Adapting to Climate Change : Understanding the Enabling Environment in California

1. Adapting to Climate Change : Understanding the Enabling Environment in California Meg Caldwell, Center for Ocean Solutions Sara Polgar, SF BCDC Marshall, CA February 22, 2010

2. Overview State Adaptation Strategy Legal Frames New Approaches Hazard Mitigation Planning Flood Insurance’s Perverse Incentives And other Federal Programs

3. State Adaptation Strategy

4. Ocean and Coastal Adaptation Goals • Protect health and safety and critical infrastructure • Protect, restore, and enhance ocean and coastal ecosystems • Ensure public access • Plan new development for long-term sustainability in the face of climate change • Facilitate adaptation of existing development and communities, reducing their vulnerability to climate change impacts over time

5. Ocean and Coastal Adaptation Strategies Strategy 1: Establish State Policy to Avoid Future Hazards and Protect Critical Habitat • Near term: • Hazard avoidance policy (state agencies) • Innovative designs (agencies employ or encourage) • Habitat protection (state agencies) • Establish decision guidance for local agencies(Ocean Protection Council in coordination with other state agencies) • Long term: • Pilot studies (OPC in coordination withspecific cities/ state agencies)

6. Ocean and Coastal Adaptation Strategies Strategy 2: Provide Statewide Guidance for Protecting Existing Critical Ecosystems, Existing Coastal Development, and Future Investments • Near term: • Establish decision guidance for local agencies (Ocean Protection Council in coordination with other state resource agencies) • Long term: • Pilot studies (OPC in coordination with specific cities/ state agencies)

7. Ocean and Coastal Adaptation Strategies Strategy 3: State Agencies Should Prepare Sea-Level Rise and Climate Adaptation Plans • Near term: • Adaptation planning (state agencies) • Long term: • Adaptation plan updates (state agencies)

8. Ocean and Coastal Adaptation Strategies Strategy 4: Support Local Planning for Addressing Sea-Level Rise Impacts • Near term: • Public outreach (OPC in coordination with other resource agencies) • Funding mechanisms (OPC in coordination with state agencies) • Local government guidance (state agencies in collaboration with local jurisdictions) • Long term: • Amend LCPs to address climate change adaptation (coastal jurisdictions in coordination with Coastal Commission) • Amend GPs to address climate change adaptation (local jurisdictions around San Francisco Bay in coordination with BCDC)

9. Ocean and Coastal Adaptation Strategies Strategy 5: Complete a Statewide Sea-Level Rise Vulnerability Assessment Every Five Years • Long term: • Vulnerability assessment (OPC in coordination with all relevant agencies (consolidating existing efforts by the California Energy Commission and other agencies))

10. Ocean and Coastal Adaptation Strategies Strategy 6: Support Essential Data Collection and Information Sharing • Near term: • High-resolution mapping (state in cooperation with federal partners) • Tidal data collection, ecosystem research, coastal and wetland process studies • Long term: • Decision support (OPC in coordination with state ocean resources agencies, academia, and NGOs) Image: Example of high-res. SLR mapping being undertaken in the Caribbean.

11. Major Regulatory Paradigms • Public vs. Private Property • Public trust doctrine • 5th Amendment • Coastal Act • Local Coastal Programs • Other planning tools (permitting, GPs, CEQA, Climate Action Plans, hazard mitigation) • Interactions with federal programs

12. Public Trust Doctrine • Set of common-law principles • State and its agencies hold natural resources in trust for the public • Transfers out of the trust only permissible if in the public interest • Both bolsters and mandates ecologically sound resource management

13. Public Trust Resources • Tidelands • Water resources • Ecosystem services (e.g., water filtration, disease control) • Species and surrounding ecosystem • Aesthetics, recreational benefits, and public access

14. Trustee Responsibilities • Preserve the trust corpus • Steward the trust resources • Prevent harm to the trust resources • Duty of loyalty to all trust beneficiairies

15. Application of Public Trust Doctrine • Provides authority to which regulations such as permit conditions may be anchored • Background principle of common law that qualifies private landowner interests • Private owners enjoy no right no impair public trust resources, so regulations that vindicate public trust interests are not uncompensated takings

16. The 5th Amendment No person shall be…deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation

18. Local-level Action in CA • Two coastal counties (SLO and Sonoma) that responded to the survey currently have plans that consider climate change impacts on their communities, though coastal impacts are not included. Four other counties are currently preparing climate impact plans, including coastal impacts. • Among coastal cities surveyed, only one currently has a plan to deal with climate change impacts (Berkeley). Six more (Solana Beach, Goleta, San Francisco, Palo Alto, Alameda, Arcata) are in the process of developing climate impact plans. Moser and Tribbia (Marine TechnologySociety Journal 2006/2007)

