Anticipatory planning for sea-level rise along the coast of Maine

[From the U.S. Government Printing Office, www.gpo.gov]

United States Policy, Planning EPA 230-R-95-900
Environmental Protection And Evaluation September 1995
Agency (2122)

0 N
EPA Anticipatory Planning For
Sea-Level se
Along The Coast Of Maine

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This report is ajoint effort in
cooperation With the State of
Maine's State Planning Office.

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1994

The cover photo shows conditions at Camp Ellis in Saco, Maine, after a December 5, 1990
storm that was classified as a relatively "modest" 25-year event. The storm, which took
place during a proxigean spring tide, combined with high tides (more than one foot over
normal spring tide conditions) and 45 mile per hour winds to cause a wind-driven storm
surge of 2 feet.

Anticipatory Planning for
Sea-Level Rise Along the Coast of Maine

Prepared by:

Marine Law Institute
University of Maine School of Law
246 Deering Ave., Portland, ME 04102

Maine State Manning Office
State House Station #38, Augusta, ME 04333

Maine Geological Survey
Department of Conservation
State House Station #22, Augusta, ME 04333

This work is a result of research sponsored by the United States Environmental Protection
Agency, Climate Change State Grant Program under grant no. CX 817509-01-0 to the Maine
State Planning Office.
C"

US Department of Commerce
140AA Coastal Services Center Library
2234 South Hobson Avenue
Charleston, SC 29405-2413

This report is made possible by the Maine State Planning Office and the U.S. Environmental
Protection Agency, State and Local Climate Change Outreach Program. Reprinted by EPA with
permission from the Maine State Planning Office.

to obtain copies of this report:

Contact: National Center for Environmental Publications and Information (NCEPI)
Fax: (513-489-8695), or Phone (513-489-8190), or
Mail: U.S. EPA/NCEPI, P.O. Box 42419, Cincinnati, OH 45242-2419

or, contact: State and Local Climate Change Outreach Program
U.S. EPA
Climate Change Division, Mail Code 2122
401 M St. SW
Washington D.C. 20460
(202-260-6884)

AcKNOWLEDGEMENTS

This report was prepared as a State-University cooperative project by the Marine Law
Institute of the University of Maine School of Law, the Maine Geological Survey, and the
Maine State Planning Office. Preparation of the report was funded by a grant from the United
States Environmental Protection Agency's Climate Change Division to the Maine State
Planning Office, Grant Number CR 817509. The contract was supervised by David H.
Keeley, Director, Maine Coastal Program, Maine State Planning Office; by Alison Rieser,
Director, Marine Law Institute, University of Maine School of Law; and by Katherine Sibold,
Office of Policy Analysis, Climate Change Division, United States Environmental Protection
Agency.
This report was written by Barbara A. Vestal, Associate Director, and Alison Rieser,
Director, Marine Law Institute, University of Maine School of Law; Joseph Kelley, Marine
Geologist, Department of Conservation, Maine Geological Survey; and Kathleen Leyden,
Senior Planner, and Michael Montagna, Economist, Maine State Planning Office.
Administrative support and assistance was provided by Beverly Bayley-Smith, Administrative
Manager, Marine Law Institute. Research assistance was provided by Janet Lynch, Research
Assistant, Marine Law Institute; by law students Jonathan Doolittle and David Brenningmeyer,
University of Maine School of Law; and by Sandra Gray, Intern, Maine State Planning Office.
Assistance with case study data and mapping was provided by Kris Sommer, Greater Portland
Council of Governments, and Thomas Bums and Melissa Gormley, Casco Bay Estuary
Project.
Appreciation is due to the following individuals who provided special assistance by
reviewing early drafts of portions of the report: Francine Rudoff and Louis Sidell, Department
of Economic and Community Development, and Donald Witherill, Department of
Environmental Protection. Appreciation is also due to individuals who assisted with
information about specific towns, including: Jacki Cohen, Town Planner, Freeport; Deb
Fossum, Assistant Town Planner, and Michael Nugent, Codes Officer, Old Orchard Beach;
Peter Morelli and Rich Roedner, Town Planners, Saco; Amy Naylor, former Town Planner,
Brunswick. Finally, the authors gratefully acknowledge the review of James G. Titus, Office
of Policy, Planning and Evaluation, United States Environmental Protection Agency, and
Stephen P. Leatherman, University of Maryland at College Park. While their assistance is
gratefully acknowledged, any errors or omissions remain the responsibility of the authors.

Anticipatory Planning for
Sea-Level Rise Along the Coast of Maine
CONTENTS

EXECUTIVE SUMMARY ................................. Summary -1
A. Projected Rates of Sea-Level Rise ....................... Summary - 1
B. Planning for Sea Level Rise .......................... Summary - 1
C. Sea Level Rise Scenarios for Vulnerability Assessment .......... Summary -2
D. Study Sites for Vulnerability Assessment ................... Summary -3
E. Findings of Mapping and Impact Assessment ................ Summary -3
1. Sand Beaches ................................. Summary -4
2. Wetlands .................................... Summary -5
3. Eroding Bluffs ................................ Summary -5
4. Urban Engineered Waterfronts ....................... Summary -6
5. Rocky Shorelines ............................... Summary -6
6. Summary ................................... Summary -6

F. Policy Response Options ............................ Summary -6
1 . Cost-Benefit Analysis of Response Strategies .............. Summary -7
2. Responsiveness of Existing State and Federal Laws to Sea-Level
Rise ....................................... summary -9
3. Legal Considerations for Maine's Policy Response ........... Summary-10
4. Conclusions and Recommendations . . . . . . . . . . . . . . . . . . . . summary- 11
a. Anticipatory Action ........................... Summary- 11
b. Planning and Regulatory Policies ................... Summary-12
c. Strategic Assessments, Research and Education . . . . . . . . . . Summary-12

G. Endnotes ...................................... Summary-14

CHAPTER ONE: PLAMSaNG FOR SEA-LEVEL RISE . . . . . . . . . . . . . . . . . . . . 1-1

A. Review What We Know about Sea-Level Trends in Maine, Global Climate
Change and Associated Impacts ............................. 1-2
1. Historical Rates of Sea-Level Rise in Maine 1-2
2. Accelerated Sea-Level Rise as a Result of Global Climate Change ....... 1-3
3. Possible Impact of Accelerated Sea-Level Rise .................. 1-4

B. Seek "No Regrets" Strategies Which Also Address Known Threats and
Recognize that Sea-Level Rise is Just One Factor Affecting Land Loss ...... 1-5

C. Compensate for Scientific Uncertainty by Using a Range of Sea-Level Rise
Scenarios . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-7

CONTENTS

D. Participate in Appropriate Emission Reduction Strategies . . . . . . . . . . . . . . 1-9
E. Assume State/Local Governments Will Have the Primary Responsibility for
Mitigation of Sea-Level Rise Impacts . . . . . . . . . . . . . . . . . . . . . . . . . 1-10

F. Utilize a Process Which Incorporates Periodic Review and Updating of the
Adaptive Response Strategy ............................... 1-10

G. Endnotes .......................................... 1-12

CHAPmR Two: VULNERABILITY OF MAINE SITES To ACCELERATED
SEA-LEvEL RISE ........................................ 2-1

A. Designation of Case Study Areas and Sea-Level Rise Scenarios . . . . . . . . . . 2-1

B. Prediction of Future Shoreline Positions . . . . . . . . . . . . . . . . . . . . . . . . . 2-2

C. Assessment of Physical Changes and Natural System Responses .......... 2-7

D. Results ............................................ 2-8
1 . Gilsland Farm ...................................... 2-8
a. Shoreline Position ................................. 2-8
b. Impact Assessment ................................ 2-15
2. Bungunac Bluff-Wharton Point ........................... 2-18
a. Shoreline Position ................................ 2-18
b. Impact Assessment ................................ 2-18
3. Winnocks Neck .................................... 2-23
a. Shoreline Position ................................ 2-23
b. Impact Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-24
4. Old Orchard Beach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-31
a. Shoreline Position . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-31
b. Impact Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-32
5. Pine Point ....................................... 2-37
a. Shoreline Position ................................ 2-37
b. Impact Assessment ................................ 2-38
6. Other Predominant Coastal Types ......................... 2-42
a. Urban Engineered Shorelines .......................... 2-42
b. Rocky Shoreline ................................. 2-43
7. Summary/Conclusions ................................ 2-43

E. References ... ...................................... 2-45

CHAPTER THREE: CASE STUDY: CAW ELLIS/F)MRY BEACH ............ 3-1

A. Introduction ......................................... 3-1

B. Shoreline Position ...................................... 3-1

C. Impact Assessment ..................................... 3-5
1. Upland Impacts ..................................... 3-5
2. Value of Land and Structures ............................ 3-10

ANTicrPAToRy PLANNING FOR SEA-LEvEL Rim ALONG TIM COAST OF MAM iii

3. Wetland Impacts ................................... 3-10
4. Extent of Similarly Situated Land in the Region . . . . . . . . . . . . . . . .3-10
5. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3-11

D. References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3-11

CHAPTER FouR: COSTS AND BENEFITS OF SELECTED POLICY
RESPONSE OPTIONS ..................................... 4-1

A. Setting Priorities for Adaptive Response Strategies . . . . . . . . . . . . . . . . . .4-1
B. Cost-Benefit Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4-3
1. Selection of Case Study Site . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4-3
2. Description of Camp Ellis/Ferry Beach . . . . . . . . . . . . . . . . . . . . . . .4-3
a. Shoreline Positions/Impact on Built Features . . . . . . . . . . . . . . . . .4-4
b. Natural Features .................................. 4-4
c. Wetlands ....................................... 4-5
d. Growth Trends and Potential for New Development in
the Case Study Area ............................. 4-5
3. Selection of Four Policy Response Options ..................... 4-6
4. Discussion of Methodology .............................. 4-7
a. Overview ...................................... 4-7
b. Detailed Methodology Used to Compute the Benefit and Cost
of Each Policy Response ............................. 4-8
5. Analysis of Relative Strengths and Weaknesses of Policy Response
Options ......................................... 4-16

C. Conclusion ......................................... 4-17

D. Endnotes .......................................... 4-18

CHAPTER FIVE: RESPONSIVENESS OF EXISTING STATE AND FEDERAL
LAWS To SEA-LEVEL RISE ................................. 5-1

A. Introduction ......................................... 5-1

B. Maine's Laws and Regulations Relevant to Sea-Level Rise ............. 5-3
1. Background Law: Coastal Management Policies Act ............... 5-3
2. Sand Beaches ...................................... 5-5
a. Character of Development ............................ 5-5
b. Natural Resources Protection Act and Sand Dune Rules .......... 5-5
c. Existing Structures ................................. 5-6
d. New Construction ................................. 5-8
e. Other Laws Affecting Sand Beaches ..................... 5-10
f. Opportunities to Strengthen Controls on Development .......... 5-10
3. Salt Marshes ..................................... 5-14
a. Character of Development ........................... 5-14
b. Natural Resources Protection Act ....................... 5-15
c. Mandatory Shoreland Zoning Act and Guidelines ............. 5-16

iv CONTENTS

d. Opportunities to Strengthen Controls on Development Along Salt
Marshes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-17
4. Eroding Bluffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-18
a. Character of Development . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-18
b. Natural Resources Protection Act . . . . . . . . . . . . . . . . . . . . . . . 5-19
c. Mandatory Shoreland Zoning Act . . . . . . . . . ... . . . . . . . . . . . . 5-19
d. Site Location of Development Act . . . . . . . . . . . . . . . . . . . . . . . 5-20
e. Opportunities to Strengthen Controls on Development Along
Eroding Bluffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-20
5. Engineered Urban Shoreline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-22
a. Character of Existing Development . . . . . . . . . . . . . . . . . . . . . . 5-22
b. Local Comprehensive Zoning, Flood Plain, and Shoreland
Zoning Ordinances ........................ * * , * * * * , 5-23
c. Opportunities to Strengthen Controls on Development Along
Engineered Urban Shorelines .......................... 5-24

C. Federal Laws and Regulations Relevant to Sea-Level Rise ............. 5-25
1. Coastal Zone Management Program ........................ 5-26
2. Federal Clisnate Change Research . . . . . . . . . . . . . . . . . . . . . . . . . 5-26
3. Federal Clean Water Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-27
4., Coastal Barriers Resources Act of 1982 ...................... 5-27
5. National Flood Insurance Program ......................... 5-28

D. Conclusion ......................................... 5-31

E. Endnotes .......................................... 5-33

CHAPTER Six: LEGAL CONSIDERATIONS FOR MAINE'S PoLicy REsPONSE ... 6-1

A. Overview of Policy Response Options and Tools .................... 6-1
B. Regulatory Options for Maine's Sea-Level Response ................. 6-3
C. Potential Legal Challenges to the Regulatory Tools .................. 6-4
1 . Overview: Due Process and Takings Clause Challenges ............. 6-4
2. Takings Clause Principles ............................... 6-5
a. Federal Takings Law ................................ 6-6
b. Maine Takings Law ................................ 6-8
3. Applications of Takings Clause Principles to Potential Sea-Level Rise
Regulations ........................................ 6-8
a. Coastal Construction Setbacks .......................... 6-9
b. Rebuilding Prohibitions for Existing Structures ............... 6-11
c. Permit Conditions Requiring Removal or Barring Future
Construction of Protective Devices ...................... 6-12
d. The Total Takings Rule and "Background" Principles of Maine
Shoreline Property Law Including the Public Trust Doctrine ....... 6-14
4. General Precautionary Measures to Reduce the Risks of
Takings Claims .................................... 6-20

ANTiciuPAToRy PLANNING FOR SEA-LEvEL RISE ALONG TM COAST OF MAM V

D. Potential Non-Regulatory Options for Maine .................... 6-21
1. Overview ........................................ 6-21
2. Feasibility for Maine ................................. 6-23
3. Government Informational Programs for Sea-Level Rise ............ 6-23

E. Summary .......................................... 6-24

F. Endnotes .......................................... 6-24

CHAPrER SEvEN: PRELimiNARY ADAPTivE RESPONSE STRATEGY:
CONCLUSIONS AND REcommENDATioNs ........................ 7-1

A. Vulnerability Assessment and Analysis of Existing Laws ............... 7-1
1. Beaches ......................................... 7-2
2. Coastal Wetlands .................................... 7-2
3. Eroding Bluffs ..................................... 7-3
4. Urban Engineered Shorefronts ............................ 7-4
5. Rocky Shores ...................................... 7-4

B. Developing an Anticipatory Response Strategy .................... 7-4
1. Maine's Advantages .................................. 7-4
2. Economic Cost/Benefit Analysis ........................... 7-5
3. Legal Considerations for Maine's Policy Response ................ 7-6

C. Recommendations for Maine's Anticipatory Response Strategy ........... 7-7
1. Underlying Recommendations ............................ 7-7
2. Specific Strategies ................................... 7-7
a. Action When the Problem Emerges ....................... 7-8
b. Anticipatory Action ................................ 7-8
c. Planning and Regulatory Policy ......................... 7-9
3. Strategic Assessments, Research and Education ................ 7-11

D. Recommendations for Additional Research ...................... 7-12

E. Endnotes .......................................... 7-13

APPENDICES
Appendix A: Survey of Maine's Laws and Regulations Relevant to
Management of Accelerated Sea-Level Rise ...................... A- I
Appendix B: Selected State/Regional Policy Responses to Accelerated Sea-Level
Rise and Coastal Erosion ................................. B-1
Appendix C: Background Information on the Casco Bay/Saco Bay Region ...... C-1

A CONTENTS

Tables
Page Page
S.1 Composite Result for Study Sites by 2.5 Composite Result for Study Sites by
Environmental Setting . . . . . . . . . Summary-3 Environmental Setting . . . . . . . . . . . . . 2-44
1.1 Predicted Sea-Level Rise in Portland, 4.1 Raw Data: Camp Ellis Case Study (Aggre-
Maine, 2100 . . . . . . . . . . . . . . . . . . . 1-9 gate quantities used to compute costs
2.1 Projected Shoreline Changes for Casco & benefits) . . . . . . . . . . . . . . . . . . . . 4-12
and Saco Bays, Maine . . . . . . . . . . . . . 2-6 4.2 Raw Data: Camp Ellis Case Study (Price
2.2 Range of Potential Wetland Losses for & value assumptions used to compute
Region . . . . . . . . . . . . . . . . . . . . . . . 2-17 cost benefit analysis . . . . . . . . . . . . . . 4-13
2.3 Recent Public Improvements-Old Orchard 4.3 Cost Benefit Analysis: Camp Ellis
Beach . . . . . . . . . . . . . . . . . . . . . . . 2-36 (Strategies) . . . . . . . . . . . . . . . . . . . . 4-14
2.4 Tentative Public and Private Improvements 4.4 Cost Benefit Analysis: Camp Ellis (Summary
-Old Orchard Beach . . . . . . . . . . . . . . 2-36 Table: Benefit to Cost Ratios . . . . . . . . . 4-15

Figures
Page Page
1.1 Small vertical changes in water level shift 2.20 Traverse 2, Winnocks Neck . . . . . . . . . . 2-29
coastlines dramatically on gently sloping coasts 2.21 Traverse 3, Winnocks; Neck . . . . . . . . . . 2-30
but cause only minor shifts on steep coasts . 1-3 2.22 Projected shoreline change map for
1.2 Estimates of future sea-level rise . . . . . . . 1-4 Old Orchard Beach . . . . . . . . . . . . . . . 2-33
1.3 Interactions of agents affecting land loss . . . 1-6 2.23 Photograph of the Old Orchard Beach area.
1.4 Estimate of Future Sea Level Rise . . . . . .1-8 Aerial photography of the study area . . . . 2-34
2.1 Location of Casco and Saco Bays in relation to 2.24 Photograph of the Old Orchard Beach area.
New England and the Gulf of Maine . . . . . 2-3 Ground plot from near the study area . . . . 2-34
2.2 Map of Casco Bay with location of Study sites 2.25 Traverse 1, Old Orchard Beach, Saco Bay .2-35
enclosed by boxes . . . . . . . . . . . . . . . . 2-8 2.26 Projected Shoreline change map for Pine
2.3 Projected shoreline change at Gilsland Farm, Point, Saco Bay . . . . . . . . . . . . . . . . . 2-39
Falmouth, Maine . . . . . . . . . . . . . . . . . 2-9 2.27 Traverse 1, Pine Point, Saco Bay . . . . . .2-40
2.4 Photograph of Gilsland Farm. Site of 2.28 Photograph of the Pine Point Area. Aerial
Traverse I . . . . . . . . . . . . . . . . . . . . . 2-10 photography of the Pine Point area . . . . . 241
2.5 Traverse 1, Gilsland Farm . . . . . . . . . . . 2-11 2.29 Photograph of the Pine Point area.
2.6 Traverse 2, Gilsland Farm . . . . . . . . . . . 2-12 Ground photograph of the study area
2.7 Traverse 3, Gilsland Farm . . . . . . . . . . . 2-13 at Pine Point . . . . . . . . . . . . . . . . . . . 2-41
2.8 Traverse 4, Gilsland Farm . . . . . . . . . . . 2-14 3.1 Projected shoreline change map for Camp
2.9 Evolution of Marsh as Sea Level Rises ... 2-16 Ellis . . . . . . . . . . . . . . . . . . . . . . . . 3-2
2.10 Projected shoreline change map at upper 3.2 Photograph of the Camp Ellis-Ferry
Maquoit Bay, Maine . . . . . . . . . . . . . . . 2-19 Beach area. Development on beach
2.11 Traverse 1, Bungunac Bluff, Brunswick, at Camp Ellis . . . . . . . . . . . . . . . . . . 3-3
Maine . . . . . . . . . . . . . . . * * * * ** * * 2-20 3.3 Photograph of the Camp Ellis-Ferry
2.12 Photograph of Maquoit Bay shoreline. Beach area. Undeveloped back dune
Site of Traverse 1 . . . . . . . . . . . . . . . . 2-21 area at Ferry Beach State Park . . . . . . . . 3-4
2.13 Photograph of Maquoit Bay shoreline. 3.4 Shoreline change map of Camp Ellis
Site of Traverse 2 . . . . . . . . . . . . . . . . 2-21 comparing 0.5 m shoreline from this
2.14 Traverse 2, Wharton Bluff, Brunswick, study with USACOE predictions . . . . . . .3-5
Maine . . . . . . . . . . . . . . . . . . . . . . 2-22 3.5 Camp Ellis, Saco Maine. Settlement
2.15 Map of Saco Bay with location of study patterns and wetlands . . . . . . . . . . . . . 3-6
sites enclosed by boxes . . . . . . . . . . . . . 2-25 3.6 Camp Ellis, Saco, Maine. Sand dunes
2.16 Projected shoreline change map for and critical areas . . . . . . . . . . . . . . . . 3-7
Winnocks Neck . . . . . . . . . . . . . . . . . 2-26 3.7 Camp Ellis, Saco, Maine. Land use
2.17 Traverse 1, Winnocks Neck . . . . . . . . . . 2-27 and public infrastructure . . . . . . . . . . . . 3-8
2.18 Photograph of Winnocks; Neck. View 3.8 Traverse 1, Camp Ellis, Saco Bay . . . . . . 3-9
toward north at Traverse 1 . . . . . . . . . . . 2-28 C-1 Regional study area for sea-level rise
2.19 Photograph of Winnocks Neck. View analysis . . . . . . . . . . . . . . . . . . . . . . C-2
down road into subdivision at Traverse 2 2-28 C-2 Sea-level change curve for coastal Maine C-3

Anticipatory Planning for
Sea-Level Rise Along the Coast of Maine

ExECUTIVE SUMMARY

A. PRojEcTED RATES OF SEA-LEvEL RISE
The present configuration of Maine's coast is attributable to a rise in sea level over the
past 10,000 years. Scientists have been able to verify that sea level has continued a gradual
rise in all of Maine's major coastal municipalities during at least the last fifty years.'
Geologists and climate modelers project that this rise will continue, although there is not total
agreement on the projected rate of rise.
A continuation of the historic rate of sea-level rise of around 2 mm/year (20 cm/100 years)
places many shoreline properties in jeopardy from coastal erosion and inundation. However,
several consensus reports of the international scientific community over the last decade project
an accelerated rate of sea-level rise as a result of global climate change associated with the
greeinhouse effect. For example, the Intergovernmental Panel on Climate Change (IPCQ
predicts that by the year 2 100, there will be a global rise in sea level in the range of 3 3 to 110
em, with a most likely rise of 66 cm.' If these predictions are accurate, coastal areas of
Maine will face even more extensive threats to natural and built resources than would occur
with a continuation of the past rate of sea-level rise.

B. PLANNING FOR SEA-LEVEL RisF,

This report constitutes Maine's first systematic assessment of its vulnerability to a change
in shoreline position as a result of accelerated sea-level rise associated with global climate
change. Because there is still a great deal of uncertainty associated with projections of global
climate change, this report should be considered as merely the first cut at assessing
vulnerability and identifying options for an anticipatory response strategy. Due to the
projected gradual onset, there will be time to make some corrections as more scientific
certainty is achieved. However, despite the uncertainty and gradual onset, it is important for
Maine to begin-to address these issues now. As expressed by a consensus of international
coastal zone managers:
It is urgent for coastal nations to begin the process of adapting to sea level rise not
because there is an impending catastrophe, but because there are opportunities to avoid
adverse impacts by acting now, opportunities that may be lost if the process is delayed.

Summary-1

SummARY-2 ExEcurivE SUMMARY

This is also consistent with good coastal zone management practice irrespective of
whether climate change occurs or not.'
While this statement is directed at coastal nations, in the United States, states have primary
authority over land use controls, are the primary entities engaged in coastal zone management,
and will be primarily responsible for mitigating physical impacts of sea-level rise. To take
maximum advantage of opportunities to avoid adverse impacts, it is important for individual
states to begin now to plan for possible sea-level rise.
This report asserts that meaningful preparations can take place now, despite scientific
uncertainty, by carefully building upon what is already known. It utilizes the following
approach:
� Start by identifying historic sea-level trends in Maine, by understanding global
climate change theories, and by focusing on four of the projected physical
impacts of global climate change which are most likely to be experienced in
Maine: change in shoreline position, accelerated erosion/inundation of dunes
and beaches, inundation of wetlands and lowlands, and loss of natural coastal
protection systems.
� Utilize a range of likely sea-level rise scenarios to project the change in
shoreline position and to assess vulnerability rather than limiting the analysis
to a single projection.
� Seek "no regrets" strategies, which the State will not regret implementing even
if there is no acceleration in the rate of sea-level rise, and which recognize that
sea-level rise is just one factor affecting coastal land loss.
� Continue to participate in appropriate national and international emission
reduction strategies to reduce the magnitude of future impacts of global climate
change, including accelerated sea-level rise.
� As a component of natural resource, land use, and coastal zone management
responsibilities, acknowledge that State governments will have primary
responsibility for developing strategies to mitigate the impacts of accelerated
sea-level rise.

C. SEA-LEVEL RISE SCENARIOS FOR VULNERABILITY ASSESSMENT

Maine's research team used a range of sea-level rise scenarios derived from national
studies to assess vulnerability to projected changes in shoreline position. This study-did not
make any independent scientific judgment as to the probable predictive accuracy of those
scenarios.

The United States Environmental Protection Agency and the Intergovernmental Panel on
Climate Change (IPCC) recommend that coastal zone managers evaluate impacts based on
consideration of at least a 1.0 meter rise scenario, even though the actual projections for 2100
are lower. The use of a one meter scenario builds in a precautionary margin for error. If
possible, lower scenarios should also be evaluated to more closely approximate what scientists
currently project to be most likely. Higher scenarios can also be evaluated to project impacts

ANTicipAToRy PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE SummARY-3

beyond 2100 or to identify areas which are at some, but slight, risk of inundation within the
next century based on current projections.
To encompass a range of possible outcomes and to allow decision-makers to assess
different levels of risk, Maine's researchers opted to map and evaluate the impact of shoreline
change resulting from sea levels 0.5 m, 1.0 m and 2.0 m greater than today, but 100 years
hence. The 0.5 rn scenario is close to what some scientists are projecting as likely by 2100.
The 1.0 m scenario is less likely by 2100, but may appropriately be selected as the planning
standard because it acknowledges scientific uncertainty and builds in a margin for safety
should sea level rise faster than is currently projected. The 2.0 ra scenario is very unlikely
to be realized by 2100, but EPA projects it will eventually happen in the very long run and
it is useful to identify sites that are at even slight risk of inundation by 2100.

D. STUDY SITES FOR VULNERABILITY ASSESSMENT

Researchers focused on study sites within Casco Bay and Saco Bay, adjacent Maine
embayments, drawn from three types of environmental settings: salt marshes, bluffs and sand
beaches. Specifically, the sites studied were Gilsland Farm, a Maine Audubon sanctuary with
bluffs and salt marshes in Falmouth; Bungunac Bluff and Wharton Bluff, two bluff areas in
Brunswick developed with single-family residences; Winnocks Neck, an area of single-family
residences in Scarborough abutting a salt marsh; Pine Point, another residential area in
Scarborough abutting an accreting beach; central Old Orchard Beach, an intensely developed
seasonal resort/commercial shorefront with no natural dune system; and Camp Ellis, a portion
of Saco with small residences immediately adjacent to an eroding beach.

E. FINDINGS OF MAPPING AND IMPACT ASSESSMENT
Studies of shoreline change and coastal erosion project that Maine's coastal sand dune
systems, coastal wetlands, and coastal eroding bluffs face the prospect of significant coastal
erosion and inundation even without accelerated sea-level rise, just based on historic rates of
change.' For beaches and coastal wetlands, that erosion and inundation would be exacerbated
by an accelerated rate of sea-level rise associated with global climate change. The findings
of projected change in shoreline position by 2100 under the different scenarios for these
specific study sites are summarized in Table S. 1.

Table S. I. Composite Result for Study Sites by Environmental Setting

Environmental Setting Sea-Uvel Rise Scenarios
Projected Shoreline Change, Retreat in Meters

0.5 m 1.0 M 2.0 ra

Salt Marsh 3-35 8-50 17-100

Bluff 15-45 15-45 15-45

Beach 50-150 100-300 200-600

SummARY-4 ExEcurwE SUMMARY

1. Sand Beaches
The most profound changes as a consequence of accelerated sea-level rise will probably
be experienced by sand beaches. This is of particular concern because sand beaches are
scarce in Maine, with sand and cobble beaches comprising less than 10% of Maine's
shoreline. In addition, areas adjacent to Maine's sand beaches tend to be more intensely
developed than inland sites. A change in shoreline position may inundate relatively intensely
developed areas immediately adjacent to the beach. Similarly, if sand dune systems are not
protected from adjacent development which would inhibit its ability to migrate inland (e.g. sea
walls or other structures), the inland movement of the shoreline might also result in the loss
of the dry sand portion of the beach and have a very significant impact on coastal tourism,
recreation, and the local economy.
While shoreline change in these beach areas is more difficult to evaluate than other
environments for many reasons, the study concluded that a shoreline retreat of hundreds of
meters seems likely. Far more observational data and modeling would be required to provide
more precise projections of future shoreline positions for sand beaches in Casco and Saco
Bays. For example, there is as yet no quantitative understanding of the volume of sand
contributed by the Saco River, and this study did not consider that sand eroded from one part
of the beach would likely contribute sand to other areas and lessen their erosion. However,
noting these limitations, for purposes of planning for future sea-level rise, this study made
preliminary projections of landward movement in shoreline position ranging from 50 to 600
meters (150 to 2,000 feet) during the next 100 years, based on a sea-level rise ranging from
.5 to 2 meters over that same period.
The site specific vulnerability assessment projected only minimal changes at Pine Point
because it is currently accreting. However, under these projections, Old Orchard Beach and
Camp Ellis are expected to experience major impacts, even at the 50 cm scenario.
Of the three sand beaches included in this analysis, the Camp Ellis/Ferry Beach case study
contained the most quantitative assessment of anticipated impacts. Under the worst case
scenario, 260 acres of upland would be inundated along with more than 350 structures and
public roads, utility lines, a municipal service facility, and heavily used state and municipal
recreational beaches. Under the 100 cm scenario, 133 acres of upland currently developed
with 334 structures would be inundated. The 50 cm scenario projects 71 acres of upland
currently developed with 210 structures would be affected. The level of private investment
at risk in Camp Ellis/Ferry Beach ranges from almost $38 million to over $61 million,
depending upon the sea-level rise scenario.
For central Old Orchard Beach, projections based on the 50 cm sea-level rise scenario
indicate a loss of 80 acres of upland, including beachfront development and development along
Grand Avenue landward to the railroad tracks. This area includes an amusement park,
arcades, retail shops, motels, restaurants, high density residential structures, sewer lines and
a new stormwater outfall. Since 1991, about $3.9 million has been channeled into public
improvements in waterfront and downtown areas which are potentially at risk, and other
significant investments are planned in this area as part of ongoing revitalization efforts.

AmicipAmRy PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE SummARY-5

2. Wetlands

The analysis projects that significant impacts will also be felt by tidally influenced
wetlands, with the projected landward movement in shoreline position for "fringe" wetlands
along bay shores ranging from 10 to 350 feet, depending upon the sea-level rise scenario. A
change in shoreline position along coastal wetlands is of concern because, absent appropriate
planning, it may result in a substantial loss of critical wetlands. Improved scientific
understanding of wetlands over the last two decades has resulted in a national recognition of
their important ecological and natural resource functions, including providing essential nesting
and feeding habitat for waterfowl and other wildlife; serving as habitat for many rare and
endangered species; providing nursery and spawning areas for many commercially-valued
fisheries; contributing to the enhancement of water quality; and contributing essential natural
flood control services.

Many factors will affect whether a change in shoreline position will result in a loss of
coastal wetlands. Salt marshes have the ability to migrate landward in equilibrium with a
sea-level rise induced change in shoreline position if conditions are ideal.' They can expand
inland and toward the water, and increase in elevation through accumulation of sediments and
plant biomass. If sedimentation balances submergence, they will maintain themselves.
However, if sediment supply and accretion is less than the rate of coastal submergence, the
marshes will drown. The sediment supply will be influenced by the steepness of the slope of
the adjacent uplands, the composition of adjacent uplands (e.g., whether they are bedrock),
the presence of coastal engineering structures, and the armoring of bluffs and banks (e.g.,
building bulkheads). Regardless of sediment supply, marshes will be unable to migrate inland
and will drown if they encounter hard upland barriers, either natural or built.
There are more than 5,000 acres of salt marsh in the combined Casco and Saco Bay
regions; they comprise roughly 20% of the regions' coastline. It was beyond the scope of this
study to conduct expensive, site-specific studies of potential migration of coastal marshes, but
researchers did utilize regional estimates from nationwide vulnerability assessments.'
Projecting from these national studies, researchers estimated that the Saco/Casco Bay area
could lose 300 to 500 acres of coastal wetlands if only already-developed areas were armored,
and between 800 to 900 acres if all coastal wetland shorelines were protected by bulkheads
or similar armoring. These national studies suggest 50 to 250 acres of coastal wetlands could
be lost in Saco and Casco Bay even if marshes are allowed to migrate freely.
3. Eroding Bluffs
Researchers also found that eroding bluffs are vulnerable to coastal erosion, but that the
rate of erosion is driven more by coastal storms than by a rise in sea level. Shoreline retreat
rates in the range of 50 to 150 feet are projected over the next century. Coastal bluffs make
up only about 3 % of the Casco/Saco Bay region, so the impacts will be more localized. In
the mapped study sites, continued shoreline erosion was found to threaten five homes situated
on about 18 acres of upland. Over the 100-year study period, roughly 200 existing homes
adjacent to bluffs in the Falmouth-Freeport area and on the Casco Bay islands may be
threatened.

SummARY-6 ExEcuTwE SUMMARY

4. Urban Engineered Waterfronts
Based on a preliminary assessment, researchers also concluded that urban engineered
waterfronts in the study area are not likely to experience a change in shoreline position due
to an increase in sea level within the .5 to 2 meter scenarios because most structures are
currently designed to accommodate seas which are approximately 6 feet higher than current
mean high tide. However, additional research is needed to assess the probable increased
geographic extent and frequency of flooding of low-lying urban areas from storm surges.
Further study may identify the need to improve existing waterfront facilities.
5. Rocky Shorelines
Not surprisingly, rocky shorelines are not particularly vulnerable to a change in sea level.
The change in shoreline position will vary with the slope of the adjacent land, but since
erosion is not anticipated, any impacts are expected to be minimal.
6. Summary
There is already significant development in or adjacent to the areas most threatened by
continued or accelerated sea-level rise - sand beaches, coastal wetlands and eroding bluffs.
Future actions, such as continued development in these areas or construction of engineered
to solutions" to "protect" upland areas, may increase the investment at risk. These future
actions may also reduce the capacity of natural coastal systems to adjust to a change in sea
level in ways which maintain critical wetland functions or preserve valued sand beaches.

E POLIcy RESPONSE OPTIONS
The second part of the report analyzes possible adaptive response strategies the State of
Maine might adopt to mitigate the negative impacts of a change in shoreline position and asso-
ciated impacts of global climate change. Regardless of the progress made by the State, the
nation and the international community in emission reduction efforts, Maine needs to develop
an adaptive response strategy because scientists predict that even if greenhouse gas emissions
were controlled immediately, the atmospheric concentration of these gases would still increase
for many years, and the rate of sea-level rise would still accelerate during the next century.
And even if those scientists are wrong and the rate of sea-level rise does not accelerate, a
continuation of sea-level rise in Maine at observed historic rates is projected to result in
significant property damage along the soft coast.
This report is not itself a formal plan. It provides background information and a set of
preliminary recommendations to facilitate the future development of a more formal plan to
promote adaptation of Maine's coastal resources to relative sea-level rise as a result of global
climate change. The report's conclusions and recommendations reflect the opinions of the
members of the study team, but do not yet represent the official position of any specific state
agency. They constitute a starting place for further discussion and policy refinement by
coastal managers and decision-makers.
It should be noted that emission reduction strategies constitute a second type of response
to global climate change (e.g., multi-party agreements to limit greenhouse gas emissions,
development of cleaner energy sources and technologies, and expansion of forested areas).

ANTicIPATORY PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE SummARY-7

The State of Maine should also assess how it can contribute to greenhouse gas emission
reduction strategies, but that analysis is beyond the scope of this report.
This study analyzes possible adaptive response strategies from several different angles:
� the relative costs and benefits of selected preliminary response strategies for
one specific case study area (Chapter Four);
� the responsiveness of existing State and Federal laws and policies to address
the most significant negative impacts on coastal resources identified by the
vulnerability assessment (Chapter Five);
� the legal considerations for Maine's policy response including potential legal
challenges to regulatory tools (Chapter Six); and
� approaches already adopted or evaluated by other states for coastal erosion
or coastal hazard mitigation (Appendix B).
The study's conclusions and recommendations, based on the mapping, vulnerability
assessment, cost-benefit analysis, evaluation of existing State and Federal laws, and legal
assessment of strategic policy response options, are contained in Chapter Seven. The
following sections briefly summarize the findings of Chapters Four, Five, and Six, which
should be consulted for a more complete discussion of assumptions and analysis.
1. Cost-Benefit Analysis of Response Strategies
The cost/benefit analysis conducted for one specific study site (Camp Ellis, Chapter Four)
concluded that it was more cost-effective to adopt a strategy to retreat from the shoreline as
sea level rises rather than a strategy to attempt to protect development and maintain the
shoreline in its current position. Four different response strategies were evaluated (two using
protection and two using rolling easements) which represent a range of possible policy options.
The first protection strategy analyzed (Option 1, reactive protection) involved a
combination of beach nourishment along sand beaches, maintenance of existing bulkheads and
construction of new bulkheads along wetlands to prevent inland migration. Using assumptions
explained in detail in Chapter Four, for this reactive protection strategy, the cost-benefit
analysis found costs would exceed benefits for the 0, 50, 100 and 200 cm sea-level rise
scenarios. The ratio by which the costs would exceed the benefits ranged from a low of 1. 1: 1
for the 0 cm rise scenario to a high of 1.6:1 for the 200 cm rise scenario. This finding is
directly attributable to the fact that beach nourishment is very expensive, and that even under
a zero cm sea-level rise scenario, a substantial amount of beach nourishment would be needed
over the next century to protect the existing structures by maintaining the current shoreline
position.
The second protection strategy analyzed, Option 2, was a variation on Option 1. It
differed from Option I only in the addition of an initial buy-out and abandonment of the
structures which are currently most vulnerable. This buyout was coupled with the same
reactive protection strategy as under Option 1 for the remaining structures through beach
nourishment and bulkheads. The distinguishing characteristic of this "compensated setback"
strategy is that it would postpone beach nourishment costs by abandoning selected structures
and secure a volume of sand to protect the next tier of structures from the encroaching

SummARY-8 ExEcurm SummARY

shoreline. The amount of sand needed for beach nourishment would drop to zero for a
number of years, depending on the rate of sea-level rise.
Once again, costs were found to exceed benefits for the 50, 100 and 200 cm sea-level rise
scenarios. The ratio by which the costs exceeded the benefits ranged from a low of 1. 1: 1 for
the 50 cm rise scenario to a high of 1.8:1 for the 200 cm rise scenario. Under the 50, 100
and 200 cm sea-level rise scenarios it was estimated that the compensated setback policy
would eliminate the need for beach nourishment for 20, 10 or 5 years, respectively. There
was only one case in which benefits were found to exceed costs; Option 2 was found to pro-
vide slight net benefits (1. 16) if one assumed that there would be no rise in sea level.
However, the assumption of a 0 cm rise would be completely contrary to historic trends and
recent coastal erosion mapping at this site. It is also interesting to note that the use of the
compensated setback strategy assumed in Option 2 actually resulted in a less favorable
benefit/cost ratio than the reactive protection of all structures assumed in Option I for the 100
and 200 cm rise scenarios. The reason is that with a more rapid sea-level rise scenario, the
savings in sand for beach nourishment provided by the compensated setback program is
quickly consumed and does not last long enough to offset the relatively high present value of
purchasing the properties upfront.
In contrast, the two retreat strategies assessed in Options 3 and 4 were found to be more
cost-effective, with benefits exceeding costs for all sea-level rise scenarios. Option 3 assumed
regulations would prohibit all new development within the area expected to be affected by a
change in shoreline position within the next 100 years. It also assumed that any existing
development would be subject to a "rolling easement" which would require removal of
development and restoration of, the site to its natural condition as the shoreline position moves
inland to affect that development. The ratio by which the benefits exceeded costs were 1.4:1
for a 50 cm rise, 1. 1: 1 for the 100 cm rise, and 1. 2: 1 for a 200 cm rise.
Option 4 assumed that rolling easements would apply to both existing and new
development. New development would be allowed on sites expected to be affected by
projected sea-level rise but it would have to be removed if the site becomes inundated by the
sea. The ratio by which the benefits exceeded costs were 1.7:1 for a 50 cm rise, 1.3:1 for
a 100 cm rise and 1.5:1 for a 200 cm rise, in all cases, more favorable than the Option 3
values. The distinguishing aspect between Option 3 and Option 4 is the setback policy of
prohibiting all new development in the zone of anticipated sea-level rise.
This analysis shows that on a cost-benefit basis, using the articulated assumptions, the
present value of prohibiting all new development outweighs the cost of allowing the new
development to occur and then removing it should the sea-level rise. The opportunity costs
of Option 3 would be particularly high if development is prohibited in a zone and sea-level
rise does not occur or occurs to a lesser degree than assumed by the setback policy.
This simplified cost-benefit analysis lends quantitative support to the position that the best
course of action is to retreat from the shoreline in the face of rising sea level. The underlying
reason for this is that in present value terms, it is far less costly to allow development to
occur, and then remove structures and components of the infrastructure which would be
affected by sea-level rise over the next 100 years than it would be to incur the continual

ANTiciPATORY PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE SUMMARY-9

annual expense of beach nourishment and bulkheading. This conclusion holds true under all
studied scenarios.

While this cost-benefit analysis is specific to Camp Ellis, it has implications for similar
beachfront development in Maine. Clearly, this cost-benefit analysis does not address all type
of coastal development. For example, there might be atypical sites in Maine where the
current level of development and/or an existing heavily engineered shoreline (e.g., very
valuable, high intensity structures such as along the Portland Harbor waterfront) might justify
reactive protection as a more cost-effective strategy than retreat.
This simplified economic assessment provides policy makers with some information about
costs, economic efficiency and performance under uncertainty. In addition, policy makers
need to consider other criteria, which exceed the scope of cost-benefit analysis, including
equity, political/institutional feasibility, value to be placed on unique or critical resources, and
consistency with other State goals and laws.
2. Responsiveness of Existing State and Federal Laws to Sea-
Level Rise

Researchers determined that federal programs provide some limited incentives and
technical assistance for states to engage in sea-level rise and erosion mitigation planning. For
example, the Coastal Zone Management Act has been amended to recognize rising seas as a
critical area for anticipatory planning and now provides financial assistance for programmatic
changes through enhancement Grants. Other federal research programs, such as EPA/s
Climate Change program, also provide valuable technical assistance to states. However, the
federal programs are not intended to be a comprehensive response to sea-level rise, and
primary responsibility remains with the States to engage in the requisite coastal management
planning.
Researchers concluded (Chapter Five) thii the policies already in place for Maine's sand
dune systems, established by the Sand Dune Rules of the Natural Resources Protection Act,
form a very solid base for an appropriate adaptation strategy. In fact, Maine's sand dune
regulations have received national recognition as an exemplary coastal erosion response
strategy. The Sand Dune Rules should be retained and enforced. Key elements include:
� a prohibition on new or expanded seawalls;
� a requirement that new, large developments only be allowed on sites that will
remain stable assuming a 3-foot rise in sea level over the next century;
� a requirement that new, small developments be adequately set back so that they
are not expected to be damaged by coastal erosion or a change in shoreline
position over the next century;
� a prohibition on rebuilding (unless it can meet new construction standards) if
a structure is damaged by more than 50% of the appraised market value; and
� a requirement that if the shoreline recedes such that tidal lands extend to any
part of the structure (including support posts) for six months or more, then the
structure shall be removed and the site restored to natural conditions.

SUMMARY-10 ExiEcurwE SummARY

The State should avoid granting any piecemeal exceptions to specific landowners. Only
minor modifications are recommended to clarify the means of determining likely site stability
when reviewing smaller structures proposed for that area which is expected to remain stable
over the next century given a continuation of historic rates but which would be affected by an
accelerated rate of sea-level rise.
However, researchers recommend more extensive modifications to regulations applicable
to salt marshes and eroding bluffs to extend the philosophy of the Sand Dune Rules to the
other components of the soft coast. The laws governing development in these locations need
to be revised to anticipate a non-static shoreline and to protect the capacity for the shoreline
to migrate landward without compromising the functioning of the natural system.
To protect irreplaceable wetland resources and their ecological functions along the Maine
coast, this study recommends steps should be taken to protect the capacity for landward
migration. The first step should be to make a policy decision about which, if any, wetlands
the State is willing to lose when sea level rises. If it opts to continue to allow the hardening
of the upland edge of wetlands to protect certain types of land or structures (e.g., to protect
land already developed to a certain intensity), wetland migration will be precluded in those
areas. To retain the other wetlands, the State should adopt provisions, either through the
Natural Resources Protection Act or mandatory minimum provisions for shoreland zoning
ordinances, to prevent the hardening of the upland edge. Specific provisions should include
setback provisions based on projected changes in the shoreline, with new, large structure
setbacks based on an assumed 100 cm rise over 100 years, and new, small structure setbacks
based on historic rates; all new development would be conditioned on retreat if actual changes
in the shoreline resulted in the interference with the natural migration of salt marsh vegetation
or tidal flows of water,
To prevent development on eroding coastal bluffs, researchers recommend that these
natural features should be incorporated into the Natural Resources Protection Act and
regulations should be adopted which would parallel the Sand Dune Rules. In addition, or in
the alternative, protection under local shoreland zoning ordinances should be substantially
increased. These rules should limit new development, prevent the construction of bluff
stabilization devices designed to protect existing structures, and would establish a retreat
policy in the event of future bluff erosion.
With respect to engineered urban shorelines, researchers concluded that stronger land use
controls could help minimize damage from sea-level rise. The primary action would be to
strengthen use restrictions so that new uses would be restricted to those that require a
shorefront location in order to function, sometimes referred to as "water dependent uses."
Such controls would further other important state interests and leave property owners with
numerous economically beneficial uses.
3. Legal Considerations for Maine's Policy Response
The foregoing measures to protect sand dune systems, wetlands and eroding bluffs were
the focus of an assessment of potential legal challenges (Chapter Six). That analysis
concluded that the current standards for the protection of private property do not pose
insurmountable hurdles to carefully drawn regulatory approaches to the problem of sea-level
rise. The Maine Law Court has already upheld significant restrictions under the current Sand

ANTICIPATORY PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE SUMMARY-11

Dune Rules. This indicates a belief that such regulations do advance a legitimate state interest
and do so in a manner that does not deprive land owners of their property rights in violation
of constitutional guarantees. The terseness of the leading State opinion, however, and the
recent efforts of the federal courts to expand the protection of private property subject to
governmental regulation may encourage other land owners to mount similar challenges to
further regulation aimed at sea-level rise. In that event, the smaller the area of a parcel that
is affected by the restriction, the more likely it is to be upheld.
If Maine chooses to pursue one or more of the regulatory options outlined previously, this
study recommends that it should develop and promulgate them as soon as possible. The
earlier that the public is on notice of the likelihood of rising sea level and the policy choice
of a retreat strategy, the more likely the regulations are to withstand legal challenge. Property
that is purchased after the regulations are adopted will be bought subject to the expectations
that the development restrictions will be applied in light of sea-level rise. The promulgation
of regulations that require a wetland migration area on the upland margin or which prohibit
the future construction of bulkheads that would block such migration will help to clarify the
expectations of land owners. When these expectations are clarified, if it is necessary to carry
out removal conditions or enforce revised coastal setbacks, the effect will be a minimal
disruption of settled expectations.
4. Conclusions and Recommendations

The key premises underlying the recommendation are:

THE STATE SHOULD PROTECT AND STRENGTHEN THE ABILITY OF NATURAL SYSTEMS
To ADjuST TO CHANGES IN SHORELINE POSITION

and

THE STATE SHOULD PREVENT NEw DEVELOPMENT WHICH Is LIKELY TO INTERFERE
wrrH THE ABILITY OF NATURAL SYMMS To ADjUST TO CHANGES IN SHORELINE
POSITION.
In Chapter Seven, the report recommends three different types of actions: 1) concrete
anticipatory policies and design standards to guide public investment in buildings, roads and
similar infrastructure; 2) specific planning and regulatory policies; and 3) longer range
strategic assessment, research and educational actions. The specific recommendations,
developed in more detail throughout the report, are summarized as follows:
a. Anticipatory Action
1) Review all new coastal public works projects to determine if minor, cost-effective
changes can be made in design or siting to accommodate a changed shoreline position
or more intense storms;
2) Discourage an irreversible commitment of public resources for new infrastructure or
structures in areas likely to be affected by accelerated sea-level rise, except as
necessary to support continued economic viability and efficient functioning of
water-dependent uses;

SummARY-12 ExEcuTivE SUMMARY

3) Increase the amount of publicly-owned or controlled upland area adjacent to public
waterfront access areas to allow for landward movement;
4) Expand coastal nature preserves and acquire key undeveloped coastal wetlands and
adjacent conservation areas to provide sufficient upland buffer areas for wetland
migration;
b. Planning and Regulatory Policies
5) Halt attempts to stabilize the shoreline within or adjacent to the soft coasts and
maintain/restore the ability for coastal sand dune systems, coastal wetlands and
eroding bluffs to migrate inland.
6) Along all soft coasts, establish setbacks for all structures (including walls and
bulkheads) based on projected shoreline position assuming a 100 cm rise in sea level
over the next century to protect the natural systems.
7) As a limited exception to #6, in those areas expected to remain stable over the next
100 years assuming a continuation of historic sea-level rise, allow construction of
new, small, easily-movable structures (excluding seawalls or bulkheads) built at low
densities adjacent to sand beaches or marshes on the condition that they be removed
if they begin to interfere with coastal processes.
8) As a limited exception to #6, allow new structures for functionally water-dependent
uses which meet certain performance standards.
9) Treat existing development within the area threatened by erosion or inundation from
a sea-level rise of 100 cm over the next century as non-conforming structures,
prohibit expansion or intensification of use, but allow ordinary maintenance and
repair so long as not damaged by more than 50% of its value. To the extent legally
feasible, require the owner to remove the structure if it is damaged by more than 50 %
of its value, if the structure becomes located on public land, or becomes a public
nuisance.
10) On any site unlikely to be affected by a 100 cm rise but likely to affected by a 100
to 200 cm rise over the next century, allow new subdivision development only if it
meets performance standards for cluster development designed to minimize the costs
of protection.
11) Supplement State regulatory procedures by encouraging/requiring other agencies and
municipalities to consider the probability of future increased rates of sea-level rise in
making investment, development and permitting decisions.
c. Strategic Assessments, Research and Education
12) Designate one State agency as the lead agency for monitoring issues associated with
global climate change and sea-level rise.
13) The lead State agency and cooperating State agencies should undertake additional
research to document coastal erosion and to determine how revised global or regional
projections of particular impacts of global climate change may affect Maine.

ANTicimoRy PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE SummARY-13

14) Undertake a substantial education effort aimed at local officials, code enforcement
officers, other State agencies, current and potential coastal landowners and the general
public to focus on the hazards of coastal erosion and inundation, possible impacts of
accelerated sea-level rise, the costs of engineered "solutions" and the benefits of
conserving the soft coasts as a resilient natural system.
15) As funding permits, undertake supplemental studies on related impacts, specifically
including the impacts of coastal flooding/storm surges and salinization/saltwater
intrusion with accelerated sea-level rise. In addition, continue to assess policy
response options, particularly rolling easements or other market-based approaches,
to supplement the use of regulatory setbacks.
The study makes the most detailed recommendations with regard to modification of
regulatory strategies. However, researchers also recommend additional evaluation of policy
options, including market-based approaches such as the acquisition of rolling easements, to
facilitate planning for even longer time frames (beyond 100 years) or higher than projected
sea-level rise (greater than 100 cm by 2100).
There are opportunities for the State to demonstrate leadership in non-regulatory spheres
in preparing for the possibility of an accelerated rate of sea-level rise. For example, it should
illustrate sound economic analysis by incorporating an awareness of sea-level rise projections
into its decisions about public works projects, capital investments, public waterfront access
siting, and acquisition of conservation areas.
State agencies should also provide leadership through the development and transfer of
technical information. Maine Geological Survey and other State agencies should continue to
monitor national global climate change projections, analyze the implications of national
projections for the State of Maine, and provide technical assistance to municipalities about
coastal erosion, historic rates of sea-level rise,-and local impacts of projected accelerated rates
of change.
The State should also undertake a widespread public education effort to emphasize the
non-static nature of the shoreline and the benefits to other shoreline owners, the community
and the State of protecting the ability of natural systems to adjust to changes in shoreline
position. It is particularly critical to convey information about anticipated shoreline change,
coastal processes, and related regulatory constraints to current and potential coastal landowners
so that they do not harbor any unrealistic expectations about being able to interfere with
natural coastal processes.
Finally, it is important for the State to continue to be an active participant in anticipatory
planning for sea-level rise and global climate change. For example, the State should con-
tribute to efforts to mitigate the global and local impacts of greenhouse gasses by participating
in appropriate emission reduction efforts. Through a designated lead agency, the State should
also keep abreast of scientific developments and evolving legal tools. It should plan to revisit
its adaptive response strategy on a periodic basis, perhaps on a ten year schedule. This itera-
tive approach will allow the State to incorporate evolving scientific information, evaluate
emerging legal tools, and refine its approach based on the best information available at that
time.

SummARY-14 ExIECUTIVE SUMMARY

G. ENDNOTES

1. JOSEPH KELLEY, ET AL., LIVING WITH THE COAST OF MAINE (Durham, NC: Duke University Press,
1989).

2. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, WORKING GROUP 1, 1992 IPCC SUPPLEMENT:
SCIENTiFic ASSESSMENT OF CLIMATE CHANGE 4 (J.T. Houghton, et al., eds., 1992).

3. Appendix A: Conclusions from the 1990 IPCC First Assessment Report, in GLOBAL CLIMATE
CHANGE AND THE RISING CHALLENGE OF THE SEA (L. Bijlsma, J. O'Callaghan, et al., eds.,
Rijkswaterstaat, The Netherlands, Report of the Coastal Zone Management Subgroup, IPCC Global
Response Strategies Working Group, May 1992).

4. KELLEY, supra note 1.

5. See discussion and references cited, Chapter 2, 2-15 to -16.

6. T.V. Armentano, R.A. Park, and C.L. Cloonan, Impacts on coastal wetlands throughout the United
States, in GREENHOUSE EFFECT, SEA-LEVEL RISE AND COASTAL WETLANDS 87-128 (J.G. Titus, ed.,
Wash., DC: EPA, 1988).

U."apter One

PLANNING FOR SEA-LEVEL RISE

The threat of global climate change is one of the major issues confronting the world as it
enters the 21't century. We are faced with a variety of predictions that indicate that the human
race cannot continue to use up the eartWs non-renewable resources at the current pace with
impunity. Some experts hypothesize that the current pattern of resource consumption has set
into motion a series of interactions which are causing global warming. One of the possible
projected impacts of this human-induced global climate change is an accelerated rise in global
sea level.

A very substantial international scientific research effort has been conducted during the last
decade to try to verify the phenomenon and project the impacts of global climate change.
Meanwhile, policy makers familiar with various impact projections are anxious to move
beyond the problem-recognition stage to begin to develop constructive responses.
The critical issue is how best to develop specific responses when many scientific issues
remain unresolved. This report asserts that meaningful preparations can take place now,
despite scientific uncertainty, by carefully building upon what is already known. It utilizes
the following approach:
� at the outset, clearly identify what we know about sea-level trends in
Maine, what we know about global climate change and associated global sea-
level change, and what we believe to be the most likely impacts associated
with accelerated sea-level rise;

� seek "no regrets" strategies (which we will not regret even if there is no
acceleration in the rate of sea-level rise) which also address known threats
and recognize that sea-level rise is just one factor affecting land loss.
� use a range of likely sea-level rise scenarios to evaluate vulnerability and
develop response strategies rather than limiting the analysis to a single
projection;
� continue to participate in appropriate emission reduction strategies in an
attempt to mitigate likely impacts;
� assume that State and/or local governments will have primary responsibility
for mitigating local impacts of accelerated sea-level rise;

1-2 PLANMNG FOR SEA-LEVEL RISE

build into the process periodic review and adjustment of anticipatory sea-level
rise response strategies.
Each step in this approach is discussed in more detail below.

A. IkEvmw WHAT WE KNow ABOUT SEA-LEvEL TRENDS IN MAINE,
GLOBAL CLIMATE CHANGE- AND ASSOCIATED IMPACTS

1. Historical Rates of Sea-Level Rise in Maine
Sea level varies significantly in both its vertical and spatial position over time. Much of
the variation, such as that caused by the tides, results in no net change in the position of the
shoreline. However, geologists have recorded vertical movement of the sea between 25,000
years ago and the present greater than 100 meters as a result of the waxing and waning of
continental glaciers.'
During the last fifty years, geodesists have observed tide gauges record a rise of the sea
2
which has averaged 2.4 mm/yr in New England. The exact reasons for this rise are still
uncertain, but may be caused by melting of small glaciers,' thermal expansion of warming
sea-surface water,' land subsidence,' or a combination of all of these factors.'
The Maine Geological Survey has used National Ocean Survey tide-gauge readings to
estimate that Maine's rate of sea-level rise between 1940 and 1980 ranged from 1.1 mm per
year in Kittery, to 2.3 mm per year in Portland, to 3.2 mm per year in Eastport.' If that rate
continues unchanged into the future, it translates to increases per century of 11 cm (4 inches)
in Kittery, 23 cm. (9 inches) in Portland, and 32 cm (12 inches) in Eastport. Maine's coast
is currently experiencing significant local submergence (decreased land elevation) due to
lingering effects possibly caused by loading and unloading of receding ice sheets.' The rate
of sea-level rise is supposed to be greatest in the Eastport area because of more rapid land
subsidence in that area;' but this conclusion remains controversial."
To keep this information about changes in sea-level in perspective, it is important to
understand that a vertical increase of 11 to 32 cm (4 to 12 inches) in the level of the ocean
w- ill translate to a much larger horizontal migration of the high water line landward, depending
upon the slope of the adjacent land surface and the type of shoreline. (See Figure 1. 1) At
a minimum, with a one foot rise, the shoreline will move at least as far inland as the previous
one-foot topographic contour line. On a very gently sloping coast, that contour line will be
much farther inland than on a steep coast.
However, while this simple method of estimating land loss from the slope of the land
surface may be useful for sheltered- estuaries or wetlands, it greatly underestimates land loss
along eroding coastal bluffs or sandy shorelines. Coastal bluffs retreat at highly variable
rates, depending on complex factors." Sandy shorelines are also characterized by complex
migration processes which result in land loss many times greater than the vertical rise in sea
level;" some studies have estimated the landward movement of the shoreline per century to
be in the magnitude of 100 to 300 times the vertical rise over that same period." So, for
example, a 23 cm (9 inch) vertical rise in sea level over the next century along a sand beach

ANTICIPATORY PLANNING FOR RELATIvE SEA-LEvEL MsiE ALONG THE COAST OF MAINE 1-3

could translate into a movement of the shoreline landward in the magnitude of 23 to 69 meters
(75 to 225 feet) per century.

Shoreline
shift

Shoreline shift

Higher sea level 4,

Lower sea level

'ap;

Figure 1. 1. Small vertical changes in water level shift coastlines dramatically on gently sloping coasts but cause
only minor shifts on steep coasts. Source: U.S. Geological Survey, COASTS IN CRISIS, Washington, DC (1990).

2. Accelerated Sea-Level Rise as a Result of Global Climate Change
The continued rise of the sea at the present rate (discussed immediately above) poses many
problems along developed shorelines. " However, even greater concern has been raised for
the potential impact of a still more rapid rise of the ocean than is presently occurring. Some
scientists are predicting that the rate of sea-level rise will accelerate as a result of global
climate change associated with the "greenhouse effect.""
The greenhouse effect, also referred to as global wanning, is described as the presence of
increased concentrations of human-induced gases, such as carbon dioxide and methane, in the
atmosphere. These gases trap heat re-radiating from the earth's surface and raise the earth's
atmospheric temperature. This, in turn, could increase the rate of sea-level rise due to further
expansion of the sea's surface layer and glacial melting." Thus to accurately project sea-level
rise under conditions of global climate change, an additional increment must be added to local
historical rates to reflect a global increase in ocean volume.
Scientific knowledge about possible global climate change and the associated increase in
sea level is still at a very rudimentary stage. Recent studies tend to assume that best projec-
tions indicate a rise of approximately 1 to 3 feet by 2100, while earlier studies assumed a rise
of 2 to 7 feet by 2100.1' One of the more recent estimates put a "best guess" at 48 cm
(approximately 1. 5 feet) higher than present by the year 2 100. " (See Figure 1. 2)
Because there is still a wide range of uncertainty associated with projections of global
climate change and resulting sea-level rise, scientists cannot provide coastal managers with a
single number which represents the projected accelerated sea-level rise attributable to global
warming. Instead, to assess possible impacts, coastal planners have to use a range of
scenarios designed to be broad enough to encompass the range of likely outcomes. These
scenarios are discussed in more detail in section C of this chapter.

1-4 PLANMNG FOR SEA-LEvEL RiSE

U
100 - -BEST GUESS
(AFTER WIGLEY AND RAPER, 1992)
Z 80-
H

U 60-

M
40-

20 - L

0
2000 2020 2040 2060 2080 2100
YEAR

Figure 1.2. Estimates of future sea-level rise (modified from Wigley and Raper, 1992). L, M, and H refer to
low, medium and high estimates of future sea levels.

3. Possible Impacts of Accelerated Sea-Level Rise
Given projected increases in sea level due to a combination of local and global changes,
the next step of the analysis is to try to integrate possible scenarios with information about
probable impacts. It is not yet possible to make precise predictions of the magnitude and
specific array of future impacts of global warming." However, researchers have begun to
develop lists of possible impacts, and have begun to separate the probable from the merely
possible. They have also begun to recognize that the baseline health of the coastal zone may
have significant bearing on the ability of the region to adjust to a change in sea level.
During the last several decades, coastal regions of Maine have experienced very significant
growth in the number of residents and recreational visitors.' This development pattern has
resulted in a variety of problems including the degradation of coastal habitats, user conflicts
resulting from spatial limitations, coastal pollution due to increasing volumes of municipal
wastes and other point and nonpoint sources of water pollution, and coastal erosion and
flooding due to insufficient allowance for natural coastal processes. Accelerated sea-level rise
will tax those natural systems which provide protection against the sea (e.g., sand dune
M

systems, wetlands) and will accentuate problems caused by or symptomatic of degradation of
those systems.
In addition, depending upon the degree of sea-level rise and local conditions, scientists
predict that new problems will be added to those already caused by intensive use of coastal
areas. These new problems may include:

ANTicIPATORY PLANNING FOR RELATIVE SEA-LEVEL RISE ALONG THE COAST OF MAINE 1-5

1) changes in the location of the terrestrial-aquatic boundary;
2) increased frequency and inland extent of flooding;
3) loss of coastal wetlands;
4) accelerated dune and beach erosion;
5) loss of significant habitat for commercially important species;
6) saltwater intrusion into groundwater; and
7) greater upstream intrusion of salt-water wedges.

In turn, these impacts on the natural environment may also:
1) destroy or undermine structures in developed areas;
2) damage the infrastructure; and
3) disrupt the local economy, particularly natural resource-dependent sectors.

The vulnerability to these possible impacts is assessed in greater detail in Chapters Two
and Three of this report.

B. SEEK "No REGRETS" STRATEGIES WHICH ALSo ADDRESS
KNowN THREATS AND RECOGNIZE THAT SEA-LEvEL RISE
IS JUST ONE FACTOR AFFECTING LAND Loss

Representative s of the United States Environmental Protection Agency, the United Nations
Environment Programme, the World Meteorological Organization, and the international
Intergovernmental Panel on Climate Change (IPCC), assert that despite scientific uncertainty
about the global climate change, the magnitude of the potential negative impacts makes it
incumbent upon governments to develop response strategies without waiting for conclusive
proof of causation or complete unanimity in the scientific community. For example, the IPCC
Coastal Zone Management Subgroup has adopted the following statement:
It is urgent for coastal nations to begin the process of adapting to sea level rise not
because there is an impending catastrophe, but because there are opportunities to avoid
adverse impacts by acting now, opportunities that may be lost if the process is delayed.
This is also consistent with good coastal zone management practice irrespective of
21
whether climate change occurs or not.
Due to the scientific uncertainty about global climate change and lag time before most impacts
will be felt (if they occur at all) most of these representatives are not advocating immediate
concrete steps to armor the shoreline or otherwise get ready for a change in sea level. Rather
they emphasize relatively low-cost strategies which not only make sense to minimize any
adverse impacts of accelerated sea-level rise, but which would also make sense (e.g., which
the government would not regret taking) even if sea level does not rise at an accelerated rate.
For example, these strategies may be justified because they increase the ability to survive
coastal storm events of the intensity currently experienced with less damage or because they
strengthen the resiliency of coastal resources. The focus of this report is on identifying these
types of "no regrets" strategies.
In seeking these "no regrets" strategies, it is important to recognize that there are many
interacting variables that can lead to coastal land loss. (See Figure 1.3) Projections of

1-6 PLANNING FOR SEA-LEVEL RiSE

shoreline change as a result of sea-level rise caused by global climate change represent just
one variable. The local impact will depend on the interactions of all of these variables.
Furthermore, even if projections are wrong and global climate change does not cause a
substantial rise in sea level, the other factors may cause significant land loss.

@
nX.x:K'E@-
3,4K.

K
temperature
SOURCES XXX..k.
C L
"CLIM evapotranspiration
riverine discharge
** . . ........... .............
p, ecipitation
X
shoreline erosion
onshore transport xl:i 'ex
X
eolian processes
SINKS wove climate
shoreline accretion longshore currents
storm washover SEDIMENT COASTAL riverine discharge
tidal inlets valley aggrodation,
PROCESSES or incision
8 U D G E
coastal structures
tides
eolian processes
wind
offshore transport
resource extraction storms

subsurface fluid withdrawal
river basin development
tectonic subsidence
maintenance dredging 'N
beach maintenance RELATIVE compactional subsidence
coastal structures ACTIVITI SEA LEVEL eustatic sea level changes
artificial posses secular sea level changes
dune alterations
highway construction

Figure 1.3. Interaction of agents affecting land loss. Arrows point toward the dependent variables. The number
of arrows originating from or terminating at a particular agent indicates the relative degree to independence or
interaction. For example, human activities are independent of other agents, but they affect sediment budget,
coastal processes, relative sea level conditions, and perhaps climate (from Morton [1977]).
Source: O.H. PILKEY, ET AL. COASTAL LAND Loss. (Wash., DC: American Geophysical Union, 1989) at 6.

The factors affecting land loss are identified as:
1) relative sea-level changes (including not only eustatic (world-wide) sea-level
changes which might be attributable to global climate change, but also tectonic
and compactional subsidence and oceanographic sea-level changes);
2) coastal processes (waves and currents, with highest and most intense levels of
wave and current energy affecting the coast during intense storms such as
hurricanes and northeasters);
3) alterations in the sediinent budget (affecting sandy shores, with supplies from
coastal rivers interrupted by natural decreases, river containment or diversion,
dam construction);

ANTICIPATORY PLANNING FOR RELATIVE SEA-LEVEL RISE ALONG THE COAST OF MAINE 1-7

4) climate (temperature and precipitation indirectly influencing land loss by
affecting decomposition of rocks, vegetated cover, and upland runoff); and
5) human activities (such as coastal construction projects, fluid production, and
resource extraction promoting alterations and imbalances in the sediment
budget, coastal processes and relative sea level)."
The multi-factored, interactive nature of the land loss process highlights two important
considerations in any anticipatory planning process:
� Coastal land loss is a natural phenomenon, perhaps increasingly exacerbated by
human activities. It does not become a "problem" until humans try to hold
back natural processes of land migration.
� Coastal land loss may result from factors other than eustatic sea-level rise
attributable to global climate change, with coastal storms and human activities
which disrupt the sediment budget being prime factors. Thus, it is important
that any anticipatory plan be responsive to these land loss factors as well.
Since these factors are so interrelated, it may be possible to develop "no regrets" strategies
which address sea-level rise, but will also minimize coastal land loss from other factors.

C. COMPENSATE FOR SCIENTIFIC UNCERTAINTY BY USING A RANGE
OF SEA-LEvEL RISE SCENARIOS

While the scientific models and current knowledge are sufficiently developed to identify
a potential problem on a global scale, they can not yet accurately predict the timing and
magnitude of sea-level rise on a local scale." It is thus prudent to use a range of possible
scenarios to assess vulnerability and evaluate response options.
For at least the last decade, the international research community has used an assumption
of a one meter rise in sea level over the next century to study possible impacts. During that
time, specific research projects have developed other high, medium and low scenarios,
illustrated in Figure 1.2 (p. 1-4) and Figure 1.4, on the following page.
In its sea-level rise studies, the U. S. Environmental Protection Agency (EPA) has
generally continued analyzing the National Research Council's 1985 scenarios of a rise of 50,
100 and 200 cm. (1/2, 1 and 2 meters) by 2100. According to the EPA, the primary reason for
using the 50, 100 and 200 cm scenarios is not that it expects these precise results to unfold,
but rather that they are "round numbers" that seem to "bracket the range" and serve its goal
of being a bit wider of the mark so they cover every contingency.2' EPA asserts that the
extra-high scenario (200 cm) is useful to project what might happen in the very long run
(perhaps 200 years or longer) since there is no reason to expect the effects of global warming
to stop in 2100. EPA suggests that the extra-high scenario is also useful for identifying which
areas are at any risk, even though small, of being affected by accelerated sea-level rise over
the next century to assist with siting facilities that would be severely impacted by coastal
erosion, such as a hazardous waste disposal facility.
EPA does not equate these scenarios with projections of the most likely outcomes. Recent
EPA uncertainty analyses, now cite the 50 cm scenario as the median estimate by 2100. This

1-8 PLANNING FOR SEA-LEVEL RISE

4.0 -

EPA (1983) High

3.0 Estimates of
Sea Level Rise

- Scenarios recom-
and engineers by
National Research
Council (1987)
> 2.0 EPA (1983) Mid-High

WMO (1985) High
EPA (1983) Mid-Low
>
NRC (1983)

EPA (1983) Low
-Past Century, "or 9 1PCC (1990) Low
mated
2000 2050 2100
L YEAR

Figure 1.4. Estimate of future sea level rise. Source: J.G. Titus, et al., Greenhouse Effect and Sea Level Rise:
The Cost of Holding Back the Sea 19 COASTAL MANAGEMENT 171-204 (1991) at 176.

analysis gives 200 cm a less than 0.5% chance of happening by the year 2100 and a 10%
chance of happening by 2200. The mid-level 100 cm scenario is given a 5% chance of
happening by 2100, but a 50% chance of happening by 2200.
Despite these probabilities, the EPA continues to advocate that all areas examine their
sensitivity to at least the one meter rise scenario, because that builds in some precautionary
room for error and probably has the effect of extending the analysis beyond 2100. EPA has
recommended that communities add the local historical rate of sea-level change (positive or
negative) attributable to subsidence to the 50, 100 or 200 cm adjust for local conditions.

