[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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      :7


















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



     HT393
      .M3A57
     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:
                   ï¿½   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.
                   ï¿½   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.
                   ï¿½   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.
                   ï¿½   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.
                   ï¿½   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:
                   ï¿½   the relative costs and benefits of selected preliminary response strategies for
                       one specific case study area (Chapter Four);
                   ï¿½   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);
                   ï¿½   the legal considerations for Maine's policy response including potential legal
                       challenges to regulatory tools (Chapter Six); and
                   ï¿½   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:
                    ï¿½   a prohibition on new or expanded seawalls;
                    ï¿½   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;
                    ï¿½   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;
                    ï¿½   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
                    ï¿½   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:
                    ï¿½   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;

                    ï¿½   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.
                    ï¿½   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;
                    ï¿½   continue to participate in appropriate emission reduction strategies in an
                        attempt to mitigate likely impacts;
                    ï¿½   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:
                   ï¿½   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.
                   ï¿½   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:
                   ï¿½  comprehensive studies/plans to reduce greenhouse gas emissions and per capita
                      nonrenewable energy consumption;
                   ï¿½  utility regulation strategies (e.g., choices regarding fuels, conservation
                      initiatives, preference to conservation, and demand-side management measures);
                   ï¿½  building codes (e.g., requiring buyers to make conservation investments when
                      they purchase a house);
                   ï¿½  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
                   ï¿½  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


                                                                                                          4

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









                                                                                        N

                             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.













                                IT


                                                                                                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
















                                  4@


                         t





                                   ;n


                                                                  hill
                                           r





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








                                .0h



                     111111 mill-















                                                                                                                   4R






                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).






















                                                                                                                                                                                                                           0


                     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

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






















                                                                                                                                                                                                                           4








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




                                          '%'I   J


                                  % %
                                    ......                                                                                      Spartina
                                                                                                                    shrubs
                                             % % % % % %
                                                                                                                                     n
                                        %  %  % % % % % %
                                                                                  cl  nic:
                                         . . . . . . . . . . .

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


                                             % % % % % % %


                                                                         % %

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

                                                                                                                                                                        tv









                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


                                                                          TI




                                                                                                                      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








                                                                                                                                                                                                                                                                                                                                                                                                  tV




                                                                                                                                                                                                                                                                                                               17                         4-








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








                                                                                                                                                                                                                                                            t



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






                                                                                                                                                                                                                                                                                                                                                                                   XGw W




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                                                                                                                                                                                                   - A
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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  -J@t





                                                              Figure 2.24. Photograph of the Old Orchard Beach area. Ground plot from near the study area.





















                                                                                                                                  3
                                      Dune Grass                            Old Orchard,) Maine
                                                                                        Traverse 1                                2
                                                                                          4-13-92

            to
                                                                                                                                     C07










                                                                                                                                 _MI4w






                                                                               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.













                P"   On                                                                                2.0
                     no.

                   W                  Scarborough Upland,
                                           Blue Point                                4
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                CD
                   00



                                           Marsh
                                                                                                T1
                CD


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                                                                                                      Pine Point
                12:                                                  #01
                     0
                     tz                                                                      Scarborough, M
                   CD

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                     z
                     0      1.0
                     CD    Future                                                                   Saltmarsh
                           Inlet                                                                    0.5 m
                                                                                                             100 Year
                   0
                    1                                                                               1.0 m
                   CD                                                                                        Shoreline Posi
                   =                                                                                2.0 m

                   CD
                CD

                                                                                                         Krn         0.5
                     CD


                   CD




                     CD








                     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,;









                                                                                 91













                                                                                                                 A







                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:
                    ï¿½  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.
                    ï¿½  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.

                    ï¿½  There is already significant development in threatened areas.          Population
                       projections and economic forecasts suggest that pressure for coastal
                       development will continue.
                    ï¿½  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.

                    ï¿½  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,
                    ï¿½  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.
                    ï¿½  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


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                Barth, M. C., and Titus, J. G., eds. 1984. Greenhouse effect and sea-level rise: a challenge for this
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                Belknap, D.F., Shipp, R.C., Stuckenrath, R., Kelley, J.T., and Borns, H.W. 1989. Holocene
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                Bruun, P. 1962. "Sea-level rise as a cause of shore erosion." Journal of Bhterways Harbors
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                Colgan, C. 1990. The economic value of Casco Bay. Augusta, ME: Maine Coastal Program.
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                 ANTICIPATORY PLANNING FOR SEA-LEVEL RISE ALONG THE COAST OF MAINE                             247



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                 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







                                      9








                                                                                   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.


