use of their property.""4 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."' 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. Mat233. 111. Mat231. 112. Stevens v. City of Cannon Beach, 317 Or. 131,145 (1993). 113. Mat 146. 114. Mat 147. 115. See id. at 138 (quoting Thornton v. Hay, 254 Or. 584 (1969)). 272 CALIFORNIA WESTERN LAW REVIEW [Vol.38 When plaintiffs took title to their land, they were on notice that exclusive 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 of the custom on the part of persons buying land along the shore must be presumed."116 The Oregon Supreme Court, applying language from Lucas, held that compensation was not required because the "plaintiffs have never had the property interests that they claim were taken by {the regulation].""7 Thus, the 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 U.S. Constitution. Although there have not been any cases in California that directly deal with the denial of a seawall,1" case law seems to indicate that there is no Constitutional right to a seawall.1" For example, in Whaler's Village Club v. Cal. Coastal Comm'n,™ the Court of Appeals stated, "a fundamental right to protect one's property under the [California] Constitution (CAL. CONST., art. 1 sec. I)131 is not the equivalent of a vested right to protect property in a par- ticular manner where the method chosen is one that is regulated by govern- ment."122 The Court went on to point out, "It is now a fundamental axiom in the law that one may not do with his property as he pleases; his use is subject to reasonable restraints to avoid societal detriment... .*"" 116. Stevens, 317 Or. at 143 (citations omitted). 117. Id. Stevens relied heavily on Lucas, which held: Where the state seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests 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 dedication of an easement was an appropriate condition). Contra Surfside Colony v. Cat. 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 access easement). 119. See Barrie v. Cal. Coastal Comm'n, 196 Cal. App. 3d 8 (1987). 120. Whaler's Village, 173 Cal. App. 3d at 240. 121. CAL. CONST, art. 1, § 1 ("Inalienable rights: AH people are by nature free and inde- pendent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.") (emphasis added). !22. 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- 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)). 2001] CONFLICT IN THE CALIFORNIA COASTAL ACT 273 In Scott v. City of Del Mar, the City declared that shoreline armoring encroaching upon the public's land was a nuisance perse.11* 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.115 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."11* 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.1*7 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.Ht 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 permit130 The court held that homeowners do not have a vested right to a seawall at a location allowed under an emergency permit."1 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,152 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] 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 compensabfe 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 Cornm'n, 196 Cal. App, 3d 8, 8 (1987). 129. Id. at 15 (quoting \Vhaler's Village). 130. The seawall encroached fifteen feet onto public land. Barrie, 196 Cal. App. 3d at 131. Id at 18. 132. Wlutler's Village, 173 Cal. App. 3d at 253-54. 274 CALIFORNIA WESTERN LAW REVIEW [Vol. 38 Commission did not deny them the right to construct a revetment. The ques- tion is only the reasonableness of the conditions attached."1" 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,'34 but that right is qualified by regulations on how, when, and where the shoreline armoring will be built.'" 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,'""* 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.m However, in Scott the sea- walls and revetments were encroaching upon public land."' Does legislative power to declare seawalls a nuisance per se extend to seawalls and revet- ments completely on private land?'3* 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 seawalls1*1 should indicate that California would have little Constitutional difficulty in 133. id. 134. CAL. CONST, art 1, § 1. 135. IWwfer'j Village, 173 Cal. App. 3d at 253-54. 136. Id at 253 (citations omitted). 137. 58 Cai. App. 4th at 1305-06. 138. 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 IN PROTECTING BEACHES, DUNES, BLUFFS, ROCKY SHORES: A NATIONAL OVERVIEW (1998) (Oregon. South Carolina, North Carolina and Maine ban shoreline armor- ing). 2001] CONFLICT IN THE CALIFORNIA COASTAL ACT 275 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.'43 On the West Coast, rivers and streams deliver the majority of the sand,'" 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 i, at 22. 144. Griggs et al., supra note 21, at 14. 276 CALIFORNIA WESTERN LAW REVIEW [ Vo!. 38 bating erosion.143 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 gain 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."