In 1990, the Intergovernmental Panel on Climate Change (IPCC) reaffirmed this general
approach when it developed its best estimates of future sea-level rise. It predicted that by the
year 2100 there will be a global rise in sea level in the range of 33 to 110 cm, with a most
likely rise of 66cm. 26
Other researchers have subsequently made adjustments to these sea-level rise projections
based on revised International Panel on Climate Change emissions scenarios. These revisions

ANTiciPAToRy PLANNiNG FOR RELATIVE SEA-LEVEL RisE ALONG THE COAST OF MAINE 1-9

place the global low-, mid- and high-level scenarios at 15 centimeters, 48 centimeters and 90
centimeters, respectively."
Table 1.1 summarizes historical change and various scenarios or projections, using a
measured historical rise in Portland as the base. Thus, depending on the assumptions used,
sea-level rise predictions or scenarios combining both local subsidence and global change
range from a low of 24 to 59 cm, to a high of 104 to 214 cm, with a mid range of 60 to 112
cm.

Rible 1.1. Predicted Sea-Level Rise in Portland, Maine, 2100
LOW Mid High

Historical (Maine Geological Survey) 21 cm 24 cm 26 cm
Local Historical (historical less eustatic rise component) 9 cm 12 cm 14 cm

Global Sea-Level Rise Scenarios 50 cm 100 cm 200 cm
Forecast Rise 1 (local historical plus global scenarios) 59 cm 112 ern 214 cm

1990 IPCC Sea-Level Rise Estimate 33 cm 66 cm 110 cm
Forecast Rise 2 (local historical plus 1990 IPCC estimate) 42 cm 78 cm 124 cm

Adjusted IPCC After Revised Emissions 15 cm. 48 cm 90 cm
Forecast Rise 3 (local historical plus adjusted IPCQ 24 cm. 60 cm 104 cm

Source: Adapted from Maine Geological Survey, First Year Report on Hazard Mapping Project, 1993.28

In mapping shoreline change based on accelerated sea-level rise scenarios, this project
opted to map scenarios of sea level of 50, 100, and 200 cm above present sea level in the year
2100. This was the equivalent of using typical global scenarios without adding an additional
increment for local change. For the low- and mid-level scenarios, it was substantially
equivalent to using 1990 IPCC projections of global change plus local change. While
recognizing the importance of local change as a factor, the project opted not to add local
change to global scenarios for purposes of mapping change in shoreline position because: 1)
local historical sea-level rise varies over the study area; 2) local change is relatively small in
relation to the global scenarios; and 3) adding local historical change to the global scenarios
would cause the mapped assumptions to deviate even more from IPCC 1990 projections and
later revised projections of sea-level rise based on revised emission projections. It was felt
that use of these 50, 100 and 200 cm scenarios incorporated the requisite margin for error and
worst-case scenarios that must be factored in when planning to mitigate severe adverse coastal
impacts.

D. Participate in Appropriate Emission Reduction Strategies
I

While the emphasis of the preceding discussion has been on adaptation strategies, the State
should not lose sight of the fact that one way to reduce the extent of sea-level rise is to reduce
emission of greenhouse gases. Clearly the problem of increased concentrations of greenhouse
gases is global in scope. International attempts are being made to negotiate reductions in
emissions of particular trace gases. While hopes are high for a joint international agreement,
similar efforts suggest that progress will probably be slow and incomplete.

1-10 PLANMNG FOR SEA-LEVEL RisE

But the State of Maine does not have to wait for a coordinated international response. In
the United States, a variety of state and local governments have developed their own partial
emission reduction strategies. For example, responses have included:
� comprehensive studies/plans to reduce greenhouse gas emissions and per capita
nonrenewable energy consumption;
� utility regulation strategies (e.g., choices regarding fuels, conservation
initiatives, preference to conservation, and demand-side management measures);
� building codes (e.g., requiring buyers to make conservation investments when
they purchase a house);
� small scale demonstration projects (e.g., reduced energy use by state agencies,
transportation policies to reduce automotive use, efficiency investment in new
buildings);
9 attempts to incorporate environmental costs of nonrenewable energy sources
into prices through tax policies; and
� participation in EPNs Green Lights program to install energy efficient
equipment when it is profitable and does not compromise lighting quality."
Admittedly, these state and local programs can only make a small incremental contribution to
reducing the global emission problem. But adaptation planning and emission reduction efforts
should both be pursued by the State.

E. AssumiE STATE/LOCAL GovERNMENTs WILL HAvE THE PRIMARY
RESPONSIBILITY FOR MITIGATION OF SEA-LEvEL RISE IMPACTS

With emission reduction strategies, there is a misguided, but nevertheless strong,
temptation to wait for national or international bodies to adopt the laws or negotiate the
treaties that will put in place a coordinated global response. In contrast, whether it likes it
or not, the State will probably bear the burden and the responsibility to formulate the local,
adaptive response to this global problem. The impacts of global climate change will be felt
locally, the costs will generally be borne locally and, in the United States, since land use
controls are generally a function of state or local governments, the responsibility for much of
the response planning will fall on those governments." Thus, even if state and local
governments have little direct control over reducing global greenhouse gas emissions, they will
have a major responsibility for planning to adapt to potential adverse impacts.

F. UTILIZE A PROCESS WHICH INCORPORATES PERIODIC REviEw
AND UPDATING OF THE ADAPTivE RESPONSE STRATEGY

Given scientific uncertainty and rapidly evolving scientific knowledge, coastal managers
are not in a position to make decisions now about a definitive adaptive response strategy for
the next century. Rather policy decisions will - have to be made now based on the best
available knowledge, with the express intent of reviewing these policies periodically (e.g.,

ANTICIPATORY PLANNING FOR RELATIVE SEA-LEVEL RISE ALONG THE COAST OF MAINE 1-11

every five to ten years) as scientists refine their predictions. It will be an iterative process.

Despite the scientific uncertainty and complexities discussed above, there are certain
affirmative statements that can be posited as a starting point for Maine's anticipatory planning
for sea-level rise:

1. Despite some scientific uncertainty about causation and extent of global climate change,
the magnitude of the potential negative impacts makes it incumbent upon governments to
develop response strategies without waiting for conclusive proof of causation or unanimity in
the scientific community;
2. Even though negotiations are being conducted to reduce emissions of greenhouse gases,
due to forces already set into motion, it is essential to simultaneously develop local adaptation
strategies in preparation for potential impacts of future global climate change;
3. In coastal communities, adaptation strategies should first focus on the possible impacts
of sea-level rise associated with global climate change since that will have the most direct
impact on natural resources and human development.
4. In the United States, it is appropriate for States to take the lead in developing local
sea-level rise adaptation strategies since they will be most directly responsible for coping with
the local impacts. States already possess a range of land use, zoning, development regulation,
public investment, economic incentive, and similar tools to use in developing anticipatory
strategies.
5. Due to the inherent complexities of predicting impacts of global climate change and
the first, second, and higher order impacts of relative sea-level change, and the interconnec-
tions between those impacts, the initial analysis should be a first-cut at determining the most
likely impacts and the general magnitude of those impacts within very broad parameters. If
further refinement of the assessment of vulnerability of particular localities or resources is
needed to develop adaptation strategies, additional detailed scientific studies will be required.
6. Developing adaptive response strategies will be an iterative process that will require
decisions to be based on the best available information at the time. Anticipatory response
plans should be reviewed and updated as scientific knowledge increases, projections of
magnitude of global sea-level rise are refined, and experience with governmental response
strategies increases.
7. The State should retain and improve on existing policies (supplemented as necessary
by new policies) which strengthen the State's position with regard to the known, measurable
threats already posed by a continuation of the historical rate of sea-level rise, but are also
sufficiently flexible to respond to accelerated sea-level rise, if it occurs. These "no regrets"
strategies will be justified (and the State will not regret implementing them) even if the global
warming theories are incorrect and the State does not experience any change in the rate of
coastal erosion or change in shoreline position attributable to the greenhouse effect.
The detailed results of the mapping and vulnerability assessment components are contained
in the next two chapters. The remaining chapters explore anticipatory response options from
economic and legal perspectives.

1-12 PLANNING FOR SEA-LEVEL RISE

G. ENDNOTES

1. R.G. Fairbanks, A 17,000 Year Glacio-Eustatic Sea-Level Record: Influence of Glacial Melting
Rates on the Younger Dryas Event and Deep-Ocean Circulation, 342 NATURE 637-642 (1989) and J.T.
Kelley, S.M. Dickson, D. F. Belknap & R. Stuckenrath, Sea-Level Change and the Introduction of Late
Quaternary Sediment to the Southern Maine Inner Continental Shetf, in QUATERNARY COASTS OF THE
UNITED STATES, at 23-24 (J. Wehmiller & C. Fletcher, eds., Soc. Econ. Paleo. and Mineralogists,
Spec. Pap. 48, 1992).

2. S.D. Lyles, L.E. Hickman, & H.A. Debaugh, SEA-LEVEL VARIATIONS FOR THE UNITED STATES
1855-1986 (National Ocean Services, National Oceanic and Atmospheric Administration, Office of
Oceanography and Marine Assessment, Rockville, MD, 1988).

3. M.F. Meier, Contribution of Small Glaciers to Global Sea Level, 226 SCIENCE 1418-1421 (1984).

4. D. Reonunich, Ocean Warming and Sea-Level Rise Along the Southwest U.S. Coast, 257 SCIENCE
373-375 (1992).

5. D. AUBREY & K.O. EmERY, SEA LEVELS, LAND LEVELS, AND TIDE GAUGES, (New York, NY:
Springer Verlag 1990).

6. W.R. Peltier, Global Sea Level and Earth Rotation, 240 SCIENCE 148-1421 (1988).

7. D.F. Belknap, B. Andersen, et al., LATE QUATERNARY SEA-LEVEL CHANGES IN MAINE, at 71-75
(Soc. Econ. Paleo. and Mineralogists, Spec. Publ. 41, 1987).

8. W.R. Gehrels & D.F. Belknap, Neotectonic History of Eastern Maine Evaluated from Historic
Sea-Level Data and C-14 Dates on Salt-Marsh Peat, 21 GEOLOGY 615-618 (1993).

9. W.A. Anderson, et al., Crustal Warping in Coastal Maine, 12 GEOLOGY 677-680 (1984).

10. R. Reilinger, Reanalysis of Chistal Warping in Maine, 15 GEOLOGY 998-961 (1987); W.R.
Gehrels & D.F. Belknap, supra note 8, at 615-618.

11. HANDBOOK OF COASTAL PROCESSES AND EROSION (P.D. Komar ed., Boca Raton, FL: CRC Press
1983).

12. O.H. PILKEY, R.A. MORTON, J.T. KELLEY & S. PENLAND, COASTAL LAND Loss, (Wash., DC:
American Geophysical Union 1989).

13. NATIONAL RESEARCH COUNCIL, MANAGING COASTAL EROSION (Wash., DC: National Academy
Press 1990).

14. W. KAUFMANN & 0. PILKEY, THE BEACHES ARE MOVING: THE DROWNING OF AmERICA'S
SHORELINE (Duke Univ. Press 1983) (1979); J.T. KELLEY, A.R. KELLEY & O.H. PILKEY, LMNG
WITH THE COAST OF MAINE (Duke University Press, 1989); and O.H. Pilkey, J.T. Kelley, R.A.
Morton & S. Penland, supra note 12.

15. There are two basic indicators of global climate change: global mean temperatures and global
mean sea level. Evidence exists that global mean surface temperatures have increased by 0.3 to 0.60

ANTic11PATORY PLANNING FOR RELATivE SEA-LEvEL RISE ALONG THE COAST OF MAINE 1-13

C over the last 100 years. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, WORKING GROUP 1,
1992 IPCC SUPPLEMENT: SCIENTIFIC ASSESSMENT OF CLIMATE CHANGE 4 (J.T. Houghton, et al., eds.,
1992) [hereinafter 1992 IPCC SUPPLEMENT]. Global mean sea level is correlated with temperature and
has apparently increased by 10 to 20 cm during the last century as well. V. Gornitz, S. Lebedeff &
J. Hansen, Global Sea Level Trend in the Last Century, 215 SCIENCE 1611-1614 (1982).
One theory advanced to explain the observed global warming is that the measurable increase in
greenhouse gas concentrations during the last century has trapped solar heat. Scientists theorize that
these trace gases (such as carbon dioxide and methane) which are believed to result in large part from
human activities (e.g., burning of fossil fuels, deforestation, certain agricultural practices) delay the
escape of infrared radiation from the earth's atmosphere. This trapped heat causes a warming of tem-
peratures. According to this theory, it also causes a rise in sea level due to the thermal expansion of
sea-surface water and, melting of small glaciers. M.F. Meier, Contribution of Small Glaciers to
Global Sea Level, 226 SCIENCE 1418-1421 (1984); W. Peltier, supra note 6, at 895-901.
Changes in global surface temperature and concentrations of greenhouse gases that were observed
during recent years are consistent with the greenhouse theory, but most scientists take the position that
a definitive cause/effect relationship has not yet been demonstrated. Too few and too widely dispersed
temperature observations, and sea-level measurements biased by a concentration of tide gauges in
subsiding, formerly-glaciated regions preclude definitive statements yet on the status of global climate
change.
In addition while most scientists acknowledge that the greenhouse gas theory is consistent with the
evidence of global temperature changes and changes in mean sea level, most scientists agree that
another viable theory exists which also explains those temperature and sea-level rise observations:
natural internal variability. P. Stone, Global Climate Change: Causes, Evidence and Prediction in AIP
CONFERENCE PROCEEDINGS: THE WORLD AT RISK: NATURAL HAZARDS AND CLIMATE CHANGE
Symposium (Rafale Bras, ed., Cambridge, MA: MIT Center for Global Change Science and Industrial
Liaison Program, 1992) [hereinafter THE WORLD AT RISK] and 1992 IPCC SUPPLEMENT, supra at 4.
These scientists note that the observed global warming is still within the range that could be explained
by natural variations in climate based on historical natural climate variations. Until the data proves
that the observations exceed historical variations, the greenhouse gas theory cannot be validated. It
is not expected that observations which support the theory of enhanced greenhouse effects will provide
unequivocal information for at least a decade. 1992 IPCC SUPPLEMENT, supra at 4.

16. J.G. Titus, Greenhouse Effect, Sea-Level Rise and Barrier Islands, 18 COASTAL MANAGEMENT
1-20 (1990). An increase in sea level may result through one or more of the following: 1) thermal
expansion of ocean water (the same amount of water takes up more space as its temperature increases
above 4' Q; 2) increased melting of mountain glaciers; 3) melting of Greenland glaciers; and 4)
introduction of portions of massive Antarctic glaciers into the ocean. W.R. Peltier, supra note 6.

17. THE POTENTIAL EFFECTS OF GLOBAL CLIMATE CHANGE ON THE UNITED STATES, (J.B. Smith &
D.A. Tirpak, eds., Wash., D.C.: Hemisphere Publishing Corporation, 1990) and J.G. Titus, The Cost
of Holding Back the Sea, 19 COASTAL MANAGEMENT 171 (1991).

18. T.M.L. Wigley & S.C.B. Raper, Implications for Climate and Sea Level of Revised IPCC
Emission Scenarios, 357 NATURE 293-300 (1992).

19. There are several reasons for a lack of precision in predicting the range and magnitude of impacts.
These include the inherent unpredictability of climate, the unpredictability of other events that could
affect the global climate (e.g., volcanic activity, solar emissions), the unpredictability of rates of
increases in greenhouse gases which may be driving the warming (e.g., negotiated reductions in
emissions, public education altering emissions), and inherent limitations of current climate models.

1-14 PLANNING FOR SEA-LEVEL RISE

P.H. Stone, Forecast Cloudy: 7he Limits of Global Warming Models, THE WORLD AT RISK supra note
15, at 143-149. There is also continuing debate over the list of expected impacts. Small differences
in assumptions make major differences in projected impacts. Nevertheless, it is important to note that
sea-level rise is one of the major impacts of global climate change that is projected with a relatively
high level of confidence. If the planet is in fact experiencing hurpan-induced global climate change,
global sea-level rise is one of the most likely impacts. INTERGOVERNMENTAL PANEL ON CLIMATE
CHANGE, CLIMATE CHANGE: THE IPCC SCIENTIFIC ASSESSMENT Q.T. Houghton, G.J. Jenkins & J.J.
Ephraums, eds., Cambridge University Press, 1990). Since it is one of the less speculative impacts,
this report focuses on sea-level rise. Some other projected impacts with potential bearing on the coastal
region are mentioned in the report as,well.

20. J.R. KELLEY, A.R. KELLEY & 0. PiLKEY, LIVING WITH THE COAST OF MAINE (Duke University
Press 1989).

21. Appendix A: Conclusions from the 1990 IPCC First Assessment Report, in GLOBAL CLIMATE
CHANGE AND THE RISING CHALLENGE OF THE SEA (L. Bijlsma, J. O'Callaghan, et al., eds.,
Rijkswaterstaat, The Netherlands, Report of the Coastal Zone Management Subgroup,
Intergovernmental Panel on Climate Change, Response Strategies Working Group, May 1992).

22. O.H. PiLKEY, R.A. MORTON, J.T. KELLEY & S. PENLAND, supra note 12.

23. There is a significant discrepancy in the scales used by scientists and the needs of the local policy
makers. Modelers of climate change are usually working on a scale of thousands of miles. Policy
makers, in contrast, are often hoping to narrow the findings to a particular municipality, county or
state. While some scientists have attempted to use scientific methodologies to convert from a regional
global circulation model to local predictions, the effort is very complex and results can suffer from
significant limitations. J.P. Hughes, D.P. Lettenmaier & E.F. Wood, An Approachfor Assessing the
Sensitivity of Floods to Regional Climate Change, in THE WORLD AT RISK, supra note 15, at 112.
Even though some impacts are predicted on a global scale, they will affect different parts of the world
differently. For example, increased global mean temperature is a change that is predictable with some
degree of certainty, but the extent of the increase is still the subject of much debate. Attempts to move
from the global scale to the local scale to predict changes in local air temperature have not been
successful because local air temperatures will be affected by changes in rainfall and wind patterns
(among other things). While able to give a general indication of the likely direction of change on a
larger regional scale, global circulation models are not yet able to predict changes in rainfall and winds
with accuracy on a local scale. J.C. Pernetta & D.L. Elder, Climate, Sea Level Rise and the Coastal
Zone: Management and Planningfor Global Changes, 18 OCEAN AND COASTAL MANAGEMENT 1, 136
(1992).

24. Correspondence from James G. Titus, Office of Policy, Planning and Evaluation, United States
Environmental Protection Agency, June 6, 1994, on file with the Maine State Planning Office.

25. Id.

26. E.g., a rise of 13 to 43 inches, with a most likely rise of 26 inches. 1992 IPCC SUPPLEMENT,
supra note 15.

27. T.M.L. Wigley & S.C.B. Raper, supra note 18.

ANTiciipmmy PLANNING FOR RELATivE SEA-LEvEL RISE ALONG THE COAST OF MAM 1-15

28. Historical rates based on tide gauge readings were uniformly adjusted to find "local change" by
subtracting 12 cm. This amount was subtracted to account for the portion of the historical change
attributable to a eustatic (worldwide) rise in sea level because the historical change already includes
a past rise in worldwide sea levels. The figure of 12 cm is an estimate only, based on other estimates
ranging from 10 to 18 cm. Titus, supra note 24.

29. P. Wexler & S. Conbere, States Fight Global Warming, 18 EPA JOURNAL 4, 18 (Sept./Oct.
1992).

30. J. Nigg, Societal Response to Global Climate Change: Prospects for Natural Hazard Reduction,
in THE WORLD AT RiSK, supra note 15, at 289.

0"'F_
L.napter Two

VULNERABILITY OF MAINE SITES TO
AcCELERATED SEA-LEVEL RISE

Based on the analysis in Chapter One, it is clear that Maine faces a strong probability of
a future with a higher-than-present level of the sea. The critical questions are:
1) how a higher sea level is likely to impact the coastal area if no steps are taken
to respond to the threat; and
2) what efforts need to be undertaken to prevent any disasters, minimize the risk,
and manage the consequences.
To assist with answering these questions, coastal managers and decision-makers need
information about the potential magnitude of the problem, and the implications of the threat
for both natural and socio-economic systems.
This information is typically developed in a study called a vulnerability assessment. It
provides decision makers with an understanding of the susceptibility of the shoreline to rising
sea-level, clarifies the need for advanced planning, and provides information for priority
setting between specific coastal areas and/or economic sectors within the State.

A. DESIGNATION OF CASE STuDy AREAS AND SEA-LEvEL RISE
SCENARIOS

The first step in the vulnerability assessment was to delineate case study areas and to
specify the sea-level rise scenarios to be assumed when mapping the future position of the
shoreline at representative locations. The research team identified seven representative
southern Maine study sites in Casco and Saco Bays, adjoining estuaries along the western
margin of the Gulf of Maine. (See Figure 2. 1) The two bays have differing geological
histories (described in more detail in "Setting of Study" in Appendix Q and typically have
different land use patterns as well. Portland, Maine's largest city, is located on the
southwestern edge of Casco Bay. Commerce and industry dominate its portion of the bay,
with suburban residences spread out away from it. Only in the northern portions of the bay
and on the islands can one find rural development (Kelley et al., 1989a). Representative
Casco Bay study sites were: Gilsland Farm (Falmouth), Bungunac Bluff (Brunswick) and
Wharton Bluff (Brunswick).

2-1

2-2 VuLNERABiLrry OF MAINE SITES To AccELERATED SEA-LEvEL RISE

Saco Bay is dominated by Old Orchard Beach, Maine's largest resort beach. Motels and
commercial establishments cover the former sand dunes along the central part of the main
beach, while summer residences are often set back behind sand dunes elsewhere. Similar, but
less intense development has occurred along other Saco Bay beaches as well. Along the
landward margins of the large salt marshes, residential development has begun to occur.
Representative Saco Bay study sites were Winnocks Neck (Scarborough), Pine Point
(Scarborough), Old Orchard Beach, and Camp Ellis (Saco). (For additional background on
the Casco Bay/Saco Bay region, see Appendix C.)
These study sites represent three different types of environmental settings: salt marsh, bluff
and beach. A Gilsland Farm site and the Winnocks Neck study area are primarily on or adja-
cent to salt marshes. A second Gilsland Farm site, Bungunac Bluff and Wharton Bluff are
located on eroding bluffs. Old Orchard Beach and Camp Ellis are located on or adjacent to
sand beaches.

As discussed in Chapter One, due to scientific uncertainty about future impacts of global
climate change, the study opted to use three different sea-level rise scenarios in assessing im-
pacts. This study evaluated the future position of the shoreline at these representative
locations in Casco and Saco Bays using scenarios of sea level 50, 100 and 200 cm above
present sea level in the year 2100.

B. PREDICTION OF FuTuRE SHORELINE POSITIONS

In the next step in the vulnerability assessment, Maine Geological Survey predicted future
shoreline positions for each study site, assuming the different sea level rise scenarios. Three
different methods were employed to predict future shoreline positions in differing coastal
environments. The first method considered only simple submergence of the coast by the rising
ocean to the predicted elevations (0.5 m, 1.0 m, and 2.0 m). To determine the distance from
present mean high water to the predicted levels along a traverse, the elevation was evaluated
by leveling and the distance by measuring tape. The distance from present mean high water
to the predicted locations was transferred to maps (1:24,000) which depict contemporary
coastal environments (Timson, 1977).
This technique was used in low-energy areas where tidal marshes border the upland
(Gilsland Farm, Winnocks Neck). Three or more traverses were made at each study site, and
three measurements were averaged parallel to each traverse. Erosion was not observed along
the ocean-upland contact, and it was inferred that rising sea level would permit colonization
of the upland by salt marsh plants. Cores from marshes like these show a landward-thinning
deposit of peat reflecting the slow upward growth of the marsh with rising sea level (Kelley
et al., 1988; Belknap et al., 1989).
Where an eroding bluff occurred at the high-tide line, an historical analysis of the rate of
bluff retreat was made. In two locations (Bungunac and Gilsland Farm) the bluff had been
resurveyed several times in the 1980's (Smith, 1990) and these measurements of bluff retreat
were used to project the future shoreline position of the sea, assuming that the retreat rate
remained constant. Historic photographs from 1940, 1972, and 1985 were also traced onto
mylar under a zoom transfer scope, and the resulting maps digitized for comparison with the

New Brunswick

0
Locations Of Casco And Saco Bays Eastport 0@
0
V0
Bangor@

Nova
Scotia
Casco Bay 0

Portland

Saco Bay
0, Milne
00
z
Kittery
91
0

Boston
4I@p

0 0 50 100
4 Kilometers

2-4 VULNERABILITY OF MAINE SITES To AccELERATED SEA-LEVEL RISE

measured rates. The "long-term" rate of retreat evaluated by remote sensing was comparable
to that evaluated directly by surveying in the "short term".
The bluffs considered by this method are retreating because waves break against them at
high tide. In a study of the factors controlling the rate of bluff retreat in Maine (Smith,
1990), bluffs in three bays (Casco Bay, Machias Bay, Damariscotta River Estuary) with
differing rates of sea-level rise were compared. In each bay several bluffs were surveyed and
evaluated, and at each bluff site, several traverses were made. An analysis of variance
(ANOVA) could not discern a difference in the rate of bluff retreat between the three bays
with differing rates of sea-level rise because there was so much local variability at a specific
site (Smith, 1990). The reason for this is that many other factors influence the susceptibility
of bluffs to erosion (orientation of the bluff, height, composition, rate of slumped debris
removal etc.). It is assumed that the bluffs will continue to retreat at their present rates
regardless of the rate or amount of sea-level rise, or even whether sea level rises. Although
one might argue that a 2 m higher-than-present level of the sea would allow waves more time
to act on already eroding bluffs, the limiting factor affecting bluff retreat appears to be the rate
of removal of eroded sediment, which would not be directly related to a higher sea-level
(Kelley et al., 1989a). Thus, only one 100 year shoreline position is shown for bluff-coasts,
and it is based on the current rate of bluff retreat.

Prediction of future shoreline positions in Saco Bay is more complex than for the other
shoreline types because the area has not behaved uniformly during the historic period. At the
southern end of the bay (Camp Ellis), erosion and accretion have each occurred in the past
and have been significantly impacted by engineering structures and dredging and spoils
disposal activities at the adjacent river mouth (Nelson, 1979, USACOE, 1992). Based on the
past record of aerial photographs and ground surveys, the United States Army Corps of
Engineers has published predicted retreat rates for the area (USACOE, 1992).
Along most of the central portion of the beach (Ferry Beach and Old Orchard) the
shoreline has fluctuated over the years across a very wide littoral zone, and few, if any,
landmarks have ever been removed by erosion despite the rise in sea level of about 0.3 m in
this century (Nelson, 1979). It is possible that this region has received sand eroded from the
south in sufficient quantities to prevent erosion. Alternatively, erosion may have claimed some
of the beach, but it is more than 100 m wide, and the amount of erosion is not quantitatively
measurable (there are no vegetated sand dunes with which to evaluate shoreline retreat).
At the northern end of the beach (Pine Point), significant accretion has occurred because
of spoils disposal and construction of a jetty (Nelson, 1979). This area is also at the
depositional end of the longshore current system of the beach, and accumulates sand lost from
other places in the bay.
To project future shoreline positions in such a complex bay, a geo-historical approach was
utilized, and the long-term behavior of the beach system was evaluated. Approximately
10,000 years ago sea level was 15 km seaward of the present coast (Kelley et al., 1992; Shipp
et al., 1991). The estimated depth of this lowstand shoreline varies from 50-65 m below
present sea level, with 50 m being a conservative figure. To reach its present location, the
shoreline must have retreated at an average rate of 1.5 m/yr (Kelley et al., 1992). The rate
of sea-level rise was not constant during this time period, but averaged 0.5 m/century, the

ANTiCIEPATORY PLANNING FOR SEA-LEvEL RISE ALONG TIM COAST OF MAM 2-5

same value as the low estimate for the next century's rate of rise. If the system behaves as
it did in the past, the beach will retreat 150 m during the next 100 years if sea level rises 0.5
m. If sea level doubles or quadruples its rate of rise to 1.0 m/yr or 2.0 m/yr, respectively,
it is assumed that the retreat will double or quadruple as well. Thus, 300 meters of retreat
are assumed if sea level rises 1.0 m and 600 meters of retreat if sea level rises 2.0 m by the
year 2100.
These values are broadly in line with estimates that would result from employment of
Weggel's (1979) calculation: r = b/(d + s) x h , where r is the amount of retreat, d is the
dune height, s is the offshore depth of no-sediment motion, and h is the amount of sea-level
rise. This equation excessively generalizes a very complex beach and assumes the existence
of a profile of equilibrium that recent literature debunks (Pilkey et al., 1993, List, et al.,
1991). The extreme rates of longshore sand transport in the Old Orchard Beach system
generally negate use of Bruues (1962) two-dimensional model on the Saco Bay system.
Nevertheless, values of b from 5 to 15 km, values of s from 10 to 50 and values of d from
1 to 5 yield retreat distances between 300 rn and 600 m for sea-level rise scenarios up to 2 m
greater than present.
These estimates of beach response to rising sea level are much less precise, much more
uncertain, than predictions based on the historic retreat rates of bluffs or of land submergence.
There is as yet no quantitative understanding of the volume of sand contributed by the Saco
River, and no consideration is given here to where sand eroded from one part of the beach
might go. Any change in the role of the Saco River as a source of sand to the bay would
probably be significant to the behavior of the beaches. Similarly, a large amount of erosion
from one part of the beach would likely contribute sand to other areas and lessen their erosion.
To provide more quantitative information on future shoreline positions for Saco Bay, far more
observational data and modelling is required. For the purpose of planning for future rises in
sea level, the 150 m, 300 m and 600 m values of land retreat projected are adequate.

The detailed results of the mapping effort are discussed for each study site, beginning on
page 7 of this chapter (and for Camp Ellis, on page 1 of Chapter Three). For each site,
Maine Geological Survey describes the setting and summarizes its projections of future
shoreline position. The mapping section is followed by a Maine State Planning Office
assessment of physical changes and natural system responses, as discussed in section C,
below.

The Maine Geological Survey results are summarized in Table 2. 1. It is important to keep
these findings in context. The rise in sea level over the past 10,000 years is responsible for
the present configuration of the Maine coast. A continuation of the historic rate of sea-level
rise of around 2 mnVyr (20 cm/100 years) places many properties in jeopardy. An increase
in the rate of sea-level rise may occur, however. In this study, shoreline changes resulting
from sea levels 0.5 m, 1.0 m, and 2.0 m greater than today, but 100 years hence, were
evaluated. As described in greater detail below, the retreat of unconsolidated bluffs is not'
expected to change as a result of a more rapid rise in the sea, but such bluffs would continue
to pose a threat to property even at their present rate of retreat (up to 0.5 m/yr). Salt marshes
would passively drown upland sites, but the steepness of the bedrock-dominated coastal region
will result in a much smaller area of new marsh creation (drowning) than would occur in

2-6 VULNERABILffY OF MAmE SnEs To AcCELERATED SEA-LEVEL RiSE

non-rocky regions of the United States' Coastal Plain. Beaches would probably experience
the most profound changes as a consequence of accelerated sea-level rise. These areas are
more difficult to evaluate than other environments for many reasons, but still a retreat of
hundreds of meters seems likely.

Table 2. 1. Projected Shoreline Changes for Casco and Saco Bays, Maine

RETREAT DISTANCE IN METERS

Location Envirommental Method Sea-Level Rise Scenarios
Setting 0.5 1.0 2.0

Gilsland Farm (1-3) A 1 3-18 8-36 17-75

Gisland Farm (4) B 2 15 15 15

Bungunac Bluff B 2 45 45 45

Wharton Bluff B 2 26 26 26

Winnocks Neck (1-3) A 1 4-35 23-50 33-100

Camp Ellis C 3 60-100 60-100 60-100

Camp Ellis C 4 150 300 600

Old Orchard Beach C 5 18 18 18

Old Orchard Beach C 4 150 300 600

Pine Point C 4 + 100* 50 200

Envirommental Setting: A) Salt Marsh; B) Bluff; C) Beach.

Method: 1) Flooding; 2) Surveyed Rate; 3) Army Historic Photo Analysis; 4) Geo-Historical;
5) Historical Fluctuations.

Beach Growth, Not Retreat

Location, environmental setting, methodology and retreat distance estimated for the three scenarios of future sea-
level rise. Bluffs are assumed to retreat the same distance under all scenarios as well as under a continuation
of the existing sea-level rise rate because they are already reached daily by ocean waves. We cannot accurately
predict the behavior of marshes which respond both to sea-level rise and sediment supply. Under present rates
of sea-level rise: 1) Pine Point is growing seaward because of sand intmduced from erosion at Camp Ellis; 2)
Old Orchard Beach is fluctuatirig in shoreline position due to varying inputs of sand from Camp Ellis; and 3)
Camp Ellis has been eroding at rates from 0.6 to 1.0 m per year according to an Army analysis.

ANTicipAmRy PLANNING FOR SEA-LEvEL RISE ALONG THE COAST OF MAINE 2-7

C. ASSESSMENT OF PHYSICAL CHANGES AND NATURAL SYSTEM
RESPONSES

The next step in the vulnerability assessment was for the Maine State Planning Office to
inventory study area characteristics, identify relevant development factors and assess physical
changes and natural system responses given the shoreline positions predicted by Maine
Geological Survey. This portion of the analysis is not intended as a precise quantitative
analysis of the vulnerability of Maine's coastline to accelerated sea-level rise. It is more
accurately characterized as a planning exercise to identify the types of problems Maine is
likely to experience and the potential location of these impacts. This preliminary assessment
should form the basis for further discussion and evaluation of possible actions.
Scientists have compiled multiple lists of a myriad of possible impacts on the coastal zone
related to global climate change (Stewart, 1990, Pernetta, and Elder, 1992); they vary
according to the assumptions made and the extent to which secondary impacts are included.
In assessing the vulnerability of the selected sites to the impacts of global climate change, the
research team tried to emphasize the likely over the merely possible. Following the lead of
the first nationwide vulnerability assessments in the United States (Titus, et al., 1991), this
study attempted to consider as many factors as possible, but concentrated on developing
estimates of loss of dryland and wetlands for three sea-level rise scenarios. Specifically,
researchers focused on four physical impacts likely to be experienced in Maine: change in
shoreline position, accelerated erosion/inundation of dunes and beaches, inundation of wetlands
and lowlands, and loss of natural coastal protection systems.
The research team believes this focus was appropriate for this initial study. These four
impacts generally need to be studied prior to work on other physical changes, are more direct,
and the resulting impacts tend to be more amenable to mitigation through governmental action.
Additional studies will be required to assess the impact of other likely physical changes such
as increased risk of coastal flooding and storm surges, alteration of tidal ranges, and increased
potential for salt water intrusion.
The following assessments describe, in as much detail as readily available information
would allow, the anticipated physical and natural systems responses to accelerated sea-level
rise anticipated in each of the six study sites in Saco and Casco Bays. Whenever possible, the
assessment also discusses potential impact for the Saco and Casco Bay region as a whole.
(See also Appendix C)
An assessment of five of the six study sites is included in this chapter. The sixth site
assessment, Camp Ellis, is presented separately in Chapter Three as an example of the level
of analysis that could be developed for each location if additional staff time and a more
detailed data base were available. The State Planning Office went beyond readily available
information for Camp Ellis to develop the data necessary for a rough economic assessment of
the costs and benefits of selected response strategies, presented in Chapter Four.

2-8 VuLNER"nrry oF MAm SrrES To AccELERATED SEA-LEVEL RisE

Casco Bay Bungunac-Wharton
Freeport
Ecoregions south
Freeport

Falmouth 0

Gisland 0
Farm 0@

o an

South N
Portland

,Cape
Elizabet 0 5
r --- r --- T___T___r__I
Kilometers

Figure 2.2. Map of Casco Bay with location of study sites enclosed by boxes.

D. REsums

1. Gilsland Farm

a. Shoreline Position

Gilsland Farm is located in western Casco Bay near the mouth of the Presumpscot River.
(Figure 2.2) Bluffs of glacial-marine sediment abut the river in the western portion of the
study site, while a salt marsh fills a small valley to the north. (Figure 2.3) The bluff rises
9 m above higher high water and large trees and blocks of sediment are actively slumping
down parts of its face. (Figures 2.4, 2.5) The surveyed erosion rate here between 1985 and
1988 was 0.15 m/yr with a standard deviation of 0.2 (Smith, 1990). Historic air photo
analyses yield retreat rates of 0. 12 m/yr between 1940 and 1972, and 0. 04 between 1972 and
1986, with standard deviations of 0.3 and 0.05, respectively. The large standard deviations
result from the episodic erosion along the face of the bluff over time (Sunamura, 1983). The
air photos were difficult to interpret because failing trees and slumping blocks partially

ANTICIPATORY PLANNING FOR SEA-LEvEL RISE ALONG TBE COAST OF MAINE 2-9

obscurred the toe of the bluff. For this reason, the surveyed value of 0.15 rn/yr was
extrapolated to a retreat distance of 15 rn by 2100. (Table 2. 1) (Figure 2.3)

Gilsland Farm, Falmouth, Maine

M W

MLV.V-
................................
... ... .. ... .
............. ....
..................... ... W3
......... S al t
at -- ----
....... .. 4 Marsh
M3:-

.......... T3
Presumpscot
River
444 T2

41
T1
H

.................
M

NEW
lip
. ... . ..... Saltmarsh
... ... ......
---------- ---- MILW Channel
Tidal Flat
0.5 m
-------- 100 Year
r ---- - - - 1.0 M Shoreline Position
2.0 m @
H Historic or Archaeologic
0 1000 resource
soume %;;;;2 M3 Marine Habitat of National
Maine Inland Fisheries and Wildlife SCALE IN FEET Significance
National Wetland inventory Maps
Maine Atlas of Nature], Historical, and Archaeological Features W3 High Value Wetland Habitat

This Map is a graphic representation and should not he used for
detailed measwernent. Point locations are approcunations only.

Figure 2.3. Projected shoreline change at Gilsland Farm, Falmouth, Maine. Mapping was limited to the area
surrounding Gilsland Farm, although the surrounding area is also depicted. Coastal environments after Timson
(1977).

2-10 VULNERABILITY OF MAINE SITES To ACCELERATED SEA-LEvEL RISE

f"IF

At,

too,

Figure 2.4. Photograph of Gilsland Farm. Site of Traverse 1.

Although the salt marsh is also eroding in front of the bluff, to the north the marsh appears
more stable. A Spartina alterniflora marsh (low marsh) grades into wetland dominated
Spartina patens (high marsh) followed by Typha sp., Solidago sp. (freshwater marsh), and
then upland plants. The transition from halophytes to freshwater plants was gradual, so
survey traverse 2 was begun at the contact between the wetland and a mowed field. This
traverse was aligned directly up the axis of the valley, the gentlest slope in the area. As a
result, the distances to the 0.5 m, 1.0 m and 2.0 In elevations were more than 3 times that
observed in traverses 3 and 4, along the steeper western wall of the valley. (Figures 2.3, 2.6,
2. 7, 2.8) The greatest extent of submergence over dry upland is estimated at almost 75 m up
the valley axis. (Table 2.1)
Because of irregularities in the slope of the land, a range of distances to the three
elevations were observed and recorded. (Table 2.1)

ANTICIPATORY PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE 2-11

N S
mowed field
with some
oak trees

...........................
...........................
8-
bare, slump scars
..............................
..............................
..............................
..............................
..............................
..............................
..............................
...............................
...............................
Gilsland Farm,
................................
................................
................................
................................
Maine
Falmouth,
................................
"I ------------------------------
.............. 0...0..............
---------------------------------
...........................
------------------------------------------ Traverse I
........................0.........
..................................
5-29-85
...................................
........ 0-------------------------
...................................
----------------------------------
toppling oak
trees
....................................
5-
....................................
................ .......... ....
....................................
. .......... ".........................

-------- -----
ia'c' i"
........ genic
.............. ......................
.....................................
........................................
eroding bluff
--------------------------------------

------------- 0....................
................................
...............................
.......................................
3 . ........................................
------------------------------ -------
.................. 0............. 0.......
........................................
----0 ........ 0.........................
........................................
.............. ".........................
........... *----------------------------
............. 0------------------------- 0,
0---------------------------------------
----------- *............................

2-
----------------------------
..........................................
----------- *-----
.................................. 0.......
.............. 0...........................
..........................................
..........................................
................. "--- *- --------- 0- .....
------------ 0-0 ---------------------------
.................. 0.......... 0.0.0 --------
------------------------------------------
................... "---------------- 0------
-------------------------------------------
............ shrubs
-------------- - --------- -
------- ........................
........... : ". :
........... ::.. --:. --:.
................
----------------------------------------
.........*-------------0...............
...................
Spartina patens -0 eroding
------------- "--------------------------------
...............................................
H H W - 7.7.7.7.7.707 saltmarsh
............................ ... peat

..................... . ......
------------------ ---------------------

3 0
Distance in Meters

Figure 2.5. Traverse 1, Gilsland Farm. Traverse 1 is located on Figure 2.3.

Gilsland Farm,
Falmouth, Maine

Traverse 2
10-1-92
CD

-.0

2.0 -2.0

CD
........ ..........
CD
............................

............................................
... .......... .......
Spartina sp.
..................................................... -1.0
.....................................................
-! ......................................................
Typhasp. ............... ......................................................
tw
Fragmites sp. ------------------ -----
0.5 * V) *q
.............................................................................
0 Spartina ..................................................................................
patens
. .................. ..
HHW
. .................................................................................................................

............
------------------------ ------------ :: -:::: . . . --: . --:..
.... ...................................................................
........... ......
..........................................................................................................
......................... -30--'*-**'41-* --- *- ... TO A
.... To 86
Distance in Meters

ANTICIPATORY PLANNING FOR SEA-LEvEL RISE ALONG TIM COAST OF MAM 2-13

Gilsland Farm,
NW Falmouth, Maine SE
3
Traverse 3
10-1-92

----------
---'-'-----'--- X
............ 2.0 -2
-------------

mowed farm field
-------- ---
-----------------------

1.0
shrubs,bushes
-----------------------------------
..........................
mixed Typha sp.,
------ -------------------------------
-------------------------------------
0.5 Spartina sp. and
others
------ ---------------------------------
----------------- --------------------------------
----------------------------------------------------
------------------------------------------------------
HHW

...... - ---- -------------------------------- - --------
I 1 1
20 10 0

Distance in Meters

Figure 2.7. Traverse 3, Gilsland Farm. Traverse 3 is located on Figure 2.3.

2-14 VULNEPABILITY OF MAINE SITES To AcCELERATED SEA-LEVEL RISE

Gilsland Farm,
N Falmouthl Maine S
Traverse 4 3
10-1-92

2.0 -2

mowed field
with some trees

-10
shrubs,bushes
Spartina sp. -@p
a ige ic: 0.5

--HHW

30 20 10 0
distance in meters

Figure 2.8. Traverse 4, Gilsland Farm. Traverse 4 is located on Figure 2.3.

ANTICIPATORY PLANNING FOR SEA-LEVEL RISE ALONG TIM COAST OF MAINE 2-15

b. Impact Assessment
1) Upland Impacts
The mapped study area at Gilsland Farm included approximately 50 acres of dryland, 25
acres of adjacent salt marsh and a large expanse of tidal flats. Estimates of the loss of upland
according to sea-level rise scenarios are as follows:

.5 ra rise 1.0 ra rise 2.0 m. rise

Dryland Lost 3 acres 5 acres 14 acres

2) Value of Land/Structures
A quantitative analysis of the monetary value of anticipated losses at this site was not
possible. This site is unlike the others considered in this analysis in that it is not developed,
and is owned and operated by Maine Audubon as a sanctuary and field office. Gilsland Farm
has extreme local, regional, and possibly statewide significance as a recreational, educational,
historic/cultural, and pristine resource. It was selected as a study site because of its
accessibility for field investigations, and is illustrative of probable impacts on similar,
developed sites.
3) Wetland Impacts
Wetland and marine habitats of high quality and national significance exist at this site, part
of a large system of wetlands and tidal flats that comprise the Presumpscot River Estuary.
The US Environmental Protection Agency (USEPA) has been a leader in studying the possible
effects of sea-level rise on salt marshes (Titus, 1987, USEPA, 1989). Drawing on those
studies, researchers understand that salt marshes adjust to sea-level rise by expanding inland
and towards the water and increasing in elevation through accumulation of sediments and plant
biomass. In general, marshes will expand when sedimentation exceeds submergence, will
maintain if sedimentation balances submergence, and will drown when sediment supply and
accretion is less than the rate of coastal submergence (Sea-level plus subsidence). Besides the
natural availability of sediment, other factors such as slope of adjacent uplands, the presence
of coastal engineering structures, the armoring of bluffs and banks limiting the amount of
available sediment, and the rate of sea-level rise all affect the ability of marshes to migrate
landward to keep pace with accelerated sea-level rise. In addition, marshes that have been
fragmented by land development or otherwise degraded by human influences will have
diminished ability to migrate (U.S. Congress, Office of Technology Assessment, October
1993.) Figure 2.9 (Titus, 1986) illustrates these various scenarios of wetland change.
The USEPA has sponsored numerous studies which modelled anticipated wetland changes
due to global warming in different regions (Barth and Titus, 1984, Park et al., 1989, Titus
and Greene, 1989, USEPA, 1989). In different areas of the country, studies have documented
that marshes have been able to keep pace with more gradual, historic rates of sea-level rise
(e.g. 2.4 mm/yr in Charleston, South Carolina, 1 cm/yr in Louisiana). One study (Park, et
al. 1989) concluded that many of New England's wetlands developed on poorly drained glacial
tills and occur at elevations above those that could be inundated by sea-le7,el rise in the

2-16 VULNERABILITY OF MAINE SITES To AcCELERATED SEA-LEvEL RISE

Evolution of Mairsh as Sea Level Rises

A 5000 Years Ago C Future
Substantial Welland Loss Where There is Vacant Upland

Futu,
Sea Level
.................. cwo.t
.................
...........
So. Level Sea Level

B Today D Future
Complete Welland Loss Where House is Protected
in Response to Rise in Sea Level

cw*M Futur
So. Level Sea Level
------------------------ past cment
Sedimentation and Sea Level Sea Level
Peat Formation

Figure 2.9. Coastal wetlands have kept pace with the slow rate of sea level rise that has characterized the last
several thousand years. Thus, the area of wetlands increased as new lands were inundated. If in the future sea
level rises faster than the ability of the wetlands to keep pace, the wetland area will decline. Construction of
bulkheads or dikes to protect developed areas would prevent new wetlands from forming inland, resulting in a
total loss in some areas.
Source: Titus (1986).

next century. Researchers (Armentano and Park et al., in Titus, 1987) concluded that under
a scenario of accelerated sea-level rise of 1.4 m by 2100, the general response of New
England wetlands would be expansion into freshwater areas, or expansion onto unprotected
adjacent undeveloped lowland, dunes or beaches (especially in areas less than 3.5 m or 10 ft.
in elevation). In this modelling exercise, losses of marsh due to expansion of tidal flats were
small or compensated for by expansion of the salt marsh. In contrast under the high scenario
of accelerated sea-level rise of 2.2 m by 2100, in sheltered places with steep slopes and cliffs
(such as one of Park's study sites in Jonesport, Maine), the projected rise inundated salt
marshes. In these areas, despite Maine's high tidal range, which favors the maintenance of
marshes, there is little lowland to be inundated and colonized by marshes. A relatively low
rate of accretion (2mm/yr), typical of New England salt marshes was assumed in these studies.

Given the information discussed above, and lacking the ability to conduct expensive, site
specific studies of coastal marshes in Maine, this study assumes that (provided there are no
physical constraints to landward movement and excepting areas of steep slope), the marsh
surrounding Gilsland Farm (and other salt marshes covered in this study) will migrate inland
in equilibrium with the .5 meter and 1.0 meter levels of accelerated sea-level rise. Under the
extreme case of a projected 2.0 meter rise by 2100, losses of coastal wetlands might be
anticipated. However, as noted above, Maine's coastline is more typically relatively steep and
bedrock-dominated, thus, due to physical constraints and steep slopes, it is expected that a
change in shoreline position will frequently result in a much smaller area of new marsh

AwicrpAwRy PLANNING FOR SEA-LEvEL RISE ALONG THE COAST OF MANE 2-17

creation. No assumptions were made about the quality of the habitat provided by the newly
created wetlands.

4) Extent of Similarly Situated Land in the Region
Salt marshes with associated mudflats make up more than 20% of the coastline of the
larger Saco Bay/Casco Bay region. NOAA estimates that there are 2,900 acres of salt marsh
in the Saco Bay estuary and 2,400 acres within the Casco Bay estuary (U.S. Department of
Commerce, 199 1).
A more accurate assessment of wetland impacts for the region would require more site
specific analysis of different slope conditions, sediment availability, and the extent of shoreline
armoring, because protection of private lands by construction of shoreline protective measures
will preclude migration and result in wetland losses. However, national studies, broken down
by region, have been prepared which may provide additional information. Titus and Greene
(in USEPA, 1989) expanding upon Park's assessment of New England wetland losses (Park
et al., 1989), estimated that between 15 % and 17 % of coastal wetlands could be lost if all of
the shoreline was protected with bulkheads or similar structures; similarly they estimated
between 6% and 10% of New England's coastal wetlands could be lost if only already
developed shoreline areas were protected. If shorelines are able to retreat naturally, losses
would be smaller, and in certain conditions, there might be a possible net gain of wetlands.
Using these estimates, wetland losses for the Casco and Saco Bay region, would be
projected as follows:
Table 2.2. Range* of Potential Wetland Losses for Region

Natural Migration Developed Areas Protected All Shores Protected
(1-5% loss) (6-10% loss) (15-17% loss)

Saco Bay 29-145 ac. 174-290 ac. 435-493 ac.

Casco Bay 24-120 ac. 144-240 ac. 360-408 ac.

Range represents estimates for .5 meter, 1.0 meter, 2.0 meter sea-level rise scenarios.

5) Analysis
This site highlights the importance of protecting the ability of marshes to migrate to keep
pace with rising sea level. In developed areas, there will be pressure to harden the shoreline
to protect public and private investment. Much more research is needed on the relationship
of marshes to sea-level rise in Maine. According to a recent newsletter of the Wells Estuarine
Research Reserve (Dionne, 1993), marshes in the northeast are beginning to show signs of
changes in zonation from high marsh to low marsh, indicating impacts by changing water
levels and variations in available mud supplies.
Gilsland Farm is also one of the two mapped sites in the study area to contain eroding
bluffs. If this were a developed site, a projected bluff retreat of .15 meters per year (about
.5 ft/yr) or 15 meters by 2100 (49.2 ft) would be cause for concern.

2-18 VuLNER"mrry OF MAINE SITES To AcCELERATED SEA-LEvEL RISE

2. Bungunac Bluff-Wharton Point

a. Shoreline Position

The coastline from Bungunac Bluff to Wharton Point forms the northwestern comer of
Casco Bay. (Figure 2.2) Bluffs of glacial-marine sediment greater than 10 m high are
common at Bungunac Bluff and decrease to a gentle slope covered by salt marsh north of
Wharton Point. Where they are exposed to waves from the southwest, the bluffs are fronted
by a mudflat and are very unstable. (Figures 2.10, 2.11) As at Gilsland Farm, large trees
and blocks of slumping debris are common along the bluff face. (Figure 2.12) The surveyed
retreat rate between 1985 and 1988 averaged 0.45 m/yr with a standard deviation of 0.16
(Smith, 1990). This compares favorably with rates evaluated from historic photographs of
0.52 m/yr between 1940 and 1972, and 0.89 m/yr between 1972 and 1986, with standard
deviations of 0.28 and 0.58, respectively (Smith, 1990). The predicted shoreline reflects the
surveyed retreat rate of 45 In for the year 2100. (Table 2.1)
To the northeast of Bungunac Bluff, wave exposure is reduced, and a salt marsh protects
bluffs from direct wave attack. (Figures 2.10, 2.14) Here, the surveyed retreat rate was 0.26
m/yr with a standard deviation of 0.26. In historic photographs the bluff was obscurred by
shadows from overhanging trees and no longer-term evaluation was possible (Smith, 1990).
The projected retreat distance here is 26 m. (Table 2. 1)
At Wharton Point no bluff erosion is occurring, and the salt marsh is locally expanding
out across the tidal flat (Smith, 1990). (Figure 2.13) This is likely to continue into the next
century because mud eroded from eleswhere in the bay is apparently collecting at the upper
end of Maquoit Bay (Hay, 1988).
b. Impact Assessment
1) Upland Impacts
The mapped study area in Maquoit Bay included about 100 acres of dryland and 25 acres
of wetland. Extensive tidal flats also occur all along this shoreline. The mapped 100 year
shoreline position results in a loss of about 18 acres of upland.
2) Value of Land/Structures
While the area affected by slumping bluffs is usually small and localized, individual
property owners can be greatly impacted by shifting shorelines. In the Bunganuc Point study
area, two properties are currently experiencing land loss. Five homes may be impacted over
the study period. Town of Brunswick 1988 assessment records value the Bunganuc Landing
Road properties (five acre lots with substantial homes) at between $140,200 to $310,100.
Two properties at Wharton Point mapped transect are valued at $199,600 and $248,500.
3) Wetland Impacts
Mudflats and wetlands in Maquoit Bay are among the most productive in the region, and
are rated of national significance with high habitat values. In Bunganuc Point, there will be
slight wetland losses, as slump material from bluffs is periodically dumped on the marshes.
At Wharton Point, marshes are growing seaward into mud flats due to transport of Maquoit
Bay mud supplies to this area.

Maquoit Bay, Brunswick, Maine
CD
0 Maquoi
CD -100 Year Shoreline Rd.
"Beach" Debris from Slumps
Tidal Flat
CD
5, 4 Salt Marsh
CD AV Rock N H
H Historic or Archaeologic WHARTON
resource POINT
CD
M3 Marine Habitat of National T2
Significance
W3 High Value Wetland Habitat
.............................
... .............................
..................................
CD
----------------------------------
............................... .....
idal
-T
Flat
BUNGANUC ---
LANDING
.......................................................
MHW
...........................................................
.... ............ ----------------------------------

... ... . ... ....... ......... ....

T I
- --------------------------------- ....
.............
.......... .... .....
----------
.......................
Flat ------- ------- .. .......

M .... ... ...... . .....

LW
Z3 Son" a:
@1 Maine Inland Fisheries and Wildlife
CD National Wetland Inventory Maps
Maine Atlas of Natural, Historical, and Archaeological Features
ra h This Map is a graphic representation and should not be used for
- detailed measurement. Point locations are approximations only.
CD I

0
0

2-20 VULNER"ILITY OF MAINE SITES To AccELERATED SEA-LEVEL RISE

S N

Oak trees on edge
lawn
............. . 14
.............. =
...................
....................
....................
Bungunac Bluff,
......................
.....................
Brunswick, Maine
.......................
.......................
.......................
.......................
Traverse 1 -12
........................
6-22-87
.........................
-------------------------
..........................
--------------------------
..........................
..........................
...........................
...........................
............................
............................
-10
no vegetation .. .. ...
..............
slump scar
------------------------------
..................... 0 .........
...............................
...............................
.... 0...................0 ......
................................
...............................
................................
................................
8
.................................
................0 ...............
......... 0.......................
---------------------------------
.................................
..................................

...........0......................
...................................
6
...................................

............. G

............................. ........
---------------------------------------
---------------------------------------
...............................
-4
.........................................
dead bushes
..........................................
..........................................
...........................................
...........................................
.......................................... 0.
............................................
..........................0 ..................
..............................................
1-1-11, -------------------------* -----------
............................................
................................................
2
shrubs .................................................
..................................................
..................................................
........ 0..........................................
...................................................
...................................................
...................................................
...... 0.............................................
....................... 0...................0 ...... 0.
........................ 0............................
.....................................................
......................................................

..............................................
Spartina patens HHW
.........................................................
---------- I-----------*------- I-----------------*--- -1
..........................................................
Spartina alrerniflora
............................................. ...........
...............................................................
................................................................
. ........................................... 0"'
@b
0 10 30 40
Distance in Meters

Figure 2. 11. Traverse 1, Bungunac Bluff, Brunswick, Maine. Traverse 1 is located on Figure 2. 10.

ANTICIPATORY PLANNING FOR SEA-LEvEL RISE ALONG TIM COAST OF MAINE 2-21

hill
r

Figure 2.12. Photograph of Maquoit Bay shoreline. Site of Traverse 1.

.0h

111111 mill-

Figure 2.13. Photograph of Maquoit Bay shoreline. Site of Traverse 2 is located in forested area in distance.

2-22 VULNERABILITY OF MAINE SITES To AcCELERATED SEA-LEVEL RISE

Sw NE

Wharton Point Bluff, .... forest ----
-------------------
-------------------
------ -------- - --- -- -3
Brunswick, Maine
....................
--------------------
Traverse 2 .........................
6-24-85
no vegetation - - -------
- - ----- -- --
slump 2
scar
-----------------------
--------------- --------
.........................
........................
.........................

Z5
-------------------------------
..................... 0
---------------------------

-------------------------

------------- 0 -----------------
--------------------------------

Spartina patenS
-----------------------------------
_HHW
------------------------------------
-------------------------------------
--------------- --- --- -- --

-------------------------------
S@artina alterniflora *il
-------------------------- -----------------
.41
------------ 0------------------- --------
.4 - --------------------------------------------------
Ap
-a- ---- ----------------- ------------ 0-1 --------

--------------- 0-0 ............
-----------0 -----------------------
-----------------0 ..................
-------------------- 0 ---------- --------
-a- ------------------------------------------------- O...-..-.--.--O-...-.--..-..o-.....O------.-O-..--.-.---.--.-
----------------- 0..................0............
------------------------------------------
.................................................................... 0 ----------------
............ 0------- 0-0 ---------------------------------------
------- ----------------

Distance in Meters

Figure 2.14. Traverse 2, Wharton Bluff, Brunswick, Maine. Traverse 2 is located on Figure 2. 10.

ANTiCIPATORY PLANNNG FOR SEA-LEvEL RisE ALONG TM COAST OF MAM 2-23

4) Extent of Similarly Situated Land in the Region
Although bluffs make up only about 3 % of the total shoreline of the region, much of the
area7s suburban shoreline from the Presurapscot River in Falmouth to the Harraseeket River
in Freeport is supported by bluffs of sand or mud. Mackworth Island, Brunswick, and the
Casco Bay islands also have isolated bluff areas.
Impacts associated with eroding bluffs are confined to a smaller area than the widespread
inundation associated with the impact of rising seas on other coastal environments. Typically,
impacts will be experienced only by adjacent landowners who have built close to the bluff
line. There are no known major built features other than residences threatened by bluff
erosion in the region.
However, as many as 200 homes in the region may be affected by the range of shoreline
positions projected during the study period. Property assessment data was not gathered for
the region, but the average value of individual properties in the Bunganuc Landing area may
provide a useful comparison for the region.
5) Analysis
The Bunganuc area highlights the fact that bluff environments, while not directly affected
by rising sea level, are unstable and dynamic areas. Clearing vegetation to improve views or
attempting to stabilize the slopes with gravel or other materials increases the threat of erosion.
Relatively recent development has occurred in these areas despite the existence of local and
state land use and environmental regulations. This points to possible inadequacies in those
laws, lack of knowledge about bluff shoreline processes, the need for more data on bluff
behavior, and the need for public education about shoreline processes and slope maintenance.
It is generally not feasible to stabilize eroding bluffs; a retreat from the affected area is
usually the only solution. Homes that are currently threatened have experienced loss of usable
yard space and have moved septic systems away from the eroding bluff edge. Soft
technologies such as the planting of vegetation at the base of the bluff only slow rates of
erosion. Due to the steepness of some of these areas, hard structures, such as riprap, to
protect individual properties would be prohibitively expensive. Use of hard structures to
stabilize bluffs would also have significant environmental costs due to the interference with
transfer of sediment from bluffs to coastal wetlands.

3. Winnocks Neck

a. Shoreline Position

Winnocks Neck, Scarborough is a peninsula extending into the Scarborough River salt
marsh. (Figure 2.15) The Neck is bounded by the Nonesuch River and Mill Brook to the
east and west, and by the Scarborough River to the south. (Figure 2.16) The peninsula is
supported by bedrock more than 30 m high (90 feet) which is mantled by till and
glacial-marine sediment. Within the marsh many small "islands" of glacigenic material (like
Plummer Island) project above the marsh surface and are being slowly drowned by the marsh
as it grows upward with rising sea level. (Figure 2.18)

2-24 VULNERABILITY OF MAINE SITES To AcCELERATED SEA-LEVEL RIsE

Three traverses were selected to evaluate changes in the shoreline as a consequence of
future submergence. Traverse 1 extends west from the Nonesuch Marsh and parallel to the
Plummer Island Rd. There is a distinct topographic and vegetative break from a Spartina
patens-dominated high marsh to a freshwater marsh with Typha sp which was used as higher
high water. (Figure 2.17) The 0.5 m elevation averaged 26 m from higher high water, but
most of this distance was across the freshwater marsh. (Table 2.1) The 1.0 and 2.0
elevations were relatively closer to higher high water because the traverse steepened up a
partly mowed hillside. (Figure 2.18)
Traverse 2 passes over a narrower part of the peninsula where the topographic relief was
less. (Figure 2.20) Although the distance to the 0.5 m elevation was less than at traverse 1,
the land flattened out and the distance to the 2.0 elevation was twice as far as at traverse 1.
If the traverse were extended along a road into a small subdivision, the distance to the 2.0 m
elevation was greater than if the traverse (Figure 2.19) went through the more uneven ground
of the adjacent forest. (Table 2.1).
Traverse 3 extends up the western side of the peninsula from the Mill Brook marsh.
(Figures 2.16, 2.21) There is a distinct topographic break at the landward edge of the
Spartina patens salt marsh which is considered higher high water. The upland beyond this
is forested, but relatively steep as in traverse 1. The 2.0 m elevation occurs near Sandy Point
Road, and a hill with houses on it rises on the opposite side of the road. (Table 2. 1)
Because of irregularities in the slope of the land, a range of distances to the three
elevations were observed and recorded. (Table 2. 1)
b. Impact Assessment
1) Upland Impacts
The mapped study area at Winnock's Neck included about 275 acres of developed upland
and adjacent salt marsh. Upland losses are projected as follows:

.5 m rise 1.0 m rise 2.0 m. rise

Dryland Lost 23 acres 43 acres 66 acres

Most of the area is developed with large-lot, "upscale", single family structures, whose
backyards gradually fade into the adjacent marsh. The low and medium sea-level rise
scenarios would inundate the shores at greater or lesser levels depending on the steepness of
the slope. Because sea-level is predicted to rise over a prolonged period of time, impact on
these properties will also be gradual, as the wetland-upland edge migrates inland, resulting in
a net loss of usable backyard area for these homeowners, and over time, complete conversion
of the affected area to salt marsh. Under each of the sea-level rise scenarios, the most
apparent changes in shoreline position occur at the terminus of the peninsula. The 2.0 meter
rise boundary breeches the road that provides access to the end of the peninsula. Over the
very long term, Winnock's Neck will become an island surrounded by marsh, similar to the
existing pattern of small islands scattered throughout the marsh.

Cape
Elizabe

Winnocks
Neck
Saco Bay

Pine Point

Old Orchard
Beach

1160 Camp Ellis
Ferry Beach

0 1 2 3 4

4"D Kilometers

2-26 VULNERABILITY OF MAINE SITES To AccELERATED SEA-LEvEL RISE

Winnocks Neck,
Scarborough, Maine
::X

Winnocks
Neck Rd.
R.R
-XL

-kL

T-2
WINNOCKS
unnarn
NECK island
Ak
-VL
x.,
L
20
"40
-V. W3
T-1
-V- PLUMMER
ISLAND

X
Mill rook ii: (T-Y
-20-)

J
Klli..@':
C
X.0
"' -5
IVL XXI...
2.0

0 1200
-VL '-0.5
. . . . . . . . . .
4L
SCALE IN FEET
WQ
TV"
AL

20 Contour (Feet)
- 0.5 rn
M3 100 Year
1-0 m Shoreline Position
Sources: 2.0 rn
Maine [Wand Fisheries and Wildlife
National Welland Inventory Maps M3 Marine Habitat of National;
Maine Atlas of Natural, Historical, and Archaeological Features Significance - "
This Map is a graphic representation and should not be used for W 3 High Value)?Vetland Habitat
detailed measurement. Point locations are approidmations only.
r/WINN
NE

Figure 2.16. Projected shoreline change map for Winnocks Neck. Mapping was limited to the area surrounding
Winnocks Neck, although the surrounding area is also depicted. Coastal environments after Timson (1977).

CV Winnocks Neck, 3
Scarborough, Maine

Traverse I

>
CD
2.0 11-20-92 -2

V
I IN fields
and bushes
R.R. .5

1.0
bushes
CD . . . . . . . .. NN N N
"I".1,4ock' 0.5 N I
........ Spartina
""I'V' 11 1 1 % 91, m
....... cl* Typha sp. IN., 11
IN'," I I I I I , -------- patens
......... ditch
............ 0
>
..........
N ...... HHW
..................
-----------------
. . ................
.............. 0
I .................... 151
I'I'INI INeN INI I I I
taa=Lm I I I I I
50 4b 3b 2b l'o 0

Distance in Meters
0 @5
Typ

.............
. ............

2-28 VULNERABILITY OF MAINE SITES To AccELERATED SEA-LEVEL RISE

6r--
_-W
f ap

r 777

Figure 2.18. Photograph of Winnocks Neck. View toward north at Traverse 1.

'77-

... .. .. .. ....

. ....... ......

Figure 2.19. Photograph of Winnocks Neck. View down road into subdivision at Traverse 2.

0 -p A) oil
0

CD
It,

CO
@CDI-

9:
CID,
K !Q break-in-line
00. 44 w Winnocks Neck,
Scarborough, Maine
S@Wl 0
0 Subdivision
CD W
i Parking Lots
Ca z Traverse 2
=r CD CD Roads
11-20-92
2.0
forested
hummocky Winnock Neck
g 8 Rd.

...........................................
. . . .............. . .....
CD ..........................................................
CD C6 1.0
0 .....................................................................

0 0 ....................................... . .... .. .. 0.5
r- 10 0. ................................................ p
0 .......................................................................................
........ ............................................................................... .
ditch
'TJ .........................................................................................................
0 0
CD . .......................................................................................................................
. .................................................................................................................
M ............................ i.............. ..........6 ............. ....................................
160 9b 6b 50 3 l'O
Distance in Meters
0
--------------------
---------- ------ --
--------------------
--------------------

......... S
p
...............
..........................
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............ d ..............
........................... .
................................
..................................
...................................

0
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Winnocks Neck, 3
Scarborough, Maine
Sandy Traverse 3
z Point Rd. 11-20-92
2.0 -2

'%'I J

% %
...... Spartina
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% % % % % %
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% % % % % % % %
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. . . . . . . . . . .

% % % % % %
% % % % % tidal
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%
% % % % % % % % % % %
" :.: . j: @: -HHW

% % % % % % %

% %

70 60 50 4U 30 zu 10 0
Distance in Meters

ANucipAToRy PLANNIING FOR SEA-LEvEL RisE ALONG TM COAST OF MAM 2-31

2) Value of Properties
The majority of properties at risk are located at the terminus of the Winnock's Neck
peninsula, where shoreline slopes are more gradual, and a network of cul-de-sacs (not shown)
wind through developed lots. According to Scarborough assessor's records, the value of land
and buildings in this area is about $7.2 million. The assessed value of structures (excluding
land) in the area ranges from $100,000 to $180,000, while lots range in value from $78,000
to $110,000.
3) Wetland Impacts
The predominant natural feature in Winnock's Neck is the valuable marsh land surrounding
the peninsula at the confluence of the Scarborough River and the Nonesuch Rivers. Marine
habitat in this area is rated of national significance, while wetland habitats are also of high
value. For a summary of potential wetland impacts, see the discussion under the Gilsland
Farm study area.
4) Extent of Similarly Situated Land in the Region
(See discussion under Gilsland Farm study area.)
5) Analysis
Winnock's Neck illustrates the dilemma of migrating marshlands. In order to allow
wetlands to survive an accelerated rise in sea-level, they must be allowed to migrate inland.
This causes a conflict in wetland edge areas that have been developed. Adjacent property
owners will be tempted to keep wetlands at bay by hardening of their shoreline.
Recent debates concerning state-mandated shoreland zoning have included disagreement
over what is considered an adequate width of protective buffer between wetlands and adjacent
development. Wetland setbacks have typically been static boundaries based on that "critical
edge" required to preserve the wetland's value for wildlife habitat. In order to preserve
valuable wetlands (for a variety of functions, habitat, flood retention, etc.) and to minimize
future property losses accruing from migrating wetlands, zoning and subdivision standards
should begin to consider wetlands as dynamic systems, with setbacks sufficient to
accommodate anticipated changes in shoreline position.

4. Old Orchard Beach

a. Shoreline Position

Old Orchard Beach is located between Saco and Scarborough on the longest unbroken
stretch of beach in Maine. (Figures 2.15, 2.22) The beach possesses a wide benn and
low-tide terrace, but most of the original sand dunes were leveled in the 19th century to
construct hotels. (Figures 2.23, 2.24) Landward of the former dunes are a mixture of
lowlands and higher rocky areas, and occasionally rock outcrops are observed on the beach.
The 0.5 m, 1.0 m, and 2.0 m shoreline positions at 150 m, 300 m, and 600 m,
respectively, reflect the uneven back-barrier terrain by projecting into the swampy areas and
outward at the rocky hill. (Table 2. 1) This depiction assumes that no new , ind from the Saco

2-32 VULNERABELITY OF MAINE SITES To AcCELERATED SEA-LEvEL RISE

River or elsewhere within the system is supplied to the beach in the next century, and neglects
the impact of the two 1.3 In diameter sewage pipes under the dunes.
In addition to the shorelines predicted on the basis of the modified historical method, a 100
year shoreline supplied by the Town of Old Orchard Beach is depicted. It was produced as
part of a permit application to locate a stormwater pipeline beneath the beach. Since there has
been no more than 18 rn of shoreline fluctuation mapped with certainty over the past century,
this line is drawn 18 rn landward of the high water line.
b. Impact Assessment
1) Upland Impacts
Development along Old Orchard's coast today is quite varied; high density, high rise
condominium structures are intermixed with cottage style homes, commercial establishments,
and seasonal dwellings. The mapped study area includes the heart of OOB's development
district, including The Pier, the East Grand Avenue (Route 9) business strip (motels,
restaurants, amusements), numerous Town facilities and part of the downtown area.
The mapped study area included about 270 acres of upland. Projected losses of dryland
are as follows:
.5 m rise 1.0 m rise 2.0 rn. rise

Dryland Losses 80 acres 135 acres 169 acres

The .5 meter scenario potentially inundates all beachfront development and Grand Avenue
to the railroad tracks. This area includes an amusement park, arcades, retail shops, motels,
restaurants, and high density residential structures. Other built features at risk under this
scenario include the network of sewer lines and the new stormwater outfall.

