Existing Structures, Sea Level Rise, and the Mystical World of California Coastal Law

Existing Structures, Sea Level Rise, and the Mystical World of California Coastal Law “A Very Brief History” (Short Working Paper Series – First Article in a Four Part Series)

For over 500 years, the California coast has inspired and drawn people around the world to visit, or even relocate here. There is very little doubt that California has some of the most spectacular coastal landscapes, and picturesque and charming communities in the world. This coastal zone is rich in natural resources and historical settlements, towns, and cities; coexisting for decades; and in some cases, for centuries. These are the marvels to preserve for the benefit of ALL to enjoy now and into the future.  

However, over the past 45 years, and more so in the last ten years, our beautiful and astonishing coastline has experienced a loss unseen in the past several centuries. In 1972, then again in 1976, by and through the same drafter of the Coastal Act, in an effort to manage growth, “existing structures” on and along the coastline were given a simple, expectant, and extraordinary right to protection from deterioration and devastation from whatever source, including the movement inland of the Pacific Ocean. This right to protect one’s home (i.e., dwelling, abode, house, domicile, existing family structure, etc.) is also embedded deeply in the California Constitution. Yet today, these defenses and safe guards, in particular as to residences, are vanishing along with the sands on the beach. But, why? How? What happened and continues to happen?  

The answers to these questions are lengthy and complex and will be addressed in a series of articles. This first article in the series serves to provide historical background and context for the future articles in this series.

In answering the first question of “why”, it is difficult to place blame because changes in the climate and related sea level rise have contributed greatly over the past 25 years. These issues have been debated for years, primarily among scientists, scholars, and policy makers. Once the world filled with water and through >99.99999% of its history, the earth’s oceans and coastline have been constantly shifting and being remade through natural processes. However for the past several decades, humans have interfered with and hindered these natural processes. Some say, it goes back further to the use of fire coupled with evolution of agrarian grain based civilizations. In California, we dammed or partially blocked rivers and streams, cemented water channels, redirected tributaries, moved water great distances, asphalted water sheds, filled estuaries, bridged over inlets, and injected CO2 into the air. It raises the question of whether there are any beaches in California, or Southern California in particular, that exist solely or primarily due to natural shoreline processes? Venturing a guess, most likely not.  

The question of “how” is easier to address. In 1972 (a very recent date, in relation to the big scheme of human-made world impacting events), Congress passed the federal “Coastal Zone Management Act” (“CMAct”). The CMAct was enacted during the same time period as other major federal environmental legislation. The policies of this CMAct reflected the national interests of the time in the coastal zone, the purposes served by coastal management, and encouraged states to establish a state-wide coastal management plan or program. In 1980, this CMAct was amended to try to cause coastal states to incorporate then existing federal policies. Again in 1991, the CMAct was amended to address evolving federal policies focused on eight points. As issues evolved, so did the connected policies federally, in the states, and locally.   

In 2018, the U.S. Global Change Research Program published a climate assessment focused on “Impacts, Risks, and Adaptation” (“Assessment”). This Assessment noted that state coastal management programs were facing difficult and complex policy choices. Over the past 10 years or so, this focus has been and is currently on policies regarding sea level rise; and use of approaches related to resiliency and/or adaptation, beaches vs. private property rights, use of living shorelines and reefs, or just “let it all go (i.e., managed retreat)” because supposedly the ocean always wins.   

This shift in policy raises numerous questions that this series of articles will address, including whether all of these strategies can co-exist in a balanced and managed methodology in the State of California and whether some policies should be disregarded for others. For now, the purpose of this article is to identify and acknowledge the existence of demanding, multifaceted, competing, and inconsistent interests that abound between the public, private property owners, and special interest groups. While these groups may have differing opinions and interests they are seeking to protect, it is clear that, sea level rise, if handled in a cavalier unbalanced manner, will be potentially financially devastating to everyone involved.         

Last, as to the question of “who” or “what” has caused this shift, we need to look to the California Coastal Commission and its recently adopted Strategic Plan. Pursuant to the CMAct, California developed and had certified in 1977 the California Coastal Management Program. The enforceable policies of that document are contained in Chapter 3 of the California Coastal Act of 1976. Supposedly, the goal of the California Coastal Commission is to use the federal consistency process to provide open communication and coordination with federal agencies and applicants, and provide the public with an opportunity to participate in the process. Believed to originate out of the California Management Program, the Coastal Commission adopted the 2021-2025 California Coastal Commission Strategic Plan on November 6, 2020 following four public hearings. The Strategic Plan provides a framework of goals, objectives, and actions to set priorities and guide the agency’s performance for the next five years related to: Internal Agency Capacity and Effectiveness; Public Access; Coastal Resources; Climate Change and Sea Level Rise; Environmental Justice, Diversity, and Tribal Relations; Coastal Planning and Permitting; Enforcement; Public Presence and Partnerships; and Information Management and E-Government. Theoretically, “the Coastal Act itself is a strategic plan, deftly balancing statewide and local interests through the drafting and certifying of Local Coastal Programs (LCPs), recognizing the role of the participation of an informed citizenry”, so says the Commission.  

In light of the history of the California Coastal Zone and where we are today, here are the questions we should all be asking. Why are words like avulsion, natural, resiliency, protection, and beach nourishment generally ignored when dealing with issues under the Coastal Act? Why is residential use disfavored in certain areas of the California Coastal Zone? Why do emergency coastal development permits for shoreline protection for existing structures like residences have an increasing number of conditions and exactions?  Should any of these conditions be tied to “managed retreat strategy” and/or a “public trust doctrine strategy”? Are these conditions making homes along the California Coast more or less valuable?  More or less financeable? More or less insurable? Do these conditions really restrict a homeowner’s right to protect their home from sea level rise? Should these conditions require a homeowner to be financially responsible for any damage caused by the destruction of their home to adjacent homes or to the beach when the loss of their home is produced by human-caused sea level rise? Should a homeowner who lost their home and paid for all of the damages caused by the ocean destroying their home also lose their coastal land to the state, without just compensation? Should California be more focused on the rehabilitation and establishment of livable shorelines and coastal reefs to help safeguard homes and other coastal uses? There are so many more questions.   

We believe it is important to read, analyze, research, and investigate the 2020 version of the Strategic Plan for answers to these important questions and to understand the future of communities, beaches, and resources along our astonishing, but vanishing California coast. The next article in this series will provide a brief summary of the Strategic Plan, and address issues and inconsistencies with the law (both federal and state, and missing sections). The third article in this series will provide a blueprint to rectify these problems by and through a supplement to the NOAA approved Plan (“Supplement”).  Lastly, the fourth article will set forth a recommended Guidance and connected Staff Report, which will be a part of the Supplement.

Click here to read the California Coastal Commission Final Strategic Plan, adopted November 6, 2020.