19. Obstacles to Local Action? • Lack of mandate • 57.7% of CA coastal managers surveyed by Moser and Tribbia perceived the lack of a legal mandate requiring local managers to take climate change into account as a mayor hurdle • Passing the buck? • Local managers wait for money, technical assistance, a legal mandate and leadership from higher-level policy-makers • State-level managers look for bottom-up pressure from local decision-makers and federal leadership and funding

20. Local Coastal Programs: Overview • Basic planning tools developed by local governments in partnership with Coastal Commission • 75 coastal municipalities develop LCPs and implementing measures • LCP adopted by local legislative body and reviewed by Commission for consistency with Coastal Act

21. LCPs and Adaptation • Local agencies should begin incorporating firm restrictions and guidelines to guard against losses associated with sea level rise • Consider LCP amendmentfocusing on sea level rise, erosion, and flooding

22. LCP Case Study: Malibu The City of Malibu’s LCP consists of: • Land Use Plan http://www.ci.malibu.ca.us/download/index.cfm/fuseaction/download/cid/1577/ • Local Implementation Plan (LIP) http://www.ci.malibu.ca.us/download/index.cfm/fuseaction/download/cid/1578/

23. Malibu’s LIP • Was adopted by the CCC on September 13, 2002; • Its goals: • Assure orderly, balanced utilization and conservation of coastal zone resources; • Protect, maintain, and where feasible, enhance and restore the overall quality of the coastal zone environment and its natural and manmade resources.

24. Malibu’s LIP According to the LIP any siting and design of new shoreline protective devices should take into account anticipated future changes in sea level, especially an acceleration of the historic rate of the sea level rise, potential impact on beach erosion, shoreline retreat, and bluff erosion rates.

25. Application Submittal Requirements (1) All applications for new development on a beach, beachfront or bluff-top property shall include: • an analysis of beach erosion, • wave run-up, • inundation and flood hazards, prepared by a licensed civil engineer with expertise in coastal engineering.

26. Application Submittal Requirements (2) All applications for bluff-top development shall include a slope stability analysis, prepared by a licensed Certified Engineering Geologist and/or Geotechnical Engineer or Registered Civil Engineer with expertise in soils.

27. Reports These reports shall address and analyze the effects of said development in relation to the following: • Profile of the beach; • Surveyed locations of mean high tide lines; • Availability of public access to the beach; • Need for a shoreline protection structure; • Future projections in sea level rise; • Slope stability and bluff erosion rate.

28. Other Ideas • Require proponents of new shorefront development projects to examine impacts of increased sea level rise • Consider future increases in bluff erosion when establishing bluff edge setback criteria • Managed retreat for Municipal capital improvements

29. Other Ideas? • Reaffirm Public Trust Duties • Map high hazard areas in LCP • Amend Coastal Act LCP review requirements

30. Beyond LCP: Hazard Mitigation Planning

31. Beyond LCP: Hazard Mitigation Planning • 2007 State Multi-Hazard Mitigation Plan update addresses climate change • Includes qualitative discussion and plans for more rigorous assessments in future updates • Survey of local plans within the state: none had addressed climate change

32. Beyond LCP: Hazard Mitigation Planning • Local governments are required to develop local-level hazard mitigation plans to access federal non-emergency assistance • Safety element in GP also provides opportunity to lay outclimate-associated hazard strategies

33. Beyond LCP: Hazard Mitigation Planning • Local General Plans and hazard mitigation plans should touch on climate change related effects on • wildfires • drought • floods • rising sea levels

34. Beyond LCP: Hazard Mitigation Planning Example hazard mitigation planning strategies • Develop “future conditions” flooding and sea level maps and use those maps for zoning and planning when updating General Plan • Update building codes to enhance flood resistance in future floodplains • Consider climate change impacts to stormwater runoff and consider enhancing management capacity • Consider climate change impacts on natural hazards in establishing design levels for new and replacement infrastructure

35. A word about private insurance • Linked to 100 year flood zone mapping • Currently no incentive to build so as to minimize climate change related risks

36. A word about private insurance • State does regulate private insurance • State could impose forward-looking building construction requirements in high hazard areas • Rate restructuring might give private insurers incentives to take future change into account and pass on costs to insured

37. Coordination with Federal Authorities • NOAA Coastal Services Center • FEMA: State hazard mitigation planning efforts to meet federal requirements beginning to account for climate change • Flood zone mapping: Army Corpscurrently coming up with new CA maps for 100 year flood zone