                      Z























                                                                                                    . . .........
















              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













                                                                                                                                                        00










                                                                                               Am














                                                                                            bus 0













                                                                                                                                                        >

                                                                                               all





                                                                                                                        Allatific Ocean

                                                                                                    b k Igo






                                                                                               to            A






                                                                                                  WN



                                                                                    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




















                                                                                                                                                              0

                                          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:
                    ï¿½   Economic efficiency: Will the initiative yield benefits substantially greater than if
                        the resources were applied elsewhere?
                    ï¿½   Performance under uncertainty: Is the strategy reasonable for the entire range of
                        possible changes in temperatures, precipitation, and sea level?
                    ï¿½   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?

                    ï¿½   Low cost: Does the strategy require minimal resources?
                    ï¿½   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?
                    ï¿½   Institutional feasibility:   Is the strategy acceptable to the public? Can it be
                        implemented with existing institutions under existing laws?
                    ï¿½   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



                     ï¿½   Health and safety:      Would the proposed strategy decrease (or at least avoid
                         increasing) the risk of disease or injury?
                     ï¿½   Consistency: Does the policy support other national, state, community or private
                         goals?
                     ï¿½   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           [email protected]

                                       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:
                     ï¿½    Government agency decisions will not support new infrastructure or related
                          facilities in hazardous areas;
                     ï¿½    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.

                     ï¿½    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:
                    ï¿½   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;
                    ï¿½   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:
                      ï¿½    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.

                      ï¿½    Harm to habitats; fisheries. The activity will not unreasonably harm any
                           significant wildlife habitat, ... aquatic habitat, ... estuarine or marine fisheries
                           or other aquatic life....
                      ï¿½    Interfere with natural water flow.         The activity will not unreasonably
                           interfere with the natural flow of any surface or subsurface waters.
                      ï¿½    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 ï¿½ï¿½ 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 ï¿½ï¿½ 4311-4344.

                 6. Mandatory Zoning and Subdivision Control Act, 38 MRSA ï¿½ï¿½ 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 ï¿½ï¿½ 480-A-U.

                9. Coastal Sand Dune Rules, Code Me. R., Ch. 355, ï¿½3, 06 096 355-007.

                10. Id.


                11. Id.


                12. Id. ï¿½3, Preamble.

                13. Development in certain back dunes was exempted from the permit requirements in 1993 (38
                M.R.S.A. ï¿½ 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 ï¿½ 16 on that
                date. Maine Legislative Service, 116th Legislature, Ch. 522 (March 14, 1994).

                14. Id. ï¿½ 480-B(l).

                15. Id. ï¿½ 480-D (7).

                16. Coastal Sand Dune Rules, supra note 9, ï¿½3(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. ï¿½ 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. ï¿½3 (B)(1).

                24. Sand Dune Rules, supra note 9, ï¿½3(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 ï¿½ï¿½ 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, ï¿½3(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, ï¿½3(A)(2).

                  41. See Coastal Sand Dune Rules, supra note 9, ï¿½3(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 ï¿½ 480-A -U.

                 46. 38 MRSA ï¿½ 480-B(2).

                 47. Id. ï¿½ 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., ï¿½ [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. ï¿½ [06 096 344, Page 203041].

                 50. Mandatory Zoning and Subdivision Control Act, 38 MRSA ï¿½ï¿½ 435-449.

                 51. 38 MRSA ï¿½ 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 ï¿½ 480-A -U.

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

                 58. 38 MRSA ï¿½ï¿½ 435-449.

                 59. 38 MRSA ï¿½ï¿½ 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 ï¿½ 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 ï¿½ï¿½ 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. ï¿½ 1451 et seq.

                 70. Id. ï¿½ 1452.

                 71.  16 U.S.C.A. ï¿½ 1451 (1).

                 72.  16 U.S.C.A. ï¿½ 1452 (2)(B).

                 73.  33 U.S.C. ï¿½ 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. ï¿½ 3509.

                 76. 16 U.S.C. ï¿½ 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 ï¿½ 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. ï¿½ï¿½ 4001-4128; Federal Emergency Management Agency Regulations, 44 C.F.R. ï¿½ï¿½
              59.1 - 77.2 (1992).