In addition to the development inundated by the .5 meter rise described above, the 2.0
meter rise scenarios would threaten town facilities such as a small park, tennis court, library,
public restrooms, and parking lots. This area has been targeted for public and private
improvements as part of an ongoing community revitalization, and discussed in further detail
in the following section. Additionally, the 2.0 meter rise would also impact a small, lowlying
area of moderate density residential development to the north. Due to the small difference in
the land area covered by the 1.0 and 2.0 meter scenarios, impacts associated with the 1.0
meter rise were not analyzed separately, but most impacts identified with a 2.0 meter rise
would also occur with a 1.0 meter rise.

2) Value of Land/Structures
According to information provided by the Old Orchard Planning Office, the value of land
and buildings within the mapped .5 meter inundation area is about $32.4 million. It should
be kept in mind however, that the mapped study site includes only a portion of Old Orchard's
developed shoreline. If a .5 meter sea-level rise scenario was anticipated all along Old
Orchard's shoreline, the value of potential property losses would greatly increase. For
example, to the north of the mapped study area towards Pine Point, there are 6 high-rise
condominium structures containing a total of 251 units (7-8 stories high, 28-55 units each)

ANTICIPATORY PLANNING FOR SEA-LEvEL RISE ALONG THE COAST OF MAINE 2-33

2.0
1.0 OOB MHW
0 0.5 MLW

Old Orchard Beach,
0@' Maine
--20
M2

OOB - Town Estimate N
0.5 m
0 1200 1.0 m 100 Year
2.Om @ Shoreline Position
SCALE IN FEET W3 High Value Wetland Habitat
Sources: A Critical Areas Program
Maine Inland Fisheries and Wildlife M 2 Marine Habitat of Regional
National Wetland Inventory Maps
Maine Atlas of Natural, Historical, and Archaeological Features Significance

This Map is a graphic representation and should not be used for
detailed measurement. Point locations M approxinuitions only.

Figure 2.22. Projected shoreline change map for Old Orchard Beach. The projections from this study are
compared with that of the Town (Timson et al., 1992).

2-34 VuLNERABiuLrry OF MAINE SITES To AcCELERATED SEA-LEvEL RisE

17 4-

...............................

Figure 2.23. Photograph of the Old Orchard Beach area. Aerial photography of the study area.

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3
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Traverse 1 2
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80 6b 4b 26 6
160 140 120 100
Distance in Meters

2-36 VULNERABILITY OF MAINE SITES To AccELERATED SEA-LEvEL RisE

located directly on the beachfront. A current value assessment for these properties is
$35,347,600.
The 2.0 meter scenario potentially impacts an additional area of mostly residential
development, assessed at $6.9 million. Because the 1.0 meter boundary was substantially
similar to the 2.0 meter boundary in high-density areas, data on assessed value of these
properties was not separated from figures gathered for the 2.0 meter analysis.
According to the Old Orchard Beach Planning Office, recent public improvements in the
waterfront and downtown area represent about $3.9 million in investment (see Table 2.3
below).

Table 2.3. Recent Public Improvements-Old Orchard Beach

Project Year Completed Source of Funds Cost

1. Pumping Station 1991/2 Local $1,100,000

2. Stormwater Outfall 1993 Local $800,000

3. Tax Increment 1993 Local, MDOT, Job $2,000,000
Finance District Bond
Improvements

TOTAL PUBLIC INVESTMENT $3,900,000

Of the public improvements listed in Table 2.3, the first two projects listed would be
potentially affected by the .5 meter sea-level rise scenario. Also at risk under this scenario,
is the network of sewer lines constructed under the dune system in the 1980's. No costs were
available for the sewer project. The tax increment finance district investments listed above
were completed throughout the downtown development district. Only a portion of these
improvements will be threatened by the .5 meter rise scenario.

Table 2.4. Tentative Public and Private Improvements-Old Orchard Beach

Project Anticipated Completion Possible Sources Cost
of Funds

1. Ocean Outfall/Sewer Treatment NA Local, federal $4,500,000

2. Train Station 1994/5 Federal $200,000

3. Proposed New Pier NA Private NA

4. Boardwalk 1995/6 Fed., MDOT, NA
Local

5. Retail Complex NA NA NA
6. Memorial Park Improvements NA NA NA

7. Construction of New Chamber NA Private NA
Building
NA = Information not available

ANTICIPATORY PLANNING FOR SEA-LEvEL RISE ALONG THE COAST OF MAINE 2-37

Table 2.4 provides a list of tentative projects that are currently under preliminary
discussion in the Old Orchard downtown and shorefront area. Note that funding sources for
these projects are not secure, in some cases voter approval of bond issues will be necessary.
Of the public and private projects under discussion, listed in Table 2.4, the ocean
outfall/sewer treatment improvements, the pier, and the boardwalk would be potentially
affected under the .5 meter sea-level rise scenario. Improvements associated with the
downtown revitalization effort (Depot Square Area redevelopment), including the passenger
train station, infill retail development, park improvements and new construction to house the
Chamber of Commerce fall within the 1.0 and 2.0 meter sea-level rise boundaries.

3) Wetland Impacts
A series of small wetlands are just outside of the 2.0 meter rise boundary.
4) Extent of Similarly Situated Land in the Region
(See discussion under Camp Ellis/Ferry Beach, Chapter Three.)
5) Analysis
Of all the sites covered in this analysis, the potential impacts of sea-level rise in this study
area are perhaps the greatest. Given the nature of the existing development, and the reliance
on beach-related tourism, sea-level rise potentially threatens the basis of the local/regional
economy and the roots of the cultural identity of Old Orchard. The level of public and private
investment here may test the State's determination to adhere to its retreat policy and current
ban on construction of seawalls.

This site illustrates the extreme danger associated with eliminating natural protective
features and building within the sand dune system without appropriate setbacks from high
hazard areas. It also highlights the dilemma associated with allowing public investment in
infrastructure in unprotected beach environments. A sewer line was located in the sand dune
system in 1980's to serve existing and planned development-development that now appears
to be threatened within the 100 year study horizon.
This site also illustrates the need for provision of reliable data concerning coastal hazards
to local and state decisionmakers, and agreement regarding what methodologies are acceptable
for projecting future shoreline positions. Old Orchard Beach's estimate of the 100-year
shoreline position (based on the maximum amount of shoreline fluctuation that had been
mapped with certainty over the previous century) is quite different than the shoreline position
mapped for this analysis using a geo-historical approach.

5. Pine Point

a. Shoreline Position

Pine Point is a northward-projecting spit bordering the Scarborough River inlet. (Figures
2.15, 2.26) This spit was formerly a barrier island before the railroad line closed the tidal
inlet in the 19th century (Farrell, 1972). Possibly because of sand by-passing that inlet, the
Scarborough River inlet began to narrow and fill with sand, and the COE constructed a jetty
at the inlet entrance in the 1960's. That jetty now traps sand derived from the south, and

2-38 VULNER"ILITY OF MAINE SITES To AcCELERATED SEA-LEVEL RisE

sandy spoils from the dredging of the tidal channel have also been placed on Pine Point. For
these reasons the beach has grown seaward at a rate averaging 2.5 m/yr between 1976 and
1991. (Figure 2.26) Beach growth has been greater near the influence of the jetty than to the
south, where little growth has occurred. Because of the growth of this beach residential
development also grew since the 1960's, and the entire area is covered with residences and
commercial buildings. (Figure 2.27)
If the assumption of continued beach progradation due to an influx of sand from the south
holds, a 0.5 m rise in sea level will not result in any retreat of the shoreline, rather in a 100
m advance at Traverse 1. Growth will be less to the south. Even a 1.0 m rise in sea level
will only result in 50 m of retreat at Traverse 1 if sand sources to the south persist. A 1.0
m rise of the sea, however, will lead to a breach in the barrier at the southern end of Pine
Point where growth is not presently occurring. An extreme rise of the sea by 2.0 m will lead
to 350 m of retreat at Traverse 1, and complete destruction of Pine Point. A hypothetical
realignment of the beach is depicted as the 2.0 m shoreline. (Figure 2.25)
b. Impact Assessment
1) Upland Impacts
The Pine Point study area included about 630 acres of land, with dryland accounting for
approximately one-half of that total, and the Scarborough Marsh accounting for the balance
of the site. Loss of dryland associated with various rates of sea-level rise at Pine Point are
projected as follows:
.5 m rise 1.0 m rise 2.0 m. rise

Dryland Lost (gained) (25 acres) 83 acres 315 acres

2) Value of Land/Structures
According to the Town of ScarborougWs assessor's records, the value of properties
inundated in the 1.0 meter rise scenario is estimated at roughly $32 million. In addition to
properties lost, costs associated with 1.0 meter sea-level rise would also include bridge/road
improvements to maintain access to Pine Point. At the 2.0 meter rise, the value of land and
buildings at risk in the Pine Point study area would be $50.2 million.
3) Wetland Impacts
Natural features that could potentially be affected by rising sea-level and changes in Pine
Point's shoreline position include nationally significant marine habitats, and the high value
wetland habitat associated with Scarborough Marsh. Given the study assumptions described
earlier in this chapter, Scarborough Marsh would probably not suffer any net loss immediately
(assuming that the marsh could migrate landward unimpeded). Scarborough Marsh, because
of its large contiguous mass and healthy state would probably migrate more easily than
smaller, fragmented wetlands. Higher rates of sea-level rise (i.e. 2.0 meters) could lead to
wetland drowning.

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2-40 VULNEPABILITY OF MAINE SITES To AcCELERATED SEA-LEVEL RISE

6.0-- Pine Point

5.0-:

1991

4.0-

3.0

2.04.:

.........

..........
`... .. .. ........ .. . ...................
. . ............... ....... ..... ... ... .
. .. . . . . . . . .
0 20 40 60 80 100 120 140
Distance in Meters

Figure 2.27. Traverse 1, Pine Point, Saco Bay. Survey line from Fink (personal communication 1992).

ANTICIPATORY PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE 2-41

. . .. ......

Figure 2.28. Photograph of the Pine Point area. Aerial photography of the Pine Point area.

rj,;

Figure 2.29. Photograph of the Pine Point area. Ground photograph of the study area at Pine Point.

2-42 VULNER"ILITY OF MAINE SITES To AccELERATED SEA-LEVEL RISE

4) Extent of Similarly Situated Land
(See discussion under Camp Ellis/Ferry Beach section of this chapter.)
5) Analysis
Since lots sizes in Pine Point have been increasing substantially due to accretion,
theoretically, there could be a corresponding change in the allowable density for those
accreting lots, allowing for redevelopment to multi-family units. Thus, the Pine Point site
analysis raises the question of how to treat areas along Maine's shoreline that are accreting
in the short term, when geologists suspect that these areas are subject to change over the long
term. Maine's Sand Dune Rules attempt to deal with this issue by requiring analysis of
possible shoreline changes over a 100 year planning horizon.

6. Other Predominant Coastal Types
Two other coastal types are characteristic of portions of the shoreline of Maine, but were
not mapped for this study by Maine Geological Survey: urban engineered shorelines and rocky
shores. Expected impacts are discussed briefly, below.
a. Urban Engineered Shorelines
1) Upland Impacts
The Fore River section of the Portland waterfront was also evaluated for possible impacts
of accelerated sea-level rise, although site features were not mapped. Since the engineered
shoreline in this area is built up to 2 meters above mean high water in most locations, sea-
level rise alone probably will not affect the shoreline position along the Portland waterfront.
As has been the case in the past, property owners will probably continue to raise the height
of their shoreline structures gradually over time, or in response to crisis flooding.
2) Extent of Similarly Situated Land
Only 5 % of the region's shoreline consists of urban, engineered waterfront. In the region,
only the Portland/South Portland waterfront, and a small area in South Freeport have urban,
"unmovable" shorelines.

Water dependent businesses (those that must be located on, or adjacent to oceans, bays,
and estuaries) are prevalent in this area and include fisheries, fish processors, ship builders,
water transportation support facilities and others that rely on a waterfront (or in-water)
location. These businesses and industries stand to be affected by sea-level rise in at least two
ways: by changes in the productivity of marine habitats and wetlands, and by impacts on
waterfront infrastructure. Bigford (1991) notes that typical ports with low-lying structures can
expect impacts such as: increased stress on pilings, piers, docks and elevated structures; loss
of access to waterfront landings; flooded utility lines; and loss of coastal lands for water
dependent structures and uses. In Casco Bay, Colgan (1990) estimated that more than 2000
employees worked in "coast dependent" industries/businesses, with the value of that sector's
output estimated at more than $104 million.

ANTiciEPAToRy PLANNING FOR SEA-LEvEL RISE ALONG THE COAST OF MAINE 2-43

Urban services such as sewer treatment and stonnwater drainage also may be affected by
rising sea-level. In the case of sewer plants and outfalls, sea-level rise may result in
inundation of plants, transmission of untreated sewage into area waters, and may result in
delays getting plants back into operation. Every municipality in the region has outfalls that
may be affected by rising sea-level.
No attempt was made to project costs of worst case property losses or costs associated with
protection strategies for urban waterfronts.
3) Analysis
Although major impacts from a change in shoreline position due to sea-level rise are not
anticipated along Portland's Fore River shoreline, the potential effects of storm surges and the
potential for increased and more widespread flooding along engineered shorelines should be
investigated. A study of potential effects of sea-level rise in Saint John, New Brunswick
(Martec Limited, 1987) found that under a 1 meter rise, what is now the 100 year floodplain
would become the 20 year floodplain. Kana, in studies of the physical impacts of sea-level
rise in Charleston, South Carolina (in Barth and Titus, 1984) concluded that a five-foot rise
in sea-level would double the size of the ten-year floodplain to the approximate size of the
hundred-year floodplain unless additional levees and seawalls were built. Similarly,
Leatherman (in Barth and Titus, 1984) studied changes in storm surge levels and inland
inundation as a result of projected rates of sea-level rise in Galveston Bay, Texas.
Leatherman concluded that a .4 meter rise in sea-level by 2025 would convert a 75-year storm
into a 100-year storm. Under the high scenario of sea-level rise, flooding associated with a
100 year storm would occur at a 10 year frequency by the year 2075, resulting in catastrophic
damage to the study area. Implications of this research for Maine's urbanized low-lying areas
should be further researched. Further studies may reveal the need to make improvements to
existing bulkheads, docks, etc. and may indicate the need for low-lying industries to
floodproof machinery.
b. Rocky Shoreline
Although not considered as a specific coastal environment type investigated in this study,
rocky shores (dotted with occasional, pocket, gravel beaches) comprise more than half of the
Casco/Saco Bay region shoreline. It is not anticipated that accelerated sea-level rise will have
a significant impact on shoreline position along rocky shores. Further study would be needed
to determine the shoreline retreat rates associated with gravel pocket beaches.

7. Summary/C onclusions
Prior studies of shoreline change and coastal erosion in Maine have determined that the
components of Maine's soft coast-coastal sand dune systems, coastal wetlands, and coastal
eroding bluffs-may experience significant coastal erosion and inundation with a continuation
of the historical rate of change. Along sand beaches and coastal wetlands, that erosion and
inundation would be exacerbated by an accelerated rate of sea-level rise associated with global
climate change. The findings of projected change in shoreline position by 2100 under the
different scenarios for the study sites, grouped by environmental setting, are summarized in
Table 2.5.

2-44 VuLNER"iLrry OF MAINE SITES To AccELERATED SEA-LEvEL RISE

Table 2.5. Composite Result for Study Sites by Envirommental Setting

Envirommental Setting Sea-Level Rise Scenarios
Projected Shoreline Change, Retreat in Meters

0.5 m 1.0 M 2.0 m

Salt Marsh 3-35 8-50 17-100

Bluff 15-45 15-45 15-45

Beach 50-150 100-300 200-600

The preceding assessment of the vulnerability of selected mapped areas in Casco and Saco
Bays to accelerated sea-level rise leads to the following general observations:
� Estimates of shoreline change portrayed in this report by the three mapped
scenarios are more substantial than previous estimates, which simply projected
historic rates of sea-level rise over a 100 year period. Coastal managers need
to understand and appreciate the differences in the assumptions used in each
type of projection.
� The areas most threatened by accelerated sea-level rise are sand beaches and
salt marshes; eroding coastal bluffs are also faced with significant impacts from
a continuation of current erosion.

� There is already significant development in threatened areas. Population
projections and economic forecasts suggest that pressure for coastal
development will continue.
� Existing and projected levels of public and private investment, and the value
of recreational beaches may lead to attempts at extensive "solutions" to
11control" sea-level rise.

� The extent of development in unstable areas, and the probable impacts
associated with accelerated sea-level rise in the study area, suggest that current
land use and environmental laws may be inadequate to deal with issues such as
wetland migration and eroding bluffs,
� There is a need for additional study on: the potential impacts on fisheries and
habitat associated with accelerated sea-level rise, wetland migration, and storm
surges/flooding.
� There is a need for increased public education for local officials and existing
and future residents on the topic of shoreline dynamics and methods for
developing and living safely in coastal environments.

ANTiCEPATORY PLANNING FOR SEA-LEvFL FjsE ALONG TIM COAST OF MAM 2-45

E. RFFv.RENcFs

Armentano, TX, Park R.A., and Cloonan, C.L. 1988. "Impacts on coastal wetlands throughout
the United States." In Greenhouse Effect, Sea-Level Rise and Coastal Wetlands. Ed. J. G.
Titus, 87-128. Washington, DC: EPA.
Barth, M. C., and Titus, J. G., eds. 1984. Greenhouse effect and sea-level rise: a challenge for this
generation. NY-Van Nostrand/Reinhold.
Belknap, D.F., Shipp, R.C., Stuckenrath, R., Kelley, J.T., and Borns, H.W. 1989. Holocene
sea-level change in coastal Maine. Maine Geological Survey Bulletin 40:85-106.
Bigford, T.E. 1991. "Sea-level rise, nearshore fisheries and the fishing industry." Coastal
Management 19:417-437.
Bruun, P. 1962. "Sea-level rise as a cause of shore erosion." Journal of Bhterways Harbors
Division. 88:117-130.

Colgan, C. 1990. The economic value of Casco Bay. Augusta, ME: Maine Coastal Program.
Dionne, M. 1993. "Sea-level rise threatens northeast salt marshes." In The Wells Reserve/Laudholm
Trust Newsletter (Spring 1993).
Farrell, S. 1972. "Present coastal processes, recorded changes, and the post-Pleistocene geologic
record of Saco Bay, Maine." Ph.D. thesis, University of Massachusetts, Amherst.
Fossum, D. Assistant Town Planner, Old Orchard Beach. Personal communication.
Hay, B. 1988. "The role of varying rates of local relative sea-level change in controlling the
Holocene sedimentologic evolution of northern Casco Bay, Maine," Masters Thesis, University
of Maine, Orono.
Kelley, J.T., Belknap, D.F., Jacobson, G.L., and Jacobson, H.A. 1988. "The morphology and origin
of salt marshes along the glaciated coastline of Maine. " Journal of Coastal Research 4:649-665.
Kelley, J.T., Kelley, A.R., and Pilkey, O.H. 1989. Living with the coast of Maine. Durham, NC:
Duke University Press.
Kelley, J.T., Dickson, S.M., Belknap, D.F., and Stuckenrath, R. 1992. "Sea-level change and the
introduction of late Quaternary sediment to the southern Maine inner continental shelf." Ed. J.
Wehmiller and C. Fletcher. Quaternary Coasts of the United States. Soc. Econ. Paleo. and
Mineralogists, Spec. Pap. 48:23-34.
Lane, P, and Associates. "P@eliminary study of the possible impacts of a one-metre rise in sea-level
at Charlottetown, Prince Edward Island" for Climate Change Digest, Downsview, Ontario.
List, J.H., Jaffe, B.E., Sallenger, A.H. 1991. "Large-scale coastal evolution of Louisiana's barrier
islands. " Coastal Sediments '91 pp. 1532-1546.
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Naylor, A. Former Brunswick Town Planner. Personal communication.

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Nelson, B. 1979. "Shoreline changes and physiography of Maine's sandy coastal beaches." Masters
Thesis, University of Maine, Orono.
Nugent, M. Codes Officer, Old Orchard Beach. Personal communication.
Park, R.A., T. Armentano, and C.L. Cloonan. 1986. "Predicting the effects of sea level rise on
coastal wetlands. " In Effects of Changes in Stratospheric Ozone and Global Climate. Vol. 4: Sea
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planning for global changes." Ocean and Coastal Management 18(l):137-142.
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Rosenfeld, H. President, Scarborough Economic Development Corporation. Personal communication.
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for a post-glacial sea-level lowstand in the northern Gulf of Maine." Journal of Coastal Research
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Smith, RX 1990. "Geomorphic trends and shoreline dynamics in three Maine embayments."
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Marine Science 54.

Stokoe, P., et al. 1990. "Implications of climate change for small coastal communities in Atlantic
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Timson, B. 1977. Coastal marine environment maps of the Maine coast. Augusta, Maine: Maine
Geological Survey, 1:24,000.
Timson, B., et al. 1992. Application of the Town of Old Orchard Beach to the Maine Department of
Environmental Protection.
Titus, J.G. 1991. "Greenhouse effect and coastal wetland policy: How Americans could abandon an
area the size of Massachusetts at minimum cost." Environmental Management 15(l):39-58.
Titus, J.G., and M.S. Greene. 1989. "An Overview of the nationwide impacts of sea level rise."
In U. S. Environmental Protection Agency. 1989. The Potential Effects of Global Climate Change
on the United States: Appendix B - Sea-Level Rise, 5-1 - 5-55. Washington, DC: Office of
Policy, Planning and Evaluation.
Titus, J.G, ed. 1987. Greenhouse effect, sea level rise and coastal wetlands. Washington, DC: U.S.
Environmental Protection Agency, Office of Policy Analysis.

ANTICIPATORY PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE 247

Titus, J.G. 1986. "Greenhouse effect, sea level rise, and coastal zone management. " Coastal Zone
Management Journal 14(3):147-17 1.
U.S. Army Corps of Engineers (USACOE). 1992. Camp Ellis Beach, Saco, Maine. Section III
Reconnaissance Report. Waltham, MA: New England Division.
U. S. Environmental Protection Agency. 1989. Yhe potential effects of global climate change on the
United States: Appendix B: Sea-level rise. Washington, DC: Office of Policy, Planning and
Evaluation.

U.S. Congress, Office of Technology Assessment. October 1993. Preparing for an uncertain climate.
Vol. 11. OTA-0-568. Washington, D.C.: U.S. GPO.
U. S. Department of Commerce, National Oceanic and Atmospheric Administration. 1991. Coastal
wetlands of the United States: An accounting of a valuable national resource. Washington, DC:
National Ocean Service, NOAA.
Weggle, J.R. 1979. A methodfor estimating long-term erosion ratesfrom a long-term rise in water
level. CERC Technical Aid 97-2. Ft. Belvoir, VA: USACOE.

C0.1196apter Three

CASE STUDY:
CAmp ELLIs/FERRY BEACH

A. INTRODUCTION

The analysis in the preceding chapter presents a rough estimate of impacts of a change in
shoreline position for several sites, using readily available information. Clearly, more quan-
titative assessments of impacts would be possible given additional data or staff resources. As
an illustration of the potential for more detailed analysis, the research team opted to undertake
a more quantitative assessment of the features at risk from accelerated sea-level rise for the
Camp Ellis area. This type of more quantitative assessment was made possible by the
availability of existing data on a Geographic Information System (GIS). The information
presented in this chapter serves as the foundation for the cost-benefit analysis of alternative
response strategies for Camp Ellis, presented in Chapter Four.

B. SHORELINE POSITION

Camp Ellis is a spit which projects southward into the Saco River in the City of Saco. To
the north it becomes attached to the mainland and is called Ferry Beach. (Figures 2.15, 3. 1).
The area, with the exception of a small state park, is highly developed. Residences are set
back among extensive sand dunes near Ferry Beach, but commercial structures as well as
residences cover the former dunes and crowd onto the beach at Camp Ellis (Kelley et al.,
1989). (Figures 3.2, 3.3)
This area has experienced both progradation and erosion in the course of the past century.
Following the initial dredging of the Saco River, and construction of a jetty at Camp Ellis, the
beach grew seaward. This may have been a response to the placement of dredged spoils on
the beach, because in the early 20th century, the new land eroded along with many buildings
and a railroad line (USACOE, 1992).
The USACOE has predicted a retreat rate of about 1 m (3 feet) per year for that portion
of Camp Ellis lacking an integrated seawall, and 0.6 m (2 feet) per year for the area behind
a massive granite seawall fronting Surf Street (USACOE, 1992). (Figure 3.4) These
predictions are based on examination of historical maps and aerial photographs. To date the
predictions have been relatively accurate for the area lacking massive engineering structures,

3-1

3-2 CASE STUDY: CAmip ELLIS/]FERRY BEACH

2.0 1.0 0.5 M
Saco, Maine
Shoreline Change

10-5 m
.0 n 100 Year
2.0 rn Shoreline Position

0 0.5 Krn

Atlantic Ocean

Saco River

Figure 3.1. Projected shoreline change map for Camp Ellis. Mapped shorelines consider only erosion from the
ocean side, not from the Saco River side. Mapped shorelines do not consider the addition of new sand from the
Saco River.

ANTICIPATORY PLANNING FOR SEA-LEVEL RISE ALONG TM COAST OF MAINE 3-3

7
0
42-

7 7- -

Figure 3.2. Photograph of the Camp Ellis-Ferry Beach area. Development on beach at Camp Ellis.

. . .........

Figure 3.3. Photograph of the Camp Ellis-Ferry Beach area. Undeveloped back dune at Ferry Beach State Park.

3-4 CASE STUDY: CAmip ELLis/FERRY BEACH

M W M W

Saco, Maine
Shoreline Change

Ferry Beach
State Park

COE 100 YEAR N
0.5m

0 0.5 Krn

Route 9

T-I
Atlantic Ocean

Saco River Jetty

Figure 3.4. Shoreline change map of Camp Ellis comparing 0.5 m shoreline from this study with U.S. Army
Corps of Engineers predictions. The Army prediction is a continuation of trends up until 1955.

ANTICIPATORY PLANNING FOR SEA-LEvEL Rim ALONG THE COAST OF MAM 3-5

and one or more houses per year have been lost to the sea. The large seawall on Surf Street
has repeatedly been destroyed by storms also, but has been rebuilt in the same place, and so
no erosion of the land behind it has occurred. There is no longer a beach in front of the wall,
however, except at low tide (Kelley et al., 1989).
The USACOE's data do not apply to Ferry Beach, and their predictions are only shown
to the end of the Surf Street seawall. (Figure 3.4) Although the height of most of the private
seawalls as well as the Surf Street seawall is greater than 2 m above higher high water (Figure
3.8), in a dynamic beach setting the walls are likely to be undermined or destroyed by waves
in the future, and it is reasonable to assume the beach will retreat. The 150 m, 300 m and
600 m predicted shorelines associated with the 0.5 m, 1.0 m, and 2.0 m higher sea levels,
respectively, reflect this assumption. (Figure 3.1, Table 2.1) No consideration is given to
the impact of sand redistribution as a result of the projected sea-level rise, nor of the effect
of paved roads, sewer lines and parking lots.

C. IMPACT ASSESSMENT

1. Upland Impacts
Substantial impacts are projected on natural and built features. Figures 3.6, 3.7 and 3.8
show the projected sea-level rise scenarios along with settlement patterns, land use, location
of natural features, and infrastructure. It should be noted that mapped shorelines consider
only erosion from the ocean side, not from the Saco River side. There has been insufficient
study of the impact of sea-level rise on rivers to project shoreline change along the river.
The projected .5 meter sea-level rise boundary is about 150 meters (500 ft.) landward of
current mean high water. Under this scenario, public and private properties at risk include
the following:
9 71 acres of land developed with 210 structures
0 2.4 miles of public roads
9 2.3 miles of water lines
0 1.8 miles of sewer lines
e Municipal fire sub-station
o State Park lands

The 1.0 meter sea-level rise projection creates a new land/sea boundary about 300 meters
(1,000 ft) from current mean high water. Features at risk under this scenario include the
following:
0 133 acres of land, developed with 334 structures
0 4.25 miles of public roads
0 3.6 miles of water lines
0 3.4 miles of sewer lines
* Fire sub-station
0 State Park lands

3-6 CASE STUDY: CAw ELLISNERRY BEACH

ION

"i 0",

co@ C4 u a, ck
F D N El 13 N

Figure3.5. Camp Ellis, Saco, Maine. Settlement pattems and wetlands.

At ntic Ocean

SCALE

0 500 1000
feet

MCJS Gyastal Sand Dune Map: Frontal Dune
Fj MGS Coastal Sand Dune Map: Back Dune
F*,l MGS Coastal Sand Dune Map: High Marsh
f-I MGS Coastal Sand Dune Map: Low Marsh
E] MGS Coastal Sand Dune Map: Structure
MGS Coastal Sand Dune Map: &@ach
Roads: USGS 1:24000 Digital Fonnat, 1978
N Pared Lines: City of Saco, 1:100 feet
N 1/2, 1, and 2 Meter Sea Level Rise, Levels Over 100 Year Period, MGS
)V Hiph Water Mark: Jarnes W. Sewall Ortho Photo 1:200, 1990

Critical Areas:

Station, Mai
Saco TuNlo and Rare Plant ne Natural Heritage Program, DECD
Ferry Beach State Park Sand Beach, Maine Natural Heritage Prograrn, DECD, Camp Ellis
Sand Dunes and Critical Areas Saco, Maine

bus 0

all

Allatific Ocean

b k Igo

to A

11001
EN
mENEW
SCALE
IN,
0 500 1000
feet
c\,N
Irl Meter Sea Level Rise, MGS
I Meter Sea Level Rise, MGS

2 Meter Sea Level Rise, MGS

Ponds
Wetland: Low Value Habitat Rating, MIFW
Wetland: Moderate Value Habitat Rating, MIFW
Wedand: Indeterminate Value Habitat Rating. MIFW
IV Roads: USGS 1:24(X)O Digital Format, 1978
N Parcel Lines: City of Saco, LRK) feet
At High Water Mark: James W. Sewall Ortho Photo 1:2(.X), 1990 Camp Ellis
Base Map With Wetlands Saco, Maine
. -- ju@ lot 1"4 - I

20-
CD stone wall Camp Ellis Beach,
Saco, Maine

Traverse I

.............
2.0 12-91

1.0
to- 0.5
Lai
MHW- 1991
CD

MLW
0-
250 do A 50 0
Distance in Feet

3-10 CASE STUDY: CAmip ELLIs/FERRY BEACH

The 2.0 meter sea-level rise boundary is 600 meters (2,000 ft.) inland from current mean high
water. Features at risk under this scenario include:

* 260 acres of land developed with 364 structures
e 4.7 miles of public roads
* about 4 miles of water lines
0 3.6 miles of sewer lines
* Fire sub-station
* State Park lands

2. Value of Land and Structures

According to City of Saco assessors records, property values in the .5 meter rise area total
about $37.6 million. The value of properties inundated under the 1.0 meter sea-level rise
scenario is roughly $55.2 million. Under the 2.0 meter rise, the value of land and buildings
inundated reaches about $61.3 million. The difference between the value of properties
affected under the 1.0 and 2.0 meter rise is not that sizable, due to the largely undeveloped
nature of the land within the 2.0 meter band, and the presence of wetlands.

3. Wetland Impacts
Wetland acreages that may be impacted by rising sea-level in the Camp Ellis/Ferry Beach
area are as follows:
.5 meter 1.0 meter 2.0 meters

Wetland Acreages < 1 acre 21 acres 57 acres

Most of the wetlands in the Camp Ellis site are tidally influenced freshwater wetlands.
All are classified as having low, moderate or indeterminate value for habitat. It was beyond
the scope of this study to determine how freshwater wetlands might react to rising sea-level.
However, it should be noted that it is expected that they would undergo slow conversion to
salt marsh, and would probably be inundated during the 2.0 meter rise.

4. Extent of Similarly Situated Land in the Region
Roughly 10% of shoreline of the Casco and Saco Bay regions is made up of sand beaches.
As explained previously in Chapter Two, potential shoreline changes in sand beach areas of
between 50-600 meters (175 ft.-2,000 ft.) can be anticipated, depending on the sea-level rise
scenario being considered.
While the mapped sites described in this and the preceding chapter (Camp Ellis/Ferry
Beach, Old Orchard Beach and Pine Point) are the largest beaches in the study area and
probably provide the best examples of how developed beach areas may be affected, other sand
beaches in the study region may be similarly affected. Scarborough Beach, Higgins Beach,
Crescent Beach and Willard Beach, because of their moderate slopes, may experience
shoreline changes similar to those mapped for Old Orchard and Camp Ellis. The coastal lands

ANTICIPATORY PLANNING FOR SEA-LEvEL RISE ALONG THE COAST OF MAM 3-11

adjacent to East End Beach and Mackworth Island beaches, having much steeper slopes, will
experience less dramatic movement of the shoreline.
Sand beaches also occur on Casco Bay's larger islands. Again, slope conditions on the
adjacent shoreline will help to determine the landward extent of sea-level rise in these areas.
In addition to being heavily used for public recreation, the majority of the sand beaches
in the mainland portion of the study area are developed in residential uses. Even where state
park status protects an area of sandy beach, the actual area of state ownership typically is
small, and developed areas surround park lands. Since densities of development around the
region's sand beaches vary, Camp Ellis/Ferry Beach, with its mix of high density cottages and
moderate density estates may provide a useful comparison of potential property losses.
In addition to property losses, recreational value must be considered when evaluating
potential impacts of sea-level rise on sand beaches. Using available statistics for state park
usage in the region and Colgan's (1990) estimates of the value of the recreational experience,
the recreational value of three sand beaches mapped in the study area would be between $.5
million and $4.25 million each year. Visitor estimates at municipal beaches and privately
owned areas would have to be added to these figures to determine a total value for the region.

5. Analysis
There continues to be ongoing debate and discussion surrounding the fate of Camp Ellis.
Shorefront landowners, concerned about saving their property from the sea, have banded
together under the umbrella of "Save Our Shores. " Upland owners are more concerned about
the costs to the town taxpayers of continuing to fight a losing battle with the sea. The City
of Saco is currently considering abandoning Surf Street, the street that is continually
undermined during coastal storms. Some others are concerned about the proper role for local,
state, and federal agencies. Presently, the U.S. Army Corps of Engineers is studying the
possible relationship between the jetty and coastal erosion, while the City and State are
discussing a potential buyout of shorefront properties. This controversy is illustrative of the
questions other communities will face if coastal erosion accelerates.

D. REFERENCES

Colgan, C. 1990. Yhe economic value of Casco Bay. Augusta, ME: Maine Coastal Program.
Kelley, J.T., A.R. Kelley, and O.H. Pilkey. 1989. Living with the coast of Maine. Durham, NC:
Duke University Press.
Maine Department of Inland Fisheries and Wildlife. 1988. The identification and management of
significantfish and wildlife resources in southern coastal Maine. Augusta, ME.
Maine State Planning Office, Economics Division. 1994. Population statisticsfor minor civil divisions
and counties.

Morelli, P. and R. Roedner, Saco Town Planners. Personal communication.
Property assessment staff from Saco. Personal communication.

3-12 CASE STuDY: CAw ELLIS/FERRY BEACH

Tardiff, Arthur, Drown Realty, Saco, Maine. Personal communication.
U. S. Army Corps of Engineers, New England Division. 1992. Section 111 Reconnaissance Report,
Camp Ellis Beach, Saco, Maine, Beach Erosion Study. Waltham, MA.

Chapter Four

COSTS AND BENEFITS OF SELECTED
POLICY RESPONSE OPTIONS

A. SETTING PRIORITIES FOR ADAPTivE ]RESPONSE STRATEGIES

The preceding vulnerability assessment has identified several types of resources at risk of
negative impacts from accelerated sea-level rise. It suggests that there will be impacts on
unmanaged ecosystems and on human settlement. If sea-level rise predictions are realized,
some, but clearly not all of these impacts, are amenable to mitigation through adaptation
strategies.
State and local governments are faced with two choices on the timing of mitigation
strategies: 1) they can wait to take any action until the consequences of sea-level rise are
established or 2) they can begin now to develop strategic responses. If they opt for inaction
(either by acknowledging the risk but choosing not to act yet or by entirely ignoring the risk),
they may actually increase the risk of loss or the magnitude of the loss. For example, if they
take no action to regulate new development in hazard areas or if they allow significant
degradation of natural coastal systems, their vulnerability to sea-level rise may increase over
time. On the other hand, if state and local governments acknowledge the threat and begin
advanced planning, they may be able to avoid increasing their vulnerability, and may in fact
even be able to reduce the risk of negative impacts or the magnitude of loss in the future.
In general terms, these decisions about response strategies and mitigation will be
investment decisions, both private and public, which will be partially guided by projecting the
future rate of the return on such investments. However, due to the uncertainties about the
extent of global climate change and the time frame over which impacts may become apparent,
estimating the return on the investment will require resolving (or at least making assumptions
about) a series of complex issues.
One issue is how to value particular outcomes when estimating economic benefits. For
example, what value should be placed on reduction of loss of life or retention of wetlands in
evaluating the return on the investment?
Another issue concerns what assumptions to use when predicting how people will respond
to impacts over time. Should analysts assume that people will continue to act as they always
have (e.g., continued greenhouse gas emissions, continued attempts to build on the shoreline,

4-1

4-2 COSTS AND BENEFITS OF SELECTED POLICY RESPONSE OPTIONS

etc.) until the government takes action? Or will people begin to change their behavior by
responding to emerging impacts without waiting for governmental intervention?
A third issue concerns how to factor scientific uncertainty and the time lag in feeling
effects into any mitigation program. In many instances, it will not make sense to rush to
implement policies or to build structures to protect against the high-range rise in sea level
projected for 100 years from now. James Titus, Director of the EPA Sea Level Rise Project
posits that:
[t]he need to respond today depends on the likelihood of global warming; the
magnitude of the impacts; and the potential for anticipatory measures to reduce adverse
impacts of sea level rises or climate changes as expected, without imposing substantial
costs if the changes do not unfold.'
He encourages state and local governments undertake today only those actions which would
significantly reduce adverse impacts of sea-level rise but would also not be ill-advised if
projected effects of global warming fail to materialize. These have been described as no
regrets policies.
These actions could consist of a combination of concrete measures or physical changes
(e.g., making siting decisions or modifying designs for current construction projects to
incorporate features responsive to sea-level rise projections), planning, amending regulations
or "changing the rules of the game" (e.g., adopting new land use restrictions in advance of
development pressures, modifying conventions of property ownership) and research and
education (achieving more certainty in projections and educating people to the need for
2
response measures).
To assist with this assessment of beneficial/"no regrets" policies, Titus has suggested the
following criteria for policy makers to consider in evaluating potential response strategies:
� Economic efficiency: Will the initiative yield benefits substantially greater than if
the resources were applied elsewhere?
� Performance under uncertainty: Is the strategy reasonable for the entire range of
possible changes in temperatures, precipitation, and sea level?
� Urgency: Would the strategy be successful if implementation were delayed 10 or
20 years? Is the opportunity to solve the problem likely to vanish if no action is
taken soon?

� Low cost: Does the strategy require minimal resources?
� Equity: Does the strategy avoid the problem of unfairly helping some at the
expense of other regions, generations, and economic classes? Does it give people
ample time to adjust?
� Institutional feasibility: Is the strategy acceptable to the public? Can it be
implemented with existing institutions under existing laws?
� Unique or critical resources: Would the strategy decrease the risk of losing unique
environmental or cultural resources?

ANTiciPAToRy PLANNING FOR SEA-LEVEL RISE ALONG TIIE COAST OF MAINE 4-3

� Health and safety: Would the proposed strategy decrease (or at least avoid
increasing) the risk of disease or injury?
� Consistency: Does the policy support other national, state, community or private
goals?
� Private vs. public sector: Does the strategy minimize governmental interference
with decisions best made by the private sector?'
Some of these criteria such as economic efficiency, performance under uncertainty, and
cost can be evaluated in more depth using cost-benefit analysis. The balance of this chapter
develops a very rough cost-benefit analysis as an initial attempt to use this tool in setting
priorities. It evaluates four different response options as applied to one of the case study sites,
Camp Ellis.
The other criteria, i.e., institutional feasibility (including legal defensibility), equity, and
consistency with other goals, do not lend themselves to a cost-benefit analysis but are critical
components in any decision about appropriate adaptation strategies for Maine. They are the
focus of the analysis in Chapters Five and Six.

B. COST-BENEFIT ANALYSIS

1. Selection of Case Study Site

In order to develop a quantitative assessment of alternative policy response options, it was
necessary to focus on one small area with relatively uniform topography for which there
existed sufficient data to allow a comparison of benefits and costs of a set of parallel response
strategies. Due to the currently available information and the apparent magnitude of the threat
posed by sea-level rise, this detailed case study focuses on a sand beach setting-Camp Ellis.
Clearly, no one response is appropriate for the entire shoreline. Responses may differ
significantly, depending on the topography, level of development, land use and unique natural
features. However, as a first attempt to quantify costs and benefits in one type of setting, a
sand beach site was selected due to the much higher projected magnitude of change in
shoreline position for beaches; the relative scarcity of sand beaches in Maine; the value of the
resource to the State's economy, particularly the tourism industry; the greater magnitude of
vulnerability of built resources to a change in shoreline position along the beach, and the
likelihood of forthcoming substantial policy debates concerning alternative response strategies.
2. Description of Camp Ellis/Ferry Beach
Camp Ellis is a densely settled area within the City of Saco, developed primarily in
cottage-type year-round and seasonal single family residences. Several restaurants, a fish pier,
and a few tourist-oriented shops comprise the small waterfront business district. Ferry Beach,
adjacent to Camp Ellis, is also included in the case study area. Ferry Beach is also primarily
"built out," but with larger dwellings on bigger lots.
Camp Ellis is known for experiencing very high erosion rates, and numerous properties
have been destroyed during coastal storms. The City of Saco faces ongoing expenditures for
road repairs, maintenance and clean-up associated with coastal storms. Ferry Beach is a more

44 CosTs AND BENEFiTs OF SELECTED PoLicy REsPoNSIE OpTioNs

stable area, protected by a healthy dune system, The entire area is served by municipal water
and sewer, and includes a network of public roads.
a. Shoreline PositionslImpact on Built Features
Figures 3.6, 3.7 and 3.8 in Chapter Three show the projected sea-level rise scenarios along
with settlement patterns, land use, location of natural features, and infrastructure.
As reported in Chapter Three, for the projected .5 meter sea-level rise boundary, 150
meters (500 ft.) landward of current mean high water, public and private properties at risk
include:

0 71 acres of land (assessed value $28.2 million);
* 210 structures (assessed value $9.4 million);
0 2.4 miles of public roads;
9 2.3 miles of water lines;
0 1.8 miles of sewer lines;
9 Municipal fire sub-station;
0 State Park lands.

The projected 1.0 meter sea-level rise shoreline boundary, about 300 meters (1,000 ft.)
from current mean high water, puts the following features at risk:
0 133 acres of land, with an assessed value of $41.2 million;
* 334 structures, valued at $14 million;
e 4.25 miles of public roads;
0 3.6 miles of water lines;
0 3.4 miles of sewer lines;
e Municipal Fire sub-station;
0 State Park lands.

The projected 2.0 meter sea-level rise boundary, approximately 600 meters (2,000 ft.)
inland from current mean high water, includes the following features at risk:
e 260 acres of land, assessed value of $46 million;
e 364 structures valued at $15.3 million;
* 4.7 miles of public roads;
@ about 4 miles of water lines;
0 3.6 miles of sewer lines;
0 Municipal Fire sub-station;
0 State Park lands.

The difference between the value of properties affected under the 1.0 and 2.0 meter rise
is not that sizable, due to the presence of significant wetlands and therefore the less developed
nature of the land within the 2.0 meter band.

b. Natural Features
Natural features in the Camp Ellis/Ferry Beach area (refer back to maps in Chapter Three)
that may be impacted under the three sea-level rise scenarios include:

ANTicrPAToRy PLANNING FOR SEA-LEvEL PUsE ALONG THE COAST OF MAINE 4-5

1) Wetlands/Ponds

* less than an acre of salt marsh under the .5 meter scenario;
* slightly over 21 acres of freshwater wetlands under the 1.0
meter scenario;

* 56.5 acres of freshwater wetlands under the 2.0 meter scenario;
* 2 freshwater ponds under the 1.0 and 2.0 meter scenarios.
2) Sand Beach
Sand beach system, including Ferry Beach State Park (27,739
visitors for a two year period from 1991-2), and numerous other
public access points.
3) Marine Habitat
Marine habitat for shorebird feeding and roosting, seal haul-outs
and nesting sea bird sites (regional and national significance).
4) Other
two registered critical areas under the 1.0 meter scenario, 4
critical areas under the 2.0 meter scenario.

c. Wetlands
The vulnerability analysis in Chapter Three identified acres of wetlands at risk in Camp
Ellis/Ferry Beach under the various sea-level rise scenarios. The majority of mapped wetlands
in the case study area are tidally influenced freshwater wetlands. It was beyond the scope of
this study to determine how those wetlands might react to rising sea level. However, it is
likely that they would undergo slow conversion to salt marsh, and would probably be
inundated during the 2.0 meter rise.
The first two response strategies explored in this cost-benefit analysis include consideration
of protection of developed properties from migrating wetlands through the construction of
bulkheads. Because it was uncertain what the effects on freshwater wetlands would be, the
cost-benefit analysis portrays a worst case scenario of constructing bulkheads around the total
perimeter of the case study's wetland acreage.
d. Growth nends and Potential for New Development in the Case Study Area
When sewer lines were extended to the Camp Ellis/Ferry Beach area in recent years, it
was speculated that the area would undergo massive redevelopment, that substandard buildings
would be replaced by higher density dwellings and that marine business zoning might spur
expansion/redevelopment of the existing small mixed use commercial and fishing village.
Combined with a downturn in the economy, continuous storm damage and ongoing erosion
have caused people to be cautious about making property improvements or investing in new
ventures. Few properties are selling. Of course, these earlier expectations could easily be
revived in a more robust period of sustained growth in the region's economy.

4-6 COSTS AND BENEFITS OF SELECTED PoLicy RESPONSE 0PTiONS

The cost-benefit analysis of different response options required an estimate of the amount
of new development anticipated in Camp Ellis/Ferry Beach over the study period (2100).
While the population of the City of Saco as a whole may grow at a rate of .7% per year
(based on recent trends, Maine State Planning Office, 1994), growth in the Camp Ellis/Ferry
Beach area will be limited to redevelopment of existing lots and subdivision of relatively small
quantities of vacant land. Under each sea-level rise boundary area, the amount of vacant land
and land with potential for redevelopment was analyzed in light of current zoning regulations.
Vacant land and "underutilized" properties (i.e. those that could accommodate additional units
under current zoning) were targeted as areas where new development and redevelopment (at
higher densities) would be likely. Wetland areas and state park lands were not considered as
part of the available vacant land supply, but current ownership patterns were not considered
in determining whether the remaining privately held land would be developed in the future.
An allocation of area needed for new roads and parkingwas considered when analyzing vacant
land. Within the shorefront area having the .5 meter'sea-level rise shoreline position as its
upland boundary, between 25 and 261 new units could, at least in theory, be constructed.
Within the same area but with the 1.0 meter sea-level rise shorefront position as its upland
boundary, between 35 units and 317 new units could be developed. Within the shorefront area
with the 2.0 meter sea-level rise shoreline position as the upland boundary, between 60 and
462 new units could be constructed. Within each anticipated sea-level rise boundary a
midrange estimate was assumed as the most likely level of redevelopment potential; 51, 72,
and 127 units respectively within the 0.5, 1.0, and 2.0 meter sea-level rise boundaries.
3. Selection of Four Policy Response Options
The intent of this analysis is to compare costs and benefits of the most basic alternative
policy response options. This should assist with the evaluation of the advisability of taking
particular actions at all at this time. The four options reflect specific public investments and
regulatory/planning/ "changing the rules of the game" types of responses. Clearly different
concrete measures, physical changes, nonregulatory incentives, education and research also
have a role to play in an integrated strategy. Similarly, one could easily conceive of different
public investment or regulatory strategies than the ones chosen here for comparison. By no
means are these the only policy options available, but they are illustrative of the basic cost
differences between retreat and reactive protection strategies on developed shorelines.
The following alternative policy response options were evaluated:
Option 1: Reactive Protection for both developed and undeveloped properties.
This policy is defined as not taking specific steps ahead of time to alter the anticipated
development pattern (assuming a buildout of current trends) but then later, as sea level rises,
protecting the development that has occurred with beach nourishment along sandy beaches
and bulkheads along developed wetland shores to protect all developed land.
Option 2: Reactive Protection for both developed and undeveloped properties,
combined with a compensated setbacks for the currently threatened structures.
This policy is defined as encouraging a modified development pattern so that a smaller area
will need to be protected through the same beach nourishment along sandy beaches and same

ANTICIPATORY PLANNING FOR SEA-LEVEL RISE ALONG TIM COAST OF MAINE 4-7

bulkheads along developed wetland shores as in Option 1, but using an initial public buyout
of selected currently threatened properties to improve economic efficiency.
Option 3: Rolling Easements for developed properties, regulatory setbacks for all
undeveloped properties.
This option assumes regulations would prohibit all new development within all of the area
expected to be affected by a change in the shoreline position within the next 100 years, with
the area varying for each scenario. In addition, any existing development would be required
to retreat if waters rise to touch the structure for six consecutive months. It is assumed this
retreat requirement would be enforced through a type of "rolling easement" which would
require development removal and restoration of the site to its natural condition as the shoreline
position moves inland. No effort would be made to hold the current shoreline position, thus
all beaches and wetlands would be allowed to migrate inland.
Option 4: Rolling Easements for both developed and undeveloped properties.
This option, a variation on Option 3, eliminates the setback requirement for new
construction and utilizes a "rolling easement" to control the impacts of both new and existing
development. New development would be allowed in areas expected to be affected by a
change in the shoreline position within the next 100 years, both new and existing development
would be required to retreat if the building sustains damage to the extent of 50% or more of
the building's appraised value or if the shoreline recedes so that any part of the structure is
within the coastal wetland for six months or more. Under the "rolling easement," when the
structure on a site is partially inundated by a migrating shoreline, the structure must be
removed and the site must be restored to its natural condition.
4. Discussion of Methodology

a. Overview:

The general methodology applied through the quantitative portion of the economic analysis
is to determine if "the benefits to whomsoever they may accrue are in excess of the estimated
Costs. 114 Distributional aspects of how the share of costs or benefits would be allocated among
various parties were not addressed in the quantitative analysis. The methodology used in this
analysis attempts to compute the aggregate social cost for each of the four proposed policy
response strategies based on the available data, using simple linear assumptions for the timing
of events.

Comprehensive data on property values, both land and structures, in the affected area were
collected from the local town offices. These data were summarized and cumulated by sea
level rise zone (0.5, 1.0, and 2.0 meter) through the use of a GIS (Geographical Information
System). The quantity of wetland loss, infrastructure loss, and new bulkheads needed under
each sea-level rise scenario were also computed and categorized within each sea-level rise
zone, by the GIS.

The economic value of waterfront land at risk in the 0.5 meter sea-level rise zone is
computed using nearshore (not shoreline) land values. Nearshore land is characterized for the
purpose of this study as land in the 0.5-1.0 meter elevation band.'

4-8 COSTS AND BENEnTs OF SELECTM POLIcy RiESPONSE 0VnONS

All benefits and costs were converted to present value equivalents using the fiscal year
1992 interest rate for federal water resources projects of 8.5 percent.
Table 4.1 contains the aggregate quantities that were used to compute the costs and
benefits for each aspect of a particular policy. Table 4.2 contains the price and value
assumptions that were applied to the quantities in Table 4.1 to compute the cost and benefit
totals for each policy strategy, under each sea-level rise scenario.
A fundamental assumption for computing the costs and benefit implications under each sea-
level rise scenario was that sea level is assumed to rise at a constant rate through the 100 year
study period (1995-2094). In other words, it is assumed that in the 100th year the level of
the sea would just reach the total extent of rise expected under each scenario '(either 50 cm,
100 cm, or 200 cm); it is also assumed that the sea would get to that level by rising equal
increments in each individual year (a straight line estimation approach). The volume of
wetlands and the value of structures and infrastructures was assumed to be equally spread
throughout each of the three sea-level rise zones. Therefore the volume of wetland loss; the
value of property and infrastructure loss; and the need to construct new bulkheads were also
assumed to be spread in equal increments throughout the 100 year period.
Because of these simplifying linear estimates and assumptions regarding the timing of
natural events the quantitative portion of this study should be viewed as a "rough analysis".
No good data were available to vary the rate of sea-level rise over the next century, and a
dynamic model to quantify the effects of a centimeter by centimeter sea-level rise was not
constructed. Although it is unlikely that either the potential sea-level rise (or the damages
resulting from it) will be so linear, it is not unreasonable to make such simplifying
assumptions in order to quantify and compare basic strategies as long as such assumptions are
clearly stated and held constant under each policy option.
b. Detailed Methodology Used to Compute the Benefit and Cost of Each Policy
Response Option
Option 1: This option assumes a reactive protection strategy for both the developed and
the less than fully developed lots in the study area. Policy Option I's response strategy is
simply to use beach nourishment to maintain the existing beach frontage and recreational usage
and to protect the remaining development by the building of bulkheads to prevent an inward
migration of wetlands wherever they are necessary.
This strategy would provide complete and equal protection to any new structures on the
less than fully developed land at no additional cost. This is because at the Camp Ellis site the
only potential new development is redevelopment of existing structures and underdeveloped
lots, or the development of undeveloped lots that are interspersed within the developed area.
There is no undeveloped area at Camp Ellis that would require separate or additional
bulkheads or beach nourishment beyond that which the existing development would already
require if the sea-level were to rise.
This absence of any significant area of undeveloped land in Camp Ellis is one of the
limitations of using the Camp Ellis site as an example for other sites that may have substantial
tracts of undeveloped land. At sites with significant undeveloped tracts of land there could
be a significant variation in the potential future costs of a reactive protection policy based on

ANTICIPATORY PLANNING FOR SEA-LEVEL RISE ALONG TIM COAST OF MAINE 4-9

the regulatory rules for undeveloped land. For example, new development could be required
to cluster in areas most easily defended from rising sea level. In addition, if there were large
tracts of undeveloped land, it might be possible to develop different types of response policies
for discrete coastal areas. For example, an "expensive" protection strategy could be evaluated
for already developed portions of the shoreline, but a retreat policy could be applied to
undeveloped areas. Developing a different policy for large areas of undeveloped land could
significantly affect the future amount of beach nourishment or bulkhead construction that
would be required or permissible.
In contrast, since Camp Ellis does not have large tracts of undeveloped land, further
restrictions on the the development of underdeveloped land will have no impact there on the
aggregate future cost of either beach nourishment or the building of bulkheads. Under a
reactive protection policy for the developed area, the aggregate future cost for building
bulkheads and applying beach nourishment will be totally independent of what happens to the
underdeveloped or undeveloped lots. In fact, any redevelopment to increase the number of
units within current zoning regulations would actually lower the per unit cost to protect the
existing structures using a reactive protection strategy of beach nourishment and bulkhead
building.
To compute the costs of Option 1 the present value of the annual cost of adding sand,
maintaining existing bulkheads, and building new bulkheads were added to the present value
of the wetland volume that would be lost under each sea-level rise scenario over the next 100
years. The benefit of Option 1 was computed as the present value of both the estimated
recreation value' and property value that would be saved over the next 100 years by pursuing
this strategy.
It should be noted that under each sea-level rise scenario evaluated using the policy
strategy specified by Option 1, the costs exceeded the benefits. This unappealing economic
situation can be directly attributed to the simple fact that beach nourishment is very expensive,
and that even under a zero centimeter sea-level rise scenario a substantial amount of beach
nourishment will be needed over the next century to protect the existing structures by
maintaining the current shoreline. The ratio by which the costs exceeded the benefits ranged
from a low of 1. 1: 1 for the zero cm rise scenario to a high of 1. 6: 1 for the 200 cm rise
scenario.

Option 2: This option uses the same basic policy response strategy as Option 1, with the
only addition being a compensated setback program to be implemented for a number of
properties that are already being seriously threatened by sea-level rise. Since these properties
are built directly on top of the frontal dunes, in effect what this policy does is simply move
the position of the shoreline that will be defended slightly furthur back to a more easily
defended (and less costly) position, given the current sea level. Otherwise this policy option
utilizes the exact same techniques as Option 1 to protect the remaining development.
(Elsewhere in this study the compensated setback program may also be referred to as an
Itanticipatory protection" policy.)
The compensated setback program is estimated to cost 110% of the current appraised
property values of those already threatened properties to be acquired. The 10% premium is

4-10 COSTS AND BENEFITS OF SELECTED POLICY RESPONSE OPTIONS

included to give the owners an incentive to facilitate and ease the transition of ownership from
private to public hands.
The major benefit of the compensated setback policy is that by vacating the portion of
shoreline that is currently under the most stress from sea-level rise, coastal erosion and storm
surges, a volume of sand will be provided to buffer the next tier of structures that are further
setback from the encroaching shoreline. This means that the amount of sand needed for beach
nourishment to maintain the current shoreline position will drop to zero for a number of years,
depending on the rate of sea-level rise. If, contrary to observed historical trends, sea level
does not rise at all, it is estimated that the compensated setback program would provide
enough sand to eliminate the need for beach nourishment for the entire 100 year period.
Alternatively, if sea-level rises at a rate of 50, 100, or 200 cm over the 100 year period it is
estimated that the compensated setback policy would only eliminate the need for beach
nourishment to protect the remaining structures and maintain the current shoreline position for
20, 10, or 5 years, respectively.
Because the cost of sand for beach nourishment is very high, the compensated setback
program provides a savings that is large enough to substantially improve the benefit/cost ratio
for a reactive protection strategy under both the zero and fifty centimeter sea-level rise
scenarios. In fact under the zero centimeter sea-level rise scenario it changes the ratio from
being less than one, to being greater than one, which makes this scenario the only variation
on a reactive protection strategy evaluated by this study that yields a benefit/cost ratio greater
than 1.0. However, it is also important to note that a zero centimeter sea-level rise over the
next century is highly unlikely, because it would be inconsistent with projections of sea-level
rise based on historical rates of change in Maine, and would also be inconsistent with Maine
Geological Survey's coastal hazard mapping for Camp Ellis.'
This analysis suggests that if policy makers believe they must protect existing development
and if they are advised that a 0-50 cm sea-level rise is the most probable scenario over the
next century, the use of a compensated setback program in conjunction with a reactive
protection policy can improve the benefit/cost ratio.
However, under higher sea-level rise scenarios (100 or 200 cm) the compensated setback
policy actually reduces the benefit/cost ratio, and makes it more expensive to pursue than a
pure reactive protection policy on it's own, because of the combination of two factors. First,
the upfront cost of acquiring the most threatened properties has a high present value that is
added to the cost of the policy, while the amount of property being protected is diminished
because after the buyout there is less property to protect. Second, under a more rapid sea-
level rise scenario the savings in sand for beach nourishment provided by the compensated
setback program is quickly consumed and does not last long enough to offset the relatively
high present value of purchasing the properties upfront at the inflated value of 110 %.
Option 3: Policy Option 3 establishes a rolling easement strategy' for all current
development, and would implement a setback policy to exclude any further new development
or redevelopment from occuring in either the anticipated 50, 100, or 200 cm. sea-level rise
zones.
The economic cost of prohibiting development according to a setback policy within each
band of anticipated sea-level rise are estimated based on the number of new units that could

ANTICIPATORY PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE 4-11

be added by redevelopment within each band. A mid-range estimate of the redevelopment
potential that would occur by the year 2100 under existing zoning regulations is assumed. The
value of the lost development potential within a band is then calculated using the current
average per unit value within each band, multiplied by the potential number of new units
within each band. The mid-range estimates of the number of potential new units and the
average development value per unit in each band are listed in Tables 4.1 and 4.2.
The economic costs associated with the rolling easement aspect of this policy option are
calculated based on cumulative estimates for removal and relocation of all existing structures
and infrastructure components; plus the cost of site restoration within each band of the
anticipated range of sea-level rise scenarios. All values and quantities used to compute the
costs and benefits are listed in Tables 4.1, 4.2, and 4.3. As mentioned earlier all estimates
for the timing of natural events (such as the incremental rise in sea-level) as well as the
distribution of the economic value of structures and infrastructure within an anticipated zone
of sea-level rise are assumed to be strictly linear, to simplify the analysis.
The cost-benefit analysis for this policy option shows that benefits exceed costs under the
50, 100 and 200 cm sea-level rise scenarios. For the 50 cm. rise scenario the ratio the ratio
is 1.41, for the 100 cm. rise scenario the ratio if 1.14 and for the 200 cm rise scenario the
ratio is 1.23. The variation in the ratios is a function of the number of structures and
infrastructure components in each zone, plus the amount of redevelopment potential in each
zone. The reason the ratio falls for the 100 cm scenario, but then rises again for the 200 cm
scenario is because of the disproportionately low number of structures and minimal
infrastructure components in the 200 cm band.
Option 4. Under this option the economic costs are estimated for implementing a rolling
easement policy on both existing and yet to be developed structures, exactly as they are in
Option 3 for the existing structures. The same mid-range estimates used to estimate the
amount of prohibited development in each sea-level rise zone of Option 3, are used here to
estimate the costs of relocating the yet to be built structures that will eventually have to be
moved.

The cost-benefit analysis for this policy option shows that benefits exceed costs for each
sea-level rise scenario by a wider margin than in Option 3. Under the 50 cm rise scenario the
ratio is 1.72, for the 100 cm rise scenario the ratio is 1.34, and for the 200 cm rise scenario
the ratio is 1.55. As in Option 3, the fluctuation in the ratios is also attributable to the
disproportionatly low number of structures and infrastructure components in the 200 cm band.
Comparing Option 4 to Option 3 it can be inferred that using a rolling easement policy rather
than a setback policy for underdeveloped sites increases the cost-benefit ratio in all cases.
Therefore, at the Camp Ellis site, given the alternatives considered, it can be concluded that
applying a rolling easement policy to both developed and underdeveloped sites is the most
economically efficient policy choice.

4-12 COSTS AND BENEFITS OF SELECTED POLICY RESPONSE OPTIONS

Table 4.1

RAW DATA: Camp Ellis Case Shuly Sea Level Rise Scenarios:
(aggregate quantities used to compute costs & benefits 0 cm. 50 cm. 100 cm. 200 cm.
Strategies: UNITS:
OPTION #1:
Developed Area: Reactive Protection
Undeveloped Area: Reactive Protection
costs: Beach Nourishment cubic ydsJyr.) 100000 200,000 400,000 860,000
Maintenance of Existing Bulkhead feet) 5,280 5,280 5,280
Wetland loss acres) 21.32 51.65
feet) 0 41
Now Bulkheads Needed 68Y25 14,362.5 30,574.5

benefits: Recreation Value people/yr.) 98,869 98.869 98,869 98,869
Value of Structures (total Vs) $9,419,900 -$13.979 1100 $15,258,200
Aggregate Value of Land (total Vs) $28,175,800 _ $41,206 000 $46.032,900
Economic Value of Land @ Risk (total Vs) $14,933,174 $27.963,374 $32,790,274

OPTION #2:
Developed Area: Compensated Setbacks
+ Reactive Protection
Undeveloped Area: Reactive Protection
costs: Beach Nourishment cubic ydstyr) 0 200,000-20vrs. 400,000-10yrs. 800,000-5yrs.
Cost of Modif ied Development (total Vs) 300 $5591300 $5.591,300 $5,591,300
80
1@ 5,280 1 5,280
Maintenance of Existing Bulkhead ($(yr.) r!!@5 2 5,280
Wetland loss acres) 0.241 21.32 51.65
Now Bulkheads Needed feet) 682.5 1 14,362.5 30.574.5

benefits: Recreation Value people/yr.) 98,869 98,8691 98,8691 98,869
Value of Structures (total $!s) $a.146,314 1 $12,705,514 $13,984,614
Aggregate Value of Land (total Vs) $24,366,386 1 $37,396,586 1 $42,223,486
Eoonomic Value of Land @ Risk $12,914,185 1$25,944,385 1 $30,771,285

OPTION #3:
Developed Area: Rolling Easements
Undeveloped Area: Setbacks
costs: Amount of Land at Risk acres) 71 133 260
Aggregate Value of Land (total Vo $28,175,800 $41,206,000 $46,032,900
Economic Value of Land @) Risk (total Vs) $14,933,174 $27.963374 $32,790,274
roads at risk: feet) 12,778 22:440 24,922
sewer lines at risk: I Got) 9.617 17,767 18951
water lines at risk: feet) 121201 19,118 21,105
Prohibited Development units) 51 72 127
Removal of Existing Develop. structure 210i 3341 364
Site Restoration (#sites) 2101 3341 364

benefits: Cost of Reactive Protection: Opt. #1 (see above description of costs avoided under Option #1)

OPTION #4:
Developed Area: Rolling Easements
Undeveloped Area: Rolling Easements
costs: Amount of Land at Risk acres) 71 133 260
Aggregate Value of Land (total Vs) $28,175,800 $41206000 $46,032,900
Economic Value of Land @ Risk (total Vs) $14,933,174 _ $27:963:374 -$32,790,274
roads at risk: R feet) 12,778 22,440 24,922
sewer lines at risk: feet) 9,617 17,767 18,951
water lines at risk: feet) 112,201 19118 21,105
Removal of Now Development I structures) 51 72 127
Removal of Existing Develop. I structures) 2101 3341 364
She Restoration I sites) 1 2611 4061 491
1
benefits: Cost of Reactive Protection: Opt. #11 (see above descr ption of costs avoided under Option #11)

M, Montagna, Maine State Planning Office (August 1994)

ANTiciEPAToRy PLANNING FOR SEA-LE'vEL RISE ALONG THE COAST OF MAINE 4-13

Table 4.2

RA W DATA: Camp Ellis Case Study

(PRICE & VALUE AssumLfions Used to Compute Cost Benefit Analysis)

Replacement of roads or utilities ($/linear foot) $200.0

Wetland mitigation ($/acre) $30,000.0

Sand for beach nourishment (upland source) ($/cubic yard) $7.0

Concrete block seawall construction ($/linear foot) $755.0
Annual maintenance of seawall (estimated at 51/o per year) ($/linear foot) $37.8

Average building relocation cost ($/structure) $78,795.0

Average cost of land to relocate ($/site) $52,500

Average site restoration cost ($/site) $5,000

Beach recreational value
(Range from Colgan study on recreational values)
low: ($/person-day) $6.00
high: ($/person-day) $50.14

Development Value ($/undeveloped unit):
0.5 meter zone: ($/undeveloped unit) $44,857
1.0 meter zone: ($/undeveloped unit) $36,768
2.0 meter zone: ($/undeveloped unit) $42,637

FY92 interest rate for federal water resources projects
(as cited in the US Army Corps of Engineers, Camp Ellis
Beach Reconnaissance Report) 8.5%11
M. Montagna, Maine State Planning Ofice (August 1994)

4714 COSTS AND BENEFITS OF SELECTED POLICY RESPONSE OPTIONS

Table 4.3

COST-BENEFIT ANALYSIS: Camp Ellis Sea Level Rise Scenarios:
0 cm.] 50 cm. 100 cm. 200 cm.
Strategies: UNITS:
OPTION #1:
Developed Area: Reactive Protection
Undeveloped Area: Reactive Protection
costs: Beach Nourishment (total $'s) $8,232,935 $9,199,159 $11,131.606 $14,996,501
Maintenance of Existing Bulkhead (total $'s) $2347,374 $2,347,374 $2,347,374
Subtotal Costs: (total $s) $10,580,310 $11,546,533 $13,478,981 $17,343,876
Weiland loss (total $'s) $847 $75,226 $182,242
New Bulkheads Needed (total $'s) $67,036 $1 4_1 0,696 $3,003,052
TOTAL COSTS: (tot.1 0'.1 @$-10,5-80,310 $11,614,416 $14,964,903 $20,629,170

benefits: Recreation Value (total $'s) 11 $6,976,989 $6,976,989 $6,976,989 $6,976.9
Value of Property Protected (total $s) 11 $2,864,247 $2,864,247 $4,932,995 $5,651,142
TOTAL BENEFITS: (total $'s) 11 $9,841,236 $9,841,236 $11,909,985 $12,628,132

OPTION #2:
Developed Area: Compensated Setbacks
+ Reactive Protection
Undeveloped Area: Reactive Protection
costs: Beach Nourishment (total Vs) 1 $0 $1,845,764 $5,076,322 $10,253,968
Buyout Plan (total $'s) $5,591,300 $5,591,300 $5,591,300 $5,591,300
Maintenance of Existing Bulkhead (total $'s) $2,347,374 $2,347,374 $2,347,374 $2,347,374
Subtotal Costs: (total $s) $7,938,674 $9,784,439 $13,014,996 $18,192,643
Wetland loss (total $'s) $847 $75,226 $182,242
New Bulkheads Needed (total $'s) $67,036 $1,410,696 $3,003.052
TOTAL COSTS: (total $'s) $7,938,674 $9,852,321 $14,500,918 $21,377,937

benefits: Recreation Value (total $'s) $6,976,989 $6,976,989 $6,976,989 $6.976.989
Value of Property Protected (total $'s) $2,266,418 $2,266,418 $4,335,167 $5,053,314
TOTAL BENEFITS: (total $'s) $9,243,407 $9,243,407 $11,312,156 $12@030.303

OPTION #3:
Developed Area: Rolling Easements
Undeveloped Area: Setbacks
costs: Value of Land at Risk (total $'s) $1,756,341 $3,288,866 $3,856,57
Value of Infrastructure at Risk:
roads: (total $'s) $S86,232
sewers: (total $'s) $226,218 $417,927 $445,778
water: (total $'s) $287,000 $449,706 $496,375
Prohibited Development (total $'s) $2,287,690 $3,059,813 $5,404,829
Removal of Existing Development (total $'s) $1,946,142 $3,095,293 $3,373,313
Purchase of Land to Relocate al $s $1,296,687 , $2062350 $2,247,591
0! . _:s@
Site Restoration (tota $s) $123,494 1 $196,414 $214,056
TOTAL COSTS: (total $'s) $8,224,145 $13,098,219 $16,624,750

benefits: TOTAL BENEFITS = Cost of Opt #1: (total $'s) $11,614,416 $14,964,903 $20,529,170

OPTION #4:
Developed Area: Rolling Easements
Undeveloped Area: Rolling Easements
costs: Value of Land at Risk (total $'s) $1,756,341 $3,288,866 $3,856,5
Value of Infrastructure at Risk:
roads: (total $'s) $300,573 $527.849 $586,232
sewers: (total $'s) $226,218 $417,927 $445,778
water: (total $'s) $287,000 $449,706 $496,375
Removal of New Development (total $'s) $472,635 $667,249 $1,176,953
Removal of Existing Development (total $'s) $1,946,142 $3,095,293 $3,373,313
Purchase of Land to Relocate (total $'s) 1,611,597 $2,506,929 $3,031,778
Site Restoration (total Vs)-11 $153,48 1 $238,755 1 $288,741
TOTAL COSTS: $6,753,991 $11,192,575 1 $13,255,745

benefits: TOTAL BENEFITS = Cost of Opt #1: (total $'s) $11,614,416 $14,964,903 1 $20,529,11

M. Montagna, Maine State Planning Office (August 1994)

COST-BENEFIT ANALYSIS: Camp Ellis
Summary Table: Benefit to Cost Ratios ISea Level Ri e Scenarios:
CM. 50 cm. 100 cm. 200 cm.
@t-r-ategles:
'OPTION #11:
Developed Area: Reactive Protection
Undeveloped Area: Reactive Protection costs: $10,580,310 $11,614,416 $14,964,903 $20,529,170

021
benefits: $9,841,236 $9,841.236 $1 1,90g,985 $12,628,132 0

ratio B/C: 0.93 0.85 0.80 0.62

OPTION #2:
Developed Area: Compensated Setbacks
+ Reactive Protection costs: $7,938,674 sg,852,321 $14,500,918 $21,377,937
Undeveloped Area: Reactive Protection bensfils-. $9,243,407 $9,243,407 $111,312,156 $12,030,303

ratio B/C: 1.16 0.94 0.78 0.56
41@
OPTION #3:
Developed Area: Rolling Easements 0
Undeveloped Area: Setbacks costs: $8,224,145 $13,098,219 $16,624,750

benefits: $11,614,416 $14,964,903 $20,529,170

ratio B/C: 1.41 1.14 1.23

OPTION #4:
Developed Area: Rolling Easements
Undeveloped Area: Rolling Easements costs: $6,753,991 $11,192,575 $13,255,745

benefits: $11,614,416 $14,964,903 $20,529,170

ratio B/C: 1.72 1.34

M. Montagna, Maine State Planning Office (August 1994)

4-16 COSTS AND BENEFITS OF SELECTED POLICY RESPONSE OPTIONS

5. Economic Strengths and Weaknesses of Policy Response Options
By far the single most significant cost or benefit under any of the four response options
is the cost of beach nourishment. This particular beach is currently experiencing significant
erosion. At current erosion rates the beach would require 100,000 cubic yards of sand
annually to maintain the shoreline at its current position, which computes to $700,000
annually. Under the stresses of a sea level 200 cm higher than the current level it is estimated
that it would take 8 times the current amount, or 800,000 cubic yards of sand annually, to
maintain the shoreline at its current position. (The intervening sea-level rise scenarios of 50
cm and 100 cm would require an estimated annual 200,000 and 400,000 cubic yards of sand,
respectively, to maintain the shoreline at its current position.) These assumptions for beach
nourishment at these annual rates are worst-case assumptions. It is likely that some quantity
of sand would not leave the system and would remain available to nourish the beach. But
determining how much sand would remain in the system is beyond the scope of this study.
The reason that the cost of beach nourishment far outweighs the other items in the cost-
benefit analysis is because the expense is relatively high and is increasing over time for all but
the 0 cm rise scenario. Only under the 0 cm rise scenario does the cost come close to the
combined benefits of protecting the recreational values of the beach and the property.
The distinguishing aspect between Option 1 (pure reactive protection) and Option 2
(reactive protection plus compensated setbacks) is the proposed public buyout of those
structures which are currently threatened. Option 2 with compensated setbacks would be
slightly more economically efficient under a 50 or 100 cm sea-level rise scenario than Option
1, while the pure reactive protection (Option 1) would be slightly more efficient if a 200 cm
rise were to occur over the next century. The basic reason is that the $5.6 million cost to
enact the compensated setback plan is all upfront, while the increasing costs of beach
nourishment are spread out over time and therefore reduced in present value terms. Not until
the sea rises at a rate of 2 centimeters per year (under the 200 cm scenario) is the saving of
beach nourishment costs in the early years, from implementing the buyout, exceeded by the
additional cost of beach nourishment that will be needed in the later years.
The distinguishing aspect between Option 3 and Option 4 is the setback policy of
prohibiting all new development in the zone of anticipated sea-level rise. This analysis shows
that on a cost-benefit basis the present value of prohibiting all new development outweighs the
cost of allowing the new development to occur and then having to remove the new
development should the sea-level rise, identical to the removal requirements for existing
development. The opportunity cost of this policy (Option 3) would be particularly high if
development is prohibited in either the 50 cm, 100 cm, or 200 cm elevation zones, and sea-
level rise does not occur or occurs to a lesser degree. The analysis shows that even if sea-
level eventually rises to the anticipated level and requires removal of all new development,
the present value of the lost development rights today is higher than the present value of the
future removal and future site restoration costs since those would be spread over the next 100
years.

