Time for the talk: Expert says discuss sea level now, or lose land later

Date Published: 
May 30, 2014

Coastal Point • Laura Walter: Kenneth Kristl discusses sea level rise at a workshop held at the Inland Bays Foundation in Bethany Beach.Coastal Point • Laura Walter: Kenneth Kristl discusses sea level rise at a workshop held at the Inland Bays Foundation in Bethany Beach.Delaware’s sea and the land it surrounds could change shape by the year 2100, which means now it the time to discuss legal ramifications. Law professor Kenneth Kristl led a workshop last week as part of an effort to start public conversation on how Delaware could develop a comprehensive sea-level rise strategy. The Inland Bays Foundation hosted him May 15 in Bethany Beach.

“The citizens of Delaware have to start thinking: Where do we want to put our effort? How do we want to spend our money?” Kristl said. “This is enormously complex and, yet, it has practical consequences for anybody that’s living along the coast.”

Kristl and students authored the report “Assessing the Legal Toolbox for Sea Level Rise Adaptation in Delaware: Options and Challenges for Regulators, Policymakers, Property Owners and the Public.”

“It is a roadmap for how to confront some of the obstacles that exist in … sea-level rise adaptation.”

The book doesn’t recommend “Tool A” instead of Tool B,” but lays out the facts of existing policies and challenges. Kristl received a grant to write the 188-page report, begin public outreach and start the public conversation.

First, Kristl emphasized, sea-level rise is happening even if people don’t believe in overall climate change.

Up to 11 percent of Delaware’s land mass could be underwater by the year 2100 due to sea-level rise, and 81 to 99 percent of all coastal wetlands could be inundated, according to the Delaware Sea Level Rise Advisory Committee. (The SLRAC also studied how many businesses, sewage plants, fire stations, evacuation routes, freshwater reserves, farmland acres and more would be affected.)

“That’s a significant impact, because that stuff’s going to be underwater,” Kristl said. “That’s just on a clear, calm day. Storm surge would be on top of that. Storm surge is high water, and water goes farther [inland].”

A storm could pile several more feet on top of that, as happened with South Bethany’s storm surge during Hurricane Sandy, which wrought water damage on about 800 homes.

Kristl discussed the legal side of what could happen and the political side of who is responsible.

Plenty of coastal land is privately owned. But as land shifts under a body of water, the State will claim ownership.

“You might own lands that become submerged. But what are you going to do with it?” Kristl asked. “With the sea always rising, the owners of coastal property have to confront a reality: ‘I’m not going to be able to use the land that was once dry and is now inundated,’” he said, “‘and depending on what my deed says, I may not even own it anymore.’”

Delaware has four options to respond to the threat: do nothing, protect the shoreline, accommodate the rising water or retreat.

“I’m not here to tell you what… but we’ve got to do one of these, or a combination of them,” Kristl said.

People even have to figure out who makes that decision, whether it should be left to individuals or led by the government (county, state or local). Governmental bodies have various powers that could soften the legal blow of losing privately owned land to the rising sea.

Kristl’s report weighed the eight options of zoning, land acquisition/buyback, building restrictions and prohibitions, setbacks and buffers, conservation easements on vulnerable property, rolling easements on ever-changing properties, real estate disclosures and transferable development credits — which trade the right to develop on sensitive land with rights to less vulnerable areas.

Each option has pros and cons. And, in all of the choices, government must balance public demands, private interests and costs.

For instance, coastal residents need a road to access their homes. But what about the road that washes away in every storm?

Kristl recalled hearing a DelDOT employee say, “There’s a point at which it just doesn’t make sense to [rebuild] anymore. … All the money we put in to maintenance gets washed away with the next storm.”

DelDOT could also cease maintenance and “return” the road to the county or municipality, but that, too, has political consequences.

Audience members at the May 15 presentation discussed issues involving small islands sinking in the inland bays, homeowners associations and more.

“The people of Delaware have to figure out ‘This is what we want to do.’ It has to be, ‘We’ve adapted. We’re ready for when the seas rise,’” Kristl asserted.

“[With] more discussion, people can feel their voice is heard and hear what the other side saying,” he added. “‘This sounds like a reasonable compromise.’”

That will create a united front in moving forward, he said. Discussions will need to happen long before a unified plan is developed in future years.

“If we just let the sea impose its will on us, we may regret not taking the opportunity to have that discussion,” Kristl warned.

Encouraging people to even act is a big step, he noted. It’s hard to see something that will flow slowly over 100 years, so they’re less likely to feel urgent action is needed. Plus “inertia is a powerful force,” so usually something must shock people into action. That something might be another hurricane or lawsuit.

Courts may also set the path, Kristl said. He noted that he had read about insurers suing the City of Chicago and surrounding towns, alleging the governmental bodies had failed to increase the capacity of stormwater management, despite evidence of increased rainfall, causing huge sewage backups.

Through litigation to clean up Delaware bays, said ILB Board President Ron Wuslich, 11 agricultural standards have been written, 10 of which make compliance voluntary. Rules written to prepare or improve things may require litigation but may still take a long time.

Some people may be willing to pay for the extra risk, and that’s another variable. For decades, many people had a discounted insurance rate through the federally subsidized National Flood Insurance Plan. But claims piled up with the storms, and the NFIP has gone into the red by billions of dollars.

The Biggert-Waters Act of 2012 was designed to ensure property owners pay their fair share, to make the insurance agency more solvent. But some property owners were horrified to see their payments increase tenfold. As a result, Congress recently repealed parts of that act, to ease the payment pain. But the deficit remains.

“That’s a very concrete example of the choices we’ll have to make,” Kristl said. “Who should bear the risk? Who should pay the cost?”

Kristl’s full report will be posted for free online in June, at www.widenerELC.org.

The Inland Bays Foundation is a private non-profit advocating restoration of the Inland Bays watershed by conducting public education, tracking restoration efforts, encouraging scientific inquiry and sponsoring research, to establish a long-term process for the protection and enhancement of the Inland Bays.

“We want bays full of crabs and full of fish,” said Wuslich. “We want to wade along the shore and see our feet, and we don’t want to get sick after swimming or waterskiing.