              80. 44 C.F.R. ï¿½ 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. ï¿½ 61.8(b)(1)(i) and ï¿½ 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, ï¿½5, 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. ï¿½ 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. ï¿½ 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 ï¿½ï¿½ 21-129; 1991 Act ï¿½ï¿½ 201-209.

                99. 1992 Act ï¿½ 131; 1991 Act ï¿½ 301.

                100. 1992 Act ï¿½ï¿½ 141-148; 1991 Act ï¿½ï¿½ 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


                     ï¿½ 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;
                     ï¿½ 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;
                     ï¿½ prohibitions on rebuilding of existing structures based upon projections of the
                       future location of the tide line;
                     ï¿½ building and engineering codes and design standards requiring new structures
                       to be built at elevations above a future sea level; and
                     ï¿½ 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:
                     ï¿½ public purchase of full or partial property rights such as flowage easements on
                       land likely to be affected by rising sea level;
                     ï¿½ incentives or subsidies for private owners to relocate development away from
                       the shoreline;
                     ï¿½ tax incentives to preserve undeveloped areas needed for wetland migration;
                     ï¿½ development disincentives and exactions to pay public costs of erosion control;
                       and

                     ï¿½ 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:
                   ï¿½   an increase in the minimum setback (currently 75 feet) from the upland edge
                       of a coastal wetland based upon projected changes in shoreline;
                   ï¿½   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
                   ï¿½   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:
                    ï¿½ the significant possibility of global warming,
                    ï¿½ the magnitude of the negative impacts if global warming theories are correct, and
                    ï¿½ 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 -   .. :
                                                                                                               .................... ....... .. ........
                                                                                                                 ... ................ ......... .
                                                                                                                                 4ï¿½
                                                                                                          ...........
                        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;                                               ï¿½480-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



                   ï¿½    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
                   ï¿½    draining or dewatering;                                     action. "'     They may extend into coastal
                                                                                    wetlands.
                   ï¿½    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
                   ï¿½    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. ï¿½6a-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
                   ï¿½    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
                   ï¿½    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
                   ï¿½    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



                           ï¿½     protection or enhancement of fish and                                                    4. Analysis of extent to which acceler-
                                 wildlife resources and habitats;                                                             ated sea-level rise might affect the
                           ï¿½     recreational uses not involving an irretriev-                                                application of the law
                                 able commitment of natural resources;                                                        Since the law prohibits erosion stabilization
                           ï¿½     scientific research;                                                                     projects except for nonstructural shoreline
                                                                                                                          stabilization projects that are designed to
                           ï¿½     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
                           ï¿½     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 ï¿½ 480-C.
                           office and at the registry of deeds for each
                           county.                                                                                        2. 38 MRSA ï¿½ 480-B (2).

                                                                                                                          3. 38 MRSA ï¿½ 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 ï¿½ 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 ï¿½ 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 ï¿½ 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, ï¿½ 23 repealing 38 MRSA
                   their storm barrier function.        This publication            ï¿½ 484, sub-ï¿½8..
                   recommends that communities gather more informa-                 18. 30-A MRSA ï¿½ 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 ï¿½
                   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, ï¿½ 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. ï¿½ 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. ï¿½ 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. ï¿½ 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 ï¿½ 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, ï¿½ 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.                                                                  ï¿½ 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. ï¿½ 120(B).
                     27.  Id. standard 2.2.2.4. (empasis added).                           5 1. Id. ï¿½ 120. A. 1.
                     28.  Id. standard 2.2.2. 1.                                           52. Id. ï¿½ 120.A.2.