ANTICIPATORY PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE 4-17

C. CONCLUSION

Because the volume of sand needed for beach nourishment at Camp Ellis is a significant
factor in determining both the costs of Options 1 and 2 and conversely the benefits of Options
3 and 4, any variation in this price would significantly affect the Benefit/Cost Ratios in Table
4.4. Any increase in the cost of sand would increase the overall favorability of Options 3 and
4, while a decrease in the cost of sand would make either pursuing Option I or 2 more
economically favorable than they currently appear.
. The other significant basic assumption worth questioning is the annual interest rate of 8.5 %
used to compute the, present value of pursuing each strategy over the 100 year time period.
Because the amount of beach nourishment that is required to maintain the shoreline at its
current position is increasing over time (for all but the 0 cm scenario) and the incremental
amount of property that is threatened with each 1 cm rise in sea level is constant, any change
in the interest rate will not be neutral to its effect on the relative difference between costs and
benefits. If a lower interest rate was assumed it would make the benefit/cost ratio of either
of the rolling easement strategies (Options 3 and 4) look even more favorable. Meanwhile if
a higher interest rate were assumed in the analysis it would increase the benefit/cost ratio for
the two reactive protection strategies (Options 1 and 2) and call into question whether that
basic strategy is more economically efficient in the long-run.
Option 4 (rolling easements for both developed and undeveloped properties) comes out the
most favorable in terms of a benefit to cost ratio under each of the three sea-level rise
scenarios. (See Table 4.4) Therefore if sea level is expected to rise, the conclusion of this
quantitative analysis (in terms of economic efficiency) would be to support Option 4 over the
three alternative strategies based on the assumptions stated in this overview.
The underlying reason for this is that in present value terms it is far less costly to remove
whatever structures and infrastructure would be affected as a result of sea-level rise over the
next 100 years, than it would be to incur the continual annual expense of beach nourishment.
This conclusion holds true even under both high and low sea-level rise scenarios. Similarly,
the opportunity cost associated with keeping land undeveloped or less than fully developed
(Option 3) even when it is not yet threatened, exceeds the cost of having to remove new
development when the time comes. This is because the value of an upfront loss of
development rights exceeds the present value of future removal costs that would be spread out
over the next century.
While the general conclusion favors Option 4, it should be noted that there are risks
associated with Option 4 which are not reflected in this analysis. It assumes the only costs
associated with removal are the costs of purchasing relocation land, physically moving the
structure, and restoring the site. However, if development is allowed, it is realistic to assume
that no matter how much prior notice is given of the impending retreat requirement, people
will not willingly abandon that new development without trying to change the retreat policy.
The amount of effort expended to try to reverse the policy is likely to be in some proportion
to the value of the development facing removal. If there is a failure of political will to enforce
the rolling easement policy, the community may incur costs similar to, or even exceeding,
those for reactive protection. This is because the protection costs could be higher than those
reflected in this analysis if the community delays in committing to a protection strategy until

4-18 CosTs AND BENEFiTs OF SELECTED POLICY REsPONSE 01TIONS

after the failure of the retreat strategy. If a genuine commitment to follow through with
Option 4's retreat requirements is lacking, Option 3 could be more favorable. Alternatively,
other variations on these retreat strategies are possible. For example, a strategy could limit
new development in the threatened area to only small, movable structures. This might
minimize the risk of backsliding when it comes time to enforce the removal requirements,
while at the same time reducing the opportunity costs that would have been incurred with a
total prohibition on all development in threatened areas.

A ENDNOTES

1. Titus, James G., Strategiesfor Adapting to the Greenhouse Effect, APA JOURNAL, Summer 1990,
at 311 (emphasis added).

2. Id. at 315-321.

3. Adapted from id. at 313.

4. United States Code (Flood Control Act of June 22, 1936), 1940 ed. (Washington, D.C.:U.S.
Government Printing Office) at 2964.

5. Reconnaissance Report (Camp Ellis Beach, Saco, Maine), U.S. Army Corps of Engineers, May
1992.

6. Colgan, Charles S. and Frances Lake, 1992. "The Economic Value of Casco Bay" prepared for
the Maine Coastal Program by the Edmund S. Muskie Institute of Public Affairs, University of
Southern Maine. Maine State Planning Office, Augusta, Maine.

7. Stephen M. Dickson, Shoreline Erosion Management Project-Phase I, Protect Completion Report,
Maine Geological Survey, July 1993, at 8.

8. Titus, James G. 1991. Greenhouse Effect and Coastal Wetland Policy: How Americans Could
Abandon an Area the Size of Massachusetts at Minimum Cost. " 15 ENVIRONMENTAL MANAGEMENT
1, at 39-58.

unapter Five

RESPONSIVENESS OF ExiSTING STATE
AND FEDERAL LAWS TO
SEA-LEVEL RISE

A. INTRODUCTION

The vulnerability assessment (Chapters Two and Three) concluded that the areas most
threatened by the prospect of accelerated sea-level rise are sand beaches and salt marshes.
Eroding coastal bluffs are also faced with significant impacts from a continuation of current
erosion.

In some of the mapped sites, substantial development is already located in threatened
areas. For example, in central Old Orchard Beach, a rise of 50 cm. by 2100 would inundate
all of the commercial development on both sides of Route 9, back to the railroad tracks. In
Camp Ellis, a similar rise in sea level would inundate 71 acres of land already developed with
210 structures.

In these intensely developed areas there is no question that private investment is on a
collision course with coastal erosion and inundation. Public investments (e.g., roads, sewer
systems and public open space), coastal beach-based recreation and tourism (e.g., sand
beaches and public shoreline access areas), and marine resource industries (e.g., critical
wetland habitat for commercially valuable species, commercial water dependent uses and
commercial access to public waters) may also be heavily impacted by sea-level rise.
Governmental policies, laws and regulations will be instrumental in determining to what
extent new public investment and new private development will take place in areas projected
to be subject to coastal erosion and inundation as a result of sea-level rise. They will also
establish the rules for treatment of existing development as the development is threatened by
a change in shoreline position and as that same development threatens to interfere with natural
coastal processes. This chapter analyzes existing state and federal laws to evaluate the extent
to which they are already prepared to minimize adverse impacts of accelerated sea-level rise,
and the extent to which they can be modified to respond to an anticipated change in shoreline
position.
In evaluating existing laws and policies, this chapter posits that a retreat strategy is
generally preferable to a protection strategy. Where the coastal processes and land
development are on a collision course, the preferable option will be for the land development

5-1

5-2 ftspoNsivENEss OF EXISTING STATE AND FEDERAL LAWS TO SEA-LEvEL RISE

to move back from the shoreline. Only in very limited circumstances (e.g., the commercial
port area of the Portland/South Portland harbor) might it make economic sense to deviate from
this policy; in limited areas the already disturbed character of the shoreline and the nature and
intensity of the threatened development might justify protective engineered solutions, such as
seawalls, to keep the shoreline from migrating.
The very simplified cost/benefit analysis of alternative policy response options for one
developed, extremely vulnerable site (Camp Ellis, Chapter Four) supports preference for a
retreat strategy. It found that the relative costs and benefits of protection and retreat favor the
latter in that setting.
Similarly, a survey of innovative policy responses to sea-level rise and coastal erosion in
selected coastal states (See Appendix B) verified that these states are beginning to embrace a
retreat strategy as well, at least as a strategic response to a continuation of historical patterns
of shoreline change. While these state approaches vary significantly in detail and in the extent
to which they have been able to translate broad policy goals into implementing laws, there are
notable shared themes that Maine's policies should also embrace as guiding principles:

1 .Respect the dynamic nature of coastal systems;
2. Strive to preserve/enhance the resiliency of natural systems;
3. Acknowledge as underlying premises that the public should not be subsidizing
private development in hazard areas and that private development in hazard
areas can constitute a public nuisance;
4. To maximize political acceptance, build on and strengthen existing coastal
policies rather than developing a separate set of sea-level rise policies;
5. Utilize state or regional oversight of local decisions regulating coastal
development to facilitate integrated management of coastal systems and to better
reflect the state-wide interests in this public resource;
6. Develop an integrated approach to control impacts on beaches, eroding bluffs
and migrating wetlands recognizing that they are parts of an interconnected
natural system;
7. Acknowledge that no one technique will be sufficient for the entire shoreline;
incorporate sufficient flexibility to respond to differences in coastal topography,
varying intensity of development, and land use (e.g., water dependent uses);
8. Utilize coastal setback requirements to minimize new development in hazardous
coastal areas;
9. Supplement coastal setbacks with a variety of additional regulatory, tax, acqui-
sition and planning strategies.
These premises inform the following analysis of Maine's laws and regulations.

ANTiCIEPATORY PLANNING FOR RELATivE SEA-LEvEL RISE ALONG TIM COAST OF MAINE 5-3

B. MAINE'S LAws AND REGULATIONs RELEVANT TO SEA-LEVEL RiSE

The laws and regulations currently in place in Maine constitute the State's de facto
response to the threat of sea-level rise. A few of the laws specifically anticipate the possibility
of sea-level rise; other laws address a range of possible coastal hazards which could include
sea-level rise. The laws and regulations with primary impact are summarized in Appendix A,
with specific focus on their relevance to possible sea-level rise. It may be consulted for more
detailed discussion of each law. The analysis in this chapter draws upon that review to
identify strengths and weaknesses in existing laws.
This chapter first reviews the general laws and policies which provide the mandate or
enabling legislation to plan for sea-level rise. Then, because the regulatory needs are different
for each type of coastline (sand beach, marsh/flat, bluff, and engineered shoreline) this chapter
analyzes the specific portions of existing laws and regulations most likely to influence devel-
opment along each type of shoreline.

1. Background Law: Coastal Management Policies Act
The 1986 Coastal Management Policies Act' is a statement of policies to guide the State
in balancing competing coastal uses. The Act establishes nine policies and directs that state,
local, and certain federal agencies with responsibility for regulating, planning, developing, or
managing coastal resources conduct their activities in a way which is consistent with the nine
policies.
The policy relating most directly to sea-level rise is Policy Four which states:
Hazard area development. Discourage growth and new development in coastal areas
where, because of coastal storms, flooding, landslides or sea-level rise, it is hazardous
to human health and safety[J (emphasis added)
The accompanying illustrative Guidelines' express the rationale for the policy, noting that
coastal floodplains, sand dunes, and wetlands in their natural state provide storm protection
and support a variety of important plants and wildlife. Citing the extensive damage to natural
and man-made features visited by coastal storms and the direct and indirect costs to
governments of repairing this damage, the Guidelines establish the objective of discouraging
development and redevelopment in areas that present threats to public safety or that threaten
property damage which will be costly to public entities.
The Guidelines recommend that affected agencies govern themselves in accordance with
the following policies:
� Government agency decisions will not support new infrastructure or related
facilities in hazardous areas;
� Public funds available for improvements, renovations, or repair to existing
infrastructure or other public facilities in hazard areas will give priority to their
relocation out of hazardous areas.

� Government agencies will require new and modified structures/facilities to be
adequately setback to protect them from erosion for 100 years.

54 REsPONSIVENESS OF ExiSTING STATE AND FEDERAL LAWS TO SEA-LEVEL RisE

Government agencies will include scientific projections of sea-level rise in
regulatory and management decisions affecting the shoreline.'
The Coastal Management Policy Act does not contain any provisions providing sanctions
for violating the Act. By Executive Order, state agencies were directed to examine all their
programs affecting the coast and to incorporate changes to make them consistent with the
Policies before December 31, 1987. This Order was tackled with varying levels of agency
enthusiasm and resources, resulting in uneven and unsystematic responses. It is fair to say
that the December 31, 1987 goal was not met, but work is continuing on an incremental basis
in some agencies to bring the State closer to the goals expressed in the Coastal Policies.'
As mentioned, the Act also encouraged federal and local agencies to review their programs
for compliance with these Coastal Management Policies, but without establishing any dead-
lines. For municipalities, the primary land use regulatory entity in Maine, these policies were
eventually given greater relevance through provisions in the Growth Management Act' and the
Shoreland Zoning Act,' both of which require the resulting comprehensive plans,
comprehensive land use ordinances, and shoreland zoning ordinances adopted by coastal
municipalities to "address" the Coastal Management Policies. Coastal Policy Four may be
furthered through voluntary comprehensive planning efforts, through state review of local
plans for compliance with the Coastal Policies as a condition of awarding implementation
grants, through continuing state technical assistance, through state consistency certification for
preference for certain funds, and through the long-range restriction that a municipality will not
be able to enforce any local land use ordinances (beyond the minimum shoreland zoning
requirements) if it has not adopted a comprehensive plan which is consistent with the Act
(including furthering its goals and the Coastal Management Policies) by 1998 or 2003.
The possibilities for encouraging municipal compliance under the Shoreland Zoning Act,
as currently enforced, are more limited. While the Act recites that each coastal municipality
is required to address all of the coastal management policies in its shoreland zoning ordinance,
assessing compliance with these policies has not been a high-priority on the part of municipali-
ties or the Department of Environmental Protection. If a municipality meets the minimum
Guidelines for Shoreland Zoning Ordinances, it is not independently evaluated to ascertain
whether it has addressed the coastal management policies.
In summary, Coastal Management Policy Four and the associated Guidance provisions
appear to be sound policy statements as far as they go, but they provide just the merest
shadow of an outline for a comprehensive, enforceable strategy. The policy statements and
guidelines are very general. They do not shed any light on the weight to be accorded hazards
posed by storm-driven erosion, local subsidence, and the threat of sea-level rise as a result of
global climate change. Finally, the Act relies on essentially voluntary implementation by
affected local, state, and federal agencies. Policy Four of the Coastal Management Policies
Act is probably most important as an expression of public purpose which can be invoked by
various governmental entities as they adopt statutes, rules, and ordinances which flesh out a
detailed response strategy.
The following sections explore in more detail how existing laws currently address the
Policy Four goal of discouraging growth and new development in coastal areas where, because

ANTICIPATORY PLANNING FOR RELATIVE SEA-LEVEL RISE ALONG THE COAST OF MAINE 5-5

of sea-level rise, that type of growth and new development would be hazardous to human
health and safety.

2. Sand Beaches

a. Character of Development
Sand beaches in Maine are primarily located in the southern part of the state in the Saco
Bay and Wells embayments. The northern beaches are more typically composed of cobble.
Statewide, beaches (both sand and cobble) constitute only about 10% of the 3,300 mile tidal
shoreline.

Many of the southern beach areas first developed as summer resorts. During this century,
development spread to cover almost every available space on large beaches and much of the
area adjacent to smaller, frequently less stable strandlines as well.' These communities of
seasonal single family residences are increasingly seeing summer homes converted for
year-round residences.
While most of the land adjacent to these southern beaches is already developed to some
extent, absent governmental restrictions on the location and intensity of new development,
pressure is building for a new generation of higher intensity development on land currently
occupied by lower-intensity uses. For example, summer camps have been bought and razed
to make way for larger year-round homes. And developers contemplating high-rise residences
eye sites currently occupied by small businesses and old motels. Whether this type of
development will actually come to pass depends primarily upon economic conditions and upon
the limits imposed by state and local land use regulations, including whether the review
authorities will have the political will to enforce those restrictions.
As discussed in more detail in Chapter Two, the mapping of selected areas for this project
using 50, 100 and 200 cm scenarios projected that the shoreline along sand beaches would
move in the magnitude of 50-150 meters (150-500 feet) landward over the next 100 years
assuming a 50 cm (1.6 foot) rise in sea level; 100-300 meters (300-1,000 feet) landward over
the next 100 years assuming a 100 cm (3.3 foot) rise in sea level; and 200-600 meters
(650-2,000 feet) landward over the next 100 years assuming a 200 cm (6.5 foot) rise in sea
level. The 50 cm scenario by the year 2100 is the most likely of the three scenarios, but
hazard mitigation planning theory suggests that it makes sense to evaluate the higher scenarios
as well.

b. Natural Resources Protection Act and Sand Dune Rules
The primary law controlling development in sand beach areas is the Natural Resources
Protection Act (NRPA)' as further fleshed out in the Coastal Sand Dune Rules.' The NRPA
requires that all proposed construction affecting critical natural resources meet various
standards prior to receiving a permit. The Rules further articulate the standards and other
requirements a proposal must meet to be deemed in compliance with NRPA. Together the
statute and rules establish policies which prohibit new construction in certain portions of the
sand dune system, restrict the intensity of development where it is not prohibited, and require
mobility or retreat for new and existing structures in the face of migrating coastal systems.

5-6 REspowvENEss OF ExISTING STATE AND FEDERAL LAWS TO SEA-LEVEL MSE

The Sand Dune Rules articulate the basis for these policies, noting that there is evidence
that sea level is currently rising, that "theories have been developed which predict this rise to
accelerate in the future,"" and that any rise will increase the "rate of shoreline erosion and
flooding, and the risk of damage to coastal property."" The rules further state:
The extent to which sea level will change in the future is uncertain. However, under
any scenario of increasing sea level, the extensive development of sand dune areas and
the construction of structures which are not practical to move increase the risk of
harm, both to the sand dune system and to the structures themselves.
Therefore, in order to protect the natural supply and movement of sand, and to prevent
creation of flood hazards, the Board will evaluate proposed developments with consideration
given to future sea-level rise and will impose restrictions on the density and location of
development, and on the size of structures. 12
A permit is generally required for any construction, repair, or alteration of any permanent
structure in a coastal sand dune system (defined to include beach berms, frontal dunes, dune
ridges, back dunes," and other sand areas deposited by wave or wind action)." An applicant
is required to demonstrate that the proposed action meets statutory standards for review, which
for activities on or adjacent to a sand dune require that the activity "not unreasonably interfere
with the natural supply or movement of sand within or to the sand dune system or
unreasonably increase the erosion hazard to the sand dune system.""

Additional minimum standards are articulated in the Rules which must be satisfied before
a permit will issue, including:
Projects shall not be permitted if, within 100 years, the project may reasonably be
expected to be damaged as a result of changes in the shoreline."
The Rules are extensive and complex, but generally establish two sets of restrictions-one
applicable to existing structures and the other applicable to new structures. Buildings which
have been damaged to greater than 50% of their appraised value due to an ocean storm cannot
be reconstructed or replaced and additions to existing structures are not allowed unless they
can meet the requirements for new structures.
c. Existing Structures
No State permit is required for the maintenance and minor repair of existing structures
above the high water line causing no additional intrusion into a sand dune. But a State permit
is required for:
� The restoration or replacement of a building which is damaged to greater than 50% of
the building's appraised market value by an ocean storm;
� The repair of a seawall if the repair cannot be done with hand tools, or if there will
be any increase in dimensions, or if the building behind the seawall has been severely
damaged by an ocean storm and the damage exceeds 50% of the building's appraised
value;

ANnCIPATORY PLANNING FOR RELATivE SEA-LEvEL RisE ALONG THE COAST OF MAM 5-7

0 Any repair, rehabilitation, or other improvement of a building, the cost of
which exceeds 50% of the appraised market value of the building before the
start of construction;
* Any work done to enlarge an existing building; and
e Reconstruction or replacement of an existing building.
The owner of a structure damaged by a coastal storm or coastal erosion will. be unable to
rebuild either the structure or any seawall in front of it without a permit if the structure is
damaged by more than 50% of its value. In applying these regulations, no distinction is made
based on the source of the damage, such as whether it was caused by a 100-year storm, a
5-year storm, or gradual erosion. To rebuild, the owner must apply for a permit within one
year of the damage, and must meet all of the standards for new buildings (except maximum
size and view protection provisions). It is unlikely that such a permit to rebuild would be
granted since the extent of the recent damage would make it difficult for the applicant to
satisfy the minimum standards, including the standard requiring no unreasonable interference
with the natural supply or movement of sand within or to the sand dune system. It might also
be considered a flood hazard to itself.

However, until damaged to 50% of its value, existing structures can be maintained,
repaired (if the repairs are not so extensive that they actually enlarge, reconstruct or replace
the structure), and improved. As written, the allowed "improvement" is rather broad. It can
cost up to half of the appraised value of the existing building prior to the start of construction
and (except in V-zones) may involve the construction of a second story or dormers.
In summary, these provisions allow existing buildings to not only remain in beach areas
which are threatened by sea-level rise, but also in some cases, to be enlarged within the
existing footprint (second story, dormers). Substantial improvements can be made until a
building is damaged by more than 50% of its value. However, at that point, a permit is
required for repairs or rebuilding and a structure cannot be rebuilt unless it can meet the
standards for new construction (see below). It is unlikely that an applicant would be able to
secure such a permit; the owner of the damaged property would be required to abandon it and
retreat to less vulnerable land.

To date, the provisions prohibiting rebuilding if a structure has been damaged by more
than 50% of its value have been applied in numerous instances, with only one litigated
challenge to the no rebuilding provision. That case involved an after-the-fact permit
application (permit applied for after the seasonal cottage was already substantially built) for
a post-erosion damage replacement structure at Popham Beach. The Maine Supreme Court
upheld the BEP's denial of a sand dune permit, finding that it was supported by substantial
evidence. One of the BEP's grounds for denial was that the applicants had failed to meet their
burden to show that the project would not reasonably be expected to be damaged within 100
years as a result of changes in the shoreline." The applicants subsequently claimed that denial
of a sand dune permit constituted a regulatory taking of property without compensation in
violation of the Maine Constitution. The Maine Supreme Court held that no taking had
occurred because "beneficial and valuable uses of their property remain. " "

5-8 RESPONSIVENESS OF ExiSTING STATE AND FEDERAL LAWS TO SEA-LEVEL RISE

d. New Construction

The standards for new construction in or on a coastal sand dune system are similarly
rigorous. They limit areas and types of structures. New structures are prohibited in V-zones
(velocity zones or that portion of the land that would be inundated by wave surges
superimposed on a flood) and on or seaward of frontal dunes.
The Maine Supreme Court has been asked to rule on this provision twice. In one case,
it upheld the BEP denial of an after-the-fact permit and denial of a variance to build a house
addition on Hunnewell Beach in Phippsburg because it was on a frontal dune." A second case
involved denial of a permit to build a new residence on a narrow sand dune between a salt
marsh and the ocean on the only remaining vacant lot in Horseshoe Cove, Biddeford."
Again, accepting Maine Geological Survey's determination that the house would be located
on a frontal sand dune, the Supreme Court found that the evidence in the record amply
supported the Board's denial of the initial application and of the variance request. The Court
did not, however, reach the applicants' claim that denial of a permit would constitute a
21
regulatory taking under the Maine and United States Constitutions.
New,seawalls are prohibited outright, regardless of whether they would be in front of new
or existing structures. Property owners have sought relief from this provision through special
legislative amendment twice. In one instance in 1987, a few Pine Point property owners
succeeded in obtaining an amendment to allow permits to issue for bulkheads along the
Scarborough River from the jetty to the town landing. The resulting permits are, however,
subject to the requirements that the applicants maintain the bulkheads and also repair any
damage to the frontal sand dune between the end of the bulkhead and the town landing.2' But
in 1994, a similar request for legislative amendment by Biddeford property owners was
defeated in committee; committee members expressed their determination to maintain the
integrity of the Sand Dune Rules by refusing to grant piecemeal exceptions.
In areas where development is not prohibited outright, its intensity is restricted.
Developed areas (including driveways, parking, lawns, septic systems, buildings, etc.) are
limited to 40% of the site, and no more than 20% of the lot may be covered by buildings.
For larger buildings, the rules establish a more stringent criterion by specifically requiring
the permit reviewer to assume that sea level will rise 3 feet over the next 100 years. Specif-
ically, no new building may be more than 35 feet in height or have a footprint of more than
2,500 square feet unless the applicant "demonstrates by clear and convincing evidence that the
site will remain stable after allowing for a three foot rise in sea level over 100 years"
(emphasis added). This is the only provision in the Rules which makes any express
assumption of a particular rate of sea-level rise over a specific period of years. The applicant
may not rely on the existence of a seawall as evidence of site stability. The applicant may not
propose to build a seawall or engage in beach nourishment as a means of stabilizing the site.

In addition to these restrictions on intensity of development, as with existing structures,
the regulations establish a policy of retreat if sea level rises. All new, reconstructed, or
replacement structures approved after the effective date of the rules" are subject to the
following conditions:
1) No seawall shall be constructed or expanded on the property.

ANTICIPATORY PLANNING FOR RELATivE SEA-LEvEL RISE ALONG THE COAST OF MAINE 5-9

2) If the shoreline recedes such that the coastal wetland ... [including tidal and
subtidal lands] extends to any part of the structure, including support posts, for
a period of six months or more, then the approved structure, along with
appurtenant facilities, shall be removed and the site shall be restored to natural
conditions within one year.
3) Any debris or other remains from damaged structures on the property shall be removed
from the sand dune system.
4) No structure shall be relocated within the sand dune system without approval
of the Maine Department of Environmental Protection.
These rules are justified within the text of the Rules by findings by the Department of
Environmental Protection that sea level is rising, seawalls interfere with the supply and
movement of sand and accelerate erosion, and structures in a coastal wetland interfere with
the natural supply and movement of sand and create an unreasonable flood hazard.
These Rules effectively prohibit the strategy of building "floodproofed" structures on
pilings with the intent to maintain the structure after the beach has eroded out from under it.
These retreat conditions maintain flexibility on when they will kick in; if sea level rises more
quickly than anticipated they will require retreat sooner than 100 years, but if the rate of rise
is less than projected, they will allow the structure to remain longer.
This policy of retreat is enforceable against these new, reconstructed and replaced
structures through express conditions of approval. In addition, the Rules state that the
Department will record sand dune orders containing any of these conditions with the Registry
of Deeds. If this is done, it puts all subsequent owners on notice of these conditions prior to
any purchase of the property.
In summary, pursuant to these rules (which only control development along less than 10%
of the State's shoreline) new construction in or adjacent to sand dune systems is tightly
regulated, and those new, reconstructed, or replacement structures which are allowed are
subject to retreat requirements if the shoreline recedes so that any part of the structure is
affected by tidal waters for 6 months or more. Similarly, once constructed, if they are
damaged by a coastal storm by more than 50%, they would probably be unable to rebuild.
The provision dealing with construction of larger structures requires reviewers to evaluate
site stability assuming that sea level will rise 3 feet over the next 100 years. For smaller
structures, assessment of site stability must be made on a case-by-case basis guided by the
policy that projects will not be permitted if, within 100 years, the project may reasonably be
expected to be damaged as a result of changes in the shoreline." No rate of change is
specified; typically the DEP and BEP have considered a continuation of the historical rate of
change rather than an accelerated rate of change as a result of global climate change. The
Rules use an accelerated rate (3 feet over 100 years) for reviewing larger structures but an
historical rate for reviewing smaller structures based on the assumption that the smaller
structures are movable, and would be moved if threatened by coastal erosion.

5-10 RESPONSIVENESS OF EXISTING STATE AND ]FEDERAL LAWS TO SEA-LEvEL RISE

e. Other Laws Affecting Sand Beaches
Development on or along sand beaches is also controlled by several other land
development regulations which are general in focus, including the Mandatory Shoreland
Zoning Act and corresponding local shoreland zoning ordinances," the Site Location of
Development Act if the proposed development exceeds certain size/intensity thresholds," the
Subdivision Law," and the State Floodplain Management Program." They are much less
detailed than the NRPA Sand Dune Rules, but do add a few specific setback requirements and
review standards which might supplement the Rules in particular instances.
In addition, the State's Coastal Barrier Resources System Act" prohibits the expenditure
of state funds or the granting of state financial assistance for development activities within the
designated coastal barrier resource system.10 Proscribed development activities include
construction or purchase of structures, construction of roads, airports, boat-landing facilities,
bridges or causeways, and erosion prevention projects.
Maine's statute and the parallel federal law are designed to protect and conserve coastal
barriers and the adjacent wetlands, marshes, estuaries, inlets, and nearshore waters by
discouraging development on and adjacent to those barriers. To date, only a small fraction
of Maine's undeveloped areas (e.g., 32 coves, beaches, islands, points) are designated for
inclusion in the coastal barrier system. This law provides limited, though important,
protection for these undeveloped areas by prohibiting expenditure of state funds in support of
development. It does not restrict private investment.
f Opportunities to Strengthen Controls on Development
One of the problems with the sand dune permitting system as currently administered is that
it requires an individual assessment of site stability, potential interference with the natural
supply or movement of sand, and erosion hazard for each application. Advanced designations
are currently used only to designate locations of frontal dunes, back dunes, and flood hazard
zones through computerized sand dune maps which have been prepared for certain areas of
sand dune systems in southern Maine." While the designation of these maps as "best
available information" for purposes of establishing these existing zones is important to rule
out certain types of development in specific areas, they address only part of the issue. These
maps show only existing conditions; they do not project hazards posed by beach erosion, by
formation or migration of inlet and marsh channels, by engineered shorelines, or by sea-level
rise.

The Maine Coastal Program has identified the need to refine the regulations so that the
State makes more advanced judgments about where development should be prohibited based
on projections of future hazards. In theory, the advanced designation of hazard areas will not
only guide private investment decisions and lend consistency to permitting decisions under
NRPA, but will also be useful to guide government agencies in making public infrastructure
decisions and will provide important information about natural geologic processes to
municipalities for integration into their comprehensive plans and land use regulations.
To accomplish this end, the Maine Geological Survey (MGS) and the Department of
Economic and Community Development (DECD) are currently involved in a two-phase
Shoreline Erosion Management Project to enhance the sand dune maps so they convey more

ANTiciiPAToRy PLANNING FOR RELATIvE SEA-LEvEL RISE ALONG THE COAST OF MAINE 5-11

information about historical shoreline change and the vulnerability to future shoreline retreat.
The first phase of the project is to calculate shoreline change rates for three priority hazard
areas based on change in shoreline position over time. The second phase will expand the
coverage of "coastal hazard maps" to include approximately 30 additional beach systems
throughout the state. A Geographic Information System (GIS) system will allow these maps
to display information about the existing built environment, locations of frontal and back
dunes, past shoreline changes, wave washover and flood zones, erosion rates for selected
points, and a shoreline hazard rating. The MGS GIS is able to display information about
shoreline change in great detail, since the grid size can be as small as one square meter.
Completing the measurement of historical erosion and developing these increasingly
detailed maps of coastal hazards along beach systems throughout the state will give the State
the ability to consider adopting different setback lines for each beach or segment of beach
based on historical average annual erosion rates. These setbacks could vary based on local
historical shoreline change/erosion rates. These area-specific setback lines would reflect
significant differences which occur along the coast based on different types of beach systems
(type of shoreline (sheltered or exposed), composition (sand to cobbles), off-shore profile, and
other relevant characteristics).
The preliminary assessment of policy directions suggests that this information could be
used to establish setback distances based on the erosion rate of a particular beach or beach
segment using a setback line based on 100 times the historical average annual rate. These
maps would give much more explicit guidance in applying the policy already articulated in the
Sand Dune Regulations that "projects shall not be permitted if, within 100 years, the project
may reasonably be expected to be damaged as a result of changes in the shoreline. ""
This 100-year policy would place Maine in the forefront of states with state-imposed
setback requirements. Several other states use variations on a 30-year/60-year standard for
small and large structures." This lower standard has been criticized as being too low to
reflect the life expectancy of modem structures." The National Research Council Committee
on Coastal Erosion Zone Management in its 1990 report recommended that state and local
erosion management programs should be encouraged to adopt stricter erosion standards such
as a 50-year/100-year standard for small and large structures." Maine's adoption of a
100-year setback standard for all buildings would be consistent with this recommendation."
However, it should be noted that while substantial public benefits should be expected from
enforcing setbacks based on a 100-year erosion projection based on historical erosion rates,
these setback lines may still significantly underestimate the area vulnerable to coastal erosion.
These new setback maps would determine the mandatory setback from erosion-prone
shorelines by assuming that the past average annual erosion rate will continue unchanged into
the future. The problem with using historical rates is that it makes no allowance for forecasts
of global climate change.
Maine Geological Survey, based on tide gauge readings over fifty years and assuming a
continuation of the historical rate of change, predicts that seas in Portland will be 21 to 26
centimeters higher in 2100.1' Sea level increases based on this historical tide gauge data are
projected to be slightly higher in Eastport (27-31 cm) and slightly lower in Kittery (11 cm).

5-12 RESPONSIVENESS OF ExiSTING STATE AND FEDERAL LAWS TO SEA-LEVEL RISE

Establishing setback lines based on an assumption of a continuation of past erosion rates
incorporates an assumption of a continuation of the historical rate of sea level change as well.
However, more recent forecasts of global sea-level rise based on revised International
Panel on Climate Change emissions scenarios place the global low-, mid-, and high-level
forecasts at 15 cm, 48 cm, and 90 cm respectively." Those numbers have to be increased to
reflect local subsidence (based on historical change less historical global rise of approximately
12 cm per century) to project total sea-level change in the local area. Using the revised
forecasts, this would result in a forecast rise in Portland by the year 2100 of 24 cm (low), 60
cm (mid), and 104 cm (high). If these scenarios for accelerated global sea-level rise are bome
out, the resulting increase in locally-experienced sea-level rise will be approximately 14 %
(low), 150% (mid), or 300% (high) greater than the increase in sea level assumed by
projecting a continuation of historical rates.
In the phase I completion report for the Shoreline Erosion Management Project, the Maine
Geological Survey discusses the possibility of global sea-level rise as a result of global warm-
ing, and acknowledges that "erosion rates determined in this study are possibly conservative
when calculating future beach changes."" The basis for this conclusion is that "it is quite
likely that an acceleration in the rate of sea level rise will cause an increase in the erosion
rates. "

In summary, the Shoreline Erosion Management Project assumes a continuation of an
historical rate of change without projecting a future, accelerated rate of erosion based on
accelerated sea-level rise as a result of global climate change. Thus, the State must still
confront the policy issue of how to integrate projections of accelerated sea-level rise into any
revised coastal hazard mitigation strategy. Due to the scientific uncertainties currently
surrounding those global change projections, the State may be justifiably apprehensive about
basing mandatory setback requirements for all development on projections of historical erosion
plus erosion anticipated as a result of accelerated sea-level rise due to global climate change.
However, the State should consider using more stringent setback requirements which include
assumptions about an accelerated rate of sea-level rise in certain conditions.
For example, the State could further articulate a two-tiered system, similar to the one it
uses now, in which some uses are subject to a setback based on 100 times the historical annual
average erosion rate for that beach and other uses are subject to a setback based on projections
assuming a specified accelerated rise in sea level (e.g., a rise of 3 feet or 100 cm over 100
years). The Sand Dune Regulations as currently applied make this distinction with regard to
small and large new development; for all development, the Rules direct that no permit shall
be granted if, within 100 years, the project may reasonably be expected to be damaged as a
result of changes in the shoreline.' For small development, while the means of measurement
is not specified, 100 years of stability is assessed using a projected continuation of historical
rates. In contrast, the Rules specifically state that 100 years of stability for larger projects is
to be assessed assuming a rise in sea level of 3 feet over the 100 years. It would be a good
idea to make this distinction more explicit if that is what is intended. With the completion of
the maps being developed under the Erosion Management Project, setback requirements for
smaller structures could be designated in advance, based on historical change. For larger
development, the regulations could continue to contain a setback requirement which requires
41
applicants to assume a 3-foot rise in sea-level over the next 100 years .

ANTmPAToRy PLANNING FOR RELATivE SEA-LEvEL RISE ALONG TM COAST OF MAINE 5-13

Another variation on this system would be to designate particular favored uses (such as
water-dependent uses or uses supportive of commercial water-dependent uses) which would
be subject to setbacks ranging from 0 feet (if functionally required) to rates based on historical
change. The less favored uses (such as non-water dependent commercial and residential struc-
tures) would be subject to the requirement that they show the site will be stable assuming a
specified accelerated rate of change (e.g., 3 feet over 100 years).
In proposing these setbacks as a component of an anticipatory sea-level rise response
strategy, it is assumed that it is rational to continue use of current setback requirements, which
are based on 100 times an historical or accelerated sea-level rise rate (using the mid-level 100
cm or approximately 3 foot scenario), particularly since they have been in place for more than
a decade. Many current owners of shoreline property, particularly those purchasing during
the boom years of the mid-1980s, have assumed ownership with no investment backed
expectation of being able to build closer than these setbacks.
However, as yet unresolved Maine litigation may hold that even though the BEP has the
power to deny sand dune permits and variances on frontal dunes and forward of these setback
lines, the application in a particular fact situations may constitute a taking of private property
requiring compensation." This possibility is discussed in more detail in the following chapter.

In evaluating the appropriateness of using setback provisions which incorporate
assumptions about accelerated sea-level rise, decision-makers should be cognizant of the
EPNs uncertainty analysis. According to EPA, a rise of at least 100 cm has a 5% chance by
2100 and 50% chance by 2200. Assuming these EPA projections are correct, using a setback
based on a 3 foot/100 cm rise scenario for larger structures would mean that the State would
have a 95 % probability of successfully keeping large new structures from interfering with
coastal processes for the next 100 years. At the same time, given the uncertainty, it also
means that there is a 50% probability that those large structures would not have been affected
by a change in shoreline position for 150 to 200 years and could in fact have been built closer
to the shoreline with no innundation by 2100.
Policy makers must balance the risk of harm to structures and the natural systems against
the chance that they will unnecessarily restrict the use of the property. Factors supporting a
cautious approach for larger structures (i.e., establishing setbacks using a 100 cm rather than
50 cm or historical rate assumption) include: 1) the lack of mobility of large structures, 2) the
probable continued ability to make some economic use of the site through temporary or
smaller more mobile structures, 3) environmental justifications for keeping intense
development back from the shoreline, and 4) the possibility of adverse shoreline effects from
global climate change separate from a change in shoreline position such as storm surges and
an increase in the frequency or intensity of hurricanes in Maine." Conversely, it may be
acceptable to use a setback based on a continuation of historical rates of rise for small
structures since they are relatively mobile if the sea rises faster than expected. However, it
is critical that property owners fully understand that they will be required to move if
threatened by a change in shoreline position so that expectation can be built into the property's
purchase price and so they have no claim that they should be able to protect their investment
by engineered means.

5-14 REsPoNsivENEss OF ExiSTING STATE AND FEDERAL LAwS TO SEA-LEvEL RiSE

Since the eroding shoreline is a very dynamic system and since some of the scientific
uncertainty about global climate change might be reduced over the next decade, any setback
regulations should be established in such a way that coastal hazard maps establish a mandatory
minimum setback, but do not preclude the State from requiring a greater setback if new
information justifies it. This new evidence may include evolving geologic information,
evidence of recent storm damage or flooding, and information about changes in tidal inlets,
as well as new information about global climate change.
So long as the requirements for removal of new, reconstructed, and replaced structures
remain in place and the State retains the institutional will to enforce those requirements, the
policy of retreat in the face of sea-level rise will be implemented, regardless of whether there
are any mandatory setback requirements. However, incorporating mandatory setback
requirements in addition to the retreat requirements will help minimize the amount of private
economic loss due to unwise development decisions and will reduce the number of individuals
with economic incentives to bring political pressure to bear to weaken the retreat policy.

3. Salt Marshes

a. Character of Development
The southwest coastal compartment of Maine (from the New Hampshire border to Cape
Elizabeth) constitutes approximately nine percent (9%) of the State's total shoreline;
approximately 65 % of this shoreline is salt marsh. Similarly in the 3 1 % of coastal shoreline
in the area from Cape Elizabeth to Port Clyde, approximately 26% of the shoreline is salt
marsh. Along the remaining 60% of the shoreline to the north, salt marsh shoreline is much
less prevalent, constituting approximately 10% of the tidal shoreline."
Historically, recreational tourism and summer home shoreline development has tended to
concentrate along beaches and on scenic rocky promontories overlooking the sea.
Development along marsh areas has not been as intense nor has it been as driven by seasonal
or out-of-state users.
As described in Chapter Two, the mapping of selected areas using three scenarios
projected that the shoreline along salt marshes would move in the magnitude of 3-35 meters
(10-125 feet) landward over the next 100 years assuming a 50 cm (1.6 feet) rise in sea level;
8-50 meters (25-175 feet) landward over the next 100 years assuming a 100 cm (3.3 foot) rise
in sea level; and 17-100 meters (50-325 feet) landward over the next 100 years assuming a
200 cm (6.5 foot) rise in sea level.
Structures and infrastructure are usually not the most vulnerable resources of concern in
this type of setting since salt marshes are not usually the site of intensive development. The
focus is instead on the values and functions of the salt marsh wetlands as critical habitat for
birds, including migratory waterfowl, and endangered species; as spawning grounds and nurs-
ery areas for commercially valuable fish and shellfish; as a filter for removing pollutants and
preserving water quality; as a flood water retention and flow reduction mechanism; and as a
buffer protecting upland areas from erosion by absorbing and dissipating wave impacts. To
continue to serve this function, it is critical that salt marshes be able to migrate inland with
the change in shoreline position.

ANTICIPATORY PLANNING FOR RELATIVE SEA-LEvEL RISE ALONG THE COAST OF MAINE 5-15

b. Natural Resources Protection Act

Unlike sand beaches, for salt marshes, there is no single law which takes precedence over
all others in managing the conditions under which development on or adjacent to it will be al-
lowed or removed. Several different State laws and local ordinances all have a role to play
in placing restrictions on development.
The Natural Resources Protection Act" is designed to protect many of the State's
resources, including coastal wetlands, from degradation. A NRPA permit is required for any
regulated activity in, on, over, or adjacent to any coastal wetland. Coastal wetlands are
defined to include all tidal and subtidal lands, all areas with vegetation present that is tolerant
of salt water and occurs primarily in a salt water or estuarine habitat, and any marsh, swamp,
bog, or other contiguous lowland subject to tidal action during the maximum spring tide
level." This definition allows for the regulated area to fluctuate as the shoreline changes in
response to global climate change or land subsidence.
The standards of review most applicable to proposed development in salt marsh areas try
to minimize loss of the critical beneficial functions generally associated with these coastal
wetlands such as wildlife habitat and flood protection. Specifically they include:
� Soil erosion. The activity will not cause unreasonable erosion of soil or
sediment nor unreasonably inhibit the natural transfer of soil from the terrestrial
to the marine or freshwater environment.

� Harm to habitats; fisheries. The activity will not unreasonably harm any
significant wildlife habitat, ... aquatic habitat, ... estuarine or marine fisheries
or other aquatic life....
� Interfere with natural water flow. The activity will not unreasonably
interfere with the natural flow of any surface or subsurface waters.
� Flooding. The activity will not unreasonably cause or increase the flooding of
47
the alteration area or adjacent properties.
The State has promulgated Wetlands Protection Rules to ensure that the NRPA standards
are met by applicants proposing regulated activities in, on, over, or adjacent to a coastal
48
wetland . The Rules establish a wetland classification system (with coastal wetlands defined
as Class 1, and wetlands located within 250 feet of coastal wetlands defined as Class 11) and
detail standards for avoidance of loss in wetland area, functions and values. They discuss "no
practicable alternatives," compensation, mitigation banking, and "no unreasonable impact"
criteria. However, unlike the Sand Dune Rules, they assume a relatively fixed shoreline
position. No specific provisions are included to require an applicant to demonstrate that the
site will remain stable over a long period of time, ]nor are there any requirements for retreat
or removal of any structures that might be affected by a change in shoreline position.
The DEP has promulgated regulations describing the BEP's scope of review under the Soil
Erosion Standard. The only regulation that might be of use in prohibiting structures that
would prevent the landward migration of wetlands is a statement that in or on "coastal banks"
a proposed activity may not unreasonably affect the supply of sediment from the bank to
coastal beaches or other land subject to tidal action." However, this provision has not

5-16 RESPONSIVENESS OF ExiSTING STATE AND FEDERAL LAWS TO SEA-LEVEL RISE

historically been used to prevent the construction of seawalls or similar structures on or
adjacent to non-sand coastal wetlands. Similarly, regulations elaborating on the scope of
considerations under the harin to wildlife and fisheries and interference with natural flow of
waters standards may be broad enough to embrace considerations of allowing landward
migration of coastal wetlands, but do not contain express statements of that as a goal.
c. Mandatory Shoreland Zoning Act and Guidelines
The Mandatory Shoreline Zoning Act" requires all municipalities to adopt zoning and land
use control ordinances applicable to the "shoreland area" within its boundaries which are no
less restrictive than minimum guidelines adopted by the Board of Environmental Protection.
The shoreland area is defined to include those areas within 250 feet of any saltwater body or
within 250 feet of the upland edge of a coastal wetland [10 acres or more, as defined]."
Among other purposes, the Shoreland Zoning Act was designed to protect against unwise
development in that area; to protect buildings and lands from flooding and accelerated erosion;
to control building sites, placement of structures, and land uses; to conserve shore cover; and
to anticipate and respond to the impacts of development in shoreland areas.
While not specifically crafted in response to anticipated accelerated sea-level rise, the Act
contains water setback requirements with the potential to minimize the impacts of a change in
shoreline position. The GuidelineS12 prohibit the construction of any new principal or
accessory structure or any substantial expansion of an existing structure within the shoreland
zone unless that structure is set back 100 feet from the normal high-water line of great ponds
and rivers, and 75 feet from the normal high-water line of other water bodies, tributary
streams, or the upland edge of a wetland. In addition, there is essentially a 250 foot setback
from the upland edge of a salt marsh or salt meadow wetland if the area is zoned Resource
Protection; a Resource Protection designation is generally required in undeveloped areas if the
area was rated moderate or high value by Inland Fisheries and Wildlife as of January 1, 1973.

There are, however, setback exceptions. A General Development District (or its
equivalent, allowing intensive commercial, industrial, and/or recreational use) requires a 25
foot setback. There is no setback requirement in a Commercial Fisheries/Maritime Activities
District (allowing functionally water-dependent uses). Thus adjacent to the upland edge of a
marsh, the minimum setback requirements could range from 0 feet (for an unlikely
water-dependent use in a marsh) to 25 feet for a relatively intense commercial or industrial
use to 75 feet for a residential use to 250 feet in undeveloped Resource Protection Areas.
The Guidelines establish performance standards for piers, docks, wharfs, bridges, and
other structures and uses extending over or beyond the normal high-water line of a water body
or within a wetland. The Guidelines do not, however, establish performance standards for
structures adjacent to but not currently in a wetland. This means there are no prohibitions in
the mandatory minimum standards which would prevent a landowner from constructing a wall
or other structure immediately outside a wetland to prevent the landward migration of a salt
marsh as sea level rises.
Thus, while the Shoreland Zoning Act addresses the threat of accelerated sea-level rise to
some extent by attempting to protect undeveloped land from development that would interfere
with natural coastal processes, it fails to include provisions that anticipate a significant change

ANTiciPAToRy PLANNING FOR RELATIVE SEA-LEvEL RISE ALONG THE COAST OF MAINE 5-17

shoreline position, based on how far development should be removed from wetlands to
minimize the negative impacts of development on wetland values and functions.
In fact, given the projected rates of change for the different scenarios, except in Resource
Protection Areas, the mandatory minimum setbacks fail in two major regards: 1) since they
fail to build in a margin for a change in shoreline position, they establish an inadequate buffer
to protect wetland values and functions in the long term; and 2) in the more vulnerable salt
marsh areas, they also fail to require structures to be set back from the upland edge of a
wetland a sufficient distance to protect those structures from being overtaken by a marsh
migrating inland with the change in shoreline position. For example, for the more vulnerable
of the sample salt marsh sites, this study projects a landward movement of 35 meters or 115
feet over 100 years given a 50 cm rise; this exceeds the general minimum setback requirement
by 40 feet, the General Development Setback by 90 feet, and the Commercial Fisher-
ies/Maritime Activities District by 115 feet.
Continued use of inadequate setback requirements, the absence of any prohibition on
construction of barriers to salt marsh migration, and the absence of any requirements for
removal of structures impacted by migrating marshes sets up a situation where it is almost
inevitable that landowners will try to halt the landward migration of marshes through the
construction of physical barriers. If this is allowed, it will result in the loss of salt marsh
wetlands as the seaward edge moves inland in response to sea-level rise and the landward edge
is prevented from migrating.
d. Opportunities to Strengthen Controls on Development Along Salt Marshes
The migration of a marsh toward the upland is much less dramatic than the approach of
the sea up a sand beach. The type of structure likely to be threatened in each situation is
different too, with higher-intensity development more likely along sand beaches. In addition,
the functions valued by the public vary. Sand beaches have significant economic, aesthetic,
and recreational value; they attract high density development and anchor the Southern Maine
tourism industry. Salt marsh wetlands make their contribution, but in a much less visible
way; they serve as critical habitat for commercially valuable fish and shellfish, provide a
different type of recreational opportunities, reduce the costs of maintaining water quality, and
provide valuable flood and erosion control.
As discussed in the last section, Maine has already adopted a policy of mobility and retreat
to protect sand beaches against a change in shoreline position; regulations applicable to new
and replacement structures are designed to allow the beach to maintain itself by requiring
removal of human impediments to allow a continuation of natural processes. However, the
State has yet to explicitly evaluate extension of a policy of mobility or retreat for the salt
marsh environment. The State should address the same retreat issue with regard to salt
marshes. Without new parallel policies prevent bulkheads or other structures which interfere
with wetland migration, a rise in sea level will result in a decrease in important salt marsh
wetlands.

The State could use a couple of different approaches. One approach would be to
strengthen the requirements under the Shoreland Zoning Act to expand the areas subject to the
Resource Protection District prohibition on development within 250 feet of the upland edge
of designated coastal wetlands. The State would need to review the sufficiency of the 1973

5-18 REspoNswENms OF EmSTING STATE AND FEDERAL LAWS TO SEA-LEvEL RisE

of designated coastal wetlands. The State would need to review the sufficiency of the 1973
Inland Fish and Wildlife maps designating moderate and high value wetlands in coastal areas
and update those maps if necessary. In addition, it would need to evaluate the exemptions
allowing towns to opt for non-Resource Protection designations even in mapped moderate and
high value wetland areas, and the provisions allowing special exceptions in Resource
Protection Districts to determine whether this approach is likely to succeed.
A second approach would be to amend the Natural Resources Protection Act to broaden
the jurisdiction to require a permit for activities on land adjacent to any coastal wetland that
might interfere with the projected natural migration of that wetland, assuming a specified rise
in sea level. This would expand the Act so it would not only protect against wetland
degradation from material or soil washing into wetlands, but would also protect against
wetland loss occasioned by precluding wetlands from migrating landward in equilibrium with
rising sea level.
The State would need to promulgate detailed regulations designed to prevent the hardening
of the upland edge. These regulations could be modeled after the Sand Dune Rules and the
amendments to those rules discussed above. They could include a prohibition on hard
structures designed to limit the landward migration of salt marshes, an increase in the
minimum setback from the upland edge of a salt marsh based on projected rates of change in
shoreline position, a requirement that more intensive development be required to prove site
stability and adequate buffering given a projected 100 cm rise in sea level over 100 years, and
a requirement that all new construction and replacement structures be removed if the shoreline
changes so that they are substantially interfering with natural marsh migration processes.
As part of this process, the State will need to make a conscious decision about whether all
areas should be subject to the requirements that they facilitate marsh migration, or whether
distinctions should be made between particular areas. For example, the State might decide
that shoreline in areas already developed to a certain intensity or already developed for a
particular type of use need not be maintained in an unhardened state. Or it might make
distinctions based on the slope of the adjacent land in its natural state; if the slope is already
relatively steep so that the wetland would probably not be able to migrate without substantial
loss of area, that might argue in favor of allowing hardening of the upland edge. These
options decisions would have to be studied in greater detail before State policy makers can
decide what proportion of the salt marsh shoreline should be kept in an unengineered state.

4. Eroding Bluffs
a. Character of Development
Maine's shoreline includes ledge areas, which increase from approximately 3 % to 24 %
of the shoreline as one moves northeast." These ledge areas consist of both stable bedrock
promontories and high bluffs of landslide-prone Ice Age mud. The bedrock promontories
were generally built on first. As those prime sites have been developed, construction has
54
spread to other areas such as eroding coastal bluffs of glacial sediment . In some areas, these
bluffs are eroding at a rate of one to three feet per year." When the erosion is unimpeded,
these coastal bluffs serve as a source of sand for beaches, particularly in areas lacking a major
river to bring sediment from upstream, and a source of mud for salt marsh formation.

ANTicrPAToRy PLANNING FOR RELATivE SEA-LEvEL RISE ALONG TIM COAST OF MAm 5-19

Unlike marsh and sand beach erosion, the erosion of most coastal bluffs is driven primarily
by coastal storms rather than by any change in sea level, so projections of a change in shore-
line position over the next 100 years are the same regardless of the sea-level rise scenario.
And also unlike marsh and beach erosion, bluff erosion tends to be periodic, with major
slumping events occurring at longer intervals rather than a small amount of erosion each year.

b. Natural Resource Protection Act

Like development in salt marsh areas, bluff development is not regulated by any single
law. Development on bluffs generally falls outside the Natural Resources Protection Act
(NRPA)" unless it is a mapped significant wildlife habitat area, or is deemed to be on land
adjacent to a coastal wetland and the proposed activity would operate in such a manner that
material or soil may be washed into the coastal wetland. While there are soil erosion
standards which conceivably could be applicable if triggered, eroding bluffs in themselves are
not a targeted natural resource.
It would be consistent with the philosophy of NRPA to amend the Act to include eroding
bluffs as a protected natural resource. That Act is designed to regulate activities which might
result in environmental degradation due to activities in, on or over a protected natural resource
or due to material or soil being washed into protected natural resources from activities on
adjacent land. Development on or adjacent to eroding bluffs increases the risk of harm to the
bluff and to other protected natural resources such as sand beaches. For example activities
such as lawn watering and use of septic systems may hasten the erosion and degrade the bluff
and shoreline area if erosion causes system failure.
A related activity, and one that is regulated by NRPA, is that property owners who have
invested in development on bluffs may try to build structures to halt the process of erosion,
to the detriment of the sand beach or marsh which was to be nourished by the eroded bluff
materials. The NRPA soil erosion and habitat standards would be relevant, as well as the Soil
Erosion Standard for activities to affect "coastal banks," which requires that a proposed
activity may not unreasonably affect the supply of sediment from the bank to coastal beaches
or other land subject to tidal action." As with coastal wetlands, regulations concerning harm
to wildlife and fisheries and interference with natural flow of waters standards may also be
applicable.
c. Mandatory Shoreland Zoning Act
Development on coastal bluffs will be controlled to a limited extent by the Mandatory
Shoreland Zoning Act." These bluffs are within 250 feet of the upland edge of a coastal
wetland, thus would be included in the shoreland area. The minimum Guidelines require any
permitted development to be set back at least 75 feet from the upland edge of that wetland.
In addition, the minimum Guidelines direct the community to include lands "adjacent to tidal
waters which are subject to severe erosion or mass movement, such as steep coastal bluffs"
in a resource protection district. If zoned for resource protection, only non-intensive uses
would be allowed; principal structures for residential, commercial, industrial, governmental,
and institutional uses would be precluded. However, these areas will not always be placed
in Resource Protection Districts. Under current law, even if coastal bluffs meet the criteria
for resource protection designation, a municipality can opt to forego that designation if they
are currently developed or meet the criteria for Limited Commercial, General Development,

5-20 REspoNsivENEss OF EXISTING STATE AND FEDERAL LAWS TO SEA-LEvEL RISE

or Commercial Fisheries/Maritime Activities District designation. Additionally, a municipality
may opt to grant special exceptions to allow residential development on a lot in a Resource
Protection District which could not accommodate development anywhere else on the lot.
d. Site Location of Development Act
A third law that might play a minor role in controlling development on eroding bluffs is
the Site Location of Development Act." It includes a soil standard which states that the devel-
opment must be "built on soil types which are suitable to the nature of the undertaking and
will not cause unreasonable erosion of soil or sediment nor inhibit the natural transfer of soil.
However, this Act applies only to larger developments and there are no more detailed rules
or regulations which directly relate the general standard to eroding bluffs.
e. Opportunities to Strengthen Controls on Development Along Eroding Bluffs
The type of development most likely to be located on eroding coastal bluffs is single
family residences. The Site Location of Development Act will not apply to this type of
development. As the laws are currently written, the major burden for preventing unwise
construction falls on the Shoreland Zoning Act, as enforced by individual municipalities
through their Shoreland Zoning Ordinances.
There are several problems with relying on the Shoreland Zoning Act as the primary
defense against development on unstable bluffs. First, the Act has always been plagued by
compliance problems. These problems may be inherent in the intergovernmental division of
responsibilities incorporated in the Act. The State promulgates mandatory minimum
guidelines; each individual municipality is responsible for adopting an ordinance which is
consistent with the guidelines and for enforcing that ordinance. It has not been uncommon
for municipal boards to view these requirements as unnecessary obstacles imposed on local
landowners by the State rather than as part of a comprehensive effort to protect shoreland
resources and prevent unwise development. However, local acceptance and enforcement
might be growing as a result of improvements in training and certification of local code
enforcement officers. If shoreland zoning is going to be relied on as the primary strategy for
bluff erosion, a major public education effort on erosion and sea-level rise would be required
to increase local acceptance of shoreland zoning provisions designed to mitigate those impacts.
Second, as written, a shoreland zoning ordinance will not be effective to prevent against
unwise bluff development unless that area is designated for resource protection and unless the
municipality does not grant special exceptions to allow single family development.'
Municipalities are often reluctant to place land in a resource protection designation, and are
frequently sympathetic to variance, special exception, or rezoning requests to allow more
intensive use of this land.
Finally, if a municipality does not designate eroding bluffs as resource protection, as
currently written, the remaining standards will probably be insufficient to require that develop-
ment which does occur is setback a sufficient distance to protect it over its useful life.
Depending on the particular bluff composition and its orientation, this study projects landward
movement of the shoreline of approximately 15 to 45 meters (50 to 150 feet) over 100 years.
Other studies have estimated that Maine's coastal bluffs are eroding approximately 1 to 3 feet
per year, or 100 to 300 feet over the next 100 years, if the rate stays constant .6' Thus, the

ANTicimoRy PLANNING FOR ]RELATIVE SEA-LEvEL RISE ALONG THE COAST OF MAM 5-21

State minimum mandatory setback of 75 feet from the upland edge of a coastal wetland is
unlikely to be sufficient to protect the structure over its useful life.
If development is allowed, as the bluff erodes, there will be increasing pressure to invest
in public or private bluff stabilization efforts. By definition, those stabilization efforts will
interfere with the transfer of sediment from the terrestrial to the marine environment. Eroding
coastal bluffs are a major source of mud for the regions mud flats and salt marshes, and can
be a local source for beach sand.' Current NRPA standards could be applied, but historically
have not resulted in denial of permits for that type of bluff stabilization. However, both bluff
stabilization structures and individual seawalls along sand beaches raise the same specter of
interference with natural processes. This suggests that bluff stabilization structures should be
regulated to the same extent as sea walls.
One approach to increase control over development on eroding bluffs is to encourage
individual municipalities to amend their shoreland zoning ordinances to address the issue.
Municipalities are free to adopt shoreland zoning provisions which are more stringent than the
state minimum guidelines.
The Department of Economic and Community Development is in the process of drafting
model performance standards for erosion prone coastal areas (beaches and eroding bluffs)
designed to be incorporated into municipal shoreland zoning ordinances. These performance
standards would apply throughout the shoreland zone, thus would extend protections to bluffs
not already included in a resource protection district. The current draft proposes to use a
formula to increase the setback beyond the normal 75 feet in areas eroding more than one foot
per year; the additional setback increment would be determined by the average annual
recession rate times the structure's assumed life span.
This type of formula would be a significant improvement since it would apply throughout
the zone and would tie setbacks to erosion rates. It does, however, anticipate the use of ero-
sion rate data for particular coastal areas which is not yet available from state agencies. Until
funds are available for Maine Geological Survey to develop that data for the entire state, the
municipality would have to work with its own geologist or Maine Geological Survey to
develop that data for each application. The other limiting factor is that without amendment
of the Shoreland Zoning Act, municipal adoption of these performance standards is completely
voluntary.
The State should also evaluate a second approach: bringing eroding bluffs under more
direct State control by amending NRPA to include eroding bluffs as a resource to be protected
by the Act. This action could be taken alone or in concert with encouraging municipalities
to amend their shoreland zoning ordinances as discussed above
Amending NRPA to include eroding bluffs as a protected natural resource offers the
advantage of unifying direct state regulation over all of the major components of the "soft
coast": sand beaches, salt marshes and eroding bluffs. By expanding the geographic reach
of NRPA, it facilitates review of proposed activity based on its impact on the entire
interconnected coastal system. This change should also promote consistency in underlying
management policies. In addition, this approach would not have to rely on voluntary local
action.

5-22 RESPONSIVENESS OF ExiSTING STATE AND FEDERAL LAWS TO SEA-LEvEL RISE

If eroding bluffs are expressly incorporated into NRPA as a protected natural resource, the
State could then develop a set of rules parallel to the Sand Dune Rules to elaborate on the soil
erosion standard (which mandates that the activity not inhibit the natural transfer of soil from
the terrestrial to the marine environment) in the coastal bluff context. The new Rules could
establish new setback requirements and a new retreat policy which would put applicants on
notice that future bluff erosion would require that new and rebuilt structures be moved. These
Rules would also serve to educate the public and municipalities about the fluid nature of this
type of land form. Increased awareness alone might be sufficient to deter some coastal
construction in this type of hazard area.
A third variation on this approach might be to allow waivers of the setback requirements
for small structures with well located septic systems provided that the applicant agrees to a
condition, memorialized as a recorded deed restriction putting all future owners on notice, that
the structure could not be protected by engineered bank stabilization efforts and that it would
have to be removed if any part of the structure was within a certain distance of the edge of
the bluff.

5. Engineered Urban Shoreline
a. Character of Existing Development
A fourth distinct type of shoreline consists of engineered urban shoreline. Maine does not
have much as measured in miles of shorefront. But the extensively engineered portions of
harbors, such as the Portland/South Portland inner harbor, are of critical importance to the
economic functioning of the region.
The engineered shoreline in this part of the harbor consists of a series of established finger
piers, docks, wharfs, seawalls, bridges, and similar structures. These structures were first
established, largely on filled land, more than a century ago, and have evolved over time as
grandfathered structures, generally free of particular performance standards or new regulations
controlling their location or environmental impact. While subject to significant variation from
parcel to parcel, according to observations of the Maine Geological Survey, they are generally
designed to accommodate seas which are approximately six feet higher than current mean high
tide. This means that even given a projected rise in sea level of 200 cm. over the next 100
years, the shoreline position will remain in its current location along this urban engineered
portion of the shoreline.
However, these structures have not been engineered to accommodate higher water levels
as a means of advanced planning for sea-level rise. To the contrary, the extra increment
above mean high tide is required to protect uplands from most storm events. Even this added
increment is occasionally insufficient in extreme storm events as evidenced by the occasional
flooding of parts of Commercial Street (the closest street parallel to the waterfront) and
structures located on piers south of Commercial Street. Thus, while this engineered
waterfront is not vulnerable to a change in shoreline position due to a rise in sea level, if it
remains as it is now, it will be vulnerable to increased storm surges. Unless the structures
are raised or reinforced, the geographic extent and frequency of flooding from storm surges
will increase as sea-level rises.

ANTiCIPATORY PLANNING FOR RELATivE SEA-LEVEL RiSE ALONG THE COAST OF MAiNE 5-23

The inner harbor portion of the waterfront is in an intensely developed area where any
sensitive natural resources have already been disturbed through construction, dredging, intense
use, and other perturbations. While regulators should guard against any further environmental
degradation, the economic functions rather than environmental or habitat functions are likely
to take precedence in most reviews. Unlike salt marsh, sand beach, and eroding bluff areas
where future regulatory strategies are driven by preserving or restoring natural functions for
maximum public benefit, on engineered urban waterfronts, the maximum public benefit will
probably be derived by allowing this working waterfront to continue that economic function.

Individual property owners will experience any rise in sea level as a gradual change over
time. It will probably first manifest itself as slightly greater vulnerability to storm events over
time. It is likely that in the course of reinforcing and rebuilding existing structures through
normal maintenance and repair activities, property owners will accommodate to the increase
in sea level by raising the level of decks and designing the structure to protect upland areas
from slightly higher waters. This type of response would be incremental, parcel-by-parcel,
and uncoordinated. If waterfront users have sufficient resources to reinvest in periodically
rebuilding and modifying their infrastructure, this defacto response strategy may be sufficient
to allow those structures to remain in place and continue their economic functioning.'
Regulatory policies should be evaluated to determine whether they will permit periodic
reconstruction of piers and wharves to allow continued economic functioning of key
businesses.

b. Local Comprehensive Zoning, Hood Plain, and Shoreland Zoning Ordinances
The local comprehensive zoning ordinances for Portland and South Portland do not take
the possibility of sea-level rise into consideration. Neither ordinance expressly requires the
applicant to address site stability in the face of future change in sea level. To the extent that
flooding is addressed in local ordinances, it is through the adoption of State-mandated
minimum flood plain management regulations.' These regulations focus primarily on
construction standards such as minimum elevation of structures and other flood-proofing
requirements. The review for compliance with these flood plain management standards tends
to be rather cursory, with reviewing staff and boards tending to rely on representations of the
developer's architect or engineer to gauge compliance with the technical requirements of the
standards.