* 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.1" 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 BI (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. OOASOOS67 (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 DlEGO UNION-TRIBUNE, Apr. 27,2001, at A3. 150. See Seema Meeta, New Wetlands Bill Would Check Balsa Chica Ruling, L,A. TIMES, Feb. 25,2000, at B14. 151. Terry Rodgers, Coastal Control is the Subject of Revived Bill, SAN DlEGO 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 & Laurel Savoy cds., 1985) (noting some 2001] CONFLICT IN THE CALIFORNIA COASTAL ACT 277 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.IM 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.136 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.137 The damage caused by shoreline armoring is gradual in many cases and is not obvious to the casual observer.15' However, without shoreline armoring, even a sand-starved beach will maintain a recreational beach, because the shoreline will erode.15' 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 slate 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, "1 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 ("[SJeawall 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.1" 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.161 As of this date, the Coastal Commission has not enforced deed restrictions denying shoreline armoring.ISJ 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 in 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.144 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).1" 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 (Cliff s Hotel Appeal). 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.'6* 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.'47 This would require certain conditions to correctly target the interpretation of "existing" under the section 30235.tM First, the structure would need to be in imminent danger from erosion. There has been no case lav/ 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.16* 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."0 Furthermore, deed restrictions have been upheld in the coastal zone."1 A successful suit upholding deed restrictions would not have an impact on current shoreline development practices. A best-case scenario for bringirjg 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. Crv. CODE § 1102.6 (2001). 157. This concept was formulated through discussions with Doug Ardlcy, 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. Cat. Coastal Comm'n, CV 080283. 170. Ojavan Investors v. Cal. Coastal Comm'n, 26 Cal. App. 4lh 516,527 (1997), 171. Id 280 CALIFORNIA WESTERN LAW REVIEW [Vol.38 built after 1976, clearly in danger from erosion; no previous shoreline armor- ing; a design that adequately mitigates adverse impacts; and approval from the Coastal Commission. This would be the preferable course of action for a number of reasons. First, there is a reasonable possibility that the court will rule that "existing" 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. If the court found otherwise, it would not change the current approval 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. 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- sessed the dangers of a legislative fix, the political climate, or the relatively 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- 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. 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,™ California case law, although not directly on point, seems to indicate that there is no constitutional right to build a sea- wall.'" 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.'" As Orrin H. Pilkey and Kathrine Dixon remind us: "you can have houses or you can have beaches; you cannot have both.""8 173. See generally Shell Island Homeowners Assoc. v. Tomlinson. 134 N.C. App. 217 0999); Stevens v. City of Cannon Beach, 317 Or, 131 (1993). 174. See Whaler's Village Club v. Cai. Coastal Comm'n, 173 Cal. App. 3d 240 (1985); Barrie v. Cal. Coastal Comm'n, 196 Cal. App. 3d 8 (1987); Scott v. City of Del Mar, 58 Cal. App. 4th 1269 (1997). 175. PILKEY & DIXON, supra note 5, at 53, 176. Id. Coastal Bluffs Provide More c d To California Beaches Than Previou-' • Believed Page 1 of 3 ScienceDa/fy L-J~ ' " " '~ --Li_i_.-j.-.r _u.-rr j^ .HIM Your source for the latest research news AT&T Yahoo/ High Speed Internet Expn Web address: http://vrww.