New Sea Level Rise Policies Will Have A Major Impact on California Coastal Development

The California Coastal Commission adopted this week a new, major statewide policy document to help guide its decision-making when analyzing the impact of sea level rise on new permit applications and coastal land use plans.

The nearly 300-page policy document analyzes current science, technical information and best practices in a single resource to help coastal regulators at the state and local level.  While the document is intended by the Commission to guide planning and development decisions, it is advisory and does not alter or supersede existing legal requirements, such as the dictates of the California Coastal Act and certified local coastal programs.  (“Local coastal programs” are the land use regulatory documents prepared in accordance with the Coastal Act that govern land use and development in the coastal zone.)  In practice, the document will likely establish the beginning design or negotiating position with staff, unless project applicants or local governments have a persuasive case that varying from the policy document is warranted.

When should sea level rise issues be evaluated?

Sea level rise should be considered in the project analysis when the project or planning site is:

  • Currently in or adjacent to an identified floodplain.
  • Currently or has been exposed to flooding or erosion from waves or tides.
  • Currently in a location protected by constructed dikes, levees, bulkheads, or other flood control or protective structures.
  • On or close to a beach, estuary, lagoon, or wetland.
  • On a coastal bluff with historic evidence of erosion.
  • Reliant upon shallow wells for water supply.

New 5.5 Foot by Year 2100 Sea Level Rise Standard

The Commission has concluded that the “best available science” on sea level rise projections today can be obtained from the National Research Councils 2012 Report, Sea-Level Rise for the Coasts of California, Oregon and Washington: Past, Present and Future.  For most of California, regulators will be starting with a 5.5 foot sea level rise by year 2100 assumption, as shown in the following table.

Sea Level Rise Projections for California.  Year 2000 as baseline.

Time Period North of Cape Mendocino South of Cape Mendocino
By 2030 -2 to 9 inches

(-4 to 23 cm)

2 – 12 inches

(4 – 30 cm)

By 2050 -1 to 19 inches

(-3 to 48 cm)

5 to 24 inches

(12 to 61 cm)

By 2100 4 to 56 inches

(10 to 143 cm)

17 to 66 inches

(42 to 167 cm)

The policy document recommends that coastal regulators use a precautionary approach by planning and providing adaptive capacity for the highest amount of possible sea level rise.  The Coastal Commission has used for many years a sea level rise assumption of 3 feet when evaluating shoreline projects.  Now, new development and redevelopment will likely have to design and plan for 5.5 foot sea level rise at the property, unless other contrary evidence can be provided to the NRC study or unique coastal processes exist for the property in question.

Selected Sea Level Rise Policy Recommendations

An exhaustive analysis or restatement of the policy guidance document is beyond the scope of this article.  However, real estate owners and developers in the coastal zone should keep the following new Commission policies in mind:

  • Permitting authorities should avoid siting development within areas vulnerable to flooding, inundation, and erosion, so that long-term shoreline protective devices are unnecessary.
  • Continuing a controversial policy, new development and redevelopment generally may not use bluff retaining or shoreline protective devices.
  • Local Coastal Programs should encourage and require redevelopment to be brought into conformance with current sea level rise standards, including removal of seawalls or other armoring.
  • New development should be approved with conditions that require future modification, relocation, or removal of buildings when they become threatened with natural hazards, including sea level rise.
  • Improvements to existing at-risk structures should be limited to basic repair and maintenance. Permitting agencies should not allow property owners to extend the life of such structures or expand-at risk elements of the development, consistent with the Coastal Act.
  • Continuing and formalizing another policy, local coastal programs and coastal development permits should require recorded assumptions of the risk, “no future seawall” conditions, and/or other appropriate mitigation measures that require the private property owner to internalize the risk of developing in the coastal zone.
  • When sea level rise causes the public trust boundary to move inland so that a protective device that was located on uplands becomes subject to the public trust, the property owner should either obtain permission from the applicable governmental agency or apply for a permit to remove the encroachment.
  • For impacts to sand supply or public recreation due to sea walls or revetments and the loss of sandy beach from erosion in front of shoreline protection devices, require commensurate in-kind mitigation, a sand mitigation fee, and other necessary mitigation fees.

This is only a small sample of the issues raised by the sea level rise policy document. Before seeking a coastal development permit on or near the shoreline, property owners should carefully review the policy guidance document with counsel.  Going forward, project costs will likely be increased – both at the planning and design stage and at the construction stage.

In addition, this policy document is the most recent policy pronouncement that coastal regulators may use to pursue so-called “managed retreat” of private development so that a public shoreline can come into being over time as sea levels rise.  As the policy document points out, federal and state takings law may be triggered in the particular case.

These new changes will have a significant impact on future permitting in the coastal areas of California. We will see how these new policies are implemented by state and local government and, if necessary, challenged by real estate owners and developers.