The Shoreland Zoning Act has only minimal impact on these municipalities. Both Portland
and South Portland have complied with the Act by adopting hybrid ordinances that incorporate
only selected portions of the Guidelines into local ordinances. The 75 foot mandatory
minimum setback requirement under the Shoreland Zoning Act is inapplicable to the
engineered portion of the Portland and South Portland shorefronts since the zoning in this area
is analogous to General Development (25 foot setback) or Commercial Fisheries/Maritime
Activities Districts (no setback) as established in the Act.
The Shoreland Zoning Guideline's performance standards for piers, docks, wharfs,
bridges, and other structures," the Submerged Lands Act' and the current comprehensive
zoning ordinance for the City of Portland generally combine to establish a land use policy
favoring water-dependent uses on, over, and immediately adjacent to coastal waters. This was
not the case prior to 1987 when Portland and South Portland saw high-density residential

5-24 RESPONSIVENESS OF EmSTING STATE AND FEDERAL LAWS TO SEA-LEvEL RISE

condominiums, new office buildings, and tourist attractions such as floating restaurants
approved for construction along the waterfront. The use restrictions tend to be the most
stringent part of Portland's local zoning ordinances. For example, there are no setback
requirements (except for 5 feet from the apron of a pier), lot coverage may be 100%, and
buildings may be constructed to a height of 45 feet. Under certain conditions, a limited range
of non-water dependent uses are allowed in the upper story space of waterfront buildings.,
c. Opportunities to Strengthen Controls on Development Along Engineered
Urban Shorelines

There appear to be two regulatory strategies to evaluate with regard to minimizing damage
from sea-level rise in the engineered urban harbor context. Since natural processes are no
longer at work to maintain the functioning of the shoreline system, the engineered solutions
will need to be updated as necessary. One strategy is to ensure that private owners are able
to improve their structures to cope with rising waters on a periodic basis as part of regular
maintenance and reinvestment opportunities. Any regulations which impede this ability should
be identified and evaluated to determine whether there are any unnecessary restrictions which
could be eliminated.

The second opportunity to minimize future damage from increased inundation along the
engineered urban shoreline is to strengthen land use controls. While not originally adopted
as a response to threats posed by accelerated sea-level rise, giving a strong preference to
water-dependent uses for shoreline sites can become an important component of a sea-level
rise adaptive response strategy.
There are multiple policy reasons for restricting occupancy of structures over water and
along the immediate shoreline to uses which must locate there in order to function. Sites
which provide reasonable access to navigable waters are a scarce resource, particularly in the
Portland/South Portland harbor which has a very small shoreline in comparison to other ports
in urban areas of a comparable size.' Those sites should be reserved for those uses which
cannot function without that access. Other activities which are attracted to the shore primarily
for the views, ambiance, or other amenity values-such as retail shops, residential uses, and
non-water dependent offices-should be required to locate further inland. They should not be
allowed to preclude marine uses." The only exception to this general principle should be in
the case where non-water dependent uses can contribute to the economic health of
water-dependent uses and key water-dependent uses would not otherwise be able to maintain
the necessary piers, wharves, or similar infrastructure.
Without strong land use controls favoring water-dependent uses, during the last decade,
market forces in New England's cities have combined to encourage development of
high-density residential dwelling units, festival-type retail marketplaces, and high rise offices
directly on the waterfront. This type of high intensity development immediately on the shore
places many people, expensive structures, and complex urban infrastructure at risk from the
impacts of rising seas.
In contrast, maritime uses tend to involve a lower level of investment in immobile
structures or equipment, would have fewer people on site who would be exposed to the risk
of storm events, and involve businesses and employees who are more cognizant of and

ANTicrmoRy PLANNING FOR RELATIVE SEA-LEVEL RISE ALONG THE COAST OF MAINE 5-25

accustomed to dealing with the vagaries of coastal waters. Furthermore, by definition,
water-dependent uses have no option but to locate along the waterfront.
Restricting new shoreline development along engineered urban waterfronts to those uses
which need to be there-water-dependent-uses-should help minimize the potential damage
from storm surges or coastal inundation as a result of sea-level rise. This "no regrets"
strategy will hold down the value of development in areas vulnerable to increased damage
from possible sea-level rise. But even if sea level doesn't rise, it is consistent with other
policies supporting the preservation of shoreline sites for water-dependent uses.
Municipalities should give strict interpretation to the definition of water-dependent uses so
as to disallow uses such as residential condominiums with boat slips and floating restaurants
as "water-dependent uses." Similarly, as projections of sea-level change are developed with
greater precision, municipalities should evaluate whether they should develop more rigorous
standards for larger water-dependent use structures which would require applicants to prove
that the development is designed to minimize the hazards of storm surges assuming a rise in
sea level of 3 feet over the next century. This two-tiered review would be similar to the
stricter scrutiny given to structures in excess of certain height and size thresholds under the
Sand Dune Rules.

The State should also review its policies on water-dependent uses. The Shoreland Zoning
Guidelines allow, but do not mandate, identification of areas for inclusion in Commercial
Fisheries/Maritime Activities zones. While Portland has a fairly strong waterfront zoning
ordinance, the State should assess whether other communities with highly engineered
waterfronts are permitting non-water dependent uses to locate in areas vulnerable to sea-level
rise. One way to address the dual goals of protecting and promoting water-dependent uses and
of minimizing the risk of damage due to sea-level rise would be to strengthen the Shoreland
Zoning Guidelines to require designation of areas meeting particular site characteristics (e.g.,
a combination of utility as a site for a maritime use and orientation to wind and water making
it vulnerable to sea-level rise effects) as Commercial Fisheries/Maritime Activities District,
thus precluding new non-water dependent uses.

C. FEDERAL LAws AND REGULATIONS RELEVANT TO SEA-LEvEL
RISE

In theory, federal laws could also supplement state laws to comprise a de facto substantive
response to accelerated sea-level rise. In this section, relevant federal laws are reviewed in
summary form. to identify the extent to which they do supplement the response established by
Maine's existing laws and regulations. In general this analysis concludes that while federal
research efforts and funding initiatives are important in assisting states with the development
of anticipatory response strategies, existing federal laws and regulations do not provide spe-
cific guidance to states or supplement state laws in a significant substantive way so as to
constitute an anticipatory response strategy to accelerated sea-level rise.

5-26 ftspoNsIvENEss OF EXISTING STATE AND FEDERAL LAWS TO SEA-LEvEL RISE

1. Coastal Zone Management Program
The federal coastal zone management program, established by the Coastal Zone
Management Act of 1972, as amended,' encourages and assists the states in preparing and
implementing management programs to "preserve, protect, develop and where possible, to
restore or enhance the resources of the nation' s coastal zone.""

The Act was amended in 1990 to incorporate references to sea-level rise. A new
Congressional finding states: "[b]ecause global warming may result in a substantial sea level
rise with. serious adverse effects in the coastal zone, coastal states must anticipate and plan for
such an occurrence."" Each participating state's management plan is directed to provide for
management of coastal development to minimize losses caused by improper development in
"flood-prone, storni surge, geological hazard, and erosion-prone areas and in areas likely to
be affected by or vulnerable to sea level rise, land subsidence and saltwater intrusion, and by
the destruction of natural protective features such as beaches, dunes, wetlands, and barrier
islands."" Thus, to remain consistent with the federal law, and therefore eligible for federal
financial assistance and leverage over federal actions, coastal management programs are
required to incorporate sea-level rise considerations into program objectives and activities.

The 1990 amendments established section 309 Coastal Zone Enhancement Grants to assist
states with specific projects to improve their management plans and implementing laws. Eight
broad "enhancement objectives" qualify for the funding, including an objective on coastal
hazards; anticipating and managing the effects of potential sea-level rise is one of the specific
eligible topics within the hazard objective.
In surrunary, the Coastal Zone Management Act now requires some consideration of
sea-level rise as part of the coastal management program and provides an opportunity for
enhancement grant funding to facilitate planning and enhanced management. As with other
coastal policy objectives, the Act does not mandate any particular sea-level rise strategy. Due
to the variation among the states in regulatory framework, problems posed, and institutional
allocation of responsibilities, the Act leaves it to each state to develop the response that is
most appropriate for it.

2. Federal Climate Change Research
Another way the federal government is involved in planning for sea-level rise is through
supported research. The U.S. Global Change Research Program is multi-year, multi-agency,
federally-funded research program designed to bridge the gap between scientific research and
policy initiatives. It encourages research to monitor, understand, and predict global change,
and to improve the scientific basis for developing national and international policy.
Greenhouse gases in the atmosphere and sea-level rise are among the global change
phenomena targeted for study.
Through this program, and with other funding, the United States Environmental Protection
Agency (EPA) and National Oceanic and Atmospheric Administration (NOAA) have taken
lead roles, both within this country and in international efforts, to develop a consensus on
greenhouse gas issues and response strategies. The EPA has conducted or funded a significant
portion of the state climate change research on adaptive responses to accelerated sea-level rise.

ANTiciPAToRy PLANNING FOR RELATIVE SEA-LEvEL RISE ALONG TM COAST OF MAm 5-27

It will be important for states to keep themselves informed about the results of this research
so that they can review their anticipatory strategies periodically in response to developing
information. However, this federal research effort does not, in itself, establish any substantive
portion of a policy response strategy.

3. Federal Clean Water Act
Section 404 of the federal Clean Water Act' is the primary federal law controlling
development in coastal wetlands, the area most vulnerable to rising seas. It requires anyone
who wants to conduct dredging and filling activities in navigable waters, including wetlands,
to obtain a permit from the U.S. Army Corps of Engineers (COE). Federal resource
agencies, the Fish and Wildlife Service (F&W), the Environmental Protection Agency (EPA)
and the National Marine Fisheries Service (NMFS), review and comment on various permit
applications. Through this permitting process, the COE and the resource agencies can play
a critical role in reviewing development in coastal and estuarine waters and protecting coastal
wetlands.

The COE generally evaluates projects based on historical sea levels. There is no formal
guidance directing the COE or the resource agencies to evaluate projects taking into
consideration the risks of accelerated sea-level rise or the need to ensure that coastal wetlands
have the ability to migrate. Even if accelerated sea-level rise became a routine consideration
in the COE's public interest review, the COE might still have limited influence over major
impediments to coastal wetland migration due to the geographic limits of its jurisdiction.
Despite a lack of formal guidance or statutory directive, district offices and resource agencies
may have the discretion to consider risks of accelerated sea-level rise in project review if the
71
agencies consider them to be significant.
While not within the purview of the Clean Water Act, it should be noted that the COE also
plays a major role in civil works functions such as the construction of seawalls, jetties, and
other hard erosion control structures, in soft erosion control efforts such as beach restoration
and renourishment, and in navigation projects such as channel dredging. Historical erosion
rates are typically used in project assessment. The COE is likely to play a major role in these
types of engineered responses if sea-level rise accelerates.

4. Coastal Barriers Resources Act of 1982

The federal Coastal Barrier Resources Act of 198211 established the Coastal Barrier
Resources System, consisting of undeveloped coastal barriers along the Atlantic and Gulf of
Mexico coasts. The coastal barriers were designated by the Secretary of the Interior in
consultation with the Governors and state coastal zone management agencies, after public
comment.

The Act imposes limits on federal expenditures within the System; except for a few narrow
exceptions, no new federal expenditures or new financial assistance under the authority of any
federal law may be made within the System. This precludes financial assistance for most
development activities. Proscribed development activities include construction or purchase of
structures, construction of roads, airports, boat-landing facilities, bridges or causeways, and
most erosion prevention projects.

5-28 REspoNswENEss OF EmSTING STATE AND FEDERAL LAWS TO SEA-LEvEL RisE

The only exceptions to the prohibition on federal expenditures or financial assistance are
for water-dependent energy resources; navigational channels, structures, and dredge material
disposal; maintenance and repair of certain public roads, structures and facilities; certain
military activities; Coast Guard facilities; a variety of other emergency, habitat and research
activities; and "nonstructural projects for shoreline stabilization that are designed to mimic,
enhance or restore a natural stabilization system.
The coastal barriers identified by the federal Coastal Barrier Resources System are also
identified by Maine statute as being part of the Maine Coastal Barrier System. Under Maine
statute, the use of state funds and financial assistance are also prohibited (with certain
exceptions) in the designated areas. 17
The geographic extent of coverage is very limited. Only approximately 22.5 miles of
71
Maine's 3,400 mile shoreline are included in the Coastal Barrier Resources System (CBRS).
Other areas which are already protected (such as through state ownership) are not included in
the CBRS designations.
This Act is consistent with a retreat strategy. It prohibits erosion stabilization projects
except for nonstructural shoreline stabilization projects that are designed to mimic, enhance,
or restore natural stabilization systems. It limits use of public funds for development in these
areas and promotes retention of natural storm protection functions. But the Act provides only
limited protection; it does not restrict private development nor does it include much of the
shoreline.

In light of the threat of accelerated sea-level rise, it is appropriate to evaluate whether
there are other areas which meet the criteria and should be included in the system.

5. National Flood Insurance Program
The National Flood Insurance Program (NFIP)," first enacted in 1968, is designed to
reduce the cost of Federal disaster assistance following floods. NFIP, administered by the
Federal Insurance Administration under the Federal Emergency Management Agency (FEMA),
made previously unavailable flood insurance protection available to property owners in flood
hazard areas if the community in which they resided adopted a floodplain ordinance meeting
Federal standards designed to reduce or avoid future flood losses. These ordinances were
intended to ensure that any new structures constructed in a floodplain would be designed to
withstand a 100-year flood with minimal damage.
Most coastal communities have opted to participate in the program by adopting building
codes and zoning rules acceptable to FEMA. This voluntary local participation makes flood
insurance available to owners of new and existing structures, allows owners to apply for
construction loans from federally-regulated lending institutions, and makes the community
eligible to receive non-emergency federal disaster relief funds (e.g., funds to repair roads,
schools, sewers, etc.).
The NFIP consists of three stages: the identification stage, the emergency program stage,
and the regular program stage. At the identification stage, flood-prone communities are
identified, and preliminary maps are prepared to identify general outlines of floodplains,

ANTICIEPATORY PLANNING FOR RELATrw SEA-LEvEL RISE ALONG THE COAST OF MAINE 5-29

including "A" Zones representing areas expected to be inundated during a 100-year flood.
In Maine, all identification has been completed.
To enter the emergency program stage, the community must enact a preliminary ordinance
which requires a permit for construction or other development in flood-prone areas and which
otherwise meets FEMA standards. The ordinance must require that new construction and
substantial improvements be elevated above base flood level or, in non-residential structures,
be flood-proofed rather than elevated. Flood insurance is available at this emergency program
stage, but there are maximum ceilings on insurance coverage of $35,000 for a single family
home and $10,000 for its contents.' As of the end of 1993, five Maine communities which
had just recently decided to join the program were still in the emergency program stage.
Once a community enters the emergency program, FEMA produces a Flood Insurance
Rate Map (FIRM) for the town outlining flood-prone areas. In some communities, the FIRM
is prepared based on detailed engineering studies which identify areas of special flood hazard
designated Zones A, Al-30, AE, AO and AH. Each zone has corresponding requirements
which must be met before a permit will be granted for construction or other development.
In communities with lower flood risks, FEMA may opt to forego detailed studies and
identify only "A" Zones on the Flood Insurance Rate Map. In Maine, less than one-half of
the participating towns have FIRMS based on detailed studies. The majority of towns do not
have detailed studies so in these communities only "A" Zones are mapped.
A community then has six months to enter the regular program by incorporating the FIRM
into its zoning ordinance or other floodplain management ordinance. Once in the regular
program, full insurance coverage is generally available. A portion of that insurance may be
provided at premium-subsidized rates.81
The National Flood Insurance Program has been subject to criticism on a variety of
grounds since its inception." While those general criticisms may have implications for its
usefulness as a mitigation tool, for purposes of this study, the most directly relevant criticism
is that the National Flood Insurance Program fails to adequately address gradual shoreline
erosion.

Due to the statutory mandate of the Program, it places primary emphasis on avoiding flood
damage. To this end, it relies on elevating structures and "flood-proofing" as the primary
means of preventing loss of life and structures. The construction standards are primarily
designed to bring structures through the intermittent effects of coastal storms without reducing
the capacity of the water to runoff adjacent lands. They are not designed to minimize loss
when the land underlying the structure has eroded away through a gradual process.
One study of coastal erosion, reviewing the National Flood Insurance Program and other
federal responses, found that:
recognition of erosion as a hazard in its own right, apart from coastal flooding, has
only recently begun to emerge. Federal policy has typically addressed storm-generated
erosion as a short-term phenomenon with little attention to longer-term or gradual
erosion resulting from the effects of relative sea level rise.81

5-30 RESPONSIVENESS OF ExiSTING STATE AND FEDERAL LAWS TO SEA-LEvEL RISE

Other analysts have also identified this as a shortcoming of the Act, and have asserted that it
fails to incorporate an adequate strategic response to shoreline erosion caused by either
historical or future rates of sea-level rise.'
While some recent efforts have been made to amend the statute to develop greater erosion
management capability based on available historical data, the statute has not been amended to
incorporate any assumptions about an accelerated rate of sea-level rise as a result of global
climate change." Premiums do not reflect any projections of accelerated erosion due to an
16
increase in sea level. One commentator also suggests that under current law, due to a
statutory cap on rate increases, even if the risk of inundation from accelerated sea-level rise
becomes known and apparent, these rates will still be unable to reflect this knowledge, thus
FEMA will be precluded from charging actuarially sound rates.'
Over the years, there have been several efforts to incorporate an erosion element into flood
insurance risk assessment. A 1973 amendment added erosion as a possible flood JOSS,88 and
1976 regulations further established a framework for communities to use in addressing erosion
hazards.8' But these efforts were very narrow, addressing erosion only if it related to a flood
event, and ignoring gradual erosion. A national study commissioned by FEMA found that
NFIP failed to take action to implement even these limited flood-related changes.'
The next major effort to manage erosion under NFIP took the form of the 1988
Upton-Jones Act amendments to NFIR" These amendments, extended to 1995, authorize
payment from the National Flood Insurance Fund to demolish or relocate insured structures
that are subject to imminent collapse or subsidence as a result of erosion. The intent was to
encourage removal of erosion-prone structures in advance of their collapse, minimizing
hazards and reducing the total loss expenditures.
The amendments also established new setback lines by mandating that once the Act
applies, no further flood insurance is permitted on that land unless the new or relocated
structure is landward of the setbacks. For 1-4 family residential structures, the setback is
based on a 30-year erosion standard; for any other structure, it is based on a 60-year erosion
standard. These are calculated assuming a continuation of historical rates.
The Upton-Jones Amendments have been praised as an important first step in setting the
stage for identifying erosion hazard zones, for adjusting premiums to reflect erosion risks as
well as flood risks, and for developing new land-use standards. But there is still widespread
concern over the program and multiple revisions have been recommended to improve its
effectiveness.' For example, one national evaluation recommended that the geographic area
of eligibility, the "zone of imminent collapse," be expanded to facilitate anticipatory removal
of structures in advance of a major storm event.' Another national assessment of policy
options for preparing for climate change recommended that the NFIP mapping and rate
structures be revised to incorporate at least conservative estimates of sea-level rise.'
Even with the Upton-Jones Amendments, the NFIP still does not include any express
consideration of projections of accelerated sea-level rise. Under the current Act, future
erosion estimates are to be based on projections of past shoreline change as documented in
existing records; sea-level rise trends will not be incorporated into the projection of future risk
unless they are already "present in the existing record."'

ANTiCEPATORY PLANNING FOR RELATIVE SEA-LEvEL RISE ALONG THE COAST OF MAINE 5-31

In 1991 and 1992 significant amendments to the NFIP were proposed but in both years the
amendments failed.' Both proposals expressly recognized the relative rise in sea level as
threatening the flood insurance program with greater financial liability.' Both proposals also
sought to increase compliance by imposing requirements on lenders," to increase local incen-
tives to reduce construction and the number of structures in flood-prone areas through
premium rate reductions," and to increase State mitigation activities such as elevation, flood-
proofing, and relocation through national mitigation grants.'00 The proposals would also have
established erosion management programs with mandatory (1991) or voluntary (1992) land
management standards for erosion-prone areas.
Senator Kerry introduced a slightly amended "National Flood Insurance Reform Act of
1993 " in August, 1993. "' Again the bill proposes that Congress find that the relative rise in
sea level exposes the NFIP to risks that should be adequately considered in risk assessment.
Erosion hazard areas, to be identified based on erosion rate information and other historical
data, are defined as areas where erosion is likely to result in damage to or loss of buildings
and infrastructure within a 60 year period. Other than requirements that the delineations be
updated periodically, there is no express recognition of the threat of an increased rate of
sea-level rise as a result of global climate change.
The State should monitor the progress of the Kerry proposal and similar pending bills"
which would amend the National Flood Insurance Program. These amendments might alter
the economic incentives to develop in or retreat from vulnerable areas.
The pending amendments to NFIP do not constitute a direct response to anticipated
accelerated sea-level rise as a result of global climate change, but they are designed to manage
gradual coastal erosion, divorced from a flood event. They assume a continuation of historical
rates of sea-level rise into the future rather than adopt a projected accelerated rate of rise.
However to the extent that they would protect threatened areas from further development and
would heighten the ability of natural shoreline processes to accommodate to a change in
shoreline position, they could help mitigate the impact of accelerated sea-level rise.
The State may also adopt its own measures on coastal erosion to supplement the National
Flood Insurance Program. For example, it could adopt provisions to establish locational
restrictions for coastal structures in the 100-year floodplain keyed to 50- to 100-times the
annual erosion rate and could designate erosion zones within flood hazard areas where only
movable structures will be allowed.

D. CONCLUSION

The federal programs discussed above provide some limited incentives and technical
assistance for states to engage in erosion mitigation planning. For example, the Coastal Zone
Management Act has been amended to recognize rising seas as a critical area for anticipatory
planning and now provides financial assistance for programmatic changes through
Enhancement Grants. EPNs Climate Change program also provides valuable technical assist-
ance to states. However, the federal programs are not yet internally consistent, nor are they
intended to be a comprehensive response.

5-32 REspoNsivENEss OF ExISTING STATE AND FEDERAL LAWS TO SEA-LEvEL RiSE

Given this lack of a comprehensive policy at the federal level and the general deference
given to states in land use and land development matters, state governments have an
opportunity to play a vital role in implementing coastal erosion mitigation strategies. States
may regulate coastal development directly, as Maine has done in sand dune systems through
the Natural Resources Protection Act. While the setback standards can be improved by
tailoring them to individual beaches or portions of beaches, in general they have successfully
established setback standards for larger structures which incorporate an assumed sea-level rise
of three feet over the next century and have established an important retreat policy for all
structures.

States may also approach the issue more indirectly by guiding local planning and
implementing regulations. Maine has taken this approach through the Coastal Management
Policies Act, the Mandatory Shoreland Zoning Act, and the Growth Management Act.
Together these Acts establish overall goals and minimum standards, but leave it to individual
municipalities to develop plans and regulations which are consistent with these goals.
The products of these state-mandated planning requirements have been uneven, both from
town to town, and within local plans, from goal to goal. While towns generally focused a lot
of energy on identifying the community's vision for itself, delineating growth and rural areas,
and deciding on implementation strategies, they gave less attention to more technical issues
such as preventing inappropriate development in natural hazard areas, including flood plains
and areas of high erosion. While some technical assistance was available to towns concerning
sea-level rise and coastal erosion, these topics did not generally receive major emphasis. At
the time, this was probably a rational approach given the difficulty in obtaining
municipality-specific information about historical erosion and project sea-level rise, the
complexity of coastal hazard mitigation and sea-level rise issues, the existence of local
floodplain ordinances, and the degree to which state agencies already regulated development
in fragile environmental areas such as wetlands and sand dunes.
However, as indicated in the preceding system-by-system review of state laws and
regulations, local reliance on the adequacy of state regulation may be somewhat misplaced.
The State generally does a good job of regulating sand dune systems. However, there are
significant gaps in state regulation of development adjacent to salt marshes and on eroding
bluffs.
State legislators and resource managers will have to evaluate the most appropriate way to
proceed to amend state and/or local ordinances to be prepared for the possibility of an accel-
erated rate of sea-level rise. The State can opt to rely on amendments to NRPA and
promulgation of additional rules. Since there already seems to be an expectation that the State
regulates development in coastal erosion hazard areas and since the State has the necessary
technical expertise, it would make sense for the State to extend shoreline regulation to
encompass the entire "soft coast" system of sand beaches, salt marshes, and eroding bluffs.
This state-wide approach is also supported by considerations of:
1) interjurisdictional equity in coastal development management, since all
municipalities would operate under the same restrictions;

ANTiCIEPATORY PLANNING FOR RELATIVE SEA-LEvEL RISE ALONG TIM COAST OF MAWE 5-33

2) availability of necessary technical and legal expertise, since the development
regulations may need to be fairly complex and well-substantiated to avoid legal
challenges from owners of land in vulnerable areas;
3) consistent control over state infrastructure and public investment policies; and
4) ability to consider multijurisdictional impacts of changes in coastal systems such
as interference with natural processes in one town affecting the shoreline in an
adjacent town.
However, the State could also opt to encourage municipalities to make necessary changes
in their local land use and shoreland zoning ordinances. It is arguable that this approach
would allow local municipalities to tailor the most appropriate regulations for their own
conditions. However, any reliance on voluntary municipal action would have to be
supplemented by extensive technical assistance from the State to provide model ordinance
provisions, detailed data about local historical erosion rates, and detailed projections of
changes in shoreline position given assumed sea-level rise scenarios. It would also require
extensive public education about the dynamic nature of coastal systems to convince local
officials and citizens of the benefit of these regulations.
A hybrid of these approaches may prove most successful since these options are not
mutually exclusive. The State could strengthen the NRPA regulations to establish statewide
minimum policies and regulations governing development within the "soft coast" system. And
those municipalities that wish to go beyond NRPA may adopt their own more rigorous
standards regulating development in erosion prone areas or wetlands as part of their shoreland
zoning, land use, or wetland ordinances.

E. ENDNOTES

1. 38 MRSA �� 1801-03.

2. COASTAL ADVISORY COMMITTEE, COASTAL MANAGEMENT POLICY GUIDELINES 9 (Augusta, ME:
Maine State Planning Office, Dec. 1986).

3. Id.

4. For example, Maine Geological Survey, the Department of Economic and Community Development
and the Department of Environmental Protection are involved in the second phase of a Section 309
Project of Special Merit to designate coastal hazard areas threatened by sea-level rise and to
recommend modifications in state laws and regulations to more thoroughly address hazards created by
coastal processes including sea-level rise. MAINE STATE PLANNING OFFICE, MAINE's COASTAL
PROGRAM: FUNDING APPLICATION, JULY 1993 THROUGH JUNE 1994 (111-53-56).

5. Comprehensive Planning and Land Use Regulation Act, 30-A MRSA �� 4311-4344.

6. Mandatory Zoning and Subdivision Control Act, 38 MRSA �� 435-449.

7. JOSEPH KELLEY, ET AL. LIVING WITH THE COAST OF MAINE 7 (Durham, NC: Duke University Press
1989).

5-34 RESPONSIVENESS OF EXISTING STATE AND FEDERAL LAWS TO SEA-LEVEL RISE

8. 38 MRSA �� 480-A-U.

9. Coastal Sand Dune Rules, Code Me. R., Ch. 355, �3, 06 096 355-007.

10. Id.

11. Id.

12. Id. �3, Preamble.

13. Development in certain back dunes was exempted from the permit requirements in 1993 (38
M.R.S.A. � 480-Q(16) exempting back dune alterations from permit requirements), but coverage has
generally been reinstated by a 1994 emergency amendment which makes the exemption applicable only
if the back dune site is not expected to be damaged due to shoreline change within 100 years based on
historic and projected trends, and repeals the entire permit exemption for back dunes on February 15,
1995 to be replaced by permit-by-rule performance standards for activities exempt under � 16 on that
date. Maine Legislative Service, 116th Legislature, Ch. 522 (March 14, 1994).

14. Id. � 480-B(l).

15. Id. � 480-D (7).

16. Coastal Sand Dune Rules, supra note 9, �3(A)(2).

17. Hall v. Board of Environmental Protection, 498 A.2d 260 (1985). The Court indicated that the
same analysis would apply regardless of whether this was treated as new construction or rebuilding of
a substantially damaged structure. Id. at 264.

18. Hall v. Board of Environmental Protection, 528 A.2d 453 (1987).

19. Rubin v. Board of Environmental Protection, 577 A.2d 1189 (1990).

20. Fichter v. Board of Environmental Protection, 604 A.2d 433 (1992).

21. Plaintiffs' heirs have reportedly discussed pursuing a takings claim, but as of July 1994 had not
filed to do so.

22. 38 M.R.S.A. � 480-0.

23. With the exception of piers, and additions, a combined total of which cover less than 250 square
feet of ground surface. Id. �3 (B)(1).

24. Sand Dune Rules, supra note 9, �3(A)(2).

25. See Appendix A, section D of this report for a more detailed discussion.

26. See Appendix A, section E of this report for a more detailed discussion.

27. See Appendix A, section F of this report for a more detailed discussion.

28. See Appendix A, section G of this report for a more detailed discussion.

ANTicIPATORY PLANNING FOR RELATIVE SEA-LEVEL RISE ALONG THE COAST OF MAINE 5-35

29. 38 MRSA �� 1901-1905.

30. See Appendix A, section I of this report for a more detailed discussion.

31. An applicant may contest the mapped designations through an on-site survey.

32. Coastal Sand Dune Rules, supra note 9, �3(A)(2).

33. RUTHERFORD H. PLATT, ET AL., COASTAL EROSION: HAS RETREAT SOUNDED? 132-135 (Program
on Environment and Behavior Monograph No. 53, Institute of Behavioral Science, University of
Colorado, 1992).

34. Id. at 19 1.

35. COMMITTEE ON COASTAL EROSION ZONE MANAGEMENT, MANAGING COASTAL EROSION 9 (Wash.,
D.C.: National Academy Press 1990).

36. Others contend if the erosion rate is more than one foot or so per year, setbacks established at 100
times the annual erosion rate are too high because they unfairly deprive property owners of the right
to use coastal land, particularly if they would not even be allowed to build a small house that could
be moved back if required. See J.G. Titus, The Cost of Holding Back the Sea, 19 COASTAL
MANAGEMENT 171 (1991).

37. W.A. Anderson, et al., Crustal Warping in Coastal Maine, 12 GEOLOGY (1984).

38. T.M.L. Wigley & S.C.B. Raper, Implications for Climate and Sea Level of Revised IPCC
Emissions Scenarios 357 NATURE 293-300.

39. STEPHEN M. DICKSON, SHORELINE EROSION MANAGEMENT PROTECT - PHASE 1, PROJECT
COMPLETION REPORT 2 (Maine Geological Survey, July, 16, 1993).

40. Coastal Sand Dune Rules, supra note 9, �3(A)(2).

41. See Coastal Sand Dune Rules, supra note 9, �3(B)(2)(c) which requires applicants for buildings
greater than 35 feet in height or covering greater than 2500 square feet to show by clear and
convincing evidence that the site will remain stable after allowing for a three-foot rise in sea level over
100 years.

42. For example, the Fichter situation involves applicants who purchased their vacant lot in the 1950s,
well prior to the adoption of the Sand Dune Rules. The lot is surrounded by residences built on similar
lots, but is too small to allow the applicants to meet current setback requirements. The applicants'
taking claim was not reached in the original litigation. Fichter v. Board of Environmental Protection,
604 A.2d 433 (1992). However, a Maine Superior Court rejected a taking claim in a similar
freshwater shoreline situation, holding that even though surrounded by 1920s cottages on small lots
which could not meet current requirements, the applicants did not prove a regulatory taking because
the landowners still had economically beneficial or productive use of their land remaining, despite the
prohibition on construction of a seasonal dwelling. Drake v. Town of Sanford, York County Superior
Court, Docket #CV-88-679, December 18, 1992. On appeal, the Maine Law Court held that since the
Drakes had voluntarily dismissed with prejudice their state law claim for compensation, the federal just
compensation claim must be dismissed as well. 643 A.2d 367, 369 (Me. 1994).

5-36 REspoNsrvENEss OF EXISTING STATE AND FEDERAL LAWS TO SEA-LEvEL RISE

43. According to some scientists, warmer temperatures may yield a 40-50 % increase in the destructive
potential of hurricanes. K. A. Emanuel, 77ze Dependence of Hurricane Intensity on Climate, in AIP
CONFERENCE PROCEEDINGS: THE WORLD AT RISK: NATURAL HAZARDS AND CLIMATE. CHANGE
Symposium 25 (Rafale Bras, ed., Cambridge, MA: MIT Center for Global Change Science and
Industrial Liaison Program, 1992). If Maine experiences an increase in frequency or intensity, it could
cause storm-driven beach erosion which would be in addition to coastal erosion due to an increase in
sea -level.

44. KELLEY, ET AL., supra note 7, at 4.

45. 38 MRSA � 480-A -U.

46. 38 MRSA � 480-B(2).

47. Id. � 480-D, (2),(3),(4) and (6).

48._Dep4rtment@ pf Environmental Protection, Bureau of Land Quality Control, Wetlands Protection
Rule@, [Chapter 310], Code Me. R., � [06 096 310, Page 203000.727].

49. Department of Environmental Protection, Bureau of Land Quality Control, Soil Erosion Standard
of the Coastal Wetlands Law, [1A(4)(b)], Code Me. R. � [06 096 344, Page 203041].

50. Mandatory Zoning and Subdivision Control Act, 38 MRSA �� 435-449.

51. 38 MRSA � 435.

52. State of Maine Guidelines for Municipal Shoreland Zoning Ordinances, [06-096 Department of
Enviromnental Protection Chapter 1000, March 24, 19901.

53. KELLEY, ET AL., supra note 7, at 4.

54. KELLEY, ET AL., supra note 7, at 6.

55. KELLEY, ET AL., supra note 7, at 5.

56. 38 MRSA � 480-A -U.

57. Department of Environmental Protection, Soil Erosion Standard of the Coastal Wetlands Law,
supra note 49.

58. 38 MRSA �� 435-449.

59. 38 MRSA �� 481-490.

60. Effective October, 1993, municipalities may now incorporate a special exception provision to
allow construction of a single family residence of up to 1500 square feet in a resource protection
district if there is no other location on the property where a structure may be built, if the improvements
will not be on slopes of 20% or greater, if it is located out of the velocity zone (or floodway of
100-year floodplain), if it otherwise complies with the municipal floodplain ordinance and is set back
at least 75 feet and to the greatest practical extent. [Public Laws, 116th Legislature, 1193 First
Regular Session, Ch. 318 amending 38 MRSA � 439-A].

ANTICI]PATORY PLANNING FOR ]RELATIVE SEA-LEvEL RISE ALONG THE COAST OF MAINE 5-37

61. KELLEY, ET AL., supra note 7, at 5.

62. KELLEY, ET AL., supra note 7, at 30-31.

63. Further study would be required, however, to determine the vulnerability of office and residential
structures on the piers (e.g., the office and condominium development on Portland Pier and Chandler's
Wharf and low-lying upland areas adjacent to the piers, such as the Commercial Street office/retail
area). It is possible water dependent businesses on the finger piers would be able to modify their
structures and ftinctioning to accommodate occasional higher waters, without providing the types of
walls that would offer flood protection to these other uses.

64. See Appendix A, section G of this report for a more detailed discussion of the State Floodplain
Management Program.

65. These performance standards require that new structures be allowed over or beyond the normal
high-water line of a water body only if they require direct access to the water as an operational
necessity and prohibits the conversion of existing structures extending beyond the normal high-water
line to residential dwelling units. [Guidelines for Municipal Shoreland Zoning Ordinances, March 24,
1990, Section 15 (C)(5-6)].

66. 12 MRSA �� 552, 558-A - 573. For a more detailed discussion, see Appendix A, section D of
this report.

67. See, e.g., MARINE LAW INSTITUTE, GUIDE1300K TO THE ECONOMICS OF WATERFRONT PLANNING
AND WATER DEPENDENT USES (prepared for the New England/New York Coastal Zone Task Force,
Portland, ME: Marine Law Institute, 1988) at 233.

68. See, e.g., MARINE LAW INSTITUTE, MANAGING THE SHORELINE FOR WATER DEPENDENT USES
(prepared for the New England/New York Coastal Zone Task Force, Portland, ME: Marine Law
Institute, 1988) and MARINE LAW INSTITUTE supra note 67.

69. 16 U.S.C.A. � 1451 et seq.

70. Id. � 1452.

71. 16 U.S.C.A. � 1451 (1).

72. 16 U.S.C.A. � 1452 (2)(B).

73. 33 U.S.C. � 1344.

74. The COE has factored relative sea level rise into risk assessments in Louisiana and Texas. PAUL
N. KLARiN, ET AL., SEA LEVEL RISE POLICY ALTERNATIVES STUDY: VOLUME 1, ALTERNATIVE POLICY
RESPONSES FOR ACCELERATED SEA LEVEL RISE AND THEIR IMPLICATIONS, 1-29 (Olympia, Washington
State Department of Ecology, 1990).

75. 16 U.S.C. � 3509.

76. 16 U.S.C. � 3505(a).

5-38 RESPONSIVENESS OF EmSTING STATE AND FEDERAL LAWS TO SEA-LEVEL RISE

77' For further discussion of Maine's Coastal Barrier Resources System, see MRSA � 1901 et seq.
and the summary in Appendix A of this report.

78. COASTAL BARRIERS STuDY GRoup, REPORT TO CONGRESS: COASTAL BARRIER RESOURCES SYSTEM
-RECOMMENDATIONS FOR ADDITIONS TO OR DELETIONS FROM THE COASTAL BARRIER REsouRcEs
SYSTEM, VOL 2., MAINE, (U.S. Department of the Interior, 1988).

79. 42 U.S.C. �� 4001-4128; Federal Emergency Management Agency Regulations, 44 C.F.R. ��
59.1 - 77.2 (1992).

80. 44 C.F.R. � 61.8(b)(1)(i).

81. At this stage, coverage price is supposed to be determined based on actuarial cost. However, for
buildings in existence before the FIRM was established, a portion of the cost is subsidized by
premiums. For example, for a pre-FIRM single family home the first $35,000 of coverage is at the
lower, subsidized rate. An additional $150,000 of coverage can be added, but it must be paid for at
the FEMA determined actuarial cost. Id. � 61.8(b)(1)(i) and � 61.6(a).

82. For example, in 1992, Senator John Kerry of Massachusetts, the sponsor of a set of proposed
amendments to the NFIP, asserted that chronic problems with that Program included: that only 17%
of those eligible for flood insurance are actually insured; that communities develop ill-advised areas,
with the result that the program is now a larger financial liability; that subsidized premium rates
disguise the true risk and market cost of insurance; and that coastal erosion is not factored into the
actuarial process for setting rates. 138 CONG. REC. S9145-46 (daily ed. June 29, 1992) (statement of
Sen. Kerry); 138 CONG. REC. S18246 (daily ed. Oct. 8, 1992).

83. PLATT, ET AL., supra note 33, at 36.

84. See, e.g., THE POTENTIAL EFFECTS OF GLOBAL CLIMATE CHANGE ON THE UNITED STATES (J.B.
Smith & D.A. Tirpak, eds., Hemisphere Publishing Corporation, 1990) at 359 [hereinafter Smith &
Tirpak]. A new study prepared for three Congressional committees recommends revamping the
National Flood Insurance Program to provide stronger incentives to reduce potential costs associated
with high-risk development in coastal areas, to address erosion along the coast, and to incorporate sea
level rise into the NFIP mapping and rate structure. U.S. CONGRESS, OFFICE OF TECHNOLOGY
ASSESSMENT, I PREPARING FOR AN UNCERTAIN CLIMATE, (Wash., D.C.: U.S. Government Printing
Office, October, 1993) at 41, 197 [hereinafter OFFICE OF TECHNOLOGY ASSESSMENT].

85. The FEMA hazard zones as currently drawn do not account for the hazards from erosion or
sea-level rise. FEMA commissioned a study "to determine the impact of relative sea level rise on the
flood insurance rate maps" and to "project the economic losses associated with estimated sea level rise"
for the nation and by region. See P.L. 101-137, �5, 103 Stat. 825 (Nov. 3, 1989).

86. BENiAmIN NOBEL, SEA-LEvEL RISE AND COASTAL MANAGEMENT POLICIES IN THE UNITED STATES
(Wash., DC: Resources for the Future, 1992) at 9.

87. Smith & Tirpak, supra note 84, at 359.

88. Flood Disaster Protection Act of 1973, 42 U.S.C. � 4121.

89. 44 CFR, Part 60. 1.

ANTICIEPATORY PLANNING FOR RELATIVE SEA-LEVEL RISE ALONG THE COAST OF MAINE 5-39

90. NATIONAL RESEARCH COUNCIL, MANAGING COASTAL EROSION (Wash., DC: National Academy
Press, 1990) at 73.

91. 42 U.S.C.S. � 4013(c).

92. See, e.g., the conclusions of the National Research Council in its 1990 report, MANAGING
COASTAL EROSION, supra note 90, at 87-93 and conclusions of the OFFICE OF TECHNOLOGY
ASSESSMENT, supra note 84, at 197.

93. NATIONAL RESEARCH COUNCIL, supra note 90, at 87.

94. OFFICE OF TECHNOLOGY ASSESSMENT, supra note 84, at 197.

95. NOBLE, supra note 86, at 17.

96. The companion House bill to the National Flood Insurance Mitigation Act of 1991 passed easily.
But the Senate failed to pass the 1991 Act. 138 CoNG. REc. S9145 (daily ed. June 29, 1992)
(Statement of Sen. Kerry). The Senate did not pass the revised version of the 1991 Act, the National
Flood Insurance Reform Act of 1992, either. 138 CONG. REc. S18244 (daily ed. October 8, 1992)
(statement of Sen. Kerry).

97. 138 CONG. REc. S9317-9328 (daily ed. June 30, 1992) (reprint of National Flood Insurance Act
of 1992) [hereinafter 1992 Act]; 137 CONG. REc. S12207-12217 (daily ed. Aug. 2, 1991) (reprint of
National Flood Insurance, Mitigation and Erosion Management Act) [hereinafter 1991 Act].

98. 1992 Act �� 21-129; 1991 Act �� 201-209.

99. 1992 Act � 131; 1991 Act � 301.

100. 1992 Act �� 141-148; 1991 Act �� 401-406.

101. National Flood Insurance Act of 1993, S. 1405, 103d Cong., lst Sess., U.S. Senate, August 6,
1993, pending.

102. See, e.g., 1993 H.R. 62, National Flood Insurance Compliance, Mitigation & Erosion
Management, 103rd Cong., lst Sess., U.S. House of Representatives, Jan. 5, 1993, Pending; 1993
S. 1024, Local Innovation and Coastal Protection Act of 1993, 103rd Cong., Ist Sess., U.S. Senate,
May 25, 1993, Pending.

10"'F-
unapter Six

LEGAL CONSIDERATIONS FOR MAINE'S
POLICY RESPONSE

Most tools that are likely to provide an effective policy response to sea-level rise are in
the hands of state and local governments. As the preceding chapter indicated, federal legal
authority to address rising sea level is limited to the federal flood insurance program, which
has yet to incorporate assumptions of an accelerated rate of rise, and the financial and
technical assistance for planning provided to states under the federal Coastal Zone
Management Act. The activities of private organizations that operate on a local or regional
level, such as land trusts, can be important components of a state-wide response strategy.
The response tools from which Maine can choose fall into three broad categories:
regulatory, non-regulatory (Le, market-based), and informational. The selection of
appropriate tools can be based upon whether Maine decides to pursue a strategic retreat,
accommodation, or resistance/protection course of action, or a combination of these
approaches. In this part of the report, it is assumed that Maine will opt to pursue a retreat
policy along most of the coast, based upon considerations and assumptions discussed in the
preceding chapters.
This chapter examines the retreat policy tools available to Maine in terms of their legal
feasibility and defensibility. The primary focus is on the potential constitutional challenges
to those regulatory tools that reduce the land use choices of private landowners. While the
legal authority to employ the non-regulatory, market-based tools is an important consideration,
these approaches by definition present fewer bases for legal challenge, especially under the
takings clause. Accordingly, their legal defensibility is discussed less extensively The
informational tools, which are very important to support both regulatory and non-regulatory
approaches, are discussed only very briefly. However, it is important that Maine consider and
select from the full array of tools available for a sea-level rise response; the legal feasibility
is just one factor to consider in formulating the State's policies.

A. OVERVEEW OF POLicy RESPONSE OmONS AND TOOLS
Tools that are regulatory in nature are those within the broad range of land use controls
and regulations that can be adapted for the special conditions of rising sea level. These
include:

6-1

6-2 LEGAL CoNsEDERAiioNs FOR MAINE'S POLICY RESPONSE

� static or dynamic construction setback lines which restrict new development
next to the shoreline and are measured using either historic or accelerated
shoreline erosion rates and the average useful life of structures;
� conditional land use permits for new shoreline development that require
removal of structures once shoreline migration begins to occur' or which
condition development on the conveyance of a rolling easement' or a covenant
prohibiting the construction of a seawall or bulkhead;
� prohibitions on rebuilding of existing structures based upon projections of the
future location of the tide line;
� building and engineering codes and design standards requiring new structures
to be built at elevations above a future sea level; and
� buffer/no building zones around critical natural areas such as wetlands likely
to migrate with rising sea level.'
Non-regulatory tools rely on market forces and voluntary actions rather than legal
prescriptions to prevent development in areas subject to rising sea level. These include:
� public purchase of full or partial property rights such as flowage easements on
land likely to be affected by rising sea level;
� incentives or subsidies for private owners to relocate development away from
the shoreline;
� tax incentives to preserve undeveloped areas needed for wetland migration;
� development disincentives and exactions to pay public costs of erosion control;
and

� transferable development rights to compensate landowners for development
restrictions (used in conjunction with land use regulations).
Several states have already adopted many of the regulatory tools listed above in their
efforts to control coastal erosion and hazards. A small number of states have expressly
evaluated these tools for the purpose of anticipating a rising sea level associated with global
climate change. A review of state programs with coastal hazard control and sea-level rise
provisions is provided in Appendix B.
Few states have evaluated or adopted non-regulatory, market-based approaches for
addressing sea-level rise. However, a number of these non-regulatory tools present advantages
that should not be overlooked, especially when used in conjunction with a system of land use
controls relevant for sea-level rise. The main advantage of non-regulatory tools like the
voluntarily-conveyed, rolling easement is that they are useful when sea-level rise forecasts are
uncertain. They do not require the same degree of scientific and technical support as
regulatory restrictions. These tools, while novel today, are likely to become more feasible
in the near future. This will happen when the public becomes more familiar with alternatives
to land use regulation and realizes that non-regulatory alternatives are less litigation-prone and
can be more cost-effective than regulation. In the discussion that follows, the feasibility of

ANTiciPAToRy PLANNING FOR RELATIVE SEA-LEVEL RISE ALONG THE COAST OF MAINE 6-3

non-regulatory alternatives particularly suited for sea-level rise policy will be considered in
light of Maine law in section D.

B. REGULATORY OPTIONS FOR MAINE'S SEA-LEvEL RESPONSE
Maine, like many other states, already has in place a system of land use control laws
designed to control development in environmentally-sensitive areas and to prevent growth from
overtaxing public infrastructure needed to support communities.' As described in Chapter
Five, one of these laws, the Natural Resources Protection Act, through the Sand Dune Rules,
already takes account of rising sea level in sand dune systems. That Act does not, however,
expressly consider rising sea level in other coastal wetland or eroding bluff areas. Given this
existing body of environmental and land use control laws and their gaps in coverage, it is
likely that Maine's policy makers will wish to consider adopting several additional regulatory
tools that are consciously designed to anticipate the movement of the shoreline.
Several opportunities exist for strengthening Maine's regulatory controls on land use and
development that would improve the legal framework for dealing with sea-level rise. The
purpose of this chapter is to examine one aspect of the feasibility of these measures-their
ability to withstand legal challenge by property owners. Additional considerations are also
important in determining overall feasibility, including availability of technical resources to
support certain regulations, legislative willingness to adopt additional land use controls
measures, and public understanding and acceptance of such measures. These factors must also
be considered before a final sea-level response strategy can be developed.
In Chapter Five, one measure is described that would protect Maine's valuable and limited
sand beach resources by establishing construction prohibition areas, commonly referred to as
"setbacks," under the Natural Resources Protection Act and the Mandatory Shoreland Zoning
Act. These "no building" areas would be based upon projections of accelerated sea-level rise
for some structures and on historic erosion rates for other structures in a two-tiered system
of setbacks. The first tier of setback lines would apply to smaller structures and would be
established using 100 times the historic annual average erosion rate for a particular beach or
beach segment. A setback line calculated on this basis could also apply to favored coastal uses
such as buildings that support commercial water dependent uses, e.g., shipyards and fishing
support facilities.
Larger structures and developments, and certain less-favored uses, e.g., non-water
dependent commercial uses like restaurants and office buildings, would be subject to a setback
requirement reflecting an assumed accelerated rate of sea-level rise, for instance, 3 feet over
100 years. All new development subject to the Natural Resources Protection Act would also
be conditioned on removal if changes in the shoreline result in its interference with dynamic
dune processes.
Both groups of setback lines would be published on maps available to landowners and
municipal officials and would be subject to periodic review and revision as new information
improves predictions of shoreline change.
To protect the irreplaceable wetland resources and their ecological functions along the
Maine coast, Chapter Five suggests steps to provide for the landward migration of salt
marshes as the level of the sea rises. These would include the adoption of measures under the

64 LEGAL CONSIODERATIONS FOR MAINE'S PoLicy RiEsPONSE

Natural Resources Protection Act and/or local shoreland zoning ordinances to restrict new
development and to phase out existing development in uplands areas adjacent to protected
wetlands that are needed for inland migration. These measures could take three forms:
� an increase in the minimum setback (currently 75 feet) from the upland edge
of a coastal wetland based upon projected changes in shoreline;
� a requirement that applicants for high density development located adjacent to
coastal wetlands prove during site plan review that the site is stable and that the
proposed structures are set back from the wetland's new upland edge that would
result from a projected 100 cm rise in sea level over the next 100 years; and
� a condition on all new development and replacement structures that they be
removed if changes in shoreline result in their interference with natural
migration of salt marsh vegetation or tidal flows of water.
To prevent development on eroding coastal bluffs, Chapter Five suggests these natural
features should be incorporated into the Natural Resources Protection Act and regulations
should be adopted which would parallel the Sand Dune Rules. In addition, or in the
alternative, protection under local shoreland zoning ordinances should be substantially
increased. These rules would limit new development, prevent the construction of bluff
-stabilization devices designed to protect existing structures, and would establish a retreat
policy in the event of future bluff erosion.
With respect to engineered urban shoreline, stronger land use controls than are currently
in place under state and local laws would help to minimize damage from sea-level rise. The
primary action suggested would restrict building occupancy to uses that require a shorefront
location in order to function, uses that are sometimes referred to as "water dependent. " These
restrictions are within the scope of existing zoning and land use controls and would require
no special legal considerations if adopted to address sea-level rise. Such controls would
clearly further important state interests and leave property owners with numerous economically
beneficial uses.

The following discussion will focus on the preceding recommendations that may raise more
difficult questions of legal defensibility. It focuses primarily on the measures designed to
protect sand dune systems, wetlands, and eroding bluffs which may face challenges by land
owners under the federal and Maine constitutional provisions prohibiting governmental
"taking" of property through restrictive land use and environmental regulations.

C. POTENTIAL LEGAL CHALLENGES TO THE REGULATORY TOOLS
1. Overview: Due Process and Takings Clause Challenges
As with all land use regulatory measures that restrict the options of landowners, measures
anticipating climate change-induced sea-level rise may be challenged in court. Some owners
may pose what is referred to as a "substantive due process" challenge to the rationale for the
restrictions. They would claim, for instance, that the sea-level rise projections rely on models
and possible scenarios rather than on proven rates of shoreline change on their property, and
that their property use choices should not be limited by these assumptions. Some landowners

ANTiciuPAToRy PLANNING FOR RELATivE SEA-LEvEL RISE ALONG THE COAST OF MAM 6-5

may also consider the economic impact of restrictions to be so burdensome or so inconsistent
with their expectations that they will accept the risks and costs of mounting a takings clause
challenge.' Because of its scarcity and high demand, coastal property is among the highest
value property in the nation. This increases the likelihood of landowners bringing legal
claims, especially for monetary damages under the takings clause.
State and local land use regulations are very likely to survive the challenge that they lack
a valid public purpose or a substantial basis in fact or scientific evidence. Legislative
judgments, such as the decision to include eroding bluffs under the Natural Resources
Protection Act, are afforded a presumption of validity by reviewing courts. The challenger/
landowner must prove to the court that the legislation or regulations are invalid. A Maine
court will uphold the regulations unless the landowner proves that the laws do not promote the
general welfare, use means that are not appropriate to achieve these public goals, or are being
exercised in an arbitrary or capricious manner.' The court will presume that the regulations
are valid; the challenger must prove that the regulations fail to meet at least one of these three
standards.

Courts in Maine consider protection of environmental quality and preventing harm to life
and property from coastal storms a valid objective of the police (legislative) power.'
Likewise, Maine courts have found that restricting development in environmentally sensitive
areas such as wetlands is an appropriate means of achieving these legislative objectives.' The
courts are likely to find that additional regulations of the type described above are sufficiently
based in fact to be upheld against a substantive due process challenge. This will be so as long
as the regulations are based on some degree of scientific evidence, including, e.g., models and
projections of sea-level rise that are reasonably credible, even if there are alternative
interpretations. Similarly, if the regulations are not discriminatory and treat similar property
in a similar manner, the courts will not find them either arbitrary or capricious.
If a court were to conclude, however, that one of these tests is not met, it would strike
down or invalidate the particular regulation. In that event, the legislature, town council or
selectmen would be free to enact a modified or alternative measure that would meet these tests
and achieve the same ends. The outcome would be different, however, if the landowner
concedes that the regulation is a valid exercise of the police power, but claims that it deprives
her of all or substantially all of her property's value. If she can convince the court that the
regulation constitutes a taking without compensation, the court will not invalidate the
regulation, but will require the regulatory body to compensate the landowner for the
appropriate measure of economic damage she sustained.
There are several ways in which regulators can design their laws in a manner that is
sensitive to the interests of landowners but which can achieve the public policy objectives.
Before describing these, it is necessary to set out the basic legal standards for regulatory
takings under federal and Maine law.

2. Takings Clause Principles
A landowner's challenge to Maine's sea-level rise regulations could be brought under
either the federal or state constitutional provision protecting private property against
governmental takings without compensation. While the tests the courts will use to analyze the

6-6 LEGAL CONSIDERATIONS FOR MAWE'S PoLicy RESPONSE

claim differ slightly, the fundamental considerations are the same: a largely factual inquiry
into the purpose of the regulation and the effect it has on the particular property in question.
a. Federal Takings Law
The Fifth Amendment to the United States Constitution provides that goverm-nent bodies
shall not take "private property ... for public use without just compensation." I Although the
original intent of the provision was to insure private property against physical seizure by the
government, since the 1920s, the U.S. Supreme Court has held that the provision can be
invoked against government regulations that effectively take private property by eliminating
most of its value to the owner through restrictions on its uses. In his famous opinion in
Pennsylvania Coal Co. v. Mahon," Justice Holmes observed that while government could not
function if it could not impose some constraints on private action, "if [a] regulation goes too
far, it will be recognized as a taking.""
While the Supreme Court has consistently held that "no precise rule determines when
property has been taken [by government regulation], " " the Court has generally recognized that
a regulatory taking is effected where a land use regulation "does not substantially advance
legitimate state interests, ... or denies an owner economically viable use of his land."" In
cases where the enactment's legitimate state purpose is not seriously questioned, the Court's
analysis has focused on the "economic impact of the regulation on the claimant and ... the
extent to which the regulation has interfered with investment-backed expectations. "'I
The Supreme Court has developed a multi-factored balancing test, which courts are to use
on a case-by-case basis, to determine when a regulatory burden is so significant that the
affected property owner is entitled to compensation. The courts will look first at the character
of the governmental action and will ask whether the regulation advances a legitimate state
interest. Under this first test, the courts will look to see if the nature of the govermnent action
serves to cause a physical invasion of the private property, by either the imposition of a
structure not owned by the property's owner or by allowing the general public to have access
to the property. If a physical invasion is caused, the regulation will be considered a taking
per se, and the courts will not look beyond that fact to consider the impact of that invasion
upon the property's value.
If the regulation does not cause an invasion, and serves a legitimate state interest, the
courts will then look at the extent to which the regulation affects the landowner's economic
uses of the property. Under this standard, courts often look at the economic impact in two
ways. They may consider the direct impact of the regulation on the market value of the
property. However, regulations causing very significant reductions in market value have been
sustained, so this test is not determinative of a taking, especially where the prohibited use is
a public nuisance. Also, courts may consider the extent to which the restriction interferes with
the owner's investment-backed expectations. This entails looking at the present uses of the
property and whether the owner is enjoying some economic return on the property despite the
restriction.

In essence the multi-factored test seeks to balance the public benefit of the regulation
against the private costs that it imposes. To make this judgment, courts look at the specific
facts of the case, including the rationale for the regulation and the circumstances of the
property owner and similarly situated owners.

ANTICIPATORY PLANNING FOR RELATIVE SEA-LEVEL RISE ALONG THE COAST OF MAINE 6-7

Courts, however, are not required to engage in this balancing process in all cases. In
recent years, the Supreme Court has developed two categorical standards for finding a
regulatory taking. If the regulation falls within either of these two categories, it will
constitute a taking per se and the property owner will be entitled to compensation regardless
of the degree of the economic impact or the nature of the governmental interest served. The
court will not balance the harm the regulation sought to prevent against the effect on the
property owner's interests to determine whether the compensation is due.
As mentioned above, the first categorical standard requires compensation in any
circumstance where the effect of the regulation is to require the physical occupation of any
portion of the owner's property by someone other than the owner, or by some structure or
equipment not owned by the property owner, even if the economic impact of such occupation
is minimal or zero.

The second categorical taking is even more recent in origin and is particularly relevant to
sea-level rise related regulation because of the facts of the case in which the rule was
announced. This test states that when the effect of the regulation is the total elimination of
all economic value of the property, the owner is entitled to compensation for that loss
regardless of the public purpose the restriction sought to achieve. Even if the purpose is to
prevent a serious public harm, this will not shield such "total takings" restrictions from the
compensation requirement. This second category of per se takings, however, has exceptions,
and courts will not order compensation to the land owner when these conditions triggering the
exceptions are present. Unfortunately, when these conditions will be found is unclear, as the
Supreme Court has only discussed the second category of per se takings in one recent case,
and in that case strong dissenting opinions challenged the validity of the per se rule and
questioned the exceptions.
The "total takings" categorical rule was announced in a case challenging a state's beach
erosion setback lines which were enacted as part of the state's coastal management program.
In Lucas v. South Carolina Coastal Council," the U.S. Supreme Court held that when a land
use regulation prohibits all economically beneficial use of the land, the takings clause requires
compensation to the owner unless the regulation merely codifies restrictions inherent in the
property or in the state's common law of nuisance.
While this rule is relatively easy to state, the decision in which it was announced provides
little guidance on how to determine when a land use regulation strips a property of all
economic value. When Mr. Lucas first brought his challenge to South Carolina's setback law,
the state trial court agreed with his claim that the property had zero remaining value. For
procedural reasons the U.S. Supreme Court assumed that this factual finding of a "total
taking" was correct." As a consequence, the Supreme Court operated on the assumption that
the beachfront setback regulation itself had reduced the property's value to zero.
The Supreme Court stated, however, that there would be no taking if the state's property
or nuisance law already imposed a restriction on the use of the property that is comparable
to that brought about by the challenged regulation. Unfortunately, the Lucas case does not
tell us what principles of state property or nuisance law would constitute exceptions to the total
takings rule. When the case was remanded to the state supreme court for consideration of
whether this exception applied, the court merely found, without explication, that no basis

6-8 LEGAL CONSEDERATTONS FOR MAINE'S POLICY RESPONSE

existed in South Carolina's common law to deny Mr. Lucas the right to build on his land.
It then remanded the case to the trial court for a determination of the monetary damages to
which Mr. Lucas was entitled."

The meaning of the Lucas case is further complicated by the fact that the Court expressed
different opinions on the new per se rule and on the meaning of the exceptions. In his
concurring opinion, for example, Justice Kennedy stated that "[c]oastal property may present
such unique concerns for a fragile land system that the State can go further in regulating its
development and use than the common law of nuisance might otherwise permit. " 11
In light of the current Supreme Court's standards and views on the doctrine, the outcome
of a takings claim under the federal Constitution will be hard to predict, especially where the
regulation can be seen as depriving all uses of land. The implications of this uncertainty for
a sea-level rise strategy will be discussed below, after the Maine law on takings is reviewed.
b. Maine Dkings Law
Maine has a constitutional provision very similar to the Fifth Amendment of the U.S.
Constitution. Article I, Section 6 provides that "[p1rivate property shall not be taken for
public uses without just compensation; nor unless the public exigencies require it."" The
Maine Law Court, much like the U.S. Supreme Court, has recognized that takings claims are
subject to no set rule, but rather must be approached as a "factual inquiry into the
substantiality of the diminution in value of the property involved. "I' Generally, a land use
regulation will effect a taking under the Maine Constitution where the regulation renders the
property in question "substantially useless," or where:
it deprives an owner of one of its essential attributes, destroys its value, restricts or
interrupts its common necessary, or profitable use, hampers the owners in the
application of its use to the purpose of trade, or imposes conditions upon the right to
hold or use it and thereby seriously impairs its value."
Stated succinctly, "[t]he question is whether the right in question constitutes 'a fundamental
attribute of ownership' such that its extinguishment would render the property substantially
useless. ""

At the time of this report, the Maine courts have not had an opportunity to apply the total
takings rule to a land use regulation case, so it is not clear if and how the Lucas decision will
affect Maine's takings law. In Maine's own beachfront regulation cases, however, the Maine
Supreme Court has shown a willingness to define broadly the economically beneficial uses that
are open to property owners and has recognized the high economic value of land along the
Maine coast, even if it cannot be built upon under the law.

3. Applications of Takings Clause Principles to Potential Sea-Level Rise
Regulations
Are any of the regulatory measures recommended in Chapter Five for Maine's sea level
response strategy vulnerable to successful regulatory takings challenges by landowners? As
the following will demonstrate, despite the uncertainty that recent Supreme Court decisions

ANTicIPATORY PLANNING FOR RELATIVE SEA-LEVEL RISE ALONG THE COAST OF MAINE 6-9

have caused, contemporary takings law does not pose a high risk that state regulatory
measures will be invalidated or found to require compensation.

a. Coastal Construction Setbacks

Construction setbacks and other development prohibitions stand a good chance of surviving
legal challenges if they are carefully designed with a view toward current takings standards,
including both the traditional balancing test and the categorical "total takings" rule.
Even if the construction setbacks or other development restrictions ban all new
construction outright, the government will have several defenses against a takings challenge.
For example, in most cases where setbacks are imposed, the restrictions will not deprive the
landowner of all economically viable use of the parcel, but will only affect the shoreside
portion. The government should be able to demonstrate that other valuable uses of land
remain, or that the owner has already derived significant benefit from her ownership, either
through subdivision and sale or through development elsewhere on the property.
Similarly, setback requirements and related prohibitions do not cause a permanent physical
invasion of the property by other individuals. It is also unlikely that a court would find that
similar prohibitions on holding back the sea with bulkheads or seawalls would result in a
compensable physical invasion of the parcel.
Finally, the government can defeat a takings challenge if it can establish that the coastal
protection regulations do not interfere with the owner's "reasonable investment-backed
expectations. " This may be done, for example, by emphasizing the dynamic nature of coastal
property boundaries, which reflect the realities of natural cycles of accretion and erosion, and
which may render the property unsuitable for the construction of a permanent residential
structure. An argument may also be made that the regulations do not effect a taking because
they merely serve to codify existing common law land use restrictions embodied in the
principle known as the public trust doctrine. Thus, the regulations did not deprive the owner
of a pre-existing, lawful use of her property.
Although the courts are likely to uphold the construction setbacks and other development
prohibitions that ban new construction in identified hazard areas, it is impossible to predict
this with certainty because the takings tests involve considerations of facts peculiar to the
individual case.

Under Maine law, a landowner claiming a regulatory taking has the burden of proving the
absence of residual beneficial uses of the regulated land before the court will find that a taking
has occurred." Arguably, a shorefront owner, although precluded from constructing a
permanent residential structure, retains the ability to make valuable uses of her property in the
face of the coastal protection regulations. She may, for instance, use her lot and the adjoining
intertidal zone for sunbathing, picnicking, camping, and other nonresidential purposes.
Indeed, the Maine Law Court, in Bell v. Town of Wells," recognized the right of shorefront
landowners to enjoy these uses of the adjacent intertidal zone to the exclusion of the general
public." As it would appear that challenging property owners would in fact retain beneficial
use in their land and the adjoining intertidal zone even when the new coastal construction
regulations were applied, the landowners would have a difficult time indeed establishing a
regulatory taking under the "substantially useless" rule.

6-10 LEGAL CONSIDERATIONS FOR MAINE'S PoLicy RESPONSE

In fact, past Law Court decisions lend considerable weight to this argument. In Hall v.
Board of Envt'l Protection, 16 for instance, the court reviewed a decision of the Superior Court
holding that the landowners had suffered a regulatory taking of their shorefront property under
the State's then-current version of the "Sand Dune Law."" The trial court had found that the
Board of Environmental Protectioes (BEP) denial of a residential construction permit
constituted a taking under the Maine and United States constitutions because the denial
deprived the landowners of the right to put their land to its "highest and best use, " which was,
the court noted, as a site "for a single-family residence on a year-round basis.""
The Law Court rejected the lower court's analysis, holding that, even in the face of the
BEP denial, the landowners retained sufficient beneficial uses of their land to allow the State
law to survive the takings challenge. Specifically, the landowners were still able to use the
property during the summer months by living in a motorized camper connected to utilities, to
lease it for seasonal trailer use by others, or sell it for a substantial price as had many of the
landowners' neighbors."
If it can be shown that landowners affected by the coastal protection setbacks would still
be able to make temporary, seasonal residential use of their shorefront properties, or would
be able to sell them on the open market for "substantial sums," the regulations are likely to
survive a takings challenge under the rationale of Hall. Thus, Maine may be able to prohibit
all permanent residential development on shorefronts that are subject to rising sea level and
still defeat a taking challenge which alleges absence of residual beneficial uses.
Another principle of Maine property law may influence a court's determination of what
constitutes a shorefront property owner's "reasonable investment-backed expectations." Since
1884, it has been clear that seaward property lines of shorefront landowners move with the
water line as sand accretes and erodes at the shoreline.'o Oceanfront owners are on
constructive notice that their property could be completely consumed by one of these natural
processes. Because they are presumed to know of this risk, it is at least arguable that the
challenging landowners had no reason to assume they could safely construct permanent
residential structures on the shorefront, or that land of such ephemeral quality is suitable for
these purposes.
There is no guarantee, however, that this second argument will allow Maine successfully
to avoid a regulatory takings claim in every case. Although it is undeniably true that
shorefront property is held subject to the effect of natural eroding forces (or rising sea level),
it seems clear that a landowner may still hold some "reasonable investment-backed
expectation" to develop the land in the face of this risk, particularly where the risk of erosion
has been historically minimal. It may be accurate to say that a landowner holds no
"reasonable expectation" to develop shorefront property for permanent residential occupation
where historical data indicates the lot in question succumbs to erosion on a frequent basis.
It may be difficult or impossible, however, to sustain such an argument where the lot has
historically suffered only minor shorefront erosion over the course of several decades.
Whether a particular lot owner has a "reasonable expectation" to develop the land for
permanent residential use will thus depend upon the individual facts and circumstances
surrounding the particular parcel in question.

ANTicipAmRy PLANNING FOR RELATIVE SEA-LEvEL RISE ALONG THE COAST OF MAm 6-11

A landowner's expectations concerning use of her property are probably not reasonable
unless they are grounded in knowledge of historic erosion rates. However, at this time, due
to scientific uncertainty and lack of public education about the possible impacts of accelerated
sea-level rise, it is probably unsupportable to expect landowners to have internalized global
climate change-related sea-level rise projections into the "reasonable expectations" for their
property. In other words, the rules of the game have not yet changed, although Maine's
current Sand Dune Rules embody a consideration of the location of the shoreline in 100 years,
and the public is expected to be aware of these considerations.
Partially for these reasons of public awareness and expectations, Maine may wish to adopt
two different setback requirements, one based on historic erosion rates and the other upon
predicted, accelerated sea-level rise. The historic rate would be applicable to low intensity
and publicly favored shoreline uses. The accelerated rate would be applicable to high-intensity
and disfavored shoreline uses. All would be subject to retreat requirements.
The establishment of two different setback requirements and their application to different
kinds of structures based upon the expected useful life and ease of mobility should not give
rise to any unfairness claims. Both bases for setbacks can be supported by technical evidence.
Maps are likely to be available on which the different shoreline positions can be calculated.
Moreover, the differential treatment of structures based on mobility and use preferences is not
arbitrary and is clearly related to the purpose of the regulation which is to allow some land
use while providing protection for the landward movement of the shoreline.
In summary, the courts in Maine have already shown a willingness to sustain coastal
construction restrictions under existing laws and regulations and are likely to follow their own
precedents in subsequent cases. In addition, the following points should be emphasized
respecting coastal setback lines:
1) setbacks which prohibit the construction of permanent residences outright based
on evidence of threats to public health and safety are defensible, but their
defensibility becomes more tenuous as the threat of harm becomes more remote
or the evidence of harm less certain;
2) Maine's response strategy should prohibit new construction outright where it
is likely to be affected by historic erosion rates, considering the useful life of
the structure;

3) in areas not expected to be affected by the continuation of historic erosion rates
within 100 years, but projected to be affected by sea-level rise, Maine should
regulate to allow only low-intensity, temporary uses, so as to leave owners with
some economically beneficial uses; and
4) Maine can couple the partial restriction to low-intensity uses with a retreat
requirement, to remove all structures in the event of rising sea level. This
requirement is analyzed more fully in a later section.
b. Rebuilding Prohibitions for Existing Structures
Because much of the "soft" coast of Maine is already developed, at least that portion
adjacent to sand beaches, any comprehensive retreat strategy will have to include restrictions

6-12 LEGAL CONSIDERATIONS FOR MAINE'S PoLicy RESPONSE

on the rebuilding of existing structures as they are damaged by storms and high tides.
Rebuilding prohibitions are not uncommon in state beach management laws; these laws, for
example, impose a ban once the structure is damaged by 50% or more. Rebuilding bans are
used in conjunction with beachfront construction setback regulations.
South Carolina7s Beachfront Management Act of 1988 included a rebuilding ban for
existing structures located between the baseline (the crest of the primary dune) and the setback
line, which the Act required to be located landward of the baseline to a distance which is forty
times the average annual erosion rate.31 The Act stated that any habitable structure "destroyed
beyond repair" by natural causes or fire could not be rebuilt seaward of the baseline or
between the baseline and the erosion setback line. South Carolina administrative regulations
defined "destroyed beyond repair" to mean "more than two thirds (66 2/3%) of the building
components making up the structure are damaged to such a degree that replacement is required
in order for the structure to be habitable, functional or sound. " 12 The law also restricted the
construction of additions to existing structures or the installation of recreational amenities.
A number of beachfront landowners challenged these restrictions in South Carolina,
claiming they amounted, on their face, to an unlawful taking of their property without
compensation and a violation of due process. The federal Court of Appeals for the Fourth
Circuit, however, disagreed. It held that the restriction served a legitimate state interest and
bore a substantial relation to the Act's goals of protecting the state's beach/dune system. In
addition, the restriction did not deprive the owners of economically viable use of their
property. South Carolina7s regulations allowed owners to continue the existing use of their
property and dwellings in the same manner as they had prior to their enactment. The court
rejected the owners' argument that the Act had diminished the market value of their property
and had therefore caused a taking. It noted that even substantial market value reductions do
not suffice to establish a taking. The owners were "significantly diminished only in their
discretion to rebuild a structure in the speculative event of its virtually complete destruction. ,33
c. Permit Conditions Requiring Removal or Barring Future Construction of
Protective Devices

Another potential measure that is contingent upon the occurence of a future event (e.g.,
a storm or shoreline retreat) would attach to state or local coastal land use permits special
conditions requiring either removal of structures in the event of a rise in sea level or banning
the construction of bulkheads. This approach offers certain advantages with respect to
potential regulatory takings challenges. Removal conditions allow landowners to use or
develop their property in the manner in which they desire, subject only to the contingency that
a rise in sea level will necessitate the structure's removal. The regulations unquestionably
afford the landowner a productive and beneficial use of the land. Because the regulation does
not prohibit, for example, construction of a residential structure, its constitutional validity does
not depend on a court's willingness to find, as in the Hall case, that other valuable uses of the
property remain despite the ban on construction.
Maine's Sand Dune Rules already incorporate provisions which bar future bulkhead
construction and require removal of new structures in the event of substantial damage or
interference with dynamic sand dune systems. Similar regulations regulations should be
extended to coastal wetlands and eroding bluffs.