                  B-18                                    APPENDix B: SELECTED STATE/REGioNAL POLICY RESPONSES



                  53. Id. ï¿½ 130.                                                83. Id. ï¿½ 290(B)(l)(a)-(b).

                  54. Id. ï¿½ 180.3.E.                                            84. Id. ï¿½ 290(2)(b)(iv).
                  55. Id. ï¿½ï¿½ 210.1-210.6.                                       85. Id. ï¿½ 290(2)(b)(iv).
                  56. Id. ï¿½ 210.1.B.1.                                          86. DEL. CODE ANN. tit 7, ï¿½ 6801 (1993) (empha-
                  57. Id. ï¿½ 210.2.B.2.                                          sis added).
                  58. Id. ï¿½ 210.1.                                              87. Id. ï¿½ 6802(3).
                  59. Id. ï¿½ 210.3.C.                                            88. Id. ï¿½ï¿½ 6802(4), 6805(a).
                  60. Id. ï¿½ 210.4.C.4.                                          89. Id. ï¿½ï¿½ 6805(c).
                  61. Id. ï¿½ 210A.C.4.                                           90. Id. ï¿½ï¿½ 6807(b).
                  62. Id. ï¿½ï¿½ 210.5 and 210.6.                                   91. Id. ï¿½ï¿½ 6808.
                  63. Id. ï¿½ 210.6. A.                                           92. Klarin & Hershman, citing Delaware Environ-
                                                                                mental Legacy Program, BEACHES 2000: REPORT TO
                  64. Id. ï¿½ 210.6.C.3.                                          THE GovERNoR (Delaware Department of Natural
                  65. S.C. CODE ANN. ï¿½ 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. ï¿½ 161.053 (West 1992).
                  Health and Environmental Control (ï¿½ 35) and the               94. Id.
                  Coastal Zone Management Appellate Panel (ï¿½ 40)
                  for the South Carolina Coastal Council.          The          95. Id. ï¿½ 161.053(2).
                  amendments also made some technical and proce-                96. Id. ï¿½ 161.053(2).
                  dural changes (see, e.g. ï¿½ 280). The 1993 amend-
                  ments are effective as of July 1, 1994.                       97. Id. ï¿½ 161.101.
                  66. Id. ï¿½ 250.                                                98. PA. CONS. STAT. ï¿½ 5201 (1993)..
                  67. Id. ï¿½ 250(4).                                             99. Id. ï¿½ 5203.

                  68. Id. ï¿½ 250(l).                                             100. Id. ï¿½ 5206.
                  69. Id. ï¿½ 250(5).                                             101. Id. ï¿½ 5206(c).
                  70. Id. ï¿½ 250(6).                                             102. K. Kasowski, Global Mrming and the Bay:
                  71. Id. ï¿½ 260(l).                                             The Rising Chesapeake, CHESAPEAKE CITIZEN
                                                                                REPORT (July-August 1989).
                  72. Id. ï¿½ 260(2).                                             103. Id.
                  73. Id. ï¿½ 260(3).-(8).                                        104. MD. CODE ANN., Chesapeake Bay Critical
                  74. Id. ï¿½ 48-39-280(B).                                       Area Protection Program ï¿½ 1801 (1993). See also
                  75. Id. ï¿½ 280(A)(1).                                          Paul Klarin & Marc Hershman, Response of Coastal
                                                                                Zone Management Programs to Sea Level Rise in
                  76. Id. ï¿½ 280(B).                                             the United States 18 COASTAL MANAGEMENT 143-
                  77. Id. ï¿½ 280(C).                                             165, 1990, at 152.
                  78. Id. ï¿½ 280(D).                                             105. MD. CODE ANN., Shore Erosion Control ï¿½
                                                                                1006, Benefit Charge (1993).
                  79. Id. ï¿½ 290.

                  80. Id. ï¿½ 280(E).

                  81. Id. ï¿½ 290(D)(1).

                  82. Id. ï¿½ 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

                                                                                                                                                W.-
                   (JQ
                    0                                                                                                                           V.,




                                                                                                                                                 awk-,
                                                                                                                                                  H A         0   c x                    1.0 so

                                                                                                                                                                 1.1-0,



                                                                                                                                                   P-b-


                                                                                                                                  @44a
                    cp                                                                                                             ch,

                                                                                       ca,


                                                                                         c
                                                                                                                                                                                     Ia.
                                                                                                                              rl-

                    CD

                                                                                                                                                                             Ftemhboio

                                                                                                                                                               p


                                                                                                                                     T
                                                                                                                                     Th.
                                                                                                                                     ..-,,-
                                                                           5A    IJ   oc
                                                                                                                                  Md. Up Up
                                                                                                                 0.



















                                  W.H.


                             I:k.k      09unquIt


                                                                                                                  0         10          20          30         40


                                                                                                                                                          miles










              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

                                                                                        x

                      -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
                                                           //4-2-Belknap and otzhers'
                                                                                      2
                                                                              z


















              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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