State Agencies Can’t Say CEQA Mitigation is Infeasible If Earmarked Funds Are Unavailable, High Court Says

When environmental review of a proposed development project by a state agency shows that it will have traffic impacts, a state agency is not allowed to nevertheless approve the project on the grounds that the funds needed to mitigate congestion have not been earmarked by the Legislature, the California Supreme Court has held.

The court’s recent unanimous decision in City of San Diego v. Board of Trustees of the California State University is significant for two important reasons.  First, it is now clear that state agencies cannot shift the costs of off-site environmental mitigation of their projects to local and regional governments, except in very limited circumstances.  Second, the use of a “statement of overriding considerations” by the legislative body of a lead agency will not be given deference by the courts if potential mitigation measures are not “truly infeasible.”

The Board of Trustees of the California State University sought to expand the campus of San Diego State University (“SDSU”) to accommodate more than 10,000 additional students over the next several years.  The environmental impact report for the project showed that it would contribute significantly to traffic congestion off-campus.  Although the Board of Trustees budgeted more than $9.9 billion for campus expansion efforts, the Board of Trustees declined to use those funds, or any of the California State University’s other financial resources, to reimburse other local governments for SDSU’s fair share of the cost of mitigating its project’s off-campus environmental impacts.  The Board of Trustees maintained that it was not required by law to pay for mitigating a project’s environmental effects unless the Legislature made an appropriation for the specific mitigation measures required.

In other words, if the Legislature did not make an earmarked appropriation for specific environmental mitigation, the Board of Trustees argued that it could take the position that mitigation was infeasible and the Board of Trustees could adopt a statement of overriding considerations and approve the project.  A “statement of overriding considerations” is a legal tool under the California Environmental Quality Act (“CEQA”) that allows a reviewing public agency to approve a project because it offers non-environmental benefits that outweigh its unmitigated significant environmental effects.

The California Supreme Court rejected the Board of Trustees’ argument.  The Board of Trustees is not limited to earmarked appropriations to mitigate the environmental effects of its projects.  Indeed, the Board of Trustees must use other available sources of funding to comply with CEQA’s mandate.

The court acknowledged that CEQA permits a lead agency to determine that mitigation measures necessary to avoid a project’s environmental effects are within the responsibility and jurisdiction of another public agency. However, the ability to shift the burden to another agency is strictly limited:  a lead agency may disclaim responsibility “only when the other agency said to have responsibility has exclusive responsibility.”  When the other agency doesn’t have exclusive responsibility, then the lead agency must share the economic costs of mitigating environmental impacts on regional infrastructure.

The high court gave several reasons for requiring cost sharing, but two bear repeating here.  First, nothing in CEQA says or even suggests that funds appropriated by the  Legislature for a project’s overall budget cannot be used for environmental mitigation.  Second, CEQA does not condition or limit the duty of a state agency to mitigate its project’s environmental impacts on the Legislature’s grant of a specific, earmarked appropriation.

The court also pointed out that the Board of Trustee’s position was unreasonable and impracticable. If a lead agency proceeds with a project without paying for the needed mitigation, the cost of addressing the project’s impacts on local infrastructure would be shifted to local and regional governmental agencies.  Under state and federal law, local and regional governments have limited tools to raise funds for local infrastructure projects.  Developer impact fees must be roughly sized to the impact of each developer’s project. Any “gap” in funding not covered by developer impact fees for needed infrastructure would require local government to draw on its general fund or increase taxes.  Thus, in this case, the City of San Diego would be put in the uncomfortable position of solving issues caused by the SDSU project.   Neither CEQA, nor any other state statute identified by the Board of Trustees, gives the California State University the authority to shift its share of the costs of infrastructure improvements to local governments.

This case also reinforces the California Supreme Court’s limits on a lead agency’s use of a statement of overriding considerations to approve a project notwithstanding its significant environmental effects. The court repeated from its decision in City of Marina v. Board of Trustees of California State University: “CEQA does not authorize an agency to proceed with a project that will have significant, unmitigated effects on the environment, based simply on a weighing of those effects against the project’s benefits, unless the measures necessary to mitigate those effects are truly infeasible.”  This “truly infeasible” standard, reaffirmed by the high court, underscores that a mere balancing of “overriding economic, legal, social, technological, or other benefits of the project” against the significant effects on the environment is not enough.  To adopt a statement of overriding considerations, a specific finding in the record that identified mitigation measures or alternatives are infeasible because of “specific economic, legal, social, technological, or other considerations, including considerations for the provision of employment opportunities for highly trained workers” is required.

CEQA is not only a procedural statute.  Many provisions of CEQA have as their focus the preparation of environmental documents to inform the public and decision makers of the significant environmental impacts of proposed projects.  However, as this case makes clear, CEQA’s “substantive” limitations on the powers of state agencies and local legislative bodies to make decisions should not be overlooked.