ANTICIPATORY PLANNING FOR RELATIVE SEA-LEvEL RISE ALONG THE COAST OF MAINE 6-13

Regulators should limit the objective of such permit conditions to structure removal or
banning seawalls, to avoid complicating any legal challenge that may ensue. They may be
tempted to modify the conditions in an effort to preserve public access and use of the shoreline
and adjacent tidelands. While this is a legitimate goal, it will subject the conditions to a
higher degree of legal scrutiny that increases the uncertainty that the measures will be
sustained. This higher degree of constitutional scrutiny would be triggered if, for example,
landowners were allowed to construct seawalls if they agree to convey an easement for public
access along the wall or adjacent upland area.
In a 1987 decision, the U.S. Supreme Court identified special criteria for regulatory
conditions on coastal construction where the effect of the condition is to require the permanent
physical invasion of the property by the general public or government or by structures or
equipment, owned by someone other than the land owner. Such conditions must be designed
to alleviate very directly the burdens which that development poses on the environment or on
other public interests. If the conditions seems only marginally related to the project's impacts,
the condition will not appear to "substantially advance legitimate state interests" and the court
will require compensation for the owner.
This close fit test is referred to as the "nexus" requirement. It stems from the U.S.
Supreme Court's decision in Nollan v. California Coastal Comm'n,` where the Commission
had required property owners to grant a public easement on the dry sand portion of their lot
in exchange for permission to rebuild and expand the dimensions of their house. Because the
public easement did not mitigate the adverse visual impacts of the house, impacts that would
have justified denial of the construction permit, the Supreme Court assumed that the agency
was trying to expropriate the owner's right to exclude people from their beach without having
to pay for it. The Court suggested, however, that outright denial of the permit would not have
been unreasonable if the grounds had been the house's adverse visual impact on public views
of the ocean from the public road landward of the house.
In a 1994 decision applying the Nollan rule, the Supreme Court struck down municipal
permit conditions designed to prevent construction in a flood-prone area. In Dolan v. City of
Tigard, the conditions required the landowner to dedicate a part of her parcel as a public
greenway for stonnwater drainage, to mitigate the impact of her proposed expansion of her
commercial development. Part of the dedicated greenway would be used for a pedestrian and
bicycle pathway.
The Supreme Court found that the "essential nexus" existed between the permit condition
and the state interests sought to be served. The constitutional problem arose because the city
had not demonstrated that the dedications related specifically to the degree of impact on
stormwater flooding and increased traffic that the proposed land use expansion would have.
The Court stated that "[n]o precise mathematical calculation is required, but the city must
make some sort of individualized determination that the required dedication is related both in
nature and extent to the impact of the proposed development.""
It is unlikely that the NollanlDolan test would arise in a challenge to coastal permit
conditions that merely require moving structures in the event of rising sea level, but if it did,
such conditions would be likely to be upheld. First, a permit for development which would
lie in the path of projected change in shoreline position due to changing sea level could be

6-14 LEGAL CONSEDERATIONS FOR MAINE'S POLICY RESPONSE

denied outright and such denial, as discussed above, would likely survive a takings challenge.
If, instead of denial, the structure is allowed with the condition that it be removed under
certain circumstances, the requisite close fit is satisfied between the impacts that could justify
denial and the condition.

Allowing the owner to undertake the development on the condition that it be removed
provides flexibility in the event that sea-level rise predictions are revised downward. The
condition is directly related to the adverse impact the development would have on the ability
of wetland vegetation to migrate in the event of rising sea level. It does not attempt to
mitigate this adverse effect by an unrelated condition."
Such retreat conditions may not in fact have to meet the NollanlDolan nexus test. The
Nollan and Dolan decisions hold that conditions on land use that restrict an owner's right to
exclude others must satisfy a particularly demanding standard of reasonableness, beyond the
"rational basis" that is normally sufficient to meet the requirements of due process and equal
protection." It is important to keep in mind that the Nollan holding involved a perceived
physical invasion by the general public through the public access condition, which the
Supreme Court has held is almost always a compensable taking because the right to exclude
is considered a fundamental attribute of land ownership.
Regulatory conditions that restrict or eliminate other aspects of ownership would not
necessarily be subject to similar scrutiny or presumption of an intent to expropriate private
property rights. Courts have not yet held, for example, that the bundle of ownership rights
includes a right to protect property from erosion and other natural forces, especially where
to do so will harm public resources or adjoining property."
Although the permit retreat conditions are very likely to be upheld if challenged in court,
other considerations may counsel for extreme caution if a strategy intends to rely on permit
conditions to accomplish the intended protections. Any conditional removal is likely to occur
in the distant future, and there is no guarantee that future legislatures or agencies will have
the political will to maintain the restriction. It would therefore be more effective if the
conditions took the form of deed restrictions or covenants that would run with the land. Given
that the political pressure to amend a regulatory restriction if sea-level rise occurs is almost
a certainty and future legislative action is unpredictable, the benefits in durability of a deed
restriction or covenant approach outweigh any slightly increased chance of judicial
invalidation. Again, it is still most likely that the restriction would meet a nexus test because
of the adverse effect that the proscribed bulkheads and structures would have on migrating
shoreline resources.
d. The Total Takings Rule and "Background" Plinciples of Maine Shoreline
Property Law Including the Public 7@ust Doctrine

31
In Lucas v. South Carolina Coastal Council, the Supreme Court suggests that certain state
property law principles may so limit an owner's property as to preclude any basis for a
regulatory takings challenge. In order to properly evaluate the magnitude of the economic
impact of a regulation on a landowner's property, the Court suggests it is necessary to
consider the extent to which the state's common law operates to limit the landowner's use of
her land. If the legislation achieves nothing more than codification of a pre-existing, common
law land use restriction, no taking may be found. The landowner occupies the same economic

ANTiciPAToRy PLANNING FOR ]RELATIVE SEA-LEvEL RISE ALONG TIM COAST OF MAINE 6-15

position with regard to her land both before and after the challenged legislation was enacted.
The regulation has had no direct impact on the owner's reasonable investment-backed
expectations." If the legislation, however, reaches beyond the common law and places
restrictions on land use that render the owner's property substantially useless, a regulatory
taking will be found.
The question is whether the regulatory measures under consideration to anticipate rising
sea level and migrating wetlands merely codify existing limitations on shoreline property use.
It is difficult to state with any certainty whether existing Maine property law concepts would
fall within this category. The Supreme Court's Lucas opinion illustrates this exception
through hypothetical examples of potentially valid regulations but provides no definitive tests,
relying instead on the common law concept of a nuisance. Nuisance, however, is a concept
which the law defines only in general terms. Courts have to inquire into the specific facts and
circumstances of a given land use, and then balance its utility against any harm caused to
determine whether it is a nuisance under the law.

Given the examples the Court used in Lucas, however, it is possible that the regulatory
measures would be considered as merely codifying concepts in Maine law concerning coastal
property rights, both private and public." An examination of these principles follows.
Coastal lands fall primarily into three distinct geographical areas that are defined by the
action of the tides. Each of these areas has a different legal character in Maine and in all
coastal states. The lands that are below the mean low tide line, and thus are continuously
under sea water, are owned by the State." These lands are called the submerged lands.
Above the low tide line but below the mean high tide line, the area intermittently submerged
by the daily tides is known as the foreshore or intertidal zone. In most American states, this
area is also owned by the state and held in trust for the benefit of the public, along with the
submerged lands. This rule of public ownership and use rights is referred to as the "public
trust doctrine. "

Above the mean high tide line, the land is subject to full private ownership, in most states.
Some states have recognized public use rights or easements above the mean high tide line,
sometimes to the line of vegetation above the mark of the high tide." The mean high tide
line, however, is not the division between public and private ownership in the State of Maine.
Here, the English common law of tideland ownership, which recognized sovereign ownership
of the foreshore and submerged lands, was changed by the colonists in Massachusetts. The
Colonial Ordinance of 1641-48 granted to the owners of the adjacent upland private ownership
rights to the foreshore, thus allowing private ownership to extend to the low tide line, subject
to reserved public use rights of fishing, fowling, and navigation.'
With ownership rights defined on the basis of tide lines, ownership of shorefront property
carries with it some inherent risks. If the ocean moves inland, as in the case of sea-level rise
or land subsidence, the line of the tides moves inland as well. Under the common law in most
states, the boundary between public and private property also moves with the tide line. It may
happen that the shift causes the whole of what was once an owner's tract to now fall below
whichever of the tide lines that defines the area of public ownership. This is known as the
doctrine of erosion, and it holds that title rests with the state once the relevant tide line moves

6-16 LEGAL CONSEDERATIONS FOR MAINE'S POLICY RESPONSE

inland." Title does not return to the private owner in the event that the land reemerges from
the ocean.

On the other hand, private owners can benefit from shifts in the shoreline caused by the
build-up of sand or soil along the shore. The doctrine of accretion holds that new land that
builds up below the tide line which had previously defined private ownership belongs to the
46
private owner. Some states have modified this rule by retaining public ownership of
accretions that are the result of the property owner's actions, such as through the construction
of jetties or groins. In Massachusetts, the Supreme Judicial Court has ruled that accretions
belong to the littoral owner, even when the result of artificial causes, as long as they were not
caused by the owner herself. If the accretions are created by government-built structures to
aid navigation (e.g., by jetties), the accretions belong to the public rather than the littoral
owner.41 The Maine Law Court has not ruled on this question.
Most states recognize the public's right to use the wet sand area below the mean high tide
line, either by virtue of public ownership or through public rights recognized under various
common law doctrines, like the one adopted into Maine's law based upon the Massachusetts
Colonial Ordinance. Several states also recognize the public's right to use dry sand areas
above the high tide line. In these states, courts and legislatures have ruled that the public
acquired these use rights through common law doctrines of prescription (similar to adverse
possession or "squatters" rights), implied dedication to the public by the present or prior
owner, or custom. In at least one state, the courts have interpreted the public trust doctrine,
the principle of public ownership of lands covered by the tides, to include a public right to use
the sand beach above the high tide line. 18 In states where these public rights have been
acquired or recognized, the law characterizes these rights as migratory or dynamic, moving
in or out as the shoreline erodes or accretes. Thus, over the years, the common law has
evolved to define significant public rights in the shoreline. These rights are usually protected
and supplemented by environmental and land use restrictions enacted under the police power
as well as governmental programs designed to preserve the sand beaches and shorelines where
the public rights apply."
The common law also recognizes that owners of property bordered by navigable waters
have certain property rights inherent in the land's location. Generally, these rights include
the rights of ingress and egress over the submerged lands to the navigable channel. Similarly,
the law recognizes the littoral owner's right to construct a pier or wharf, subject to police
power regulations. Littoral property rights may also include a priority right to use the
resources of the intertidal zone or the space overlying the submerged lands fronting on the
littoral property to moor vessels. The littoral owner's rights do not include a right to build
permanent structures that would block the public's use rights in the foreshore. Nor do they
include the right to build a groin or jetty, if to do so would deprive a neighboring property
of the natural movement and build-up of sand." Also, state police power or public trust-based
regulations can preclude uses of the public submerged lands." The littoral owner does not
have a property right to build protective structures in front of her property to control erosion."
Moreover, the special rights or privileges that come with littoral property ownership are
qualified by the recognition of a superior right of the public to use the navigational capacity
of the waters." This public navigational servitude on all navigable waters derives from the
Commerce Clause of the U.S. Constitution." Thus, a littoral owner may lose her ability to

ANTiciimoRy PLANNING FOR ]RELATIVE SEA-LEVEL RISE ALONG THE COAST OF MAINE 6-17

gain access to the navigable channel from her property when the government modifies the
location of the channel, builds a jetty, or makes other improvements related to public
navigation. The law holds that the navigational servitude exempts such government actions
from the just compensation requirement of the Fifth Amendment's takings clause. The theory
is that the littoral owner's title never included a right in perpetuity to access the navigable
channel."

While these rules and regulations restrain property owners from making uses injurious to
the public interest, it is likely that when sea-level rise becomes a reality and begins to manifest
itself in increased coastal storms and erosion, pressure will be brought by homeowners to
relax existing laws, regulations, or zoning restrictions, e.g., the prohibition of bulkheads.
Litigation may challenge the reasonableness of development conditions that prevent shoreline
armoring, requiring a determination that the restrictions substantially advance a legitimate state
purpose. The restrictions could be overturned by the courts or by the legislative bodies,
unless government officials prepare the public and property owners through educational efforts
for the eventual retreat in the face of rising sea level.
In Bell v. Town of Wells," the Law Court held that the public in Maine has an interest,
in the nature of a "public easement," in lands lying beneath navigable tidal waters for the
purposes of fishing, fowling, and navigation." Although not using the term "public trust
doctrine," the Law Court recognized that a set of public rights exists in the foreshore, very
similar in nature to what other courts, including the U.S. Supreme Court, have described as
the public trust doctrine." Arguably, erosion setback lines, retreat or removal conditions, or
other coastal protection measures enacted in anticipation of rising sea level would operate to
prevent shorefront landowners from harming the public easement by preventing erosion and
degradation of the shoreline, and hence merely reiterate the preexisting common law principle
that no one may act to the detriment of the public trust. Under the Lucas analysis, then, no
taking would be effected by the new regulations since the new rules will not cause shorefront
property owners to suffer any "new" land use restrictions beyond what is imposed by existing
state property and nuisance law principles.
The Maine Law Court, however, has yet to consider this question or suggest in a specific
case that the public trust doctrine or public use easement can be invoked by the State to
preclude land use activities occurring above the mean high tide line. Maine, like many other
coastal states, has always referred to the mean high tide line as the landward boundary of the
public easement." Moreover, Maine's Law Court has indicated that the public trust doctrine
or easement may be used only to protect the public's use of the intertidal zone for fishing,
fowling, and navigation.' The Law Court has not shown an inclination to extend the doctrine
to cover upland land use activities that do not actively interfere with one of these three public
rights." Thus, Maine will be able to avoid takings challenges to the coastal regulations under
this legal theory only to the extent the State can demonstrate that the landowner's proposed
permanent residential construction, either on the margin of a wetland, on an eroding coastal
bluff, or on a sand dune area would interfere with the public's use of the intertidal zone for
fishing, fowling, and navigation.
It would seem necessary, therefore, for Maine to establish in the course of permit
proceedings or in conjunction with the promulgation of new coastal regulations that the

6-18 LEGAL CONSEDERATIONS FoR MAm's PoLicy RESPONSE

intertidal zone is likely to shift landward within a 40-50 year period and that the prohibited
construction would interfere with this landward migration.'
Given the uneven treatment the public trust doctrine has received in the Maine courts in
the last decade,13 the question arises whether sea-level rise strategies that depend upon the
public trust doctrine are feasible in Maine. Would, for example, the Law Court find that the
reserved public rights move inland with rising sea level? It probably would, following its case
law concerning the doctrines of accretion and erosion. But whether the migratory nature of
the reserved rights would serve as a basis for restrictions on building structures on land that
is now dry is an open question. The courts in Maine, however, as previously noted, have
shown an inclination to uphold significant building restrictions in shoreland, wetlands, and *
sand dune areas under the Mandatory Shoreland Zoning Act and the Natural Resources
Protection Act.'
The idea of a mobile public easement is illustrated in the Texas Open Beaches Act,' which
serves to codify the common law public recreational use easement in dry sand beaches above
the mean high tide line and below the line of vegetation. In a recent decision, a federal
district court rejected a takings clause challenge to a provision of the Texas law which enjoins
property owners from interfering with public use rights where the shoreline has migrated
inland as a result of coastal erosion.' The court concluded, however, that the landward
moving easement did not require the landowner to remove pre-existing structures that now find
themselves below the line of vegetation.
A recent Massachusetts court ruling suggests that the public trust doctrine may have
relevance to the takings issue and restrictions on coastal property. In 1988, several oceanfront
property owners in Chatham, Massachusetts lost their homes when a winter storm broke
through the barrier beach in front of their property. Regulations under the Massachusetts
Wetlands Protection Act" had prohibited their construction of a stone revetment. Some
homeowners brought suit against the Commonwealth, claiming that denial of the revetment
license was an unconstitutional taking of their property. They sought several million dollars
in damages.
Under the Massachusetts wetlands law, any dredging, filling, removing, or alteration of
either "coastal banks" or "coastal dunes" is prohibited if it interferes with the ability of these
land formations to perform their flood control and storm damage prevention functions."
Construction of stone revetments on dunes is prohibited unless it is determined that the dune
in question is not significant to storm damage protection, flood control, or protection of
wildlife habitat. Revetments may be built on coastal banks, if built to protect buildings
constructed before August 10, 1978, if absolutely necessary, and if they minimize any adverse
environmental impact." Also, the Commissioner of the Department of Environmental Quality
Engineering (now called the Department of Environmental Protection) may waive such
regulatory restriction after an adjudicatory hearing, if "necessary to avoid [a restriction
which] constitute[s) an unconstitutional taking without compensation" and if other conditions
70
are met.
The Massachusetts supreme court recently ruled that the Chatham homeowners were
entitled to a trial on their takings claim against the Commonwealth .7' The superior court had
dismissed the claim without consideration. Before an appeal of this dismissal was heard, an

ANTicIPATORY PLANNING FOR RELATivE SEA-LEviEL RISE ALONG TIM COAST OF MAm 6-19

intermediate court of appeals also found that the landowners were entitled to a trial on the
takings claim. In comments directed at the trial court, the court of appeals identified several
factors relevant to the question of a takings, including the possible relevance of the public trust
doctrine:

... the facts as developed at trial might establish that the coastal areas in question are
impressed with a public trust (citations omitted). If so, the plaintiffs, from the outset,
have had only qualified rights to their shoreland and have no reasonable investment-
backed expectations under which to mount a takings challenge ......
This language indicates that the public trust doctrine could be a background principle of
-law that could preclude finding a taking even if all economic value is lost by virtue of the
regulation, under the exception to the per se total takings rule announced by the majority
opinion in the Lucas decision.
While the Massachusetts supreme court agreed that the landowners were entitled to a trial
on the merits, it said nothing about the potential application of the public trust doctrine. It
did say, however, that the Lucas case would not help resolve the Chatham case due to
significant differences in the facts. First, the Lucas case did not involve any administrative
proceedings. Second, the total loss was due to natural forces while the administrative
proceedings were pending, and the landowners had alleged no dilatory agency conduct. In the
court's view, the Chatham case was distinguishable from Lucas because the Massachusetts
regulation by itself did not render the property valueless, and because it squarely raised the
question whether government may restrict particular uses of property that may adversely affect
other owners and the state. 73

Recent U.S. Supreme Court decisions applying the takings clause to state coastal
regulations have not considered directly the relevance of the public trust doctrine. In Nollan
v. California Coastal Commn" discussed above, the Supreme Court majority did not consider
any arguments based upon the California public trust doctrine. Justice Brennaes dissent,
however, found the doctrine to have an important bearing on the analysis. He stated that
"[flhe Court's insistence on a precise fit between the forms of burden and condition on each
individual parcel along the California coast would penalize the Commission for its flexibility
[in balancing private development with preserving public shoreline access], hampering the
ability to fulfill its public trust mandate. 1115 He went on to argue, inter alia, that the status
of tidelands under state law is relevant to whether a property owner's investment-backed
expectations are affected."
As in Nollan, the South Carolina Supreme Court in Lucas v. South Carolina Coastal
Council did not hear arguments based upon the public trust doctrine, nor apparently on any
of the special principles of property law that help to define public and private rights in coastal
lands and waters. Thus, it is very difficult to say whether principles like the mean high tide
line rule, the doctrine of accretion and erosion, riparian (or littoral) rights, the navigation
servitude, or the public trust doctrine have relevance to the multi-factored analysis in
regulatory takings cases.
The law of nuisance in Maine does not provide direct guidance on the question whether
a seawall, bulkhead, or other structure that prevents the landward migration of the shoreline
constitutes a nuisance to adjacent property owners or to the public. The courts generally

6-20 LEGAL CONSIDERATIONS FOR MANE'S PoLicy REspoNsE

employ a balancing test to determine the reasonableness of the challenged land use and
whether its benefits outweigh the adverse effects it has on the public or on neighboring
properties." The Maine Law Court has held that:
private property rights ... are subject to the implied condition that the property shall
not be used for any purpose that injures or impairs the public health, morals, safety
or welfare. If the use causes an actual and substantial injury or impairment of the
public interest ... a regulating or restraining statute, or an ordinance ..., if itself
.reasonable and not merely arbitrary, and not violative of any constitutional limitation,
is valid. "

Technical evidence is now available that shows the adverse effect that hard erosion control
devices have on adjacent shoreline property and on the condition of the intertidal area. Thus,
it is likely that a court would find that a regulatory ban on seawalls or bulkheads reflects
existing principles of state nuisance law and that a landowner has no constitutionally
guaranteed property right to protect her land from the sea's encroachment if to do so will
damage adjacent property or public rights in the intertidal zone.

4. General Precautionary Measures to Reduce the Risks of Takings
Claims

In the aftermath of the Lucas decision several commentators have identified ways in which
state and local land use officials can structure their programs to avoid raising and potentially
losing costly takings claims." Some of these recommendations are reflected above, including
the suggested approach of two tiers of setback lines, and allowing temporary, removable uses
of land subject to sea-level rise and the landward migration of wetlands. To bolster the
defensibility of these provisions, state laws, regulations and local ordinances that define these
setback lines should expressly state that any construction seaward of the setback line that does
not have a valid variance is a public nuisance and may be summarily removed without
compensation. Florida's coastal construction setback law contains such a provision," and
similar language would seem appropriate in Maine, given the Lucas decision's emphasis on
the nuisance exception.
In general, it is probably wise for Maine officials responsible for the sea-level response
strategy to acknowledge that economic wipeouts may occur in certain cases due to the
regulations and to be prepared to provide compensation. A portion of public ftinds should be
encumbered for this purpose, or a fund could be created from the levying of additional real
estate transfer taxes, shoreline retreat taxes, open space impact fees or other measures to raise
revenues to help support the compensation and acquisition of property that must be restricted."
It is also advisable to offer effective, non-litigation remedies for disputes over the burdens
of land use regulations, including those necessary to anticipate rising sea level. Often, land
use restrictions provide a variance procedure, for instance the one that provided under the
Sand Dune Rules. In some instances, however, it may not be appropriate to allow variances,
for example, where the affected land is needed for the landward migration of wetlands or
eroding bluffs. Variances here could undercut the idea that these sea-level restrictions are
necessary, unless they are limited to those instances when the landowner can prove by
convincing evidence that their land does not meet the applicable criteria, i.e., will not be

ANTicipAmRy PLANNING FOR RELATIVE SEA-LEVEL RISE ALONG TIIE COAST OF MAINE 6-21

affected by nor interfere with sea-level rise. A non-judicial forum for considering the burdens
of land use restrictions could also be a method for providing non-monetary compensation to
affected landowners, through, for example, density increases, transferable development rights,
credit toward impact or other real estate fees, or other non-cash forms of compensation. 82
The Lucas decision highlights the need for administrative processes that allow landowners
to hear the rationale behind application of restrictions to their property, such as coastal
protection setbacks, and to seek relief from the restrictions if they seem to be unwarranted or
unreasonable in their particular circumstances or excessively harsh. This could mean a greater
use of quasi-judicial, administrative proceedings than is currently practiced under Maine's land
use and environmental control laws, at least at the permit appeal stage, where the owner/
applicant has an opportunity to challenge the reasonableness of the restrictions with respect
to her property." Lucas may also suggest incorporation of carefully drafted variance
provisions to provide relief in circumstances in which the property can support no other
beneficial use than the one denied by the restriction. Several of the state laws described in
Appendix B contain such variance provisions.
The owner/applicant must bear the burden of proof, however, that no other uses are
feasible, or that the environmental conditions underlying the restrictions are not applicable in
her case. In states where a variance provision is available in the shoreline and wetland
protection programs, the courts will require applicants to exhaust these appeal and variance
provisions before the landowner can challenge the restrictions as a takings. This requirement
ensures that an appropriate factual record is available for the trial court.
Any new, sea-level rise-related provisions of the Natural Resources Protection Act and
municipal shoreland zoning ordinances should provide an administrative appeal process with
explicit standards and burdens of proof. Such a process can elicit evidence on whether the
owner has other viable uses or has already made valuable uses of her property.' By thus
allowing agencies to establish this factual record, the process that will help the regulations
survive any subsequent takings challenges.

D. POTENTIAL NON-REGULATORY OPTIONS FOR MAINE

1. Overview

The regulatory approaches described in the preceding sections may not be readily accepted
by landowners and developers, particularly where they restrict current productive uses of land
in exchange for future benefits if and when a rise in sea level occurs. Public education and
careful implementation of land use restrictions can overcome some of this resistance and may
limit the economic impact of the regulations. Nevertheless, Maine may wish to consider non-
regulatory tools either as alternatives to or supplementary of regulations.
The outright purchase approach may be feasible for certain lands, for example, upland
areas needed for the migration of a particularly significant salt marsh. But it clearly is not
feasible for the State to purchase all the shoreland property that should be protected from
development in the event of rising sea level. Private land trusts may be able to purchase
additional areas, but again these entities are not likely to have the resources necessary to
acquire all the needed areas.

6-22 LEGAL CONSIDERATIONS FOR MAME'S PoLicy REspoNsE

As an alternative, one commentator suggests a "presumed mobility" approach that could
be more affordable. Under this idea, the government buys the necessary property, either
through eminent domain or a willing seller approach, and then leases it back to the owners for
a period of time that would expire once the shoreline reaches a certain point. The principal
proponent of this approach, James G. Titus of the U.S. Environmental Protection Agency,
suggests it would allow current owners to develop their land on the condition that the
structures will not be protected against inundation and must be removed in the event of sea-
level rise.

Titus suggests that the purchase price of property interests which are realizable so far into
the future would be less than 1 % of the purchase price of the full fee simple title. The
approach has the advantage of shifting the risk of sea-level rise from the environment (which
will suffer if wetlands and other coastal resources are lost due to development) to the private
property owners "by institutionalizing the presumption that development will have to make
way for migrating ecosystems. "" In the alternative, Titus suggests converting property rights
to long-term leases that expire after 99 years or upon the rise of sea level enough to inundate
the affected property.
A variation on this approach is suggested by Professor Joseph Sax who recommends the
public purchase of a future flooding easement." The easements would prohibit interference
with any flooding caused by sea-level rise and would allow the easement holder to remove
structures that interfere with natural sea-level rise. The flood easements would be sold
through negotiated sales or required as a condition on proposed development. The purchase
price would be retained by the government and compounded over time and then distributed
to owners in the event that a retreat from the shoreline is necessary. Sax also suggests that
each owner be required to have insurance sufficient to cover the costs of subsequent
inundation. The government would pay the premiums for this insurance. The insurance
policy would be treated as an annuity payable at fixed sums in the event of rising sea level.
Another idea, proposed by Lisa St. Amand of the Environmental Law Institute, suggests
an application of the approach the National Park Service takes in acquiring land from private
owners. The Service acquires the land through donation, purchase, or condemnation, and then
allows the previous owner to occupy their former lands for their lifetime under "reservations
of use and occupancy. " I' The purchase price is calculated based upon the current value of the
property less 1 % for each year of the term of the reservation, or the life expectancy of the
reservation holder. For purchases of land needed for wetlands migration the author suggests
that the purchase price would be substantially discounted by the decades-long reservation
reflecting the period expected before sea-level rise becomes apparent.
St. Amand suggests another alternative that relies on providing land owners with incentives
to refrain from development of their property in a manner that interferes with the natural
migration of wetlands as sea-level rises. In this approach, a private land trust negotiates the
creation and purchase of a "wetlands migration easement. " The trust then enforces the
easement in the event that a rise in sea level occurs at some distant time in the future. Again,
with such a distant period for enforcement the author suggests that the easement could be
purchased at a significant discount."

ANTiCIEPATORY PLANNING FOR RELATrvE SEA-LEvEL RISE ALONG TBE COAST OF MAm 6-23

A version of this same approach, suggested in 1990 by Judith Knapp, then a graduate
student at the University of California at Berkeley," advocates the use of the public trust
doctrine in anticipation of actual rises in sea level. Knapp suggests that legislatures impose
controls to reflect the future position of public trust resources such as the intertidal zone that
will migrate landward as sea level rises.

2. Feasibility for Maine
Each of the above proposals involves changes to the legal framework that defines and
regulates property rights in the State. For example, to institute the Titus proposal it would
be necessary to change the nature of coastal ownership into a long-term leases. To do so
would entail a program of eminent domain acquisition followed by leases back to current
owners subject to the restrictions described above. This program would require legislative and
administrative action, including a significant appropriation of funds for the purchases, to be
refunded largely by the lease fees. It is not, however, precluded by any constitutional
limitations on government action.
Similarly, the Sax proposal would require legislative action and an administrative agency
that could first calculate the present discounted value of a future flood easement, according
to agreed guidelines, and then decide where and when to apply them. Additionally, the Sax
proposal would require a financial management entity to manage the annuities prior to the rise
in sea level and their disbursement to property owners. Such a system would require careful
consideration by the legislature and cooperation between various departments of the
government with differing expertise.
The Knapp proposal is less likely to be feasible in Maine because of important differences
in the public trust doctrines in Maine and California. As the previous discussion of the Bell
v. Town of Wells decision indicates, the courts in Maine do not yet recognize a legislative role
in defining and applying the public trust principle to coastal lands and resources. California,
on the other hand, recognizes full public ownership of the intertidal zone, not merely reserved
public use rights. Moreover, a broader range of public uses, including ecological
preservation, has been found to be within CalifornWs public trust. It is most unlikely that the
current Maine Law Court would accept the anticipatory application of any public trust-based
restrictions to lands that are not now but may in the future be covered by the tides.
Given the legislative and administrative demands involved in the non-regulatory
approaches, they may not be practicable in the near tenn. With the possible exception of the
anticipatory public trust doctrine approach, however, none are infeasible on purely legal
grounds.
3. Government Informational Programs for Sea-Level Rise
Other governmental programs, particularly those that educate the public about the
possibility of global climate change and the associated rise in sea level, are very important in
an overall response strategy. Only by early information programs, alone or in conjunction
with the adoption of regulations, will the public begin to accept the idea of limitations on
property use to adapt to the changing conditions of the shoreline and to preserve vital natural
resources. To ensure that regulatory programs will be sustained if challenged under constitu-

6-24 LEGAL CONSIDERATIONS FOR MAINE'S PoLicy RiEsPONSE

tional. standards, it is essential for the State to begin now to ensure that expectations about
shoreline property use that would be incompatible with rising sea level do not crystallize in
a manner that will defeat a prudent retreat strategy where it is appropriate.'

E. SummARY
Current standards for the protection of private property do not pose insurmountable hurdles
to carefully drawn regulatory approaches to the problem of sea-level rise. The Maine Law
Court has already upheld significant restrictions under the current Sand Dune Rules. This
indicates a belief that such regulations do advance a legitimate state interest and do so in a
manner that does not deprive land owners of their property rights in violation of the
constitutional guarantee. The terseness of the Hall opinion, however, and the recent efforts
of the federal courts to expand the protection of private property subject to government
regulation may encourage other land owners to mount similar challenges to further regulation
aimed at sea-level rise. In that event, the smaller the area of a parcel that is affected by the
restriction, the more likely it is to be upheld.
If Maine chooses to pursue several of the regulatory options described in the preceding
sections, it should develop and promulgate them as soon as possible. The earlier that the
public is on notice of the likelihood of rising sea level the more likely the regulations are to
withstand legal challenge. Property that is purchased after the regulations are adopted will be
bought subject to the expectations that development restrictions will be applied in light of sea-
level rise. The promulgation of regulations that require a wetland migration area on the
upland margin or which prohibit the future construction of bulkheads that would block such
migration will help to clarify the expectations of landowners. When these expectations are
clarified, if it is necessary to carry out removal conditions or enforce revised coastal setbacks,
the effect will be a minimal disruption of settled expectations.

F. ENDNOTES

1. Such a measure would be an example of a "presumed mobility" or adaptive approach, which could
also be achieved by government or non-governmental purchase of "flowage easements." See, e.g.,
James G. Titus, Greenhouse Effect and Coastal Wetland Policy: How Americans Could Abandon an
Area the Size of Massachusetts at Minimum Cost, 15 ENv'L MGT. 39 (1991) and Joseph L. Sax, The
Fate of Wetlands in the Face of Rising Sea Levels: A Strategic Proposal, 9 J. ENV'L L. 143 (1991).

2. The term "rolling easement" is used in a general sense to describe a number of different concepts,
all of which include a landowner's legal obligation to remove structures from land that becomes
inundated by the rise in tides. The holder of the easement, usually a government entity or land trust,
can enforce the commitment as a property right. See generally Titus, supra note 1.

3. See Paul N. Klarin, Kristi M. Branch, Marc J. Herschman, & Thomas F. Grant, Sea Level Rise
Policy Alternatives Study: Volume 2, An Analytical Review of State and Federal Coastal Management
Systems and Policy Responses to Sea Level Rise, Washington Dept. of Ecology (June 1990).

4. See generally Alison Rieser, Managing the Cumulative Effects of Coastal Land Development: Can
Maine Law Meet the Challenge? 39 ME. L. REv. 2 (1987).

ANTicipAToRy PLANNING FOR RELATIVE SEA-LEvEL RISE ALONG THE COAST OF MAINE 6-25

5. The tests courts apply under these two constitutional challenges are interrelated and land use
regulations are often examined under both.

6. Tisei v. Town of Ogunquit, 491 A.2d 564, 569 (Me. 1985).

7. Hall v. Board of Envt'I Protection, 498 A.2d 260 (Me. 1985).

8. Plummer v. Town of Cape Elizabeth, 612 A.2d 856 (Me. 1992).

9. U.S. Const. amend. V.

10. 260 U.S. 393 (1922).

11. Id. at 415.

12. Agins v. Tiburon, 447 U.S. 255, 260-261 (1980).

13. Keystone Bituminous Coal Ass'n v. DeBenedictus, 480 U.S. 470, 485, (1987) (quoting Agins v.
Tiburon, 447 U.S. at 260).

14. Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978).

15. 112 S. Ct. 2886 (1992).

16. The trial court relied on the property's assessed value before and after the regulations, although
there was no evidence in the record that the landowner actually intended to build or had no other uses
of the property. In fact, in 1990 amendments to the South Carolina law, the legislature provided for
the construction of structures despite the setback in certain cases upon application of the landowner.
Mr. Lucas did not apply for this variance but instead proceeded to challenge the original legislation.
In an unusual move that was criticized by members of the Court, the Court accepted the case for appeal
without Mr. Lucas exhausting his remedies under the 1990 amendment.

17. Lucas v. South Carolina Coastal Council, 424 S.E.2d 484, 486 (S.C. 1992).

18. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2903 (Kennedy, J., concurring).

19. Me. Const. art. 1, sec. 21.

20. Seven Islands Land Co. v. Maine Land Use Regulatory Comm'n, 450 A.2d 475, 482 (Me. 1982).

21. State v. Johnson, 265 A.2d 711, 715 (Me. 1970) (citation omitted).

22. Seven Islands Land Co., 450 A.2d at 482; Sibley v. Inhabitants of the Town of Wells, 462 A.2d
27, 31 (Me. 1983).

23. Curtis v. Main, 482 A.2d 1253, 1258 (Me. 1984).

24. 557 A.2d 168 (Me. 1989).

25. Id. at 173, 176 (shorefront owners hold the intertidal zone in fee, subject only to an "easement"
for public uses reasonably related to fishing, fowling and navigation).

6-26 LEGAL CONSIDERATIONS FOR MAINE'S POLIcy RESPONSE

26. 528 A.2d 453 (Me. 1987).

27. 38 M.R.S.A. SS 471-478 (1987) (current version at 38 M.R.S.A. SS 480A-48OU (West 1989 &
Supp. 1991).

28. Hall v. Board of Envt'I Protection, No. CV-83-85, slip op. at 7 (Me. Super. Ct., Dec. 4, 1986).

29. Hall v. Board of Envt'l Protection, 528 A.2d at 456. In a later ruling, the Law Court in Rubin
v. Board of Envt'I Protection, 577 A.2d 1189 (Me. 1990), again upheld the sand dune rules and the
Board's denial of a variance for construction on a frontal dune.

30. 76 Me. 76 (1884). See also Lorusso v. Acapesket Improv. Ass'n, 564 N.E. 2d 360, 367 (Mass.
1990); Mastin v. Prescott, 444 A.2d 556, 558 (N.H. 1982); Michaelson v. Silver Beach Improv.
Ass'n, 173 N.E. 2d 273, 275 (Mass. 1961).

31. S.C. CODE ANN. Section 48-39-290(B) (Supp. 1989).

32. A similar definition of "destroyed beyond repair" was added in the 1990 amendments, which
defined the term to mean "more than sixty-six and two-thirds percent of the replacement value of the
habitable structure ... has been destroyed." S.C. CODE ANN. 48-39-270(11) (Supp. 1989). The
amendments also gave the South Carolina Coastal Council the power to issue special permits allowing
construction or reconstruction of habitable structures under certain conditions, even if located seaward
of the baseline. S.C. CODE ANN. Section 48-39-290(D) (Supp. 1989).

33. Esposito v. South Carolina Coastal Council, 939 F.2d 165 (4th Cir. 1991), cert. denied, 112 S.
Ct. 3027 (1992).

34. 483 U.S. 825 (1987).

35. Dolan v. City of Tigard, 662 LW 4576, 4580 (June 21, 1994).

36. See Surfside Colony, Ltd. v. Cal. Coastal Comm'n, 226 Cal. App. 3d 1260, 277 Cal. Rptr. 371
(1991) (Conim'n condition which seeks to mitigate cumulative impact -of private erosion control
structures on beach erosion through dedication of public access and recreational use easements was not
supported by site-specific evidence that the revetment would cause further erosion at this particular
location, thus failing to meet the nexus test of Nollan).

37. Nollan 483 U.S. at 834, n.3.

38. See, e.g., Lummis v. Lilly, 429 N.E. 2d 1146 (Mass. 1982).

39. 112 S.Ct. 2886, 120 L.Ed. 2d 798 (1992).

40. Id. at 813, n.7. See also Orion Corp. v. State of Washington, 109 Wash. 2d 621, 747 P.2d 1062
(1987) (Washington's Shoreline Management Act does not deprive private tidelands owner of
economically valuable u ses if those uses are already denied by virtue of the state's public trust
doctrine).

41. See Jon A. Kusler, 77ze Lucas Decision: Avoiding 'Takings'Problems With Wetland and Floodplain
Regulations, 4 MD. J. OF CONT. LEG. IssuEs 73 (1992-93).

ANTiCIEPATORY PLANNING FOR RFLATivE SEA-LEvEL RISE ALONG THE COAST OF MAINE 6-27

42. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988) (State public trust extends to all lands
subject to the ebb and flow of the tides).

43. E.g., Hirtz v. Texas, 773 F. Supp. 6 (S.D. Tex. 1991), revd on other grounds, 974 F.2d 663
(5th Cir. 1992); Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355, 365 (N.J. 1984), cert.
denied, 469 U.S. 821 (1984).

44. See Bell v. Town of Wells, 557 A.2d 168 (Me. 1989).

45. See Shively v. Bowlby, 152 U.S. 1, 35 (1894); HARRIET HENRY, MAINE LAws AFFECTING
MARINE REsouRcEs, vol. 2, at 214-215.

46. State v. Yates, 104 Me. 360, 363, 71 A. 1018 (1908) ("It is settled law that the owner of land
bordering on ... the sea, which is added to by accretion, that is the gradual and imperceptible
accumulation or deposit of land by natural causes, becomes thereby the owner of also of new made
land. ")

47. Michaelson v. Silver Beach Improv. Ass'n, 343 Mass. 251 (1961).

48. Matthews v. Bay Head Improv. Ass'n, 471 A.2d 355 (N.J. 1984).

49. See, e.g., Florida Beach and Shore Protection Act of 1987, FLA. STAT. ch. 161 (1990)
(establishing construction setback regulations) and South Carolina Beachfront Management Act, S.C.
GEN. LAWS 48-39-270 to 360 (establishing setbacks and requiring local beach protection plans).

50. Lummis v. Lilly, 385 Mass. 41, 429 N.E. 2d 1146 (1982) (use of groin or jetty subject to a
reasonable use rule applicable to riparian owners; relevant factors in determining reasonableness
include purpose, existence of license, harm caused, practicality of avoiding harm, protection of existing
values of land and water use, etc).

5 1. See, e.g., Kreiter v. Chiles, 593 So. 2d 111 (Fla. Dist. Ct. App., Feb. 11, 1992), cert. denied,
61 USLW 3284, Oct. 13, 1992 (denial of permit to construct a private dock over submerged lands held
in trust does not constitute a taking, absent a showing of the necessity of ingress and egress).

52. See, e.g., Massachusetts v. Wilson, 413 Mass. 352, 597 N.E. 2d 43 (Mass. 1992).

53. Kaiser Aetna v. United States, 444 U.S. 164 (1979).

54:. U.S. Const., art. I, sec. 8, cl. 3.

55. U.S. v. Rands, 389 U.S. 121 (1967).

56. 557 A.2d 168 (Me. 1989).

57. Id. at 173, 176.

58. See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988).

59. See Bell v. Town of Wells, 557 A.2d at 171.

60. Id. at 173.

6-28 LEGAL CONSIDDERATIONS FOR MAINE'S POLICY ItESPONSE

61. Compare Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355 (N.J. 1984).

62. For a similar legal theory using California law, see Judith Knapp, "The Rising Sea Level and an
Anticipatory Public Trust Doctrine in California, " unpublished manuscript, U. Cal. Berkeley, Boalt Hall
Law School, April 1990.

63. Compare Opinion of the Justices, 437 A.2d 597 (Me., 1981) with Bell v. Town of Wells, 537
A.2d 168 (M3. 1989).

64. See Hall v. Board of Envt'l Protection, 498 A.2d 564, 569 (Me. 1985); Drake v. Inhabitants of
the Town of Sanford, Sup. Ct. No. CV-88-679 (Dec. 17. 1992) (court notes cumulative impact
rationale in rejecting jury's finding that town shoreland zoning ordinance did not substantially advance
legitimate state interests, but accepts jury's finding that ordinance did not deprive owner of all
economically beneficial or productive uses); Plummer v. Town of Cape Elizabeth, 612 A-2d 856 (Me.
Aug. 20, 1992) (local wetland ordinance does not violate substantive due process but developer is
entitled to a trial on takings claim).

65. TEx. NAT. RES. CODE Sec. 61.012 (1990).

66. Hirtz v. Texas, 773 F. Supp. 6, revd on other grounds, 974 F.2d 663 (5th Cir. 1992).

67. G.L. c. 131, sec. 40 (1990).

68. 3 10 CODE MASS. REGs. Sec. 10.28(4) (1989).

69. Id. at 10.30 (3) (1989).

70. 310 CODE MASS. REGs. 10.36 (1989).

71. Wilson v. Commonwealth, 413 Mass. 352, 597 N.E.2d 43 (Mass. 1992).

72. Wilson v. Commonwealth, 31 Mass. App. Ct. 757, 768 (Jan. 9, 1992).

73. Wilson, 597 N.E.2d at 352, 44.

74. 483 U.S. 825 (1988).

75. Nollan, 483 U.S. at 847 (Brennan, J., dissenting).

76. Id. Justice Blackmun began his separate dissenting opinion with the following: "I do not
understand the Court's opinion in this case to implicate in any way the public-trust doctrine. The
Court certainly had no reason to address the issue, for the Court of Appeals of California did not rest
its decision on Article X, section 4, of the California Constitution. Nor did the parties base their
arguments before this Court on the doctrine." (Article X, adopted in 1879, protects the public right
of way to navigable waters and the public right of free navigation, and is considered to be the
constitutional basis of the public trust doctrine in California. Id. at 865.

77. See, e.g., Lummis v. Lilly, 429 N.E. 2d 1146 (Mass. 1982).

78. Town of Windham v. LaPointe, 308 A-2d 286, 290-91 (Me. 1973).

ANTICIPATORY PLANNING FOR RELATIVE SEA-LEvEL RISE: ALONG THE COAST OF MAINE 6-29

79. See, e.g., Terry D. Morgan, Takings Law: Strategies for Dealing With Lucas, LAND USE LAW &
ZON. DIG. 3 (Jan. 1993); Eric Damian Kelly, A Challenge to Planners: Solve the Takings Problem,
LAND USE LAW & ZON. DIG. 3 (Sept. 1993). Several of the suggestions in this section are based the
recommendations of Kelly, supra.

80. FLA. STAT. Section 161.052(7) (1979).

81. Kelly, supra note 79.

82. Id.

83. See Rubin v. BEP, 577 A.2d 1189 (Me. 1990) (upholding Sand Dune Rules variance provision
requiring applicant to prove that minimal impact on sand dune system would occur and structure would
not be damaged within 100 years by shoreline changes).

84. See Fichter v. BEP, 604 A.2d 433 (Me. 1992) (BEP action was "quasi-legislative" in reviewing
DEP's permit decision therefore applicant was not entitled to a full adjudicatory hearing on applicant's
appeal of DEP finding that 100 year rise in sea level will cause the subject seawall to collapse, that
seawall would interfere with the natural sand movement and redistribution and was located on a frontal
dune).

85. Titus, supra note 1, at 45.

86. Sax, supra note 1.

87. See Lisa A. St. Amand, Sea Level Rise and Coastal Wetlands: Opportunities for a Peaceful
Migration, 19 ENV'L AFF. 1, 18-19 (1991).

88. Id. at 23.

89. Knapp, supra note 62.

90. Regulations will still be required because the effectiveness of public education is unproven. As
one commentator has noted, "development of beachfront property is not normally perceived as risky
because of cognitive limitations on the perception of low-probability risks, culturally- or commercially-
motivated distortions of risk level, and deliberate disregard or risk because of expected subsidization[.]
Persistent publicity about risks, perhaps combined with recordation of risk information directly on
deeds, could be expected to have some effect on risky land use choices eventually, but its extent would
be uncertain. " Marc R. Poirier, Takings and Natural Hazards Policy: Public Choice in the Beachfront,
46 RUTGERS L. REV. 243, 291-92 (1994).

Cylkapter Seven

PRELEmiNARY ADAPTivE REsPoNsE STRATEGY:
CoNcLusiom AND REcommENDATxom

This study evaluated whether Maine should develop an adaptive response strategy to
prepare for the possibility of accelerated sea-level rise as a result of global climate change.
It concludes that Maine should begin to prepare itself for the possible consequences given:
� the significant possibility of global warming,
� the magnitude of the negative impacts if global warming theories are correct, and
� the potential for anticipatory measures to reduce adverse impacts if sea-level rises as
projected, without imposing substantial costs if the projections are not realized.

A. VULNERABILiTy AssmSMENT AND ANALysis OF ExiSTING LAws
Researchers determined that the developable portion of the study area within 100 meters
of the shoreline is, for the most part, already built up. There is little usable, vacant land
zoned for development. The shoreline development that has occurred over the last several
years has been typified by seasonal conversion, infill development in grandfathered
subdivisions or on grandfathered lots, and renovation or expansion of existing single family
homes.

However, Maine has experienced a relatively depressed real estate market since
approximately 1987. If development pressure increases in the future, coastal areas may face
attempts to subdivide or redevelop larger estates, to consolidate and redevelop marginal
seasonal homes and marginal commercial structures, and to redevelop cottage areas for
multifamily residential units. Additional development pressure might also prompt individuals
to attempt to develop land which is not currently zoned for development nor currently thought
of as being suitable for development, specifically including eroding bluffs and land in or
adjacent to coastal wetlands.
Any strategy to minimize damage from future sea-level rise should not only control the
location of new development, but also consider the impacts of the strategy on existing
development, and the impacts of existing development on natural coastal processes as shoreline
position changes.

7-1

7m2 PRELimINARY ADAPTIvE RESPONSE STRATEGY: CONCLUSIONS AND RECOMMENDATIONS

The mapping and vulnerability assessment for specific sites determined that the components
of Maine's "soft coast" (coastal sand dune system, coastal wetlands, coastal eroding bluffs)
face the prospect of significant coastal erosion and inundation even without accelerated
sea-level rise, based on historic rates of change. And for beaches and coastal wetlands, that
erosion and inundation will be exacerbated by an accelerated rate of sea-level rise.
1. Beaches

The most profound changes will be experienced on and adjacent to the beaches. Not only
is the projected landward movement of shoreline position along beaches three to six times
greater than the projected movement along salt marshes or bluffs, but a change in shoreline
position along a beach is likely to affect relatively intensely developed areas immediately
adjacent to the beach. At the same time, any interference with the natural migration of the
sand dune system could reduce or eliminate the dry sand portion of the beach and have a very
significant impact on coastal tourism, recreation, and the local economy.
However, the analysis of Maine's laws and regulations concludes that Maine already has
strong laws and regulations in place to regulate development in or adjacent to sand dune sys-
tems. Maine's Natural Resources Protection Act and the accompanying Sand Dune Rules
already prohibit large, new development unless the applicant can show that the site will remain
stable assuming a 3 foot rise in sea level over 100 years. While smaller, new development
is evaluated based on historic, rather than accelerated sea-level rise, all new development is
subject to retreat requirements. There are also limits on expansion of existing development
and those structures essentially cannot be rebuilt if they are destroyed by 50% or more of their
value by coastal erosion or storms.
While some minor amendments would strengthen the law (e.g., adequate protection for
unstable back dune sites, clarification of the standards for site stability for smaller
development), the Sand Dune Rules are essentially a sound and exemplary set of far-sighted
regulations. As part of the anticipatory strategy for possible sea-level rise, it is critical to
ensure that NRPA and the related Sand Dune Rules are not weakened through amendments,
site specific exceptions, or permissive permit-by-rule regulations for back dune sites.
2. Coastal Wetlands

To date, Maine has not been equally attentive to the potential impact of sea-level rise on
coastal wetlands. Any anticipatory sea-level rise strategy should correct this omission.
It is beyond question that coastal wetlands play a critical role in maintaining land-
scape-level ecosystem functioning. For example, they minimize damage from coastal storms
and flooding, help maintain water quality, and in serve as critical habitat for juvenile fish and
waterfowl. Wetlands are important to biodiversity; even though wetlands comprise only 5 %
of the nation's land area, they contain a disproportionate share of federally listed rare and
endangered animal species.' The influence of wetland loss or disruption is likely to be felt
well beyond the wetland itself because of the functional links to waterways, flyways, and the
fisheries.' Any disruption of this critical coastal ecosystem could have serious economic
impacts on components of Maine's economy, particularly on the commercial fishing industry.
A rise in sea level will result in the conversion of areas that were formerly just above
mean low water to open water. Some researchers have concluded that healthy coastal marshes

ANnciPAToRy PLANNING FOR SEA-LEVEL RISE ALONG TIIE COAST OF MAINE 7-3

with an adequate supply of sediment will be able to build coastal marshland as fast as the sea
rises to inundate it up to a rate almost equivalent to a 200 cm. rise over 100 years.' This
means that, given the right conditions, wetlands could migrate landward in equilibrium. But
there are significant limitations: the marsh must be healthy, there must be adequate sediment,
and it must not run into upland barriers, either natural (steep slopes, bedrock) or human-made
(bulkhead, levee or other hardened edge).
A national vulnerability study projected that in New England, if there were no artificial
interference with natural migration, a sea-level rise of .5 m to 2.0 m would result in a
maximum loss of 5 % in wetland area. In similar circumstances, if all shores were protected
with bulkheads or similar structures, 15-17% of the remaining coastal wetlands could be lost.
If only already developed areas were protected, the wetland loss could be reduced to 6-10%
of remaining coastal wetlands.' Further study might conclude that these regional projections
substantially understate the wetland loss that might occur in Maine due to its steeper slope and
bedrock-dominated characteristics.

Thus, under current conditions, with a significant rise in sea level, Maine is likely to
suffer a substantial reduction in wetland area for a combination of reasons. First, there are
no laws designed to protect the'ability of wetlands to migrate inland by precluding the artificial
hardening of the upland edge. NRPA wetland regulations were formulated primarily to
maintain an adequate buffer to maintain wetland habitat value, assuming a static position.
They do not preclude the construction of artificial barriers to upland migration just outside the
wetland.

Second, natural upland barriers will contribute to wetland loss even without human
interference. The steepness of the coastal region and the fact that it is bedrock-dominated will
result in a much smaller area of new marsh creation than would occur in non-rocky regions.

Finally, unless current trends are reversed, multiple stressors not directly related to
sea-level rise may contribute to the death of wetland vegetation which is critical to the process
of vertical accretion. For example, dredge and fill projects, nonpoint source pollution, and
reductions in the supply of sediment and nutrients may tax the health of wetland vegetation.
Given that some reduction in wetland area will be inevitable due to its topography alone,
Maine should focus with renewed resolve on that portion of wetland loss which is within
human control. Policy-makers need to decide how much of the existing wetland shoreline
should remain in a natural, unan-nored condition. They could decide that all of it should be
kept free from further human interference with natural inland migration. Or they could decide
that in specified circumstances, existing investment justifies allowing the upland edge of a
wetland to be hardened, for instance to protect already intensely developed areas. Once the
decision is made, appropriate regulations patterned after the setback and retreat policy of the
Sand Dune Rules should be adopted to implement this policy in coastal wetlands.
3. Eroding Bluffs
Maine's laws also fail to do a complete job of regulating the third element of the soft
coast, eroding coastal bluffs. While not likely to be affected by a change in the rate of
sea-level rise, it is anticipated that this erosion will continue at a significant pace into the

74 PRELmNARY ADmmw REspoNsE STRATEGY: CONCLusioNs AND REcomNENDATIoNs

future, threatening individual structures. Any unified State coastal erosion/inundation policy
should address bluff erosion to prevent interference with the process through hard erosion
control strategies. Eroding bluffs can play an important role in the sediment budget for sand
dunes and coastal wetlands. Thus, it is important to sand dunes and coastal wetlands that
armoring structures not be allowed to unreasonably interfere with the transfer of soil from the
terrestrial to the marine environment.
4. Urban Engineered Shorefronts
This study determined that Portland's central waterfront is already lined with engineered
structures which will essentially keep shoreline position constant even given a 2 'meter rise in
sea level over the next century. However, it is probable that this area will experience negative
impacts associated with flooding and storm surges with greater frequency, particularly in areas
that already experience flooding during a 100-year storm event.
The study concluded that existing laws, particularly State enabling legislation for zoning
for maritime activities and commercial fishing, the Coastal Management Policies Act and local
waterfront zoning ordinances, all make an important contribution to damage mitigation by
reserving this type of engineered waterfront site for water dependent uses.
5, Rocky Shores
It is not expected that Maine's rocky shoreline will be adversely affected by inundation or
erosion as a result of sea-level rise associated with global climate change. There may be very
minimal inland movement of the shoreline position, depending upon the adjacent slope. It was
concluded that no regulatory changes are required along the hard coastline to address possible
impacts of accelerated sea-level rise.

B. DEVELOPING AN ANTICIPATORY RESPONSE STRATEGY
1. Maine's Advantages
Maine has three advantages which should help it as it makes policy decisions about an
anticipatory response strategy. First, even though Maine is substantially built up along its
developable shoreline, it is not saddled with the intense, multi-unit recreational shoreline
development characteristic of states to its south.' Maine is still in a position to decide whether
to allow further intensification of shoreline development. In most other states, the decision
about sea-level rise response options will be skewed by extensive investments already sunk
into vulnerable but immovable structures.
Second, some analysts have characterized response strategies as a choice between
maintaining economic activities in a shorefront location (e.g., making substantial
environmental changes such as dredging sand for beach nourishment, construction of
bulkheads to protect houses from migrating wetlands) or preserving the environment (e.g.,
removing structures to allow beach and wetland migration).' While this economy vs. the
environment dichotomy may be true in other coastal states, the choices in Maine are not that
stark. Maine is much more heavily dependent on its natural resources than many other coastal
states. Its commercial fishing industry, other marine resource harvesting industries, coastal
recreation and coastal tourism industries are of critical importance to the State's economy.

ANTiC11PATORY PLANNING FOR SEA-LEvEL RISE ALONG TBE COAST OF MAINE 7-5

These key industries depend upon maintaining the quality and ecological functioning of
Maine's coastal wetlands, marine waters and sand beaches. Thus, it is not a matter of
economic activity or the environment; there are substantial economic benefits associated with
maintaining the environmental quality of the coastal ecosystem.
Finally, Maine should be in a good position to develop an anticipatory sea-level response
strategy because it has already successfully confronted very similar issues in regulating sand
dune systems. NRPA and the associated Sand Dune Rules already establish a clear policy of
retreat from advancing seas, whether at historic or accelerated rates, and impose reasonable
limitations on the development expectations of owners of land within or adjacent to sand dune
systems. This provides a valuable model to follow in developing policies for other areas of
the soft coast.

As a means of bringing more information to bear on the complex choices to be made in
developing a formal sea-level rise response strategy, researchers conducted a cost/benefit
analysis of alternative response options for one site and analyzed constitutional limitations on
regulatory options. The findings are summarized below.
2. Economic Cost/Benefit Analysis
The cost-benefit analysis of four options for one specific sand beach site concluded that,
subject to the conditions and assumptions articulated in Chapter Four, it was more
cost-effective to adopt a strategy of retreat from the shoreline as sea level rises. The benefits
of a retreat strategy outweighed costs under the 50, 100 and 200 cm rise scenarios. In
contrast, the analysis found that attempts to protect most of the development or to maintain
the shoreline in its current position were not justified by a cost-benefit analysis. The costs of
these reactive protection strategies (assuming beach nourishment, bulkheads and in one
strategy a selective buy-out of threatened structures) exceeded benefits for the 50, 100 and 200
cm rise scenarios.

Specifically, that analysis concluded that for the currently eroding beach at Camp Ellis,
with a sea-level rise of 50 to 200 cm by 2100, from a quantitative standpoint, the preferable
option is to allow new development within the area projected to be inundated, but to require
retreat of both new and existing development as the shoreline position changes (Option 4).
The second most favorable response of the options evaluated was to ban all new development
within the area projected to be inundated under the particular scenarios and to require existing
development to retreat as it suffers major damage from coastal erosion or coastal storms
(Option 3).
The major factors making the retreat strategies preferable to the reactive protection
strategies were the cost of sand and the expense of ongoing beach nourishment. As noted in
Chapter Four, this analysis is still very rough. The results are highly dependent upon the
particular assumptions used and the analysis is very simplified. Each strategy has different
costs associated with it if sea level actually rises either more or less than projected under the
particular scenario; this uncertainty would need to be considered when selecting a strategy.
Moreover, there are other foreseeable costs or risks, such as political feasibility, which are
not addressed through this cost-benefit analysis. For example, a community might initially
select Option 4 (allow construction in vulnerable areas, but with retreat requirements) but then
lose the political will to enforce the retreat requirement when faced with the actual need for

7-6 PRELumiNARY ADAPTivE RESPONSE STRATEGY: CONCLUSIONS AND REcOMAIENDATIONS

abandonment. If the community then decides to protect that development, the strategy would
then become one of reactive protection, with all of those associated costs.
Despite these admitted constraints, the results of this simplified cost/benefit analysis lend
general support to the type of response strategy which is already embodied in the Sand Dune
Rules. To implement a retreat strategy, those Rules:
1) ban all new development in a band of land which extends from the water upland to the
projected shoreline 100 years hence, based on projections of a continuation of historic
rate of erosion over the next 100 years;
2) allow modest continued development in the next band of land, which consists of land
between the projected 100 year shoreline based on historic rates and the projected 100
year shoreline based on a 1.0 m. rise in sea level.
3) allow development up to the maximum allowed by local zoning ordinances in the
furthest upland band of land in the sand dune system, from the projected 100 year
shoreline based on a 1.0 m. rise in sea level to the upland edge of the sand dune
system, subject only to the retreat requirements outlined below;
4) throughout the sand dune system, require all rebuilding or repair of existing structures
to meet the requirements for new construction if the structure is damaged by 50% or
more of its value; and
5) condition all new development upon the requirement that the owner remove the
structure and return the site to its unaltered condition if the shoreline position changes
so that the structure is on part of the active dune system for six or more months.
The existing sand dune policies are not completely reflected in either Option 3 or Option 4 of
the cost-benefit analysis, but rather take a middle position between those retreat strategies.
The Sand Dune Rules allow modest new development in the area described in #2, above, thus
avoid the high opportunity costs otherwise incurred if all development were banned in the area
threatened by accelerated sea-level rise (as in cost-benefit Option 3). There are, of course,
still some opportunity costs associated with limiting the development to modest intensity rather
than allowing high-intensity development, but these cost are justified by environmental, hazard
mitigation, and visual access considerations which would support keeping high intensity
development from locating on the shoreline even assuming no change in shoreline position.
3. Legal Considerations for Maine's Policy Response
Researchers also analyzed several legal issues to determine if they might constrain the
State's ability to adopt a retreat strategy. The primary purpose of the analysis was to
determine if the retreat strategies being supported in the analysis of existing laws and in the
cost-benefit analysis suffered from substantial vulnerability to successful legal challenge.
The legal analysis concluded that Maine is at somewhat of a disadvantage in comparison
to the majority of coastal states due to the weakness of its public trust doctrine. However, it
concluded that with careful attention to drafting, U.S. constitutional law and State
constitutional law give adequate room to develop, adopt and enforce regulations on coastal
development to restrict new development in areas threatened by accelerated sea-level rise, to
require removal of new development upon a change in shoreline position, and to prohibit the

ANTiciPATORY PLANNING FOR SEA-LEvEL RISE ALONG TIM COAST OF MAINE 7-7

rebuilding of existing structures which are substantially damaged by coastal storms or erosion.
The analysis also concluded that existing laws give adequate opportunity to adopt some
non-regulatory responses, but that other non-regulatory strategies would require statutory or
constitutional amendments.

C. RECOMMENDATIONS FOR MAINE's ANTICIPATORY RESPONSE
STRATEGY
The remainder of this chapter summarizes the recommendations developed based on the
analysis in the preceding chapters. It is not intended as an exhaustive list of recommenda-
tions; individual chapters should be consulted for full details.
Clearly, these recommendations are not the formal policy of any agency of the State of
Maine; they are the recommendations of the members of the research team, and are presented
for further consideration by appropriate state and local agencies.
These recommendations have been developed as part of a "no regrets" response based on
the best available technical information at this time. Any anticipatory strategy formulated
based on these recommendations will need to be reviewed periodically (e.g., every 5 to 10
years) to incorporate new information available at that time.
1. Underlying Recommendations
The key recommendation of this report, underlying all of the others, is that the State
should protect and strengthen the ability of natural systems to adjust to changes in
shoreline position. There should be a strong presumption in favor of non-interference with
"soft" coastal processes including the natural inland migration of beaches and salt marshes and
the natural movement of material from the terrestrial to the marine environment. The
correlative recommendation is that the State should prevent new development which is
likely to interfere with the ability of natural systems to adjust to changes in shoreline
position.
2. Specific Strategies
Within these general premises, more specific strategies should be articulated. There are
at least four types of responses to climate change:
1) "No action today'Vaction when problem emerges, where least-cost solutions are
well-defined and can be implemented quickly at the appropriate time using existing
technology and information. There is little reason to take action before the problem
emerges.
2) Anticipatory action, where concrete measures are justified today despite uncertainties
due to the minor additional cost of incorporating the measures today being outweighed
by large potential gains and possible benefits even without global climate change.
3) Planning, where no physical changes are needed immediately, but the "rules of the
game" need to be announced or changed so that people can make informed decisions
based on advanced notice of how the government intends to respond to climate change
and sea-level rise.

7-8 PRELuvnNARY ADAyiTvE RESPONSE STRATEGY: CONCLUSIONS AND REcowdENDATToNs

4) Strategic assessments, research and education, where it will take long periods of
time to determine the type and timing of responses to global warming, where we need
to develop a much better scientific understanding of natural processes and how to apply
that knowledge to mitigate impacts, and where enlightened professionals and citizens
are critical to support required changes.'
The following sections summarize the recommendations for each type of action.
a. Action When the Problem Emerges
This report does not identify any actions in this category to be taken now, or in the near
term. Concrete problems specifically attributable to global climate change induced sea-level
rise have not yet emerged to the point where it is necessary to take specific physical actions
to implement solutions. Altered resource management practices (e.g., reservoir water release
schedules, shifting crops) and engineered solutions specifically in response to rising sea level
(e.g., raising piers and wharfs, redesigning existing coastal drainage systems, bulkheading,
etc.) should be undertaken, if at all, only if there is an actual rise.
The State should continue to monitor Maine-specific sea-level rise data, global sea-level
rise projections, and local conditions on a periodic basis to determine if a problem has
emerged which requires specific action. It is also likely that if individuals begin to feel the
effects of rising sea level, they will take certain adaptive actions on their own, without
governmental incentives or mandates. For example, water-dependent uses reinforcing or
maintaining their piers and wharves may build to withstand higher water level based on their
own observations about reduced protection from coastal storms. Public education (discussed
below) will help individuals place these actions into a larger context.
b. Anticipatory Action
Maine should encourage anticipatory tangible responses to sea-level rise if the proposed
action meets the "no regrets" test. Such response options include the following:
1) Review design standards and similar specifications for every new coastal public works
project to determine whether it is cost-effective to make minor alterations in the design
to accommodate a changed shoreline position (e.g., slightly increasing the setback to
provide a protective buffer) or to design it to accommodate a more frequent storm
event (e.g., designing for a 15- to 20-year storm rather than a 100-year storm);
2) Develop a written capital investment policy to discourage an irreversible commitment
of public resources for new infrastructure or structures in areas likely to be affected
by accelerated sea-level rise, except to the extent necessary to support continued
economic viability and efficient functioning of water-dependent uses. The policy
should also provide specific guidance on avoiding coastal infrastructure investments
that would encourage residential development on the shore (e.g., extension of water
systems, sewer systems and roads to shoreline areas). It should also provide guidelines
to help balance when shoreline capital investments might be appropriate, such as in the
case of strengthening the viability of water-dependent industries or securing public
waterfront access. Except for water-dependent use infrastructure, all new and
substantially modified public structures and facilities should be adequately set back to
protect them from erosion for 100 years assuming a rise in sea level of 100 cm by

ANTiciPAToRy PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE 7-9

2100. Even if shoreline position does not change, these policies are consistent with
sound coastal management practices.
3) Increase the amount of upland area owned or controlled by public or quasi-public
entities (e.g., State, municipality, land trust) adjacent to low-lying facilities intended
to provide public waterfront access (e.g., beaches, shoreline walkways, boat ramps,
waterfront parks, public docks, etc.) so that these facilities would still be available
even with a change in shoreline position. Until needed for shoreline access, the
additional upland could be used for beneficial purposes such as open space, parking
or storage.
4) Expand coastal nature preserves, acquire key undeveloped coastal wetlands and similar
conservation areas to preserve areas important to the public and to provide sufficient
upland buffer areas for wetland migration in the event of a change in shoreline
position. This would increase protection of threatened ecosystems now, and would
enhance the prospects of wetlands being able to migrate in equilibrium with a change
in sea level. In conjunction with this, review funding options and financial incentives
to determine if they can be made more attractive. Mechanisms reviewed should
include preferential open space tax treatment, conservation easements coupled with
required property tax reassessment to reflect the decrease in value due to the
encumbrance, preference for purchase of this type of land under a bond-supported
public purchase program, and a real estate transfer tax surcharge on the transfer of
coastal property or an income tax checkoff system to fund property acquisition.
Acquisition would not have to be in fee simple. Conservation easements could protect
the land in its undeveloped condition. Similarly, it may be possible to acquire a
contingent "flooding" easement which would not encumber the land unless erosion or
inundation changed the applicable shoreline position or upland/marsh boundary.
c. Planning and Regulatory Policy
The State should "change the rules of the game" by adopting land use restrictions which
will guide the bulk of the development away from potential hazard areas and will protect the
ability of coastal ecosystems to migrate. While the following policy options are generally
phrased in terms of what the State of Maine should do, in some cases the State may decide
it is more desirable to delegate that responsibility to local governments with retained State
oversight. Summary recommendations include:
5) Halt attempts to stabilize the shoreline within or adjacent to the soft coast;
maintain/restore the ability for coastal sand dune systems, coastal wetlands and
eroding bluffs to migrate inland. This has already been accomplished to a great
extent within the frontal dune system. Maine needs to hold the line on existing
sand dune restrictions and not allow additional exceptions. Similar sorts of
protections need to be extended to back dunes, coastal wetlands and eroding
bluffs. For example, amend NRPA to prohibit edge-hardening structures (e.g.,
bulkheads, levees, etc.) adjacent to the upland edge of a coastal wetland if any
part of the structure is projected to interfere with the inland migration of the
wetland assuming an accelerated sea-level rise of 100 cm by 2100.

7-10 PRELmINARY ADmmw RESPONSE STRATEGY: CONCLUSIONS AND IRECOMNENDATIONS

6) Along all soft coasts, establish building setbacks to protect the natural systems.
Prohibit all new structures on or adjacent to sand dunes or coastal marshes if the
site is projected to be affected by sea-level rise within 100 years, assuming a rise
in sea level of 100 cm by 2100 (except as provided in 7, below). Similarly, for
eroding bluffs, if not included within a district allowing only non-intensive use,
adopt setbacks for structures and septic systems which require them to be set back
from the area likely to experience erosion over the next 100 years assuming a
continuation of the historic rate of erosion or, if greater, set back 75 feet plus the
average annual rescission rate times the structure's assumed life span.
7) As a limited exception to 6, above, allow construction of new, small,
easily-movable structures built at low densities (e.g. walkways, small single
family residences on reasonably large lots, temporary/reversible structures)
adjacent to sand beaches or marshes if, and only if, the site is expected to remain
stable over the next 100 years assuming a continuation of the historic rate of
erosion. This exception should only be allowed if the State has the political will
to require removal of these structures if erosion exceeds historic rates. In cases
where small, new, movable development is allowed, extend the Sand Dune Rule's
it presumed mobility" policy to all areas of the soft coast (beach, marsh and bluff)
by making all new building permits conditional. As a condition of approval,
require the owner to agree to remove any structure permitted after adoption of the
policy if the shoreline position changes so that the structure interferes with the
ability of the natural systems to adjust to changes in shoreline position. Require
that the condition be recorded at the appropriate registry of deeds so that all
subsequent purchasers are put on notice of the risk of being in a hazard area and
their obligations in the event of a change in shoreline position.
8) Notwithstanding 6, above, allow new structures for functionally water- dependent
uses which meet certain performance standards designed to minimize the impact
on natural systems, regardless of whether the area is likely to be affected by
either historic or accelerated sea-level rise.