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 Advenisejjn tJusjite Flu Armour Leader in Bird Flu Preparation Individuals, 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 www,FhlArmour,com California 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 nn . . association will present its 2005 Robert L. Wiegel 300mW Burning Lasers Coastal Studies Scholarship to Young, also in fj^V^*;^ " ' 8 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 ^" healthier everyday. beaches that the assumptions they have been using to ww.nyalpe.cosL - 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 LIDAR, an acronym for light detection and ranging. Ashford said the 3-D maps generated by LIDAR 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 musj: 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 Previou^" 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 corne, 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 $200,000 to Ashford and Driscoll to collaborate and expand their investigation of the relationship between bluff erosion and beach sand supply in the Oceanside Littoral Cell. The Center for Earth Observations and Applications at UCSD, which partially funded Young's bluff- scanning project, was formed in 2005 with a grant from UCSD Chancellor Marye Anne Fox. John Orcutt, deputy director of scientific affairs at Scripps Institution of Oceanography, directs the center. Editor's Note: The original news release can be found here. Copyright © 1995-2006 SdenceDaily LLC — All rights reserved — Contact: editor® sciencedailv. com SignOnSanDiego.com > Nev"" ^ Science — Sifting county's shifting sa-, '-> Page 1 of 2 Si0nOn$affi©fege»coin (i,^ PRINTTHIS*"*Tt*Kilir«r«>l»«nM.rR*UJI*=«* ^BLSSSJ I I til * I I » I I,JrTtC BUM DEGO UMKW'TRBUNE 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 Driscoil 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. Driscoil 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 that cliff erosion accounts for only 10 percent to 15 Homes on Soutn Sierra Avenue in soiana Beach sit ... , ,, fit 11. u atop eroding biuffs above Fletcher Cove Beach Park.percent of 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 r "s Page 2 of 2 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 Neai Driscoti (left) and Scott Ashfordi, shared their findings on where local beaches get their ranging. sand with former Solana Beach Mayor Margaret Scrtlesingsr. 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^pnlontrib.com Find this article at: http'7/www.signonsandiego.com/news/science/20051013- 9999-7m1Sbluff.htmt C" Check the box to include the tist of links referenced in the article. Print Version :.Page 1 of 4 Editions of the North County Times Serving San Diego and Riverside Counties Monday, April 10, 2006 Contact Us NCTlMES, News Search Web Search Home News Sports Send Mews Blogs Ptiotoe Subscribe Calendar Homes Job Classified Search Advertising Home Delivery Reader Services Traffic Stock: 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 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." Looking north from the Oceanside Municipal Pier 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. 1 can guarantee that there is a lot of mud. We don't know about the sand." SignOnSanDiego.com > News > Science — Sifting county's shifting sands Page 1 of 2 GlbPRfNTTHIS*"•' ' ' «»•>'» iiiu 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 soiana Beach sit . c ,, j4.u» ^ i- 4. i iu -L. atop eroding bluffs above Fletcher Cove Beach Park.percent of 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 ™, „ ,. . j- ... i i • 11 j ^i j i_ ... 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 > News > Science — Sifting county's shifting sands Page 2 of 2 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 CHARLIE NEUMAN / union-tribune called LYDAR, an acronym for "light detection and UCSD scientists Neai Driscoii (left) and scott Ashford „ shared their findings on where local beaches get their ranging. sand with 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@mniontrib.com Find this article at: http://wvw.signonsandiego.com/news/scienre/20051013-9999-7m13bluff.html Check the box to include the list of links referenced in the article. Coastal Bluffs Provide More Sand To California Beaches Than Previously Believed Page 1 of 3 AT&T Yahoo! High Speed Internet Expn Your source for the fatest research news 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, Coastal Bluffs Provide More Sand To California Beaches Than Previously Believed Page 2 of 3 In recognition of his research, which was funded by www.FiuArmour.com California 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 .... ,„ _, rassociation will present its 2005 Robert L. Wiegel mmW Burning lasers Coastal Studies Scholarship to Young, also in Blue Red Green Laser Pointers Slash, Light recognition of his bluff erosion research. Matches' f f Balloons www. 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 - Alo^hung® "Adam's results should alert all groups interested in the Strengthens your immune system that makes preservation and development of Southern California's *>" healthier 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 LIDAR, an acronym for light detection and ranging. Ashford said the 3-D maps generated by LIDAR 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 Sand To California Beaches Than Previously 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@sciencedaih.com 1140S. Coast Highway 101 Encinitas, CA 92024 Tel 760-942-8505 Fax 760-942-8515 www.coastlawgroup.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.coastal.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