Sea Level Rise - Status of Adaptation Plan

May 20, 2013
by Jennifer M. Kinkus

While the Delaware coastline was spared the brunt of Tropical Storm Sandy's wrath in October 2012, Delaware's beaches were adversely affected. Large portions of the beaches were lost. In fact, oceanographers at the U.S. Geological Survey's St. Petersburg Coastal and Marine Science Center report that sea levels are rising at a rapid rate along the east coast. According to Gerald Kauffman at the Water Resources Agency of the University of Delaware, sea level rise affects not only how communities and the government need to prepare for storms like Sandy, but also what Delaware residents pay in taxes, where and how homes and highways are built, the quality of food and water, the wildlife in Delaware and the recreation services available.

DNREC's Delaware Sea Level Rise Advisory Committee ("Committee") recognizes the threat Delaware's coastlines' are facing; and therefore, has begun to develop an adaption plan to prepare for the impacts of sea level rise. Developing and implementing a plan to deal with sea level rise is imperative to escape the high costs associated with the legal battles that will certainly ensue if these issues are not faced head-on. (Coastal Adaptation Options for Delaware, Georgetown Climate Center, Jessica Grannis, January 19, 2012). At their March 2013 meeting, the Committee memorialized a timeline for completion of its Sea Level Rise Adaptation Plan. The Committee hopes to approve the Final Adaptation Plan in August 2013 and kick off implementation of the Plan in October 2013. The goal of the Committee is to create a plan that strikes an appropriate balance between the protection of homes, infrastructure and the conservation of natural resources.

Litigation can result from landowners arguing that new land-use regulations aimed at preserving natural resources in the face of sea level rise amounts to an unconstitutional "taking" of their property without just compensation. For example, in Sams v. Department of Environmental Protection, 2013 Conn. LEXIS 119 (Conn. Apr. 2013), the landowners had erected a seawall on their property to prevent the continued erosion of their shoreline property. The Connecticut Department of Environmental Protection ("DEP") ordered the landowners to remove the seawall and restore the shoreline to its preexisting condition because the wall was in violation of several state statutes. The Court held for the DEP and against the Plaintiffs, finding that the DEP had the authority to exercise enforcement remedies with respect to activities within the coastal boundary. Ordering removal of the seawall was an acceptable enforcement remedy under the circumstances.