9) Treat existing development located within the area which is threatened by erosion
or inundation from a sea-level rise of 100 cm over the next century as a
non-conforming structure if it can not meet the new setback standards; prohibit
expansion of the structure or intensification of use, but allow ordinary
maintenance and repair so long as it is not damaged by more than 50% of its
value. To the extent legally feasible without constituting a taking, extend the
ff presumed mobility" policy to existing structures as well to require the owner to
remove any structure if the shoreline position changes so that any portion of the
structure is located on public land or becomes a public nuisance (even if the
structure has not sustained damage of 50% or more of its value).
10) On any site which is unlikely to be affected by accelerated sea-level rise assuming
a 100 cm rise over 100 years but which is projected to be affected by a 200 cm
rise over 100 years, allow new development only if it meets performance
standards for cluster development designed to minimize the costs of protection
should the 100 cm sea-level rise estimate be too low.

ANTicIPATORY PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE 7-11

11) Supplement the State regulatory procedures by encouraging or requiring other
State agencies and individual municipalities to consider a high probability of
future increased rates of sea-level rise in making daily investment, development
and permitting decisions. For example, consider mandating incorporation of a
sea-level rise standard into shoreland zoning and subdivision review standards.
d. Strategic Assessments, Research and Education
Given scientific uncertainty and rapidly evolving scientific knowledge, coastal
managers are not in a position to make decisions now about a definitive adaptive response
strategy for the next century. Policy decisions will have to be made now based on the
best available knowledge, with the express intent of reviewing these policies periodically
as scientists refine their predictions. Continuing research will be required to revise and
refine anticipatory strategies and policies as scientific knowledge increases. The State
of Maine should participate in increasing the understanding of global warming and its
projected impacts, particularly as applied to the State, in the following ways:
12) The State should designate one State agency as the lead agency for monitoring
issues associated with global climate change and sea-level rise. This agency
should keep abreast of scientific progress and policy responses of other entities.
It should also work with related State agencies and with municipalities in
formalizing an anticipatory response strategy and seeing that it is implemented.
Because it appears that a major part of the implementation strategy will involve
strengthening the core laws of the coastal management program, it would be
logical to designate the State Planning Office as this lead agency. This lead
agency would need to work closely with the Maine Geological Survey and other
State agencies with coastal and marine responsibilities.
13) The lead State agency and cooperating State agencies should undertake additional
research to document coastal erosion in Maine and to determine how global or
regional projections concerning particular impacts might affect Maine. For
example, the ability to regulate coastal development will be improved if Maine
Geological Survey receives funding to complete its work on historic coastal
erosion rates for all beach, marsh and bluff segments. In addition, the State's
anticipatory plan will be strengthened if municipalities adopt complementary
comprehensive plans and implementing regulations. To facilitate this, the State
should increase technical assistance to municipalities to help them identify areas
threatened by coastal erosion and to modify their comprehensive plans
accordingly.
14) As part of a related effort, to enhance the likelihood that regulatory policies will
be accepted and supported, the State should undertake a substantial educational
effort aimed at local officials, code enforcement officers, other State agencies,
and the general public. The focus of this effort should be to educate the target
audience about the hazards of coastal erosion and inundation, including the
possible impacts of an accelerated rate of sea-level rise, the fragility of the coastal
ecosystem, the benefits of conserving (or restoring) it as a resilient natural

7-12 PRELmiNARY ADArrrvE RESPONSE STRATEGY: CONCLUSIONS AND ftcomNENDATioNs

system, and the costs (both financial and environmental) of hard structures, beach
nourishment and similar engineered "solutions. "
15) Finally, as additional funding is available, the State should undertake supplemental
studies on different aspects of sea-level rise to complement this study. The
possible impacts with highest priority for further study are coastal flooding/storm
surges and salinization/saltwater intrusion. These are discussed in additional
detail immediately below.

D. RECOMMENDATIONS FOR ADDITIONAL RESEARCH
Additional research is recommended to complete the picture of probable impacts of
accelerated sea-level rise as a result of global climate change. While flooding and storm
surges are closely related to inundation and erosion, developing a flood model and conducting
detailed surveys of elevations and types of structures were outside of the scope of this study.

National studies suggest that sea-level rise will bring with it additional damage from
flooding and storm surges because of the loss of protective wetlands, the erosion of the
shoreline, the higher base for the surge to build on, a higher water table and reduced coastal
drainage. Depending upon the tides, winds and waves at the time the storm hits, there can
be a substantial temporary increase in water level.' For example, Hurricane Hugo in 1989
caused a 6.5 meter storm surge.'
Low barriers can be overcome, either by overtopping or undermining, resulting in storm
damage. It has been estimated that with moderate sea-level rise, today's 100-year flood could
essentially become a 15-year flood (a storm with a severity averaging a 15 year recurrence
interval). "
It is particularly important to undertake a flooding/storm surge analysis for Portland's
central waterfront, particularly in the Commercial Street area. While this study concluded that
there would probably be no change in shoreline position in this area due to the engineered
structures (which were observed to be built approximately 2 meters above mean high water),
it did not rule out damage from storm events. This area contains new residential
condominiums, multi-story office buildings, retail shops, restaurants, intermodal transportation
facilities, a recreational marina, the municipal fish pier and municipal fish display auction, a
major ship repair facility, many other commercial fishing or other water-related enterprises,
and various public or institutional uses. These structures are built on piers, wharves, and
formerly filled land. Additional study is needed to assess the vulnerability of the public
investments and private infrastructure along this engineered waterfront to flooding and storm
surges.
Another potential impact that should have high priority for additional analysis is
salinization. A rise in sea level will move the salt water/fresh water boundary landward.
Saltwater intrusion may significantly impact coastal towns or residents that use a river or well
as their source of drinking water." Additional analysis is required to detennine which coastal
towns or residents may be at risk from this impact.
The problem may be particularly acute for coastal islands that rely on ground water for
their drinking water. As sea level rises and decreases the island size, the fresh water lens

ANTiC11PATORY PLANNING FOR SEA-LEvEL RISE ALONG TIM COAST OF MAM 7-13

overlying the salt water will shrink and its ability to sustain island residents will decrease.
Several Maine islands have based their comprehensive plans and implementing ordinances on
island carrying capacity concepts based on ground water studies. Those studies should be
reviewed to determine the adequacy of any sea-level rise assumptions.
Finally, some studies suggest that a change in the fresh water/salt water boundary may
impact the abundance of marine resources, particularly shellfish. 13 Additional research would
be required to determine probable impacts on Maine's fisheries. While the State may not be
able to take any action to prevent this change, the possible impact should be factored into deci-
sions concerning management of the State's marine resources.

E. ENDNOTES

1. Curtis C. Bohlen, Wetlands Politics from a Landscape Perspective, 4 MARYLAND JOURNAL OF
CONTEMPORARY LEGAL ISSUES, Fall[Winter 1992-93, at 4.

2. Id. at 5.

3. Robert Costanza, et al., Modeling Coastal Landscape Dynamics, 40 BioSCIENCE, Feb. 1990, at 9 1.

4. T.V. Armentano, R.A. Park, and C.L. Cloonan, Impacts on coastal wetlands throughout the United
States, in GREENHOUSE EFFECT, SEA-LEVEL RISE AND COASTAL WETLANDS- 87-128 (J. G. Titus, ed.,
Wash., DC: EPA, 1988).

5. This may be attributable to the rocky, highly irregular coastline, the relative scarcity of sand
beaches, and the temperature of the coastal water. However, in 1989, one observer of the Maine coast
cautioned that "there are beach communities with the first growing pains of [this high density, highly
engineered shoreside development] already apparent. " JOSEPH T. KELLEY, ET AL., LIVING WITH THE
COAST OF MAINE 3 (National Audubon Society and Maine Geological Survey, Duke University Press,
1989)

6. James G. Titus, Strategies for Adapting to the Greenhouse Effect, APA JOURNAL, Sun-uner 1990,
at 311, 313.

7. Adapted from id. at 315-321.

8. Fletcher, Charles H. III, Sea-Level Trends and Physical Consequences: Applications to the -U.S.
Shore, 33 EARTH SCIENCE REVIEWS, 1992, at 94.

9. Id.

10. THE POTENTIAL EFFECTS OF GLOBAL CLIMATE CHANGE ON THE UNITED STATES 328 (J.B. Smith
& D.A. Tirpak, eds., Wash., DC: Hemisphere Publishing Corporation, 1990).

11. Fletcher, supra note 8, at 9 1.

12. Id. at 92.

13. James G. Titus, et al., Greenhouse Effect and Sea Level Rise: The Cost of Holding Back the Sea,
19 COASTAL MANAGEMENT 179 (1991).

Appendix A

SURVEY OF MAiNE's LAws RELEVANT TO
AcCELERATED SEA-LEVEL RiSE

Maine's laws contain several provisions E. Site Location of Development Act;
that address the possibility of a change in R Subdivision Law;
shoreline position. While some of these
provisions may have been adopted primarily in G. State Floodplain Management Program;
anticipation of continued land subsidence rather H. Submerged Lands Act; and
than in specific response to the threat of
accelerated sea-level rise due to global climate 1. Coastal Barrier Resources System.
change, they will be applicable regardless of
the cause of the change. The following
................. ................
..........
appendix analyzes each law according to the ...... . . . . . . . . . .......
-............ .......
......... ......... . .. ..... .
.................. ._--_ .... ......... . ......
........ ..................... ...... ................
.-_ .....I... .......... . . ............
...... .... 1.11 .......... .. .... . ....
........ ......
.... . ....... ...... ... . ..
A
following format: A NATUTRAL....RESOURCES PRIOTECUON.:: CT
........... ..........II I - .. :
.................... ....... .. ........
... ................ ......... .
4�
...........
1. Summary of law in general;
....... .....
... .... . ....- .. ........ . . .. ....
..............
... ....... .. ..........
.... .. .............. .........
-1111111 ..... ...... . ..............
. ..............
2. Identification of portion of the law that 1. Summary of law in general
relates to sea-level rise;
3. Analysis of extent to which it addresses any The Natural Resources Protection Act is
direct or indirect consequences of acceler- designed to protect the State's rivers, streams,
ated sea-level rise; great ponds, fragile mountain areas, freshwater
wetlands, significant wildlife habitat, coastal
4. Analysis of extent to which accelerated wetlands and coastal sand dune systems from
sea-level rise might affect the application of degradation. It promotes research and
the law. management programs for these protected natu-
The policy implications and recommendations ral resources. The Act also establishes a
based on this analysis are discussed in more permit system for all activities in, on, or over
detail in Chapter Five of this report. Within any protected natural resource, and for all
activities on land ad acent to any freshwater or
this Appendix, the laws are reviewed in the i
following order: coastal wetland, great pond, river, stream or
brook if the proposed activity would operate in
A. Natural Resource Protection Act and Sand such a manner that material or soil may be
Dune Regulations; washed into them.
B. Coastal Management Policies Act; Unless otherwise specifically exempt in
C. Growth Management Act; �480-Q of the Act, activities requiring a permit
are:
D. Shoreland Zoning Act;

A-1

A-2 APPENDIX A: SURVEY OF MAINE's LAws RELEVANT TO SEA-LEVEL RisE

� dredging, bulldozing, removing or displac- including, but not limited to, beach berms,
ing soil, sand, vegetation or other materi- frontal dunes, dune ridges, back dunes and
als; other sand areas deposited by wave or wind
� draining or dewatering; action. "' They may extend into coastal
wetlands.
� filling, including adding sand or other Both of these protected resources are
material to a sand dune; or defined in such a way that the definition of the
� any construction, repair or alteration of any area regulated will fluctuate as the shoreline
permanent structures.' changes in response to global climate change or
The Act is administered by the Department of land subsidence.
Environmental Protection. For those activities that do require a
permit, the Act establishes statutory standards
2. Identification of portion of the law for review. The Department is directed to
that relates to sea-level rise grant a permit upon such terms as are neces-
sary to fulfill the purposes of the Act if the
The Act defines significant wildlife habitat, applicant can demonstrate that the proposed
coastal wetlands and coastal sand dune systems activity meets those standards. The application
as three of the protected natural resources. of these standards is further detailed by
Significant wildlife habitat is further defined to regulations.
include specific types of areas, including
habitat for officially listed endangered or The standards most applicable to shoreline
threatened species; critical spawning and activities and sea-level rise are as follows:
nursery areas for Atlantic sea run salmon; 2) Soil erosion. The activity will not
shorebird nesting, feeding and staging areasi cause unreasonable erosion of soil or
and seabird nesting islands. However, this sediment nor unreasonably inhibit the
habitat is only protected by the Act if this sig- natural transfer of soil from the terrestrial
nificant wildlife habitat has been mapped by the to the marine or freshwater environment.
Department of Inland Fisheries and Wildlife. 3) Harin to habitats; fisheries. The
To date, only a portion of these areas have
been mapped, greatly reducing the degree of activity will not unreasonably harm any
protection. significant wildlife habitat, ... aquatic
habitat, ... estuarine or marine fisheries or
The coastal wetlands and sand dune other aquatic life....
systems protections are somewhat stronger. 4) Interfere with natural water flow.
Coastal wetlands are defined as "all tidal and
subtidal lands, including all areas below any The activity will not unreasonably interfere
identifiable debris line left by tidal action; all with the natural flow of any surface or
areas with vegetation present that is tolerant of subsurface waters.
salt water and occurs primarily in a salt water 6) Flooding. The activity will not
or estuarine habitat; and any swamp, marsh, unreasonably cause or increase the flooding
bog, beach, flat or other contiguous lowland of the alteration area or adjacent properties.
which is subject to tidal action during the 0 7) Sand supply. If the activity is on or
maximum spring tide level as identified in tide adjacent to a sand dune, it will not unrea-
tables published by the National Ocean sonably interfere with the natural supply or
Service. "I The Act specifies that coastal
wetlands may include portions of coastal sand movement of sand within or to the sand
dunes. dune system or unreasonably increase the
erosion hazard to the sand dune system.
Coastal sand dune systems are defined as
"sand deposits within a marine beach system,

ANTicipAwRy PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE A-3

The Act contains a list of specified activi- long as the access way, if in a coastal wetland,
ties for which a permit is not required. The is traditionally dry at mean high tide.'
most critical exception, enacted in July 1993 as The NRPA regulations include Coastal
part of the general budget act," amended the list Sand Dune Rules.' These rules are designed to
of activities for which a permit is not required guide the application of the standards requiring
to add "alterations in back dunes of coastal that development in, on, or over sand dune
sand dune systems" except if the site is subject systems must not cause unreasonable soil
to flooding during a 100-year flood event based erosion, must not inhibit the natural transfer of
on information from the Federal Emergency soil from the terrestrial to the marine environ-
Management Agency. The applicant had to ment, and must not unreasonably interfere with
provide the DEP with a location map and the natural flow of any surface or subsurface
notice 14 days in advance of the proposed waters. The Rules require the Department to
activity prior to commencing work in the back consider impacts which may reasonably be
dune area. expected to occur during the following 100
This 1993 exemption was criticized as years; projects will not be permitted if, within
being overly-broad. In many sand beach areas, 100 years, the project may reasonably be
the historical primary dune no longer exists; expected to be damaged as a result of chan-@Is
proposed development on the front tier of the in the sboreHinc, Hiciucting changes from
beach would actually involve development of sea-level rise.
what is technically a back dune area. Yet, The Sand Dune Rules establish a policy of
these back dune areas are likely to be as mobility or retreat in the face of a migrating
threatened by accelerated sea-level rise as coastal system. If a building sustains damage
frontal dunes. In response to these criticisms, to the extent of 50% or more of the building's
NRPA was again amended in 1994 to limit the appraised value, it may not be repaired or
exemption for back dune sites to only if the site rebuilt without a permit; no permit will be
is not expected to be damaged due to shoreline granted for its reconstruction unless the
change within 100 years based on historic and applicant can meet all of the requirements for
projected trends. The entire permit exemption new construction. It is highly unlikely that the
for back dunes is repealed as of February 15, owner of a structure damaged to this extent
1995, to be replaced by permit-by-rule per- would be able to secure a permit to repair or
formance standards.' rebuild.
Other more general exceptions may also The regulations allow permits to be
become important if owners try to repair and granted, whether for new or replacement
maintain structures and infrastructure in the structures, subject to the condition that the
face of rising sea level. Some of these activi- structure (and related facilities) must be
ties which do not require a permit include removed in the event that the shoreline recedes
maintenance and "minor repair" of structures so that parts of the structure are within the
above the high water line causing no additional coastal wetland for 6 months or more. In that
intrusion of an existing structure into a event, the site must be restored to its natural
protected resource; repair, maintenance or condition. The rules also prohibit the construc-
replacement of an existing road culvert meeting tion of new seawalls in or on any sand dune
size limits; emergency repair or normal system, and limit the repair or maintenance of
maintenance and repair of existing public works existing seawalls. Finally, new buildings
which affect any protected natural resource, so greater than 35 feet in height or covering a
long as it does not result in additional intrusion ground area greater than 2,500 square feet will
into the protected resource; and maintenance, only be allowed if the applicant can dem-
repair or reconstruction of existing access ways onstrate the site will remain stable, assuming a
in coastal wetlands to residential dwellings as three foot rise in sea level over 100 years.

A-4 APPENDix A: SURVEY OF MAm's LAws RELEVANT TO SEA-LEVEL RisE

3.. Analysis of extent to which it ad- to an assumed global scenario of a 100 cm rise
dresses any direct or indirect conse- in sea level over the next 100 years.
quences of accelerated sea4evel rise These Sand Dune Rules and the explicit
NRPA, as implemented through the Coastal policy of retreat apply only to a very small, but
Sand Dune Rules, directly addresses sea-level intensely developed, portion of Maine's coast.
rise. For coastal sand dune areas, it establishes The other types of coastline are generally sub-
a policy of restrictions on the size and intensity ject to NRPA standards and specific regulations
of development in hazardous areas, and allows on soil erosion and the like. These standards
development of smaller structures subject to the provide, in a much less detailed way, for
requirements of retreat if the shoreline position consideration of non-interference with the
changes so that the structure would interfere transfer of soil from the terrestrial to the
with natural sand dune processes. marine environment. But in non-sand dune
The mobility or retreat policy is not geared settings, there appears to be less express
to any particular assumption about the rate of consideration of a change in shoreline position
change in shoreline position; since this policy and there are no rules parallel to the Sand
operates after-the-fact to require removal of Dune Rules which detail explicit po .licies of
damaged structures, it is sufficiently flexible to retreat or migration.
respond to any rate of change. 4. Analysis of extent to which . acceler-
In reviewing applications for new or ated sea-level rise might affect the
substantially rebuilt structures, the Rules application of the law.
require an assessment of whether the proposed.
activity may reasonably be expected to be free The NRPA standards are sufficiently
from damage as a result of changes in the flexible to respond to accelerated sea-level rise
shoreline, in6luding'' changes 66m. �6a-level' without requiring a statutory change. The
rise, over the next 100 years. However, the Rules require consideration of sea-level rise. If
Rules give no specific guidance on what sea-level rise accelerates or if the Board is
assumption reviewers should use for the@rate of more confident about projections of a certain
change in shoreline position. These assess- rate of change which exceeds historical rates,
ments usually assume a continuation of these can be used in permit reviews without
historical rates of change, based on the assump- any statutory amendments.
tion that if this rate proves to be too low, the

............. ..... ............. ...... ....... -....
.......... .... ___ .....
.......... ........
structures are small enough to be moved ........... .............. . ...... ...... .......... ........
.............
..........
. . . . . . . . . ............ . ............ ....... .-.......
...........I...... .. 1. .............. ............................ ........ ... ......
.......................................... ...... 11 ........ ...........-.......
......................... ............. .................... ................ ...... ...... ..
pursuant to the retreat requirements. If the
wN k@
!@MNMPOLICIES A
..... .................
State wants to minimize reliance on the retreat ...........
........... . ...
............ ........... 1.1111.1-1 .............-... .......-
............ .........
option (e.g., prohibit development in the first
................ .........-.........
place) additional guidance would be required to
direct reviewers to assume an accelerated rate 1. Sununary of law in general
of shoreline change. This 1986 law is a statement of legislative
In contrast, the Rules governing construc- policy and intent with respect to state and local
tion of larger structures in threatened areas do actions affecting the Maine coast. It acknowl-
assume a specific rate of shoreline change edges that there are increasing use conflicts and
which takes into consideration an accelerated increasing development pressures on the coastal
rise in sea level. An applicant to build these region. In an effort to reach a well-reasoned
larger structures must prove that the site will balance among the competing uses, it estab-
be stable given a sea-level rise of three feet lishes nine policies and directs that state and
over the next century. This generally conforms local agencies and certain federal agencies with
responsibility for regulating, planning, develop-

ANTiciuPAToRY PLANNING FOR SEA-LEvEL RISE ALONG THE COAST OF MAM A-5

ing or managing coastal resources conduct their threats to public safety or that threaten property
activities in a way which is consistent with the damage which will be costly to public entities.
nine policies. The implementation procedures recommend
No procedures for implementation are that affected agencies take the following steps:
adopted in the Act, nor have any regulations 0 Government agency decisions will not
been promulgated. The Coastal Advisory support new infrastructure or related
Committee issued guidelines in December, facilities in hazardous areas;
1986 to assist state agencies in implementing
the policies. To date, implementation of the 0 Public funds available for improvements,
policies has been uneven among the affected renovations, or repair to existing infra-
agencies. structure or other public facilities in hazard
areas will give priority to their relocation
2. Identification of portion of the law out of hazardous areas.
that relates to sea-level rise 0 Government agencies will require new and
Eight of the nine policies articulate the modified structures /facilities to be
need to promote ports and harbors for fishing, adequately setback to protect them from
transportation and recreation; to manage marine erosion for 100 years.
resources to preserve the integrity of communi- 0 Government agencies will include scientific
ties and habitats; to manage the shoreline to projections of sea-level rise in regulatory
give preference to water-dependent uses and to and management decisions affecting the
promote public access; to protect critical habitat shoreline.'
and natural areas; and to maintain the quality
of fresh, marine and estuarine waters. Each state agency was required by Executive
Order to examine all their programs affecting
The remaining policy specifically addresses the coast and, by July 1, 1987 to identify
sea-level rise. It establishes a policy that changes necessary to make them consistent with
municipalities are to discourage growth and the policies. The proposed changes were to be
new development in coastal areas where it reviewed by the Coastal Advisory Committee
would be hazardous to human health and safety and were then to be incorporated into State
as a result of natural forces including sea-level programs before December 31, 1987.
rise. Specifically, Policy Four states: Some agencies have made significant
Hazard area development. Discourage progress. For example, work done includes
growth and new development in coastal computerized hazard mapping of certain coastal
areas where, because of coastal storms, areas, adoption of revised coastal sand dune
flooding, landslides or sea-level rise, it is regulations, and work on flood prevention.
hazardous to human health and safety. Other agencies such as the Bureau of Public
The Guidelines for Policy Four8 present the Lands have incorporated the policies by
rationale for the policy, noting that coastal reference into laws affecting coastal areas.
floodplains, sand dunes and wetlands in their However, implementation of Policy Four, as
natural state provide storm protection and well as the others, has not been systematic. 10
support a variety of important plants and The State has not yet adopted a Coastal Action
wildlife. Citing the extensive damage to Plan for the 1990s, one component of which
natural and man-made features visited by would address sea-level rise and its implications
coastal storms and the direct and indirect costs for shoreline use, as recommended by the State
to governments of repairing this damage, they Planning Office."
establish an objective of discouraging develop- By the same Executive Order, federal and
ment and redevelopment in areas that present local agencies were encouraged to review their

A-6 APPENDix A: SuRvEy OF MAm's LAws RELEVANT TO SEA-LEVEL RISE

programs for compliance with these Coastal ever, broaden the range of variables to be
Management Policies. As applied to munici- considered in planning to manage hazard area
palities, this recommendation was strengthened development.
into a requirement through the Growth
Management Act and the Shoreland Zoning
........ .......
. ...........
........ . ....
...... .. . .... .... ..
................ ..
Act, both of which required the resulting
G ...
..................
-1-1.1-1 ........ 11 ................... .- ... ...... ..
....................... ....................... ...
comprehensive plans, comprehensive land use . . . .....
L d. Uso,
iv Plamungtiand..
........ .... .. ....
mAl
ordinances and shoreland zoning ordinances to .1totol A 30@ @MRS
...........
a ioml@
.......... .........I ... ...... ... .
............ -...
address" these Coastal Management Policies."
..........
............. ................... ........
3. Analysis of extent to which it ad- 1. Summary of law in general
dresses any direct or indirect conse- The purpose of the Growth Management
quences of accelerated sea-level rise Act is to encourage municipalities to prepare
The Coastal Management Policies are very comprehensive plans and to adopt implementing
general so they do not distinguish between land use ordinances to manage growth so as to
hazards posed by sea-level rise caused by protect the integrity of the natural resource
subsidence and sea-level rise caused by global base, to control the costs of providing neces-
climate change. Regardless of the specific sary public services, to safeguard the long-term
source of the hazard, growth and new develop- economic viability of the State's economy, and
ment is to be discouraged in areas threatened to protect the quality of life. To provide an
by these natural erosive processes. overall direction and consistency, the Act
establishes ten State growth management goals
As a general statement, Policy Four and the which are to be furthered by the individual
Guidelines, are sound as far as they go and growth management efforts of each municipal-
provide an already established framework for ity. In addition, the Act requires that the
considering the possible threats posed by comprehensive plans of coastal municipalities
accelerated sea-level rise. The Act, however, also address nine coastal management policies
relies on essentially voluntary implementation contained in the Coastal Management Policies
by affected local, state and federal agencies. Act. The Act is administered by the Depart-
Some agencies, such as the Maine Geological ment of Economic and Community Develop-
Survey, have taken the lead in translating these ment in coordination with individual municipal-
general statements into concrete regulations. ities.
Others have not been aggressive in integrating The Growth Management Act defines the
these coastal management policies into their elements of a comprehensive plan and imple-
daily functioning. So despite the mandate that mentation program and sets up a system of
all agencies act in ways consistent with these financial and technical assistance to towns to
policies, in the absence of any enforcement comply with its mandate. The Act as originally
provisions or concerted executive department passed established a schedule for municipal
leadership to secure compliance, they are not plan completion ranging from January 1, 1991
proving adequate to the task of producing through 1996. However, due to budgetary
coordinated, multi-agency efforts to implement constraints, that portion of the Act was re-
the policies. pealed in December 1991. While comprehen-
4. Analysis of extent to which acceler- sive plans are now voluntary, pursuant to
ated sea-level rise might affect the March 1992 amendments, if a municipality
application of the law (excluding those in unincorporated areas) fails
Due to the general phrasing of the Act, to adopt a comprehensive plan consistent with
accelerated sea-level rise will not affect the the Growth Management Act by January 1,
actual application of the law. It does, how- 2003 (January 1, 1998 if it has received both

ANTiciiPAToRy PLANNING FOR SEA-LEvEL RISE ALONG THE COAST OF MAM A-7

planning and implementation grants) it will policies which municipalities may fail to meet
loose its right to enforce any land use ordi- if they do not consider the potential threat of
nance except minimum shoreland zoning. accelerated sea-level rise. Under the frame-
Adoption of a comprehensive plan which is work established by the Growth Management
certified by the State as consistent with the Act Act, Policy Four (to discourage growth in areas
also gives a municipality preference for made hazardous by sea-level rise) will be
receiving certain State aid, grants and assis- furthered primarily through voluntary munici-
tance funds. pal comprehensive planning efforts, State
This Act reflects an underlying policy that review for compliance as a condition of
"the most effective land use planning can only awarding implementation grants, State technical
occur at the local level of government and assistance, State consistency certification for
comprehensive plans and land use ordinances preference for certain funds, and through the
developed and implemented at the local level long-range restriction that a municipality will
are the key in planning for Maine's future. " 11 not be able to enforce any land use ordinance
The goals and policies identified in the Act are (beyond the minimum shoreland zoning
important to unify the plans so that the multiple requirements) if it has not adopted a compre-
local efforts coalesce to accomplish consistent hensive plan which is consistent with the Act
ends. (including furthering its goals) by 1998 or
2003.
2. Portion of the law relevant to 3. Analysis of extent to which it ad-
sea-level rise dresses any direct or indirect conse-
The Growth Management Act is most quences of accelerated sea-level rise
relevant to sea-level rise through the goals to The December 1991 and March 1992
be addressed in comprehensive plans and amendments to the Growth Management Act
implementing ordinances. The ten goals repealed the mandatory deadlines for plan
statements establish some general goals includ- completion (1991-96), and substituted the much
ing to develop an efficient system of public less immediate requirement that if a municipal-
facilities; to protect the quality of water ity wants to enforce land use ordinances
resources (e.g., aquifers, estuaries, rivers and (including zoning), they must have adopted a
coastal areas); to protect critical natural plan which is consistent with the Act by
resources including wetlands, wildlife and January 1, 2003 (January 1, 1998 if they
fisheries habitat, sand dunes, shorelands and receive both planning and implementation
unique natural areas; to protect the marine assistance grants from the State). The amended
resources industry, ports and harbors from Act provides more immediate incentives for
incompatible development and to promote compliance only in the form of preferences for
access to the shore for commercial fishermen certain funds and State financial and technical
and the public; and to promote access to assistance for local growth management efforts.
surface waters for outdoor recreation. If towns While the State may review the plans for
fail to take the possibility of accelerated compliance with the Act in certain circum-
sea-level rise into consideration when address- stances (i.e., when the town applies for
ing these goals, the resulting plan may be implementation assistance or when the town
insufficient if there is a significant rise in sea voluntarily requests a certificate of consis-
level. tency), the State no longer has the ability to
Similarly, the Coastal Management require towns to adopt plans and ordinances
Policies, made applicable to municipal compre- which promote the growth management and
hensive planning and land use regulation efforts coastal policies goals. If a town opts to pursue
through the Growth Management Act, establish comprehensive planning and zoning, the
elements to be included in the comprehensive

A-8 APPENDix A: SURVEY OF MAiNE's LAws RELEVANT TO SEA-LEVEL RISE

plan, the local processes, and goals to be however, accelerated sea-level rise will not
promoted remained unchanged. affect the application of the law.
Despite amendments to the law, many
...........
towns continue to voluntarily undertake
.......... . ......
...............-
........... .. ....... .. .... . .
................ .
HORF
comprehensive planning and to follow through ... . ..... S MAND ZONING: AtT
d @t d.:.Sub& Co
by adopting implementing ordinances. The 0"@@"nm
g:A4. -v
dsiom:
........ ..... ............
........... ............
State will continue to have an important role to .:Ad .38 @4t@435. d Gul 0W-@.@
..........
play in providing technical assistance to these
towns. 1. Sunnnary of law in general
To date, the State's technical assistance to The Mandatory Shoreline Zoning Act
municipalities has focused on relative sea-level requires all municipalities to adopt zoning and
rise as a result of local land subsidence, rather land use control ordinances applicable to their
than on accelerated sea-level rise as a function "shoreland area" which are no less restrictive
of global climate change. The inf6rination has than minimum guidelines adopted by the Board
generally been presented within the context of of Environmental Protection. The shoreland
meeting Policy Four of the Coastal Manage- area is defined as "those areas within 250 feet
ment Policies Act and has not been integrated of the normal high-water line of any great pond
into a more general discussion about potential (10 acres or more], river or saltwater body,
impacts on other goals such as efficient within 250 feet of the upland edge of a coastal
provision of public facilities, or protection of or freshwater wetland [10 acres or more, as
water quality, natural resources, ports or public
access. 14 defined], or within 75 feet of the high-waterline
of a stream."" If a municipality fails to adopt
While it is important that Policy Four has a shoreland zoning ordinance which complies
been made applicable to municipalities through with the minimum guidelines, the Board of
the Growth Management Act, additional Environmental Protection may adopt a suitable
guidance will be required from the State if it ordinance on behalf of the municipality.
wants to encourage municipalities to plan for Shoreland zoning ordinances are enforced by
the possibility of an accelerated rate of shore- the municipality; however, the State reserves
line change rather than just historical rates of the right to approve proposed amendments, to
change. If towns are expected to take the lead comment on proposed variances, and to bring
on coastal hazard management, they will need actions against municipalities which fail to
technical and financial assistance to evaluate the adopt, administer or enforce shoreland zoning
appropriateness of different strategies, to ordinances.
establish appropriate standards, and to translate
these general recommendations into local plans 2. Identification of portion of the law
and ordinances. that relates to sea-level rise
4. Analysis of extent to which acceler- The Shoreland Zoning Act was designed to
ated sea-level rise niight affect the promote public health and safety by protecting
application of the law shoreland resources from degradation and by
protecting against unwise development in that
If the possibility of accelerated sea-level area. Of the multiple purposes, several relate
rise is not built into the comprehensive plans to hazards similar to accelerated sea-level rise
and implementing ordinances developed as a including: to protect buildings and lands from
result of this Act, towns will miss the op- flooding and accelerated erosion; to control
portunity to plan for this possibility now when building sites, placement of structures and land
policy adjustments are likely to be less expen- uses; to conserve shore cover; and to anticipate
sive. Due to the general nature of the Act,

ANTicIPATORY PLANNING FOR SEA-LEvEL RISE ALONG TBE COAST OF MAM A-9

and respond to the impacts of development in They may also include other natural areas,
shoreland areas. public access areas, wildlife habitat areas or
While not specifically crafted in response to similar sites which should be protected from
accelerated sea-level rise, the Act does contain development. However, even if they meet one
water setback requirements with the potential to or more of the above criteria, if they are
minimize its impacts. The Guidelines" currently developed or meet the criteria for the
established pursuant to the Act prohibit the Limited Commercial (mixed residential and low
construction of any new principal or accessory intensity business and commercial uses),
structure or any substantial expansion of an General Development (intensive commercial,
existing structure within the shoreland zone industrial or recreational uses) or Commercial
unless that structure is set back 100 feet from Fisheries/Maritime Activities District (function-
the normal high-water line of great ponds and ally water-dependent uses), they need not be
rivers, and 75 feet from the normal high-water designated as resource protection.
line of other water bodies, tributary streams or In addition, it should be noted that the law
the upland edge of a wetland. However, in a was amended, effective October 1993, to allow
General Development District (or its equiva- municipalities to incorporate a special exception
lent, allowing intensive commercial, industrial provision to allow construction of a single-
and/or recreational use), the setback require- family residence in a Resource Protection
ment is 25 feet and there is no setback require- District if: there is no other location on the
ment in a Commercial Fisheries/Maritime property other than in the Resource Protection
Activities District (allowing functionally water- District where a structure can be built, if it was
dependent uses). a lot of record prior to adoption of the
These setback requirements are supple- Resource Protection District, if the improve-
mented by a second set of provisions which ments will not be on slopes of 20% or greater,
require inclusion of certain land in a resource if improvements are located outside of the
protection district (RP). If land is zoned RP, velocity zone in areas subject to tides and it
it is essentially subject to a 250 foot setback otherwise complies with the municipal flood
requirement since an RP district generally plain ordinance, if the structure is 1,500 square
allows only non-intensive uses; no principal feet or less, and it is set back to the greatest
structures are allowed for residential, commer- practical extent and no less than 75 feet.
cial, industrial, governmental or institutional The Guidelines also establish performance
uses. Municipalities are required to include in standards for piers, docks, wharfs, bridges and
this RP district: other structures and uses extending over or
� All lands within the shoreland area which beyond the normal high-water line of a water
body or within a wetland. These may become
are also rated "moderate" or "high" value increasingly important as sea level rises.
wetlands (freshwater, salt marshes, salt Among the requirements are provisions that
meadows or wetlands associated with great shore access shall be on appropriate soils and
ponds or rivers) by the Maine Department shall be constructed so as to control erosion;
of Inland Fisheries and Wildlife; that the location shall not interfere with
� The 100 year flood plains along rivers and developed or natural beach areas; that the
adjacent to tidal waters as shown on FEMA facility shall be the minimum size necessary;
Flood Insurance Rate Maps or Flood and that new structures will only be allowed if
Hazard Boundary Maps; they require direct access to the water as an
� Land along rivers or adjacent to tidal operational necessity; and that no existing
waters which are subject to severe erosion structures extending beyond the normal
or mass movement, such as steep coastal high-water line may be converted to residential
bluffs. dwelling units.

A-10 APPENDix A: SURVEY OF MAiNE's LAws RELEVANT TO SEA-LEVEL RiSE

Finally, by statute, as part of their shore- rise. First, there is an inherent tension in the
land zoning ordinance, coastal municipalities Act since the minimum standards are estab-
are required to address the coastal management lished by the State but they are to be adopted
policies, including Policy 4 requiring govern- and enforced by municipalities. A significant
ments to discourage growth in coastal areas number of municipalities failed to pass the
made hazardous because of sea-level rise, required amended ordinances by the July 1,
coastal storms, flooding or landslides. 1992 deadline and face the prospect of the
However, addressing this Policy has not been Board of Environmental Protection adopting an
a high-profile concern on the part of municipal- ordinance on behalf of the municipality. The
ities or the Department of Environmental portions of the Act most likely to contribute to
Protection. It is generally assumed that if the mitigating the impacts of sea-level rise--the
municipality meets the express minimum setback standards and the limits on develop-
guidelines, no additional provisions are ment in the resource protection district--have
required to address the coastal management been the subject of intergovernmental contro-
policies. versy; this does not bode well for local
enforcement.
3. Analysis of extent to which it ad- Second, there are many exceptions written
dresses any direct or indirect conse- into the Act and Guidelines which allow for
quences of accelerated sea-level rise more intense development than otherwise
The Shoreland Zoning Act addresses allowed. Certain mandatory minimum provi-
accelerated sea-level rise to some extent by sions cannot be altered by the municipality;
attempting to protect land that is not already setback requirements are in this category.
developed from development that would However, there are ways around this limitation
interfere with natural coastal processes. If through the designation of a district. For
municipalities comply with the directive that example, a municipality may designate an area
coastal lands subject to flooding and severe which includes some undeveloped land as a
erosion should be designated as Resource General Development District if there is an
Protection, that designation should help retain already discernible pattern of intensive develop-
that land in its natural condition so that it can ment in the area; this would allow development
respond to changes in the shoreline. However, of substantial intensity to continue in the
municipalities are frequently reluctant to shoreland zone which will only be required to
designate land as RP given the limited uses set back 25 feet from the water. Similaily,
allowed in that district. And the new amend- while it meets the admirable objective of
ment may allow new residential development in promoting water-dependent uses, designating an
Resource Protection Districts. area as a Commercial Fishing/Maritime
Activities district will allow intensive maritime
Similarly, the building setbacks (100 feet commercial and industrial development without
from rivers and great ponds, 75 feet from requiring any setback. Some local shoreland
coastal waters) may be of some help in zoning ordinances allow construction of
mitigating possible impacts of accelerated "marine related structures" without any setback
sea-level rise. They are an improvement over requirement. While intended to accommodate
no setbacks, but they will be insufficient in water-dependent uses, there have been reports
many areas. The performance standards for of this provision being misused to allow
structures extending beyond the high-water line construction of structures which greatly exceed
are also helpful since they are designed to the functional requirements of a boat house or
minimize the intensity of that development. trap storage facility, and are suspected of being
However, there are several factors that used primarily for residential purposes.
restrict the Act's ability to address direct or
indirect consequences of accelerated sea-level

ANTICEPATORY PLANNING FOR SEA-LEvEL RISE ALONG THE COAST OF MAM A-11

Finally, there is flexibility for municipali- ...................................... ........ . ......-
........... .............................. ..... .... .. .... ... . ..... ... .... .....
................... .. .......
.......................... ................... ............ ......... ............
..........
..... .........
ties to deviate from the Guidelines as long as . .... A ...
EVELOP.WNT.: :CT...
1138::@@MM @@A 14
..........
the resulting ordinance is "equally or more .....................
................ 111.1
....... ...
...............
.............
.............. .
.................... . ........
effective" in achieving the purposes of the Act. ................. .. .. ...
................... ........ .. ...
......... .
....................... ........-.............. .............. .
This can take the form of ordinances that are
completely different from the recommended 1. Summary of law in general
districts and uses contained in the Guidelines. The Site Location of Development Act
Municipalities may deviate from most of the provides for State regulation of "development
non-setback standards if special local conditions that may substantially affect the environment,"
justify a different set of standards. including:
4. Analysis of extent to which acceler- 0 development occupying land or water in
ated sea-level rise might affect the excess of 20 acres;
application of the law 0 subdivision of a parcel of land of 20 or
This Act assumes a static shoreland more acres into 5 or more lots during any
position. There are no provisions for adjusting 5 year period (subject to exceptions); or
the mandatory minimum setback requirement 0 construction of a defined structure,
based on local historical rates of erosion or meaning buildings, parking lots, roads,
projections of accelerated rates of sea-level paved areas, wharves or other areas to be
rise. Depending upon the shoreline configura- stripped or graded and not to be revegetat-
tion and type of coast, the 75 foot setback from ed that occupy a ground area in excess of
coastal waters may be completely insufficient to 3 acres.
protect a structure over its expected economic Such development requires a permit from the
life. Municipalities may increase the setback Board of Environmental Protection. The
requirements above the minimums to address standards for development review include:
this problem. financial capacity, traffic movement, no
The Act does promote water-dependent adverse effect on the natural environment, soil
uses by encouraging municipalities to designate types and erosion, ground water, infrastructure
Commercial Fisheries/Maritime Activities and flooding.
Districts. However, it makes no provision to
address the dilemma created by the fact that 2. Identification of portion of the law
these critical uses may be the first displaced by that relates to sea-level rise
rising seas. Any displacement may be com-
pounded by the Guidelines which allow The standards for review of permit applica-
municipalities to designate multiple small tions relating most directly to accelerated
Conunercial Fisheries/Maritime Activities Dis- sea-level rise are the standards relating to the
tricts. This may result in the creation of natural environment, soil and erosion, and
districts that do not allow any room for flooding. The developer must fit the develop-
relocation beyond the existing site. ment "harmoniously into the existing natural
environment" without adverse impacts on
existing uses or other natural resources.
Secondary and cumulative impacts of develop-
ment on these resources may be considered,
including the impacts on wildlife and fisheries.
This standard includes the consideration that
there be no unreasonable alteration of natural
drainage ways.

A-12 APPENDix A: SURVEY OF MAm's LAws RELEVANT TO SEA-LEVEL RISE

The soil standard provides that the develop- However, there are two significant limita-
ment "will be built on soil types which are tions. First, this Act applies only to larger
suitable to the nature of the undertaking and developments. Due to the perceived burden of
will not cause unreasonable erosion of soil or going through DEP review, many develop-
sediment nor inhibit the natural transfer of ments are designed so that they only need local
soil." This standard would be considered if reviews and permits. For example, it is very
structures built in areas threatened by acceler- common for subdivisions to consist of just
ated sea-level rise would inhibit the natural under 20 acres. Very significant development
transfer of soil. could occur in areas without consideration of
The standard on infrastructure requires not these standards by the state-level reviewers if
only that the developer make adequate provi- each development is small enough to avoid
sion for facilities for the proposed develop- triggering the Site Location of Development
ment, but also that the proposed development Act review.
will "not have an unreasonable adverse effect The second limitation is that the application
on the existing or proposed" infrastructure in standards to the threat of accelerated sea-level
the municipality or area served by those serv- rise is fairly subjective. The regulations are
ices. This standard might be applicable if a fairly detailed for certain requirements related
proposed development, when long-range to the standards. For example, they do require
accelerated sea-level rise projections are erosion and sedimentation plans and permanent
considered, might increase local erosion and erosion control measures, and 50- to 330- foot
negatively impact infrastructure serving other buffers to protect adjacent waterbodies.
development. Stormwater management systems must be
Development is only permitted if it will maintained by developers and groundwater
"not unreasonably cause or increase the runoff must be retained on site so that post-
flooding of the alteration area or adjacent development runoff does not exceed pre-
properties nor create an unreasonable flood development runoff. There are, however, no
hazard to any structures. " Until repealed specific parallel regulations which flesh out
effective October 1993, the Act also contained how the standards are to be interpreted with
a provision that if the activity is on or adjacent regard to accelerated sea-level rise. Thus if the
to a sand dune, development will only be potential impact of accelerated sea-level rise
permitted if it "will not unreasonably interfere becomes an issue in a particular proposed
with the natural supply or movement of sand development, the interpretation of what
within or to the sand dune system."" constitutes an unreasonable impact on the
environment, erosion, or flooding as a result of
changing shorelines will be left to the interpre-
3. Analysis of extent to which it ad- tation of the Board without any guidance from
dresses any direct or indirect conse- regulations.
quences of accelerated sea-level rise
For those developments subject to review 4. Analysis of extent to which acceler-
under the Site Location of Development Act, ated sea-level rise might affect the
there are adequate standards for the Board to application of the law
use to prevent development in those areas most The definitions contained within the Act are
vulnerable to accelerated sea-level rise if the sufficiently flexible to adjust to changing
Board is convinced by finding that the impacts shorelines so the land area subject to review
of development in this area would be "un- will evolve with accelerated sea-level rise. The
reasonable. " The standards on the natural standards are also phrased so that the Board is
environment, flooding and soil erosion can be able to take a wide range of concerns into
used for this purpose. consideration in assessing unreasonable impact.

ANTiciupAmRy PLANNING FOR SEA-LEvEL RISE ALONG THE COAST OF MAINE A-13

No specific amendments appear necessary to dwelling units) within any five year period that
allow some consideration of accelerated begins on or after September 23, 1971.
sea-level rise within the existing standards for Municipalities have sole subdivision review
review. jurisdiction for subdivisions that are below
The law could be improved to be more DEP Site Location of Development Act
directly responsive to accelerated sea-level rise. thresholds, and concurrent jurisdiction over
In attempting to identify development that may subdivisions that also need DEP review under
substantially affect the environment, the Act that Act.
has already identified for additional scrutiny Municipalities may adopt more stringent
some activities taking place in the shoreland standards for subdivision review. The Depart-
area. For example, lots of 40 or more acres do ment of Economic and Community Develop-
not count as lots unless the proposed subdivi- ment has developed model subsivision regula-
sion is located wholly or in part within the tions to assist municipalities with imple-
shoreland zone. However, 1993 amendments mentation of higher standards.
removed the requirement that multi-unit The substantive review criteria address
housing development of 10 or more units not water and air pollution, adequacy of water
triggering review under any other standard supply, impact on municipal water supply,
must receive a permit if it is located in whole erosion, traffic, sewage disposal, impact on
or in part in the shoreland area. As the nature municipal solid waste disposal, aesthetic,
and magnitude of threats of accelerated sea- cultural and natural values, conformity with
level rise become more concrete, the State local ordinances and plans, financial and
should consider designating more activities in technical capacity, impact on outstanding river
shoreland areas as subject to this level of state segments, ground water, flood areas, identifica-
environmental review. This could be accom- tion of freshwater wetlands, and storm water
plished by amending the definition of develop- management.
ment that may substantially affect the environ-
ment.
2. Identification of portion of the law
There are currently no regulations which that relates to sea-level rise
address accelerated sea-level rise and how that
should be factored into the Board's assessment The two criteria relate directly to acceler-
of compliance with the general standards of ated sea-level rise: erosion and flood areas.
review. The Board should consider including The Act directs municipal planning boards not
provisions in the regulations which are specifi- to approve a proposed subdivision unless it
cally designed to detail how the erosion, flood- finds that:
ing and sand dune standards should be applied the proposed subdivision will not cause
within the context of anticipatory planning for unreasonable soil erosion or a reduction in
accelerated sea-level rise. the land's capacity to hold water so that a
dangerous or unhealthy condition results;"

. .......... .. ... ... ....
-............
. .......... . and
................
.............
..... .......... ................. 11.11 ............
..................... ............-
........... . ...... . ........ ....... ......... ... ...... . ...
............. ........ ................... .. .............-
... ............... ..
...........I
............ ............
F.@@SUS
.............. .... ... . . .......
............... ...... ........ .. .......
...........
.......... . . ........ if any part of the subdivision is in a "flood
....... . . .....
......... . ....
. . . . . . . . ...... ......
- ................. .- 4
...... .. .... prone
.... .. area," the proposed subdivision plan
.... ...... .. ..... ...
........... ... . .. .. ...
. ... ..........
..... . ....
....... ........ . ............. will include a condition requiring that
1. Summary of law in general principal structures in the subdivision will
This law establishes the minimum criteria be constructed with their lowest floor,
for municipalities to use in reviewing subdivi- including the basement, at least one foot
sions (defined as the division of a parcel of above the 100-year flood elevation.
land (or structure) into 3 or more lots (or

A-14 APPENDiEK A: SURVEY OF MAiNE's LAws RELEVANT TO SEA-LEvEL RiSE

This determination of the 100-year flood the same. The model subdivision regulations
elevation is to be made based on Federal require that:
Emergency Management Agency (FEMA) 9 all public utilities and facilities be located
Flood Boundary and Floodway Maps and Flood and constructed to minimize or eliminate
Insurance Rate Maps, and other information flood damage;
presented by the applicant regarding whether
the proposed subdivision is in a flood-prone 0 adequate drainage be provided to reduce
area. exposure to flood hazards; and
0 the plan not only include a statement that
3. Analysis of extent to which it ad- structures in the subdivision shall be con-
dresses any direct or indirect conse- structed with their lowest floor (including
quences of accelerated sea4evel rise the basement) at least one foot above the
While neither of these standards for review 100-year flood elevation, but also that the
specifically mention historic or accelerated restriction appear in any document transfer-
sea-level rise, they address possible impacts of ring or expressing an intent to transfer any
changing shorelines. The erosion standard is interest in real estate or structure.
very general and is most often used to address Many communities have actually required
construction practices, such as erosion controls that the first floor elevation be two feet above
during site preparation, construction and the flood elevation as part of their floodplain
clean-up, and to require revegetation plans management ordinance, so they may impose
which minimize non-point source pollution. this stricter requirement through the subdivision
However, if accelerated sea-level rise becomes regulations as well.
a clear threat, local boards could use this
standard to address development that might The extent to which the subdivision
cause an increase in coastal erosion due to the regulations will address direct or indirect
effects of global climate change. consequences of accelerated sea-level rise
depends in large part upon the accuracy of the
The flood area standard is much less FEMA 100-year floodplain maps. If they are
subjective and tends to be applied in a mechani- based on historic rates of sea-level rise and do
cal fashion. The developer and reviewers not take accelerated sea-level rise into account,
generally rely on the FEMA maps to determine they may underestimate the potential problem
whether any part of the proposed subdivision is and allow the construction of subdivisions that
located in a special flood hazard area. While are not adequately setback from flood
the precise standards may vary by municipality, hazards.
most municipalities have adopted floodplain
ordinances so they can participate in the 4. Analysis of extent to which acceler-
National Flood Insurance Program. The model ated sea-level rise might affect the
floodplain management ordinance prepared by application of the law
the Office of Comprehensive Planning contains
standards for reviewing subdivisions within the Accelerated sea-level rise might affect the
100 year floodplain. The 1991 model subdivi- application of the law by changing the assess-
sion regulations, prepared by Southern Maine ment of what is an "unreasonable" burden or
Regional Planning Commission with funding impact under the subdivision review standards.
from Maine's Office of Comprehensive These standards are sufficiently flexible to
Planning, essentially restate the model flood- allow municipal boards to focus on an evolving
plain management ordinance standards to set of concerns as erosion and flooding
augment the subdivision statute, so the review problems become more evident. However,
under the subdivision ordinance and floodplain planning boards will probably not feel suffi-
management ordinance would be substantially ciently secure in their knowledge or legal

ANTwEPAToRy PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE A-15

standing to use these general standards to deny communities. The remaining participating
a project or impose conditions based on the communities have only "A" zone maps (desig-
potential impact of accelerated sea-level rise nating areas of special flood hazards in which
unless that threat is very well documented and no base flood elevations are determined and an
almost immediate. Barring this, most planning estimated base flood elevation is optional).
boards will probably not factor long-range The model ordinances require a Flood
projections of accelerated sea-level rise into Hazard Development Permit for any develop-
their review nor will they have the expertise ment within any special flood hazard area. The
available to them to go beyond a mechanical applicant must submit information including
application of the flood area standards. data on elevations of base flood, lowest floor of
structure, and level of flood-proofing in
................ ......... ..........
1.1.11 ............ . ..... .................
.................. ...... .......-.....- ..............
............ .............. ......................
non-residential structures as well as a certi-
.................. .. .................
............... .........
......................
.. . .......................... . ..... .. ........
.......... fication by an engineer or architect that the
.... ....................................... . ......... ..........
........... . .. .............. .......... ......... .............
........... .... .......... ..........
.......... .................
.......... ............
.. .. ............

... .......... .....
............. . .............. . ...
floodproofing methods meet the detailed
...........
............. ........ .. ........ ..... ....
.. . . ........ .. .. ... floodproofing criteria of the ordinance. These
1. Summary of program in general are all modeled after the federal requirements.
Maine's DSpartment of Economic and In addition, Maine's model ordinance
Community Development is the agency contains standards for review of subdivision
responsible for coordinating the National Flood and development proposals requiring the
Insurance Program (NFIP) in Maine. As such, Planning Board to assure that:
it is responsible for assisting communities in * All such proposals are consistent with the
qualifying for participation in the NFIP, need to minimize flood damage;
assisting with the development and implementa-
tion of local flood plain management regula- 0 All public utilities and facilities are located
tions, and establishing minimum state flood and constructed to minimize or eliminate
plain management regulatory standards consis- flood damage;
tent with NFIP regulations and state and federal 9 Adequate drainage is provided so as to
environmental and water pollution standards. reduce exposure to flood hazards;
The NFIP was created in 1968 under the * All proposals include base flood elevation
National Flood Insurance Act to provide a and, in a riverine floodplain, floodway
nationwide system of federal insurance for data;
property and structures located in designated
flood hazard areas. Essentially the federal 9 Any proposed development plan will
government makes relatively low-cost, guaran- include a statement that structures on lots
teed insurance available to homeowners to shall be constructed in accordance with the
cover flood damage if the municipality in Development Standards, and that require-
which they reside agrees to direct development ment will be included in instruments of
away from designated hazardous areas and transfer of any property interest.21
enforces a floodplain ordinance consistent with These are essentially the same requirements
the regulations established under the Act.' included in the 1991 Model Subdivision
Maine's DECD has developed model Regulations, discussed above.
floodplain management ordinances for adoption
by municipalities. The standards within the 2. Identification of portion of the
model ordinances vary, depending upon the program that relates to sea-level rise
level of detail in the information provided by
FEMA. Detailed flood insurance studies have Since Maine's Floodplain Management
been conducted for less than half of Maine's Program facilitates participation in the National

A-16 APPENDix A: SURVEY OF MAmls LAws RELEVANT TO SEA-LEVEL RisE

Flood Insurance Program (NFIP), it very quences of accelerated sea-level rise. Statutory
closely parallels the federal Act. The primary amendments to the NFIA will be required
focus of the national program has been to before Maine's Floodplain Management
minimize damage from flooding rather than Program can be responsive to those concerns.
coastal erosion, but coastal erosion is gaining
increasing recognition as a hazard which should 4. Analysis of extent to which acceler-
be addressed by the NFIR ated sea-level rise might affect the
The NFIP itself does not consider any application of the law
projected relative rise in sea level in its risk As noted above, if sea level rises and
assessment. But the program may affect coastal erosion and sea-level rise have not been
development in areas which are most vulnera- incorporated into the NFIP, claims may
ble to the effects of rising sea level. The Act outstrip the funds available to pay claims, and
contains a mandate to "constrict the develop- financial resources may be allocated in a very
ment of land which is exposed to flood damage inefficient manner to repeatedly floodproof and
and minimize damage caused by flood losses" repair high-hazard properties. Additionally,
and to "guide the development of proposed critical natural resources such as wetlands will
future construction, where practical, away from not be able to respond to rising sea level by
locations which are threatened by flood migrating inland if their movement is blocked
hazards. "I However, there is significant or impeded by structures or "floodproofing"
debate about the impact of the NFIP on coastal measures.
development.'
The FEMA hazard zones as originally .... .........
. ....................... .................. ..... .. .. ...........
..........
.. ........... ........ ......... . ......
drawn do not account for the hazards from ........ 1-1,
.::.::ANI)S:: CT- ......
:A
erosion or sea-level rise. FEMA has commis- 5
_W:5 84@@@@@@@573)*@@@@@@@@.....'@@"",.@....,.
.......... .....................
........... .......-. .....
........... .................... ........ ........... ............
sioned a study "to determine the impact of
............
.. ... .................. .. .......
relative sea level rise on the flood insurance
rate maps" and to "project the economic losses 1. Summary of law in general
associated with estimated sea level rise" for the This Act establishes the framework for
nation and by region.' While some revisions managing State-owned submerged and intertidal
have been proposed to address coastal erosion, lands. It recites that the State owns submerged
no final revisions have been made to the lands (meaning those lands beneath coastal
National Flood Insurance Program nor have the waters, from the mean low water mark (or a
maps been revised to reflect sea-level rise maximum of 1,650 feet seaward of the mean
projections. high water mark, whichever is further land-
ward) seaward to the three-mile boundary; land
3. Analysis of extent to which it ad- below the mean low water mark of tidal rivers
dresses any direct or indirect conse- upstream to the farthest natural reaches of the
quences of accelerated sea-level rise tides; all land below the natural low water
Maine has taken steps to meet the guide- mark of great ponds; and the river bed of
lines of the Act by ensuring that communities international boundary rivers out to the interna-
incorporate provisions to guide proposed tional boundary) in trust for the benefit of the
subdivisions and development away from public. The Act relinquishes title to, and
locations which are threatened by flood public trust rights in, submerged and intertidal
hazards. However, since consideration of an lands filled before October 5, 1975. It estab-
accelerated rate of sea-level rise is not currently lishes a program for the leasing of the remain-
incorporated into the controlling Federal ing State-owned submerged and intertidal lands.
program, Maine's Floodplain Management The public has a general right to make use of
Program is not designed to address the conse- submerged lands for navigation, fishing and

ANTiciipAmRy PLANNING FOR SEA-LEvEL RisE ALONG THE COAn OF MAINE A-17

other public trust uses, but must obtain a lease criteria considered by the Bureau as outlined in
or easement for permanent structures (occupy- these rules. "' It is unclear whether Coastal
ing for 7 or more months) or similar exclusive Policy 4 would be taken into account in
uses. submerged lands leasing decisions.

2. Identification of portion of the law 3. Analysis of extent to which it ad-
that relates to sea-level rise dresses any direct or indirect conse-
The portion of the law most relevant to quences of accelerated sea4evel rise
accelerated sea-level rise is that the boundary The Act does not in itself address any
for State ownership of submerged land is direct or indirect consequences of accelerated
defined in relation to the mean low-water mark sea-level rise since it primarily addresses
or 1,650 feet seaward of the mean high-water submerged lands. It does establish the regula-
mark, whichever is further landward. This tory scheme for lands that convert from upland
boundary will shift as the low- or high-water or intertidal lands to submerged lands as a
mark is altered as a result of sea-level rise. result of accelerated sea-level rise.
The statute does not create these state owner-
ship rights, but rather recites the rights already 4. Analysis of extent to which acceler-
established by federal statute and case law. ated sea-level rise might affect the
The leasing program does not give particu- application of the law
lar legal preference to the upland owner for use The definition of submerged lands is tied to
of submerged lands. However, the Submerged the mean low water line, which will shift with
Lands Rules do create a system of littoral zones accelerated sea-level rise. The affect of
and setbacks (applicable to projects within accelerated sea-level rise will be to include
1,000 or less feet of the shoreline) which more land within the scope of the submerged
allows the Bureau of Public Lands to opt to lands scheme as state-owned lands.
require a letter of no objection from a shore-
land owner into whose littoral zone the
........... ... ........ ... ..... . .......
. . ... ........ . ..........
........... .... ...
....... ........ . . . . .. ......... ....
. .............
..............
....................
............ . . .......
proposed project extends and establishes .... ........
Cb :R@RXESQURCESSYMM
.................... . .....
................
...............
setback lines for structures, subject to exernp-
............
. ...............
11 ..........-
................
................
..............
tions.15 .......
...........
................... ....... .. .
............. .... ... .
.................. . . .............. . ..
. .................. ......
11.1.1 1., ....... .............. . ..... -- . ........
....... ...I.........
The Rules clarify that in coastal areas, the
mean low water line (the beginning of state 1. Summary of law in general
ownership except on mud flats) may be The statute, a mirror of its federal counter-
established through a survey conducted by a part (U.S. Coastal Barrier Resources Act of
qualified land surveyor and referenced to a 1982),27 prohibits the expenditure of state funds
National Geodetic Vertical Datum as establish- or state financial assistance for development
ed by the National Oceanic and Atmospheric activities within the coastal barrier resource
Administration. system. Proscribed development activities
The standards for review to be used by the include construction or purchase of structures,
Bureau in deciding whether to issue a lease or construction of roads, airports, boat-landing
easement include an assessment of whether the facilities, bridges or causeways, and erosion
use will unreasonably interfere with public prevention projects. The only exceptions to the
access ways, navigation, fishing, marine uses, prohibition on expenditure of state funds are
public safety. They also provide that the use fo r:
should not conflict with "those aspects of the maintenance, replacement or repair of state
Coastal Policies or the Coastal Policy guide- roads, structures or facilities;
lines [citations omitted] which relate to the

A-18 APPENDix A: SURVEY OF MAm's LAws RELEVANT TO SEA-LEvEL RISE

� protection or enhancement of fish and 4. Analysis of extent to which acceler-
wildlife resources and habitats; ated sea-level rise might affect the
� recreational uses not involving an irretriev- application of the law
able commitment of natural resources; Since the law prohibits erosion stabilization
� scientific research; projects except for nonstructural shoreline
stabilization projects that are designed to
� nonstructural shoreline stabilization projects mimic, enhance, or restore natural stabilization
designed to mimic, enhance or restore systems, the areas designated as coastal barriers
natural stabilization systems; or may decrease in size. In light of the threat of
� emergency actions essential to save lives, accelerated sea-level rise, it is appropriate to
protect property, public health and safety evaluate whether there are other areas which
approved by the Governor. meet the criteria and should be included in the
system.
The coastal barriers identified by the federal . ..... . .
...................................... ....... ........
..........................I.........
.......................................... ........ ........ .........
.......................... 11 ....... .........- .....
__ ..................
..................................... .. . ......
Coastal Barrier Resources System are also
....................
...................
............
.......... ......
. ..............
.............. . ......
...................
................ .... ...
................................ ...... ......... ..............................
...................I............ I-- --- - ........... .......... .......................
.................................. ..... ..
identified by Maine statute as being part of the . ..... ........ ........
.... :..: .............
................................. ........ . ........ ......................
.........I........................... ..... .. ...... ....... __ ................
..............................- ....... I--
............................... ...... ...........
Maine Coastal Barrier System. Maps are
available through the Maine Geological Survey 1. 38 MRSA � 480-C.
office and at the registry of deeds for each
county. 2. 38 MRSA � 480-B (2).

3. 38 MRSA � 480-B (1).
2. Identification of portion of the law 4. An Act Making Unified Appropriations and
that relates to sea-level rise Alloocations, Ch. 410, HP 215, Legislatiw
This and the parallel federal law are Document 283, Sec. G-7.
designed to protect and conserve coastal 5. Maine LegislatiNe Service, 116th Legislature,
barriers and the adjacent wetlands, marshes, Ch. 522 (Mar. 14, 1994).
estuaries, inlets and nearshore waters by 6. 38 MRSA � 480-Q.
discouraging development on and adjacent to
those barriers. Among the reasons given for 7. Ch. 355.
their preservation are to retain their natural 8. COASTAL ADvisoRy COMMITTEE, COASTAL
storm protection function and to prevent MANAGEMENT POLICY GUIDELINES (State Planning
development that would be vulnerable to Office, Augusta, ME, December 1986) at 9.
hurricanes, storms and shoreline recession. 9. Id.
3. Analysis of extent to which it ad- 10. MAINE STATE PLANNING OFFICE, MAINE
dresses any direct or indirect conse- COASTAL PROGRAM, IMPLEMENTATION OF MAINE'S
quences of accelerated sea-level rise COASTAL POLICIES, 1986-1988, (submitted to the
Maine State Legislature, Jan. 1, 1989) at 9-10.
This law provides limited protection for the 11. Id. at 21, 23.
included undeveloped areas in that it prohibits
expenditure of state funds in support of 12. See the specific discussion of those Acts.
development. It does not restrict private 13. 30-A MRSA � 4312(l)(E).
investment. It applies only to a small fraction 14. The publication, COASTAL MANAGEMENT
of Maine's coastline; only 32 coastal barriers TECHNIQUES: A HANDBOOK FOR LOCAL OFFICIALS,
(e.g., coves, beaches, islands, points) are prepared by Land & Water Associates and Maine
included. Tomorrow for the Department of Economic and
Community Development, October, 1988, advises
that growth in hazard areas should be prevented or

ANTICIPATORY PLANNING FOR SEA-LEvEL RISE ALONG TBE COAST OF MAINE A-19

discouraged to protect public health and safety, 15. 38 MRSA � 435.
reduce public costs resulting from damage to public 16. State of Maine Guidelines for Municipal
and private facilities, and to help maintain the health Shoreland Zoning Ordinances, 06-096 Department
of natural systems which depend on floods and of Environmental Protection Chapter 1000, Mar.
sediment to sustain them. (p. 35) It advises that 24, 1990.
sand dunes and beach systems should not be
artificially "stabilimd" but rather must be free to 17. Public Laws, 116th Legislature, 1993 First
"migrate" landward with rising sea level to preserve Regular Session, Ch. 383, � 23 repealing 38 MRSA
their storm barrier function. This publication � 484, sub-�8..
recommends that communities gather more informa- 18. 30-A MRSA � 4404(4).
tion about natural processes occuring in their area.
It recommends that towns work with Maine 19. For further discussion, see Chapter 5, National
Geological Survey to determine their vulnerability to Flood Insurance Program.
the effects of sea-level rise, to identify and map 20. See Chapter 5, p. 5-28 for a more complete
other hazard areas, and to determine shoreline discussion of the National Flood Insurance Program.
erosion rates. It also recommends a review of
FEMA maps for flood-prone areas. The publication 21. Department of Economic and Community
recommends public education, vegetation mainte- Development, "Model Floodplain Management
nance, regulatory and investment responses to Ordinance," Article VIII, A-E.
hazard area management. Local ordinances to 22. National Flood Insurance Act, 42 USCS �
restrict development in hazard areas, such as 4001(e)(2).
floodplain management ordinances, are identified as
a first step. Additional regulatory efforts suggested 23. For further discussion, see B. MILLEMANN & E.
may include: prohibiting structures in all floodplain JONES, STORM ON THE HORIZON: THE NATIONAL
areas including intermediate hazard zones, prohibit- FLOOD INSURANCE PROGRAM AND AMERICA'S
ing structures and fill adjacent to and in wetlands, COAST, (Wash., DC: Coast Alliance@ Sept. 1989)
requiring that structures and fill be well set back and R.H. PLATT, ET AL., COASTAL EROSION: HAS
from the edge of wetlands, and requiring a RETREAT SOUNDED? Program on Environment and
minimum structure elevation of 2-3 feet above flood Behavior, Monograph No. 53, (Institute of
levels to maintain a margin of safety. It also Behavioral Science, University of Colorado, 1992)
recommends that the public obtain a property at 26-37.
interest (easement, lease or purchase) in certain 24. P.L. 101-137, � 5, 103 Stat. 825 (Nov. 3,
hazard areas and limit use to passive recreation or 1989).
other public use, that public investments be planned
to avoid hazard areas, that funding priority be given 25. Bureau of Public Lands, Submerged Lands
to relocate public facilities out of hazard areas, and Rules, 1. 6 B (11).
that technical and financial assistance be made 26. Id., 1.7 C (8).
available to individuals seeking to relocate out of
hazardous areas (pp. 35-39). 27. 16 U.S.C. � 3059. See discussion, Chapter 5.

Appendix B

SELECTED STATE/REGIONAL POLICY
RESPONSES To ACCELERATED SEA-LEVEL
RISE AND COASTAL EROSION

..............
............ ... ... ... ....
ANT The following policy issues were identified
$@A
9 L EGRMA in Washington: siting standards and protection
. .... ...........
X LOBAW U
T, V@@,
a
.0 C Iternatives for coastal facilities; management
of old coastal solid and hazardous waste
disposal sites; shore protection alternatives;
While some states have started to address wetlands and shallow water habitat protection
the issue of planning for accelerated sea-level alternatives; and sea water intrusion responses.'
rise as a result of global climate change, even Washingtons studies emphasize the theme
the most advanced states are only in the very that in the face of likely but uncertain levels of
preliminary stages of developing a unified accelerated sea-level rise, the "first steps"
response strategy. Many are still in the toward regulation addressing this problem "can
problem recognition stage, where they are and should be done for other fiscally prudent
beginning to understand the potential scope of reasons. "' For example, if Washington accepts
the problem, but have yet to translate that the theory that global warming will cause
recognition into any specific studies, statutes or greater frequency of severe storms, a prudent
programs. The following section summarizes response may be to require stricter design
activities in selected non-Maine jurisdictions. standards. The State's design standards already
reflect safety measures based on "hydraulic
1. Washington State design storms, " or standards based on the
The State of Washington became very projected frequency and severity of storm
active in planning for accelerated sea-level rise events (e.g., requiring that buildings be
through its Sea Level Rise Response Program, constructed in such a way or location to avoid
begun in 1988. Through that program, it damage from a 25-, 50- or 100-year storm).
evaluated the scientific literature on vertical Using the "other fiscally prudent reasons" test,
land movement in the western Washington one response option would be to increase those
area, mapped broad patterns of vertical land design standards to require design to avoid
movement, supported additional research on damage from a less frequent, more severe
subsidence in Puget Sound, and began to study storm event. Washington's studies suggest this
If near term, internal policy alternatives. type of regulation may be more politically
acceptable than others based solely on antici-
pated sea-level rise, especially if regulations

B-1

B-2 APPENDix B: SELECTED STATE/REGioNAL PoLicy REspoNsEs

based on sea-level rise are perceived to inter- general, and sea-level rise in particular. The
fere with the use of private property. How- April 1989 Assembly Natural Resources
ever, the State has not yet acted to incorporate Committee "blueprint" for State response"
the more rigorous design standards. identifies damaging shoreline erosion, decline
The State of Washington has expressed in delta water quality, damage to structures and
interest in conducting a formal cost-benefit loss of recreational beaches, increased need for
analysis of specific response options if it can shoreline protective devices, and expensive
obtain sufficient funding. Such an analysis modifications to port facilities as possible
might be used to evaluate the different prob- negative impacts of sea-level rise. It recom-
lems posed by inundation of private property in mends legislation to require agencies to begin
areas of high- and low-intensity development. to consider global warming impacts, but does
contain specific policy recommendations.
Douglas Canning, Sea Level Rise Project In the San Francisco Bay Area, planning
Manager of the Shorelands and Coastal Zone for specific areas at risk from flooding is
Management Program at the Washington State encouraged, and varying strategies are empha-
Department of Ecology, believes that such an sized, depending on the type of coastal feature
analysis would show that highly-developed, and the threat of risk from sea-level rise. In its
low-lying waterfront areas, such as those in report, the San Francisco Bay Conservation and
Seattle, Tacoma, and Olympia, would need to Development Commission (BCDC)l recom-
be structurally protected at some public cost mends that planners for the area take global
because relocation would be far more costly climate change and accelerated rates of sea-
than protection. On the other hand, he expects level rise into account. The report also notes
that private land of lower density development, that, due to local sedimentation patterns, land
such as agricultural, rural residential, and movement and other factors, inundation will
timber lands, may well cost more to protect occur at variable rates in the Bay area, and this
than they are presently worth, and therefore it needs to be accounted for through planning.
is unlikely that public monies should be spent
to protect them. Not surprisingly, the report finds that marshes
and other tidal wetlands are at the greatest risk
The State of WashingtoWs Sea Level Rise from flooding and notes that the economic costs
Response Program has evolved into the Coastal of protecting them may be prohibitive.
Erosion Management Program. The focus is BCDC recommendations are based on
on protecting natural coastal systems so they extensive research and mapping of various
are able to respond to shoreline changes areas around San Francisco Bay. BCDC has
regardless of the driving force behind the also conducted detailed studies to assess
change. Components of this program include expected impacts associated with tidal flooding
working with, local governments to prepare a of urban development, the creation of an inland
programmatic environmental- impact statement sea in the Delta, increased salinity levels in
on the impacts of shoreline armoring, and de- Suisun Bay and the Delta, flooding and im-
veloping additional information and policies on peded drainage in low-lying shoreline areas,
shoreline erosion control. The Sea Level Rise and the loss of tidal marshes and managed
Response Program also facilitated use of wetlands. These studies have resulted in the
coastal zone management funds for a sea-level development of an engineering design review
rise impact study conducted by the City of process to be used by designers and reviewing
Olympia. authorities to assure safety from hazards of
6
tidal flooding.
2. California The six adopted policies' regarding sea-
Various agencies in California have also level rise are limited to the Bay Conservation
begun to focus on global climate change in and Development Commission's jurisdiction,

ANTiCIPATORY PLANMNG FOR SEA-LEvEL RisE ALONG THE COAST OF MAM B-3

which covers activities in San Francisco Bay Good found that State land use planning
and landward to 100 feet from the shoreline. goals, regulations, and legislation have failed to
The policies are mandatory design standards adequately control the building of hard shore-
rather than merely advisory criteria directing line protective structures, with the result that
that sea-level rise be considered. While some considerable amounts of sediment are "locked
flexibility is allowed, the Commission has set up" behind such structures, and are thus unable
a range of rates within which engineers may to migrate and nourish eroding beaches.
work with twice the historic rate of sea-level According to this study:
rise established as the minimum standard
assumed rate. This standard was based on data despite the fact that Oregon has one of
which show a doubling of the rate of sea-level the most far-sighted set of state land
rise in the Bay over the last 20 years. - Engi- use policies in the United States ...
neers for all proposed projects are required to including three land use goals that
defend the specific rate of sea-level rise chosen focus on natural hazards, the hazard
for a particular project proposal before the management strategies actually em-
Commission. ployed by landowners depend more on
The California Coastal Commission staff structural mitigation than on hazard
has also undertaken detailed research on avoidance. Along the Siletz cell, the
result has been the proliferation of
projected impacts on coastal wetlands, beach SPSs [shoreline protective structuresi. 12
erosion, cliff retreat, and harbors and struc-
tures.' This research may eventually lead to The study also found that setback requirements
the development of specific policy responses, in the research area have proven inadequate to
but no specific implementation action has been prevent the construction of SPSs, and that a
taken since the 1989 study.' large number of lots too shallow to provide for
erosion protection continue to result from
3. Oregon subdivision.
Oregon has begun to review possible Good asserts that the building of hard
impacts from global warming through the erosion control structures in the coastal zone is
development of a preliminary report illustrating actually encouraged and "institutionalized" by
the range of changes that might result from the failure of local planning decisions to give
global warming. " The report characterizes adequate weight to State goals and regulations
itself as speculative rather than predictive, but directing that non-structural solutions are to be
It 13
identifies sea-level rise concerns about shore- preferred". He predicts that more SPSs will
line retreat, flooding of coastal areas, and salt further exacerbate the rate of coastal erosion,
water intrusion. Following an opportunity for which will create even more demand for
public comment and debate, the Oregon permits for these structures.
Department of Energy plans to develop a To minimize coastal erosion, coastal
second report which will include recommenda- hazards, and the use of hard erosion control
tions for actions by State agencies. structures, the study recommends concentrating
In addition to the Department of Energy's on. hazard avoidance as the "fundamental
report, James Good of Oregon State University principle" for guiding development." Where
has also conducted a recent study of the Siletz the use of these hard structures is unavoidable,
area cell on the Oregon coast to analyze the Good suggests that compensation for "unavoid-
effectiveness of Oregon"s laws and regulations able adverse impacts-individual and cumula-
regarding shoreline protection and beach tive-should be required,"" similar to the
access. system Oregon uses to compensate for adverse
impacts to wetland resources.

B-4 APPENDrK B: SELECTED STATE/REGioNAL POLICY REspoNsEs

Coast-wide construction setbacks and assets and resources, and develop regulatory
comprehensive area management planning for and legislative responses.
the various "cells" of the Oregon coast are also Based on the recommendations of this
suggested as useful strategies in planning for report, in 1991 the Rockingham Planning
sea-level rise. In addition, Good recommends Commission published a "Preliminary Study of
increasing State oversight of local land use Coastal Submergence and Sea Level Rise in
decision making in flood and erosion hazard Selected Areas of New Hampshire. " it
areas to help insulate local decision-makers describes the phenomenon of relative sea-level
from some of the pro-development political rise, examines the various projections for
pressures they now feel. accelerated sea-level rise, and identifies
More recently, in October 1993, the potentially threatened areas by applying sea-
Oregon Coastal Natural Hazards Policy level rise predictions to local area maps, taking
Working Group published an "Issues and account of local topography, water bodies, and
Options" report which incorporates both the patterns of development.
types of suggestions outlined above and public The report contains general suggestions for
reaction." Participants discussed many coastal managing coastal areas in anticipation of likely
management issues. Sea-level rise was not a but uncertain increasing rates of sea-level rise.
separate issue, but rather was addressed The report stresses the importance of anticipat-
through related issues such as coastal erosion ing the phenomenon well in advance in order to
and flooding. Policy options and suggestions minimize both costs and environmental
considered in the report included: instituting a damage:
mandatory preference for soft erosion control
strategies over hard structural solutions; Some of the most cost-effective solu-
prohibiting hard shoreline protective structures tions to property losses that could arise
outright; eliminating public subsidies for take several decades to implement.
development of hazardous areas; classifying Future dislocations of development can
sites by susceptibility to natural hazards; using be greatly lessened by directing devel-
public funds to buy lots made unbuildable by opment away from areas that lie within
setback requirements; instituting more restric- the range of likely sea level rise."
tive setbacks; instituting tax credits for the The report finds the risk to developed areas
donation of coastal hazard properties to state or to be "relatively minor" in the study areas
local governments; imposing stricter limitations given a projected sea-level increase of 5 feet,
on variances; prohibiting development in high discounting the effects of storm flooding. It
hazard areas; imposing more restrictive lot finds that the structures at risk under this
coverage requirements; and requiring hazard scenario do not account for much more than
disclosure to potential buyers. The report also those already at risk from current storm
discusses seismic issues unique to the west generated flooding: "For the most part,
coast. structures within the submergence areas are
already at risk from storm driven flooding.""
4. New Hampshire The report is less optimistic about the fate
New Hampshire's Office of State Planning of coastal wetlands, and cites EPA estimates of
commissioned. a 1987 technical report that wetlands losses of 26 % to 82 % under a one
recommends a three-step process to approach meter rise in sea-level. The report cites two
the issue of how sea-level rise should be basic problems for wetlands migration: 1) that
factored into coastal zone planning. 11 The sea-level will rise too rapidly for wetlands to
three steps are to delineate impact areas, keep pace in their upland migrations and 2)
inventory potentially affected populations, that development adjacent to wetlands will
effectively prevent that migration if landowners

ANTICIPATORY PLANNING FOR SEA-LEvEL RISE ALONG THE COAST OF MAINE B-5

erect hard structures such as bulkheads to detrimental effects of sea-level rise on Cape
protect their properties. Noting that there is Cod into its Regional Policy Plan.
little that coastal planners can do about the first The plan addresses accelerated sea-level
problem, but that the second problem can be rise in its section on coastal resources.' The
mitigated by coastal land use regulation, the plan notes that the present rate of erosion on
Rockingham County report suggests a few the Cape results in the loss of "24 acres of
strategies in this regard: upland per year, or 1080 acres by 2025. " The
Such approaches might include: acting plan compares this present rate of annual
now to limit future development in erosion with EPA!s mid-range predictions, and
areas where wetlands are likely to also uses a study by Woods Hole Oceano-
migrate to; allowing development in graphic Institution geologists which projects a
sensitive areas only on the condition loss of 3900 acres, based on a 1.57 foot rise in
that no attempt will be made to protect relative sea-level. The plan also notes that, at
the property (via bulkheads, seawalls, the time it was written, existing laws and
etc.) from advancing wetland, and regulations did not specifically address pro-
modifying the federal flood insurance jected increases in the rate of relative sea-level
program to greatly discourage or rise.
disallow reconstruction of structures The Cape Cod Regional Management Plan
damaged as a consequence of sea level enumerates certain policies to deal with
rise.20 accelerated sea-level rise, in addition to other
The report stresses federal, state, and local measures designed to control erosion or to
cooperation "to devise fair and equitable ways allow for the migration of coastal features at
to abandon development that is in the path of the historic rate of sea-level rise. One goal is
wetland migration,"" but it does not suggest "[flo limit development in high hazard areas in
any concrete or particular strategies which New order to minimize the loss of life and structures
Hampshire should follow. However, it does and the environmental damage resulting from
stress that preventive planning is both more storms, natural disasters and sea level rise. "25
effective in minimizing losses of natural To achieve this goal, the section enumerates
resources such as wetlands and is also cheaper minimum performance standards, one of which
than after-the-fact regulation. reads:
In order to accommodate possible sea
5. Massachusetts: The Cape Cod level rise and increased storm intensity,
Commission ensure human health and safety, and
Barnstable County's Regional Policy PlaO protect the integrity of coastal land-
identifies the peninsula of Cape Cod, Massa- forms and natural resources, all new
chusetts, as an area which is particularly buildings, including replacements,
vulnerable to the effects of erosion from storms within FEMA A and V flood zones
and wave processes, as well as to potential shall be designed one vertical foot
problems posed by anticipated sea-level rise. above existing FEMA base flood
By April 1990, the town of Barnstable had held elevation and state building code
two conferences on the potential effects of sea- construction standards.'
level rise on the community as part of an effort To address the problem of eroding bank
to determine what steps community leaders and dune systems, another standard specifies
could take to alleviate these effects.' Since that:
that report, the County of Barnstable has [i]n areas where banks or dunes are
incorporated specific measures to control the eroding, the setback for all new
buildings and septic systems to the top

B-6 AiPPENDix B: SELEcTED STATE/REGioNAL PoLicy REsPONSES

of the coastal bank or dune crest shall The Long Island plan stresses the impor-
be at least 30 times the average annual tance of planning and advanced identification of
erosion rate of the bank or dune. This critical natural resources and undeveloped areas
rate shall be determined by averaging through extensive mapping. Responses to
the erosion over the previous 30-year erosion and sea-level rise are to be tailored to
period at a minimum." I specific areas. According to the plan, rela-
Other standards under this goal section tively undeveloped hazard areas are to be
include a prohibition on development or protected from further development; isolated
redevelopment within FEMA V flood zones, structures are not to be rebuilt after destruction;
although allowing an exemption for certain building of new structures in hazard areas is
water-dependent uses where ."no feasible discouraged; in built-up areas, some additional
alternative" exists.' A similar prohibition protective structures might be allowed if there
includes similar exceptions, on development is no significant amount of pristine shoreline.
and redevelopment on barrier beaches and The plan encourages "soft" management
coastal dunes." There are also prohibitions on strategies, such as using sand from south shore
the building or expansion of public infrastruc- inlet maintenance dredging to nourish down-
34
ture in flood hazard zones.10 Another perfor- drift beaches. It discourages rebuilding in V
mance standard prohibits the reconstruction of Zone Hazard areas (determined by flood
buildings which have been damaged at greater insurance rate maps) for private structures
than 50 percent of their tax assessment valua- damaged over 50%. Sea-level rise is specifi-
tion in flood hazard zones, on coastal banks, cally mentioned, although no specific rate
dunes, or barrier beaches unless they comply assumptions or timetables for retreat are given.
with specified standards for new development." The plan recommends that:
a strategic retreat from vulnerable
6. New York: Long Island coastal areas is the rational approach to
In New York State, a hazard management follow. While it is not recommended
plan has been proposed for the South Shore of that wholesale abandonment of existing
Long Island to deal with accelerated sea-level public facilities and private develop-
rise and its attendant problems of increased ment located in coastal areas should
erosion, more frequent coastal storms and occur in advance of actual sea level
resulting dislocation." The South Shore rise acceleration, structures should be
Hazard Management Plan works within the removed from vulnerable locations
framework of the New York State Coastal over the long-term when subject to
33 substantial damage from erosion and
Erosion Hazard Areas Act . 35
Long Island is especially vulnerable to the flooding impacts.
effects of sea-level rise in that it is character- In general, the plan designates thirteen
ized by extensive barrier beaches fronting on segments of Long Island's south shore to be
the Atlantic Ocean. At the same time, areas of treated as distinct regional management units.
its coastline are highly developed. The area It describes specific, detailed recommendations
also provides recreation benefits to the many for shoreline management for each coastal
residents of the metropolitan New York area. segment. These recommendations are tailored
The Long Island Regional Planning Board has for each segment by taking into consideration
developed a proposed management plan for the natural and anthropogenic coastal features and
island's south shore addressing these problems population densities in setting priorities for
and prioritizing goals for the management of each section.
various sub-areas on Long Island's south shore. The plan is consistent with other jurisdic-
tions in placing emphasis on the public value

ANTIcimoRy PLANNING FOR SEA-LEvEL RISE ALONG ME COAST OF MAINE B-7

of the coastline, both as public recreation and The policy of strategic retreat from
as flood and storm protection. It specifically vulnerable coastal areas in light of
recognizes that private coastal landowners, potential acceleration in the rate of sea
particularly those in high risk areas, may level rise and subsequent flooding of
impinge on the rights of other members of the low lying coastal areas is the rational
public through their activities in such high risk approach to follow... The alternative
zones. of gradual retreat is involuntary retreat
The executive summary of the plan asserts as a result of disaster situations.'
[p]roperty owners should not adversely impac; Communities are to ensure that post-storm
coastal processes to the detriment of adjacent development does not exceed planned density
shoreline areas. " In the coastal high risk levels, and to that end, it prohibits public
zone, or the Federal Flood Insurance V zone, expenditures for infrastructure which would
the plan notes that the public should not be have the effect of encouraging denser develop-
expected to pay for damage to private property: ment on coastal barriers. In keeping with the
"Private interests ... should bear the burden of view that the coastal barrier islands represent a
the loss of such structures and/or property due significant recreational resource, communities
to erosion and flooding. Within this Coastal are encouraged to consider expenditures on
High Risk Zone, there is minimal public infrastructure for water-dependent uses facilitat-
interest in making government expenditures for ing public access, such as beaches, parks and
maintaining private development. " The plan fishing piers." In addition, in certain high-risk
also recommends that changes be made to the coastal areas owned by the state where resi-
National Flood Insurance Program, specifically dents currently hold long-term leases, the plan
that "the elimination of federal flood insurance proposes a gradual abandonment policy under
coverage for structures located on barrier which those leases are to be phased out.
islands and spits must be considered."" The Long Island plan also recommends
The plan states a preference for retreat government purchase of certain undeveloped
from high hazard areas, where feasible. It also coastal lands for purposes of recreation and
recognizes that most often severe damage will open space.' Again, this is in keeping with
occur as the result of storm events, and that the policy that such areas provide needed
often there are not adequate planning mecha- recreation areas for the public at large, and that
nisms in place to deal with the problems these areas are being threatened by both sea-
communities face in the wake of a severe level rise and increased coastal development.
coastal storm. It therefore recommends "that Other priorities involve the protection of
post-storm community re-development plans be coastal wetlands and coastal bluffs, which the
prepared in advance to deal with those in- plan notes are threatened by accelerated rates
stances where a severe storm event destroys a of sea-level rise. The plan stresses the need for
large portion of a community and government public awareness of the possible negative
can neither prevent re-development through effects of bulkheads and other hard erosion
regulation nor acquire properties because of a control devices on wetlands, and emphasizes
lack of financial resources."" planning to provide for adequate buffer zones."
On Long Island, planners realize that With respect to coastal bluffs, the plan
preparation for the aftermath of coastal storms emphasizes that permit decisions regarding
is an integral component of planning in areas at armoring structures should include consider-
great risk from erosion. In very high risk ation of the local sediment budget and the
areas where the preferred policy on Long structure's possible negative effects on down-
Island is one of "strategic retreat," it is noted drift beach areas. Mitigation schemes are
that the alternative may be chaotic and involun- contemplated, such as conditioning permits for
tary retreat at any rate:

B-8 APPENDix B: SELECTED STATE/REGIONAL POLICY REsPoNSEs

construction of erosion control devices on a State erosion response legislation has been
requirement to replace sand on certain down- characterized as falling into three general
drift beaches deprived of sediment by the groups: erosion management laws (e.g., New
artificial structure. The plan also differentiates York, Pennsylvania, South Carolina), coastal
bluffs from dunes, and points out that attempts zone management laws with an erosion element
to stabilize them may have negative impacts on (e.g., Florida, Rhode Island, North Carolina,
local sediment budgets: "unlike the dunes, Michigan), and related resource management
bluffs are a relic feature and cannot be ex- laws (e.g., New Jersey, Massachusetts and
pected to recover after an erosional event; the Texas).' This summary focuses on laws in the
erosion of bluffs may have a more important first two categories.
role in the sediment budget ... than the role of
dune erosion. 1. Rhode Island
In general, the Long Island plan is a The State of Rhode Island's Coastal
comprehensive and flexible document, which, Resources Management Program identifies sea-
while it advocates a gradual retreat from the level rise as a concern, but it does not specifi-
shoreline in erosion hazard areas, modifies its cally mention an accelerated rate of sea-level
recommendations according to pre-existing rise as a result of global climate change.
coastal land uses and densities. It achieves this Nevertheless, the plan does address the
through treating the various coastal regions of problems caused by sea-level rise at historic
Long Island separately, from the highly rates through policies specifically tailored to
developed sections to the west, to the relatively protect various types of coastal environments,
pristine areas to the east. and varying densities of development on those
features.

............
......................
...................
...........
... OON
... The Program is based on a system which
@XLDWSI: N.. ...
Bw &LECTE6U6@_
.......... ...- .........I....... . .............
:. , --- .........I.... ...............
... ........ ....... ...... ....... ......... ...... .. -l- ......
............. ........... .............- ........... e state into six quality
classifies all waters of th
GIES:
...................
.......................
categories, based primarily on the characteris-
.................... . .. ... ....
tics of the adjacent shoreline. Those categories
Many states have adopted specific policies include type 1, conservation areas; type 2, low
to minimize loss due to coastal erosion caused intensity use; type 3, high intensity boating;
by coastal storms and the continuation of type 4, multipurpose waters (i.e. those that
historic submergence. These policies have support or could support both commercial and
been developed in response to historical rates recreational activities, as well as providing
of change over the last century, and rarely good fish and wildlife habitat); type 5, com-
incorporate any assumptions anticipating an mercial and recreational harbors; and type 6,
increase in the rate of sea-level rise during the industrial waterfronts and commercial naviga-
next century as a result of global climate tion channels.
change. Recommended responses to shoreline
Since these laws are designed to mitigate erosion and possible sea-level rise in Rhode
erosion losses if historic rates continue into the Island vary according to the type of shoreline
future, as currently written, they may prove feature involved as well as type of waters to
inadequate if future sea-level rise significantly which they are adjacent. However, standard
exceeds historic rates of change. However, setbacks of a minimum of 50 feet "from the
selected statutes are surveyed here for the inland boundary of the coastal feature" are
purpose of identifying innovative land use required, "except in areas designated by the
management techniques that may be amenable Council as Critical Erosion Areas"' In critical
to modification for application in strategies erosion areas, setbacks of 30 and 60 times the
designed to respond to accelerated rates of sea- average annual erosion rate are required, the
level rise.'

ANTICIPATORY PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE B-9

more stringent standard being reserved for hardship"" and will not cause "significant
higher density development." adverse environmental impacts or use con-
The section entitled "Shoreline Features" flicts,"" among other requirements. Another
specifically mentions sea-level rise, albeit at section contemplates Special Exceptions for
historic rates: projects which do not comply with the pro-
gram's goals for projects serving "a compelling
All shoreline systems are dynamic, and public purpose" which are water-dependent, or
change their shape and character in for which no alternative sites exist."
response to storms, currents, human The Plan also provides for post-hurricane
modifications, and the gradual rise in emergency procedures. These procedures
sea level.... The present rate of sea- provide for a temporary moratorium on
level rise is about one foot each cen- reconstruction of structures "to remain in effect
tury. A foot of vertical rise, however, for a maximum of 30 days from the disaster
accounts for an inland retreat of some declaration." The moratorium should provide
30 feet along low-profile shores."' local officials time to assess damage, to consult
The plan asserts that most erosion to the with state officials, to act on possible ameliora-
Rhode Island Coast occurs not as a result of tive response actions in high damage areas such
gradual sea-level rise, but rather from discreet as the purchase of open space, and to "make a
storm events. policy decision about re-permitting according to
As has been noted, the plan provides for best available options for hurricane
general coastal setbacks as well as more mitigation. "I'
stringent ones for "Critical Erosion Areas." The plan also emphasizes protection of
These critical erosion areas are mapped under coastal features, including coastal beaches and
4 categories, (A-D), with annual estimated dunes, barrier beaches, coastal wetlands,
erosion rates from 2-2.5 feet for category A, to coastal cliffs, bluffs and banks, rocky shores,
55
5-6 feet for category D. Corresponding and man-made shores. It notes that "beaches
required setbacks range from 75 and 150 feet, are dynamic, flexible features," and that hard
(for four or fewer dwelling units, and for more erosion control structures may interfere with
than four dwelling units, respectively) in the natural processes of dynamic coastal
56
category (A), to 180 and 360 feet, respectively, features.
in category (D). The plan states that this dynamism is
Categories of Critical Erosion Areas are particularly true for barrier beaches, which it
determined by the Rhode Island Coastal describes as being "particularly ill-suited to
Resources Management Council independent human occupation. ""' It categorizes beaches as
from decisions regarding adjacent water undeveloped, moderately developed, and
quality. They are shown on detailed coastal developed, and its restrictions on development
planning maps included in the Rhode Island vary according to the level of development,
Coastal Resources Management Program from no new construction on undeveloped
document, and appear to cover only the areas barrier beaches to requiring construction lines
of the coast most exposed and prone to erosion. on three specific barrier beaches classified as
There is a variance mechanism for appli- developed."
cants who cannot meet such standards, but the Regarding coastal wetlands, the Rhode
granting of a variance "does not remove the Island plan notes that, "[b]ulkheading and
applicant's responsibility to comply with all filling along the inland perimeter of a marsh
other Program requirements. "I' Applicants prevents inland migration of wetland vegetation
must also show that proposed alterations are as sea level rises. " The plan therefore forbids
"the minimum necessary to remove an undue use of "structural shoreline protection" except

B-10 APPENDix B: SELECTED STATE/REGioNAL POLICY REsPONSES

when "the primary purpose is to enhance the to 1988) "did not provide adequate jurisdiction
site as a conservation area and/or a natural to the South Carolina Coastal Council to enable.
buffer against storms" in Type 1 waters, and it to effectively protect the integrity of the
allows such structures only pending permit beach/dune system. "" It cites the importance
approval in Type 2 waters." of the beach/dune ecosystem to the State as a
The discussion regarding coastal bluffs and protective storm barrier,.'a's a basis for tourism,
cliffs notes that their erosion may actually as habitat for wildlife, and as providing
provide needed sediments to down-drift recreational opportunities for South Carolin-
beaches, and therefore instructs the Council to ians." In addition, this section notes that the
"encourage the use of non-structural methods to system is threatened by development too close
correct erosion problems associated with to the shore and specifically points to hard
coastal cliffs, banks, and bluffs adjacent to erosion control devices as exacerbating the
Type 1 and 71)rpe 2 waters. "I Although hard problem of shoreline erosion:
erosion control strategies are to be discouraged These armoring devices have given a
in these areas, they may be permitted under false sense of security to beachfront
certain exceptional circumstances. However, property owners. In reality, these hard
the Council is instructed to: structures, in many instances, have
weigh the impact of the proposed increased the vulnerability of beach-
structure on the supply of sediments to front property to damage from wind
nearby beaches. Where the Council and wave while contributing to the
finds that a substantial reduction or deterioration and loss of the dry sand
elimination of sediment is likely to beach which is so important to the
result, and that natural erosional tourism industry."
processes affecting the nearby beach In addition to this finding, the section
will thereby be accelerated, it shall points out that erosion is a natural process,
deny its Assent [for the permit]. ,61 which causes problems for humans "only when
The plan also deals with rocky shores and structures are erected in close proximity to the
with man-made shorelines,62 but it points out natural system. " The section specifically notes
that " [t]he presence of isolated seawalls, that it is important to afford the dynamic
bulkheads, and similar structures does not beach/dune system space to erode and reform
constitute a manmade shoreline, as the term is without hindrance by hard erosion control
used in this Program. devices and other structures. It also states a
preference for retreat from exposed beaches:
In Rhode Island, the Coastal Resources It is in both the public and private
Management Council "may order restoration or interests to afford the beach/dune
removal [of isolated structures] where it finds system space to accrete and erode in its
that the structure poses a hazard to navigation, natural cycle. This space can be
interferes with the public's right of access to provided only by discouraging new
and along the shore, causes flooding or wave construction in close proximity to the
damage to abutting properties, or degrades the beach/dune system and encouraging
scenic qualities of the area."' those who have erected structures too
close to the system to retreat from it.'O
2. South Carolina
It is the stated policy of the law to "protect,
South Carolina's Coastal Tidelands and preserve, restore and enhance the beach/dune
Wetlands Law' implements an aggressive and system"" To achieve this general goal, "local
detailed beach preservation policy. The comprehensive beach management plans" are
legislative findings section' of this statute notes required within the context of "a cornprehen-
that previously existing state legislation (prior

ANTIcn-AToRy PLANNING FOR SEA-LEvEL RISE ALONG THE COAST OF MAM B-11

sive, long-range beach management plan," and handled in accordance with the council's
the plans are "to include a gradual retreat from regulations on appeals."
the system over a forty-year period."' Other The Act only allows structures other than
ancillary policies aim to "severely restrict the erosion control devices to be rebuilt seaward of
use of hard erosion control devices ... and to the baseline by special permit if:
encourage the replkdement of hard erosion
control devices with soft technologies," the structure is not constructed or
encourage erosion control techniques with low reconstructed on a primary oceanfront
envirom-nental impacts, promote beach nourish- sand dune or on the active beach and,
ment, preserve and promote public beach if the beach erodes to the extent the
access, involve local governments in the coastal permitted structure becomes situated on
planning process, and to "establish procedures the active beach, the permittee agrees
and guidelines for the emergency management to remove the structure from the active
of the beach/dune system following a signifi- beach if the council orders the removal
cant storm event. ,73 ... [and] the use of the property autho-
The forty-year gradual retreat policy for rized under this provision, in the
areas of the South Carolina coast is based on a determination of the council, must not
setback of forty times the annual erosion rate.' be detrimental to the public health,
The policy requires the Council to establish a safety, or welfare."
baseline paralleling the shoreline along the Parties aggrieved by a decision by the Council
"crest of the primary oceanfront sand dune. to grant or deny such a permit have the
In addition, a setback line: opportunity to appeal to the full Council."
must be established landward of the The Act also provides for the gradual
baseline a distance which is forty times phasing out of erosion control structures and
the average annual erosion rate or not devices seaward of the setback line by applying
less than twenty feet from the baseline an incremental system under which they may
for each erosion zone based upon the not be rebuilt in the event of damage, with the
best historical and scientific data threshold of percent damage decreasing with
adopted by the council as part of the time. Thus, erosion control structures de-
State Comprehensive Beach Manage- stroyed more than eighty percent may be
ment Plan .71 rebuilt until 1995 and more than two-thirds
The law also requires mandatory periodic until 2010. After June 30, 2010, an erosion
revision of the baseline,' and "monumented control structure may only be rebuilt if it is less
and controlled survey points" in each Atlantic than fifty percent destroyed.
coastal county are required." Exempted In addition, the Act limits construction of
structures not subject to the setback include: habitable structures seaward of the setback line
wooden walkways, small wooden decks, fishing by providing that structures are limited to less
piers providing public access, golf courses, than five thousand square feet of heated space,
"normal landscaping," pools, and specially no part is seaward of the baseline (dune line),
permitted structures.79 and that no erosion control devices are incorpo-
An aggrieved landowner provision is also rated into the structure. Repairs and mainte-
included, whereby a landowner who feels that nance are allowed on if the total result is not
the setback line is in error "must be granted a greater than five thousand square feet of heated
review of the setback line, baseline, or erosion space. Repair or renovation is allowed for
rate, or a review of all three. "80 These structures not damaged beyond repair.
requests for review are to be forwarded to the Replacement of structures destroyed by natural
it appropriate committee of the council and causes is take place, where possible, landward
of the setback line; enlargement of the structure

B-12 APPENDIX B: SELECTED STATE/REGioNAL POLICY RESPONSES

is prohibited; and the replacement may be no ment. "I Furthermore, construction carried out
farther seaward than the original." in violation of the Beach Preservation Law is
Dispute resolution regarding damage declared to be a public nuisance.' The law
assessments of damage to protective structures also sets up a Beach Preservation Fund" to be
is to be carried out "by a registered profes- used to fulfill the law's general goals.
sional engineer acting on behalf of the coun- Also of interest in Delaware are recommen-
cil, "" but a property owner may challenge this dations for strategic retreat through "planned
assessment by obtaining "an assessment by a obsolescence, " developing "post-storm plan[s], "
registered professional engineer." The section and advocating land uses which are compatible
also provides for an assessment by a third with the goals of beach preservation, "such as
registered professional engineer, should the two fishing camps and recreational uses, or for
assessments differ. The third engineer is to be donating conservation easements. "I
selected by the first two engineers, or, failing Such incentive strategies, along with
that, by "the clerk of the court of the county improved public education and awareness about
where the structure or device lies ... [and] [t1he coastal processes and the consequences of sea-
determination of percentage of damage by the level rise and coastal erosion may prove an
third engineer is conclusive. important addition to coastal hazard manage-
ment programs. They may help to decrease
3. Delaware friction between government and private
Delaware's Beach Preservation Act specifi- property owners over an issue which is likely
cally mentions sea-level rise as a phenomenon to increase in importance for coastal managers,
to be considered in regulating beach use: residents, and user groups.
Beach erosion and shoreline migration 4. Florida
occur due to the influence of waves,
currents, tides, storms and rising sea Florida's Beach and Shore Preservation
level.... Development and habitation Law provides for the establishment of construc-
of beaches must be done with due tion control lines" which are to be periodically
consideration given to the natural reviewed and updated "after consideration of
forces impacting upon them and the hydrographic and topographic data which
dynamic nature of those natural fea- indicates shoreline changes that render estab-
tures .... 86 lished coastal construction control lines to be
Delaware's legislation puts sea-level rise in ineffective for the purposes of this act."'
the context of on-going coastal erosion prob- Construction control lines are to be established
lems by defining "beach preservation," "beach taking into consideration "historical storm and
erosion control" and "erosion control" as hurricane tides, predicted maximum wave
including but "not limited to, erosion control, uprush, beach and offshore ground contours,
hurricane protection, coastal flood control, the vegetation line, erosion trends, the dune or
shoreline and offshore rehabilitation. bluff line ... and existing upland develop-
ment."' Public hearings are required for the
The legislation defines a building line establishment of these lines, and allowance is
parallel to the coast, "seaward of which made for administrative review of construction
construction of any kind shall be prohibited control lines for aggrieved riparian upland
without a permit or letter of approval from the owners." The mutable aspect and periodic
Department (Delaware Department of Natural review of the construction control lines allow
Resources and Environmental Control). 1118 In Florida the flexibility to use the Beach and
addition, construction "landward of the building Shore Preservation Law to respond to changes
line on any beach ... shall be permitted only in the rate of sea-level rise. The statute also
under a letter of approval from the Depart- envisions a state/local partnership in the

ANTicipAmRy PLANNING FOR SEA-LEvEL RISE ALONG THE COAST OF MAINE B-13

preservation of beaches.' The section provides waterfront properties, and are unlikely to
for state funding of beach renourishment and choose to simply abandon these properties
restoration projects from the Beach Manage- without trying to protect them. Analyses by
ment Trust Fund of up to 75 %, while local Chesapeake Bay area coastal managers contend
municipalities are required to pay the remain- that the building of seawalls and dikes to
der. protect private upland property from sea-level
rise will likely have significant negative
5. Pennsylvania impacts on wetlands. If development is
situated immediately upland of a coastal
While Pennsylvania's legislation does not wetland, there will be nowhere for that wetland
specifically mention the issue of sea-level rise, to migrate should it become inundated as the
it does contemplate the problem of coastal result of accelerated sea-level rise.
erosion in its Bluff Recession and Setback
Act," and it encourages state and municipal This is particularly significant for Chesa-
cooperation to regulate land uses in erosion peake Bay, where historical wetlands and
hazard areas. The legislation deals specifically whole islands, mapped in the eighteenth
with bluffs on Lake Erie, but provides an century, have already disappeared.10' Due to
interesting example of state-local cooperation the nature of coastal wetlands as low-lying,
which has applicability to the regulation of very gently-sloping areas, coastal wetlands will
coastal bluffs. be the first areas to be inundated, and an
increase in the rate of sea-level rise will
The law provides for Pennsylvania's accentuate this trend.
Environmental Quality Board to establish
regulations for minimum bluff setback require- If owners of private upland property
ments in bluff recession hazard areas. These construct sea walls and dikes, the wetlands
areas are defined as "area[s] or zone[s] where cannot migrate to the adjacent uplands, but will
the rate of progressive bluff recession creates a rather be more quickly inundated. A possible
substantial threat to the safety or stability of wide-spread loss of wetlands, in addition to the
nearby or future structures or utility ongoing anthropogenic direct destruction of
facilities. "" However, six months after a given wetlands through dredging and filling opera-
municipality has been designated as including tions could have devastating effects on already
such bluff recession hazard areas, the munici- threatened coastal ecosystems. If wetlands do
pality must implement an ordinance which not have a chance to migrate, the biological
requires setbacks in those areas and which productivity of coastal ecosystems will be
complies with the minimum State standards set seriously impaired.
by the Environmental Quality Board." Maryland's wetlands protection legislation
Municipal ordinances may be more restrictive covers all areas within 1000 feet of the
than the State's minimum setback require- Chesapeake Bay that are less than 50%
ments."' The State may bring an enforcement developed. It requires local governments to
action against municipalities which fail to adopt develop protection plans for wetlands by
or implement setback ordinances. requiring buffer zones." Because the legisla-
tion covers such vast areas in the Chesapeake
6. Maryland: The Chesapeake Bay Bay area and requires buffer zones, it may be
Planners in Chesapeake Bay have identified adaptable to ameliorating the effects of acceler-
the need for development of alternative ated sea-level rise on wetlands. Maryland also
site-specific strategies to protect wetlands from requires private landowners to pay for the costs
inundation. of erosion control projects which benefit their
properties, although the levy is to be calculated
In the Chesapeake Bay area, private to cover only the cost of the project itself, and
landowners have often invested heavily in apparently does not include calculations of

B-14 APPENDrK B: SELECTED STATE/REGIONAL POLICY RESPONSES

costs resulting from the loss of natural shore- specified level of destruction (Cape Cod, Long
line features resulting from the project.115 Island).

3. Revisit Issues of Public Nuisance,
Public Subsidy
C
ONC ........
As a related theme, the developing public
policies suggest that private development in
Several recurrent themes appear in the high hazard areas is increasingly being seen as
methods these jurisdictions have adopted or are a public nuisance which diminishes the quality
contemplating using to address the issues of of a public resource, often at the monetary
sea-level rise and coastal erosion. These are expense of the public. There appears to be a
summarized below. decreasing tolerance for such hidden subsidies,
and an increasing awareness that anticipated
1. Respect Dynamic Nature of Coastal accelerated sea-level rise will exacerbate these
Systems problems. For example, it has been suggested
that property owners who erect hard erosion
One important theme is an increasing control structures be required to pay for beach
realization among legislators and planners that nourishment for beaches which have been
coastal systems are dynamic and that attempts starved of sand due to the erection of the
to stabilize them may have detrimental effects structure (Long Island, Oregon).
on the coastal ecosystem. As the understanding
of coastal processes increases, the expectation 4. Build on Existing Policies
that coastal areas are immutable and permanent Several factors make it difficult to im-
has come to be considered unrealistic and
environmentally unsound. This is true not only plement anticipatory accelerated sea-level rise
in states evaluating the possible impacts of strategies at this time, including: scientific
accelerated sea-level rise (e.g., Washington, uncertainty about the timing, magnitude, and
Oregon, and New Hampshire) but also in states impacts of global climate change; lack of public
with laws designed to protect against a continu- education about and public acceptance of the
ation of historical rates of shoreline change probability of accelerated sea-level rise; and a
(e.g., Rhode Island, South Carolina, Florida). failure to appreciate the possible severity of im-
pacts caused by relatively small changes in
temperature or sea-level. Furthermore, coastal
2. Pmerve/Enhance Resiliency of Nat- resource managers and coastal landowners are
ural System just beginning to understand the importance of
Similarly, there is growing rejection of adjusting to accommodate the dynamic shore-
hard structural solutions and increased focus on line system within the parameters of non-ac-
maintaining (and in cases, improving) the ceferating rates of shoreline change. It is
resiliency of natural systems as the best way to difficult enough to win acceptance of regula-
minimize coastal hazards (e.g., Washington, tions designed to minimize damage from
Rhode Island, South Carolina). This approach coastal erosion projected to continue at
entails: 1) preserving buffers to allow room for historical rates. The case has to be made even
natural systems to migrate (Rhode Island, more convincing to cause coastal residents to
Washington, Maryland); 2) hazard avoidance adopt regulations to protect against unquestion-
by directing new development away from ably serious but remote-in-time, uncertain
potentially high-risk areas (New Hampshire, projections of accelerated rates of change.
Oregon, Florida); and 3) gradual retreat of Despite a leading state-level research
existing development from hazard areas, at program, the State of Washington has opted not
least through restrictions on rebuilding after a

ANTicipAwRy PLANNING FOR SEA-LEvEL RISE ALONG TIHE COAST OF MAM B-15

to develop a new, stand-alone, accelerated other "soft" components of the coastal sys-
sea-level rise response strategy. Instead it is tern-eroding bluffs (e.g., Rhode Island, Wash-
focusing its current efforts on more mainstream ington, Long Island) and coastal wetlands
coastal erosion issues. A study conducted for (California, Long Island, Maryland, Rhode
that State suggests that amendments to existing Island). For example, they require that permit
laws are much more palatable and are more reviews for bluff stabilization projects evaluate
likely to produce the type of "no regrets" (e.g., the importance of the eroding coastal bluffs as
it makes sense even if sea level doesn't rise) part of the beach sediment supply system
strategy which the State is seeking. Similarly, (Oregon, Rhode Island). Several states have
other states have not developed specific new policies, some implemented through regula-
legislation to address sea-level rise projections, tions, to protect wetlands by preserving the
but appear to be working within a framework opportunity for inland migration by discourag-
of amendments to existing laws to make them ing or prohibiting the hardening of the inland
more effective if accelerated sea-level rise perimeter of coastal marshes (Rhode Island,
becomes a reality. Thus prudent planners Maryland).
appear to be basing planning and regulations on
the evidence of what coastal storms and erosion 7. Recognize the Complexity of Plan-
are already expected to do, but build into those .ng Process: Topography, Inten-
regulations an extra precautionary increment sity, and Land Use
for an accelerated rise, or build in a structured
retreat as conditions require it. Despite a comprehensive philosophy toward
the soft coast, another recurrent theme is the
5. Retain State/Regional Oversight of complexity of planning for coastal land loss
Local Decisions due to the fact that it will affect different
coastal features in different ways, at different
Another common issue relates to the rates. In addition, due the response costs,
allocation of responsibilities between state, some strategies will only be feasible in in-
regional, and local authorities. In several tensely developed areas. A meaningful plan
jurisdictions, states and progressive regional must be sufficiently sensitive to take into
authorities have established mandatory account the variations in coastal features and
minimum standards for local governments; the land uses.
local governments are free to establish more For example, special area management
stringent standards if they so choose (e.g., planning has been advocated for the littoral
Pennsylvania bluff erosion). An Oregon study cells of Oregon in planning for sea-level rise.
also suggested this retained state oversight may The Long Island South Shore plan also uses a
be the optimal arrangement for this type of special area management planning approach to
coastal management problem because it allows deal with its varied coast. The State of Rhode
for integrated management of a public resource Island regulates coastal areas not by geographic
and helps insulate the decision-making process region, but by shore type, population density,
from some of the pro-development political and the uses of adjacent waters, effectively
pressures. creating a kind of special area management
planning. These plans typically distinguish
6. Develop an Integrated Strategy: between strategies for undeveloped and
Beaches, Eroding Bluffs, Migrating developed areas, with general recognition that
Wetlands the more costly methods (e.g., hard protective
The most developed state/regional strategies structures and beach nourishment)-both in
are grounded in a comprehensive philosophy terms of financial expenditures and environ-
that applies not only to beaches, but also to the mental degradation-can only be justified, if at
all, in the more heavily developed areas.

B-16 APPENDix B: SELEcTED STATE/REGioNAL Poucy RESPONSES

8. Utilize Coastal Setback Requirements
..........
.................... . ......
.......................:....... ................... ......... ...... ........
___ ................ ..... .. .... ....... ......-..... ''I
................. -___ ............... .... ........ .
... ........... .................
.................
Most surveyed jurisdictions use setback
.......... ........ ........ .
ENDNOTESA00END D
requirements to minimize erosion hazards,
.....................
..................
.......... . .................. .. I-- .......-......
.........................-......... ......
........... ...............I... --_ ...... ................
.............. ........ ...... ......
................... .. ....
. .......................... ........ I--- ....... ............ ......
............ ....... --- .....
............ ... ......... ......I..... ..............
........... I'll ......... ......-.....
including Cape Cod (30 times average histori- .............
cal erosion rate), South Carolina (40 times
average annual erosion rate), and Rhode Island 1. VIhshington Dept. of Ecology Global Climate
(in critical erosion control areas, 30 times Change P@,qgrams, Joint Legislative %rkshop,
annual erosion rate for up to 4 units and 60 House Energy and Utilities Comm. and House Envt'l
times that rate for 4 or more units). These Affairs Comm., Univ. of Washington, Seattle@ WA,
requirements are typically based on an incre- (Nov. 21, 1989) (statement of D.J. Canning, Sea
ment of the historical average annual rates Level Rise Project Manager, Shorelands and Coastal
rather than on projections of accelerated rates Zone Management Program, Washington Dept. of
of sea-level rise, but there is no reason future Ecology, Olympia, WA).
trends could not be used to establish the 2. D.J. Canning, Sea Level Rise in Mshington
setback if justified by particular circumstances. State: Technical Issues and Preliminary Policy
Taking a slightly different approach, San Responses, OCEANS '89: AN INTERNATIONAL
Francisco Bay Conservation and Development CONFERENCE ADDRESSING METHODS FOR UNDER-
Commission requires applicants to design for a STANDING THE GLOBAL OCEAN (Seattle@ WA Sept.
minimum of twice the historic annual rate of 18-21, 1989) at 231-235.
sea-level rise. 3. D.J. Canning, Global Climate Change Assess-
ment in W2shington State, reprint of paper to be
9. Evaluate a Variety of Additional delivered at Coastal Zone '91, Long Beach, CA,
Strategies (July 8-12, 1991) at 6.
4. ASSEMBLY NATURAL RESOURCES COMM.,
Setbacks for new construction are merely STATE OF CALIFORNIA, GLOBAL WARMING: A
one component. Other strategies adopted or BLUEPRINT FOR STATE RESPONSE (April 1989).
being considered include restrictions on 5. MoFFATr & NICHOL, WETLANDS RESEARCH
rebuilding structures or seawalls if damaged by ASSOCIATES, INC., AND SAN FRANCISCO BAY
more than a certain percent of pre-darnage CONSERVATION AND DEVELOPMENT COMMISSION
value (Cape Cod, South Carolina), provisions STAFF, FUTURE SEA LEVEL RISE: PREDICTIONS AND
for recalculation of coastal setback lines in IMPLICATIONS FOR SAN FRANCISCO BAY (San
response to sea-level rise or other changes Francisco Bay Conservation and Development
(Florida), heightened design standards which Commission, Dec. 1987) (Oct. 1988).
take sea-level rise into account (San Francisco), 6. Id.
stricter building codes which require an 7. Id. app. B at 102-103.
additional increment above current floodproo-
fing requirements (Washington, Cape Cod), 8. L.C. EWING, ET AL., DRAFT REPORT: PLAN-
limits on building or expanding public infra- NING FOR AN ACCELERATED SEA LEVEL RISE ALONG
structure in flood hazard areas (Cape Cod), tax THE CALIFORNIA COAST, (California Coastal
incentives for less intense uses along the Commission, June 1989).
shoreline (Delaware), purchase of undeveloped 9. Personal communication with California Coastal
coastal lands (Long Island) and advanced Commn staff, (Jan. 6, 1994).
post-storm redevelopment planning and/or 10. OREGON TASK FORCE ON GLOBAL WARMING,
provisions for temporary post-storm building OREGON DEPARrMENT OF ENERGY, POSSIBLE
moratoria (Long Island, Delaware, Rhode IMPACTS ON OREGON FROM GLOBAL WARMING
Island, South Carolina). (March 1989).
11. Two State laws form the basis of legislation in
the Oregon coastal zone, the Beach Law (OR. REV.
STAT. � 390.605-390.770) and the Removal/Fill

ANTici[PAToRy PLANNING FOR SEA-LEvEL RISE ALONG THE COAST OF MAINE B-17

Law (OR. REV. STAT. � 196.800-196.990). They 29. Id. standard 2.2.2.3.
are administered by the State Parks and Recreation 30. Id. standard 2.2.2.6.
Department (Beach Law) and the Division of State
Lands (Removal/Fill Law). They are supplemented 31. Id. standard 2.2.2.5.
by regulations and coastal planning goals which 32. LONG ISLAND REGIONAL PLANNING BOARD,
form part of the State's well-developed land use PROPOSED LONG ISLAND SOUTH SHORE HAZARD
planning program. MANAGEMENT PROGRAM (Dec. 1989).
12. James Good, Ocean Shore Protection Policy 33. N.Y. Environmental Conservation Law � 34
and Practices in Oregon, in COASTAL NATURAL (Consol. 1993).
HAZARDS: SCIENCE, ENGINEERING, AND PUBLIC
POLICY at 12 (J.W. Good & S.S. Ridlington (eds.), 34. Long Island Regional Planning Board, supra
Oregon Sea Grant, Corvallis, OR) (1992) (cite note 32 at xvii.
omitted). 35. Id. at xviii.
13. Id. at 20. 36. 1d. at xix.
14. Id. at 26. 37. Id. ch. 3.5.
15. Id. at 26. 38. Id. at xix.
16. OREGON COASTAL NATURAL HAZARDS POLICY 39. Id. ch. 3.5.
WORKING GROUP, COASTAL NATURAL HAZARDS:
ISSUES AND OPTIONS REPORT (Oregon State 40. Id. ch. 3.7.
University, Corvallis, OR, Oct. 1, 1993). 41. Id. ch. 3.5.
17. SHEVENELL GALLEN AND ASSOCIATES, INC., 42. Id. at xviii.
TECHNICAL REPORT: RISE IN SEA LEVEL AND
COASTAL ZONE PLANNING (Office of State Plan- 43. Id. ch. 3.6.
ning, State of New Hampshire, Oct. 24, 1987). 44. Id. ch. 3.7.
18. ROCKINGHAM PLANNING COMMISSION, 45. For a more comprehensive description and
PRELIMINARY STUDY OF COASTAL SUBMERGENCE
AND SEA LEVEL RISE IN SELECTED AREAS OF NEw analysis of state responses to erosion hazards, see,
HAMPSHIRE 1 (1991). for example, NATIONAL RESEARCH COUNCIL,
MANAGING COASTAL EROSION 94-119 (National
19. Id. at 30. Acadenry Press, Wash., D.C., 1990); and R.H.
20. Id. at 32. PLATT, ET AL., COASTAL EROSION: HAS RETREAT
SOUNDED? 41-139 (Program on Environment and
2 1. Id. at 3 1. Behavior, Monograph No. 53, Institue of Behav-
22. Cape Cod Commission Regional Policy Plan, ioral Science, University of Colorado, 1992).
(Barnstable, MA effective Sept. 6, 1991). 46. PLATT, ET AL., supra note 45, at 129.
23. Tom Bigford, Planning Ahead for the Coast: 47. STEPHEN OLSEN & GEORGE L. SEAVEY, THE
Climate Change and Coastal Planning, (paper STATE OF RHODE ISLAND, COASTAL RESOURCES
delivered at the South Carolina Sea Grant Consor- MANAGEMENT PROGRAM, � 140 (as amended).
tiunfs Eighth Annual Winter Conference, CLIMATE 48. Developments of four or more dwelling units.
CHANGE: PLANNING AHEAD FOR SOUTH CAROLINA,
(Columbia, SC) (Jan. 16, 1990). 49. THE STATE OF RHODE ISLAND COASTAL
24. Cape Cod Commission, supra note 22, standard RESOURCES MANAGEMENT PROGRAM, As AMENDED
2.2. � 210(A)(2) (Coastal Resources Management
Council, 1990) (addendum Oct. 14, 1993) (emphasis
25. Id. standard 2.2.2. added).
26. Id. standard 2.2.2.2. (empasis added). 50. Id. � 120(B).
27. Id. standard 2.2.2.4. (empasis added). 5 1. Id. � 120. A. 1.
28. Id. standard 2.2.2. 1. 52. Id. � 120.A.2.

B-18 APPENDix B: SELECTED STATE/REGioNAL POLICY RESPONSES

53. Id. � 130. 83. Id. � 290(B)(l)(a)-(b).

54. Id. � 180.3.E. 84. Id. � 290(2)(b)(iv).
55. Id. �� 210.1-210.6. 85. Id. � 290(2)(b)(iv).
56. Id. � 210.1.B.1. 86. DEL. CODE ANN. tit 7, � 6801 (1993) (empha-
57. Id. � 210.2.B.2. sis added).
58. Id. � 210.1. 87. Id. � 6802(3).
59. Id. � 210.3.C. 88. Id. �� 6802(4), 6805(a).
60. Id. � 210.4.C.4. 89. Id. �� 6805(c).
61. Id. � 210A.C.4. 90. Id. �� 6807(b).
62. Id. �� 210.5 and 210.6. 91. Id. �� 6808.
63. Id. � 210.6. A. 92. Klarin & Hershman, citing Delaware Environ-
mental Legacy Program, BEACHES 2000: REPORT TO
64. Id. � 210.6.C.3. THE GovERNoR (Delaware Department of Natural
65. S.C. CODE ANN. � 10 (Law Co-op. 1991 & Resources and Environmental Protection, 1988) at
Supp. 1993) The 1993 amendments to the law 150.
substitute the Coastal Division of the Department of 93. FLA. STAT. ANN. � 161.053 (West 1992).
Health and Environmental Control (� 35) and the 94. Id.
Coastal Zone Management Appellate Panel (� 40)
for the South Carolina Coastal Council. The 95. Id. � 161.053(2).
amendments also made some technical and proce- 96. Id. � 161.053(2).
dural changes (see, e.g. � 280). The 1993 amend-
ments are effective as of July 1, 1994. 97. Id. � 161.101.
66. Id. � 250. 98. PA. CONS. STAT. � 5201 (1993)..
67. Id. � 250(4). 99. Id. � 5203.

68. Id. � 250(l). 100. Id. � 5206.
69. Id. � 250(5). 101. Id. � 5206(c).
70. Id. � 250(6). 102. K. Kasowski, Global Mrming and the Bay:
71. Id. � 260(l). The Rising Chesapeake, CHESAPEAKE CITIZEN
REPORT (July-August 1989).
72. Id. � 260(2). 103. Id.
73. Id. � 260(3).-(8). 104. MD. CODE ANN., Chesapeake Bay Critical
74. Id. � 48-39-280(B). Area Protection Program � 1801 (1993). See also
75. Id. � 280(A)(1). Paul Klarin & Marc Hershman, Response of Coastal
Zone Management Programs to Sea Level Rise in
76. Id. � 280(B). the United States 18 COASTAL MANAGEMENT 143-
77. Id. � 280(C). 165, 1990, at 152.
78. Id. � 280(D). 105. MD. CODE ANN., Shore Erosion Control �
1006, Benefit Charge (1993).
79. Id. � 290.

80. Id. � 280(E).

81. Id. � 290(D)(1).

82. Id. � 290(D)(4).

Appendix C

BACKGROUND INFORMATION ON THE
CASCO BAY/SACo BAY REGION

The Casco Bay/Saco Bay study region generally muddy, and often thick deposit. It
includes the portion of Maine's coastline crops out widely along the Casco Bay shoreline
extending from the City of Saco to the Town of and covers much of the seafloor of the bay as
Brunswick, including Old Orchard Beach and well (Kelley, et al., 1989b).
Saco in York County, and Scarborough, Cape Following deposition of the Presumpscot
Elizabeth, South Portland, Portland, Falmouth, Formation, the land in Maine was uplifted as a
Cumberland, Yarmouth, Freeport and Bruns- result of the removal of the load of glacial ice.
wick in Cumberland County. (See Figure C. 1) The surface of the Presumpscot Formation, the
former seafloor, became deeply gullied in
............... .......... .. .................. ............. .............................
...I.. .......... ................... .......... ........... ................. 1.11 ....
..... .......... .................................... ........ ............................
......... ........ ................-..... places and experienced landslides as it became
.......... ......I...............
............... ..................... -.1 ....... . ................ ..........................
.... ......... ............... ......I.... ........ ...1.
..............
... ... ....
EmN.60F.ST.U.6y.
. ............. .............. ..................... ......... ............ ............... The large rivers which carved
......I. ............... ........... emergent.
......... 1-1 .......I...I..................
........... ... ...
... . .......
.......... ............. I'll ..... I.., ........ ................ ....... ........ ......
......................_.......-......................... ........ .. ....................................... Casco Bay, the Kennebec and Androscoggin,
Casco and Saco Bays, Maine are adjoining were blocked by glacial deposits from entering
estuaries along the western margin of the Gulf Casco Bay as sea level fell, and when the sea
of Maine. Each embayment is framed by a reached its lowstand at -60 m, around 10,500
bedrock skeleton which is partially covered by years ago (Kelley et al., 1992) (Figure C2),
unconsolidated glacigenic deposits of Pleisto- only small streams like the Presumpscot and
cene-Holocene age. Along the shoreline these Royal Rivers entered Casco Bay.
deposits have been reworked by modem As sea level rose during the Holocene, the
processes into intertidal environments such as glacial deposits of the bay were reworked by
mud flats and sand beaches. waves and currents. As a result, most of the
Casco Bay is characterized by linear chains seafloor of the outer bay is bare rock or gravel,
of islands, shoals and peninsulas controlled by and significant accumulations of modem
the orientation of bedrock (Kelley, 1987). The sediment exist only in areas in the lee of
rocks are often directly overlain by till, a islands and peninsulas (Kelley et al., 1987a).
mixture of gravel, sand and mud deposited by As the rate of sea-level rise slowed during the
glacial ice. This material is highly variable in past few thousand years (Figure C2), the
thickness and often occurs in the form of outer, ocean-facing islands were swept clean of
elongate ridges called moraines (Thompson and most glacial deposits by storms, and gravel
Boms, 1985). Till is often overlain by beaches and bedrock form most intertidal
glacial-marine sediment, locally called the environments (Kelley, 1987). In the inner bay,
Presumpscot Formation (Thompson and Borns, protected from direct wave attack by islands,
1985). The Presumpscot Formation was substantial bluffs of glacigenic deposits con-
deposited in early postglacial times, and is a tinue to erode. It is the erosion of this material

C-1

MAINE COASTAL TOWNS

Regional Study Area for Sea-Level Rise Analysis

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ANTicIPATORY PLANNING FOR SEA-LEvEL RISE ALONG TIM COAST OF MAINE C-3

MAINE COAST
LOCAL RELATIVE SEA LEVEL 14,500-0 B.P.
EUSTATIC RISE

ISOSTATIC REBOUND

DEGLACIATION

100-

80-

60- z 0 OBelknap and others, 1987
0
0 x Saco Bay
w y Casco Bay This study
4o- 2
z Cape Small

20- @3 0
E 0
z 0
0 0 MHW
0 Salt marsh data
w
_j z 0
w -20- x x z
z 4--2_-Belknap and others, 1987

z
-40- z

-60-

- Maine Shelf
Seismic - Geomorphic Inference
14 12 10 8 6 2'

103 RADIOCARBON YEARS B.P.
13 sh d@
1z, ar C
It m

0
z z
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2
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Figure C.2. Sea-level change curve for coastal Maine (from Kelley et al., 1992).

C4 AiPPENDix C: BACKGROUND LWORMAnON ON nM CAsco BAY/SAco BAY REGioN

which provides sand and mud to create sea-level rise is much greater than has occurred
contemporary tidal flats and salt marshes. in several thousand years, and some contempo-
Owing to the abundant occurrences of the rary erosion and land loss has been attributed
muddy Presumpscot Formation in Casco Bay, to the recent increase in sea level (Wood et al.,
there are few natural beaches in the embay- 1989; Jacobson, 1988).
ment. Those beaches that do exist are "pocket
beaches" protected by rock outcrops at either
. . ........ ................
.............
.............. . .......
end (Kelley et al., 1986; Kelley, 1987).

..........
..... ...... ..........
Saco Bay is arcuate in shape and located ...... ... ........-..... .1-11, ............
directly south of Casco Bay. Despite its 1. Population
proximity, its geological history is different While the exact number of residents that
from Casco Bay and this difference is manifest stand to be affected by accelerated sea-level
in most aspects of the bay's appearance (Kelley rise along the Casco and Saco Bay shorelines
et al., 1986). Although there are till deposits was not calculated, based on knowledge of
on the seafloor of Saco Bay (Kelley et al., existing shoreline development patterns, it is
1987b), none crop out on land. Similarly, the reasonable to estimate that of the total 1990
Presumpscot Formation is a common deposit regional population of 180,172, roughly 3,600
on the bay bottom, but few exposures may be to 9,000 people currently live in the immediate
seen on land (Kelley et al., 1989c). Saco Bay vicinity of the shore (2-5 % of the total popula-
experienced a similar history to Casco Bay tion). Assuming the same proportion of
until the time of lowering of the sea, around waterfront dwellers as compared to the total
10,500 years ago (Kelley et al., 1986). At that population for the region, and using population
time the Saco River contributed great quantities projections for the Year 2015 (the latest year
of sand from as far away as the White for which county population projections are
Mountains of New Hampshire to the bay available) between 4,300 and 10,800 people
(Kelley et al., 1992). Sand covered the muddy may live in the immediate vicinity of the
Presumpscot Formation and beaches became region's waterfront in the Year 2015.
common environments. As sea level rose
during the Holocene, sand from the river
maintained beaches in the bay up to the present 2. Land Use and Property Values
time, although it is unclear whether sand Land use is varied along the region's
continues to be brought down the river. Where shoreline. Old Orchard Beach contains
beaches front embayments, extensive salt Maine's only area of beachfront high-rise
marshes have colonized most of the intertidal, condominiums. The shoreline of Saco,
back- barrier environments (Kelley et al., Scarborough and Freeport includes a mix of
1986, 1989c). cottage development and more substantial
The effects of coastal erosion on developed homes on larger lots. The wealthier suburbs of
and undeveloped property are not as conspicu- Falmouth, Yarmouth, Cumberland, are
ous in Maine as they are south of New characterized by estate development along the
England. This may be because the rate of shoreline, with small enclaves of cottage
sea-level rise in the region is only 2.3 mm/yr, development. Industrial, commercial and
slightly more than half the rate for some institutional development predominates along
mid-Atlantic states. A recent study suggests the waterfronts of Portland and South Portland.
that sea level may have reached near its present No figures were compiled for total value of
elevation in Maine around 1000 years ago, properties in the region that may potentially be
however, and that many of the beaches and influenced by rising sea level. However exam-
marshes developed during that pause of the sea ples of ranges of coastal property values are
(Kelley et al., in press). The current rate of

ANTiciiPAToRy PLANNING FOR SEA-LEvEL RISE ALONG THE COAST OF MAM C-5

given for specific mapped study area sites in power-generating facility on Cousin's Island in
Chapter Three. Yarmouth. According to plant manager David
Potter, the distance from high tide to upland is
3. Anticipated Land Use Change about 4 ft., but during abnormal high tides, the
plant has experienced some flooding. No
Discussions with town officials and analysis floodproofing of the facility has taken place.
of current development patterns throughout the
region indicate that shoreline areas within 100 Also of concern due to the possible types of
meters of current mean high water are already materials stored there, are sites scattered
(for the most part), built out, with little usable, through out the study region (most on Casco
vacant, appropriately zoned land available for Bay's islands) that were formerly used by the
new development. During the last five years, U.S. Defense Department. Further research
building permits in the shoreland areas have would be needed to assess individual site
consisted mostly of seasonal conversions, infill vulnerability, and the presence of hazardous
development in grandfathered subdivisions or materials.
on grandfathered lots, renovation or improve-
ment of single family residences, and only very 5. Cultural and Recreational Features
limited new single family development. The shoreline parks and natural areas in the
However, the depressed real estate market study region attract thousands of visitors each
during the last five years probably understates year. They include wide sandy beaches such at
the potential for future demand. If develop- those at Ferry Beach State Park, Old Orchard,
ment pressures reach 1980s levels, the most and Pine Point, nature trails around salt
likely opportunities for growth in the shoreland marshes such as Scarborough Marsh and
area will be the subdivision/redevelopment of Gilsland Farm, rocky promenades such as Two
larger estates, consolidation/ redevelopment of Lights State Park in Cape Elizabeth, forested
marginal seasonal homes and marginal com- paths like those at Wolf Neck Woods State
mercial structures, and redevelopment of Park in Freeport, and urban amenities such as
seasonal cottages to multi-unit residential the fitness trail around Back Cove in Portland.
structures.
The shoreline of Casco and Saco Bays is
4. Infrastructure rich in history. There are more than 60 sites
of known or suspected archeological resources
Each of the municipalities in the region is along the shores, many of which are located on
served, to varying extent, by public water and Casco Bay's islands. There are seven historic
sewer, and by an improved road network. sites and two historic districts within 100
There are numerous sewage treatment and meters of the sea that may be potentially
stormwater outfalls along the regioWs shore- affected by rising sea level.
line.

Information provided by Maine's Depart- 6. Habitat/Critical Areas
ment of Environmental Protection did not Maine's coastal waters support an ex-
indicate the presence of any landfills within 100 tremely diverse array of marine life. High
meters of the shoreline. However, past value wetlands, and marine habitats of national
practice in many communities was to use significance are scattered throughout the
estuarine shorelines as dump sites. Interviews region. According to the U.S. Fish and
with local officials may reveal that there are, in Wildlife Service (Maine State Planning Office,
fact, historic dumps located within this area of 1992), some locations contain the highest
concern. diversity of marine life in all the coastal waters
The only large utility of concern within the of the United States.
study area is Central Maine Power's Wyman

C-6 APPENDix C: BACKGROUND INFORMATION ON THE CAsco BAY/SACo BAY REGION

There are at least 20 registered, state ..........
........................... ........... 1''..''.., ....-...........
................ .. ....... .... ....
-................ ...................... .........
....................... ......I... I'll, ......
1-1 ............. ....... ........ .......
.... .................. ...... ... .....
critical areas within 100 meters of the shore- Ap C ......
.:::REFERENCES...:.: MP-MIM
..........
.................. .................. ........
...........................-.................- ...... .......
-......................... ............................. .. ..... ............ ........
................................... ........................ - --- ........
........ .... .._............. .........
.......... I.., .. ................
line. "Critical areas" are sites containing .. ............. . .... ......
habitat for rare plants and animals, unusual
geologic formations, or other important natural Cohen, J. Freeport Town Planner. Personal
features. communication.

Fossum, D. Assistant Town Planner, Old Orchard
7. FIsheries Beach. Personal communication.
A significant commercial fishery, both Greater Portland Council of Governments. 1994.
finfish and shellfish (landed value of $154 "Population Projections for Cumberland
million in 1991) exists in the Gulf of Maine County. "
(MSPO, 1992). Softshell clams continue to be Jacobson, H.A. 1988. "Historical development of
a 'valuable component of Maine's annual fish the salt marsh at Wells, Maine. " Earth Surface
landings, and within the study area, Brunswick, Process and Landforms 13:475-486.
Freeport, and Scarborough support sizable Kelley, J.T., A.R. Kelley, D.F. Belknap, and R.C.
shellfish populations. Clusters of shellfish Shipp. 1986. "Variability in the evolution of
aquaculture leases are located in Freeport and two adjacent bedrock-framed estuaries in
further south in the study area. Maine." In Wolfe, D., Estuarine Variability
No analysis has yet been completed which 21-42. Orlando, FL: Academic Press.
focuses on projected changes in estuarine Kelley. 1987. "An inventory of coastal environ-
conditions in the Gulf of Maine due to climate ments and classification of Maine's glaciated
change. However, an analysis of the Gulf of coastline," In Ed. FitzGerald, D.M., and P.S.
Mexico found that those Gulf coast fisheries Rosen. Glaciated Coasts 151-176. Orlando,
could be negatively affected by the loss of FL: Academic Press.
critical wetland habitat associated with sea-level Kelley, J.T., D.F. Belknap, and R.C. Shipp.
rise. That study concluded that warmer water 1987a. "Geomorphology and sedimentary
temperatures will be at or above tolerances for framework of the inner continental shelf of
many important commercial species of finfish southcentral Maine. " Technical Report to the
and shellfish and other fish could be threatened Minerals Management Service, Maine Geologi-
by increased salinity. The Gulf of Mexico cal Survey Open File Report 87-19; 75 pp.
study predicted that sea-level rise between 50 Kelley, J.T., R.C. Shipp, and D.B. Belknap.
and 200 cm would reduce available food supply 1987b. "Geomorphology and sedimentary
for marine species by 42-78 %, resulting in a framework of the inner continentFd shelf of
disproportionate loss in seafood population. A southwestern Maine." Technical Report to the
sea-level rise of 1 meter was associated with a Minerals Management Service, Maine Geologi-
major loss of fisheries. (Livingston, as cal Survey Open File Report 87-5; 86 pp.
reported in Smith & Tirpak, 1989) Kelley, J.T., D.F. Belknap, and R.C. Shipp.
It is beyond the scope of this study to 1989a. "Sedimentary framework of the
attempt to quantify potential impacts to Gulf of southern Maine inner continental shelf: influ-
Maine fisheries associated with global climate ence of glaciation and sea-level change."
change. However, it is important to note that Marine Geology 90:139-147.
some experts project that an already threatened, Kelley, J.T., R.C. Shipp, and D.B. Belknap.
multi-million dollar industry may be further 1989b. "Geomorphology and late quaternary
affected by changes in fisheries habitat caused evolution of the Saco Bay region, Maine coast. "
by sea-level rise and global warming. In Studies in Maine Geology, Vol. 5, 47-66,
R.D. Tucker and R.G. Marvinney, (eds.).
Augusta, ME: Maine Geological Survey.

ANTiciupAmRy PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE C-7

Kelley, J.T., S.M. Dickson, D.F. Belknap, and R. Committee of the Land and Water Resources
Stuckenrath. 1992. "Sea-level change and the Council, Augusta, ME.
introduction of late Quaternary sediment to the Morelli, P. and R. Roedner, Saco Town Planners.
southern Maine inner continental shelf. " Personal communication.
Wehmiller, J. and C. Fletcher C., (eds.).
Quaternary Coasts of the United States, Soc. Naylor, A., former Brunswick Town Planner.
Econ. Paleo. and Mineralogists, Spec. Pap. 48, Personal communication.
pp. 23-34. Nugent, M., Codes Officer, Old Orchard Beach.
Kelley, J.T., R.W. Gehrels, and D.F. Belknap. Personal communication.
1994, "Late Holocene relative sea-level rise Potter, D., Plant Manager, Central Maine Power,
and the geological development of tidal marshes Wyman facility. Personal communication.
at Wells, ME, U.S.A." Joumal of Coastal
Research (in press). Smith, J.B. and D.A. Tirpak, eds. 1990. "Poten-
Maine Department of Human Services, Office of tial effects of global climate change on the
Data, Research and Vital Statistics. 1994. United States. " Vol. 1, pp. 6-3, 6-7. NY
"POPULATION PROJECTIONS OFMAINE COUNTIES Hemisphere Publishing Corporation.
AND MINOR CIVIL DIVISIONS. " Southern Maine Regional Planning Commission.
Maine Department of Inland Fisheries and Wildlife. 1993. "Population and growth statistics for
1988. "The identification and management of York County. "
significant fish and wildlife resources in Thompson, W., and H. Borns,. 1985. "Surficial
southern coastal Maine." Augusta, ME. geologic map of Maine." Augusta, ME: Maine
Maine State Planning Office, Economics Division. Geological Survey, 1:500,000.
1994. "Population statistics for minor civil Wood, M., J.T. Kelley and D.F. Belknap. 1989.
divisions and counties. " "Patterns of sediment accumulation in the tidal
Maine State Planning Office, Maine Coastal marshes of Maine." Estuaries 12:237-246.
Program. 1992. "Policy options for Maine's
marine waters. " A Report of the Marine Policy

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