The Legal Implications of Sea Level Rise Erin Crisman-Glass Attorney at Law The Washington Climate Change Impacts Assessment Conference Conference Presentation: Jessica Levin Photos: courtesy of Hugh Shipman

Local Federal, State, and Local Laws Coastal Zone Management Act & Shoreline Management Act (SMA) Hydraulics Project Approval law State Environmental Policy Act Floodplain Management Act Governing Legal Principles Unconstitutional Takings Substantive Due Process Law of Accretion & Erosion Public Trust Doctrine Possible Adaptations & Policy Decisions Retreat Rolling Easements The Legal Landscape Along Washington’s Shorelines

The Shoreline Management Act of 1971 Where does the SMA apply?

Shoreline Management Act Policies Foster reasonable and appropriate uses of shorelines Protect shoreline natural resources and ecological function Promote public access

Shoreline Management Act Implementation—A Cooperative Approach Local Governments Shoreline Master Programs Department of Ecology Shoreline Master Program Guidelines What do SMPs do?

Shoreline Management Act Permit Process Substantial Development Permit Conditional Use Permit Variance Exemptions Maintenance & repair Single-family residences Emergencies Bulkhead construction to protect single-family residences

SMA: Possible Responses to Sea Level Rise Shoreline Master Program Guidelines update– every 7 years Shoreline Master Program Guidelines update– every 7 years Environmental designations Environmental designations Cumulative impact of exemptions, particularly single-family residence exception Cumulative impact of exemptions, particularly single-family residence exception Increased training at local level Increased training at local level “No net loss” of ecological function “No net loss” of ecological function

The Hydraulic Code Fish and Shellfish Resources

Hydraulic Code Purpose: protect fish & shellfish resources Permit requirement Any construction activity affecting flow of salt or fresh water Exemptions Single-family residences

Hydraulic Code Responses to Sea Level Rise Department of Fish & Wildlife: authority to create buffers? Consider cumulative impacts Reconsider exemptions for single-family residences

State Environmental Policy Act Agency Consideration of Environmental Consequences

State Environmental Policy Act Purpose: consider likely environmental consequences Categorical exemptions Residential structure of four units or less SEPA review SEPA-related responses to sea level rise Climate Action Team’s SEPA work group

Floodplain Management Act

Mandate of the National Flood Insurance Program Implementation Department of Ecology Local governments Response to sea level rise Importance of floodplain maps

Relevant Legal Doctrines Challenges to Land Use Regulations Takings Per se taking Just compensation Substantive Due Process Is the government exercising its police power in an arbitrary or unreasonable manner?

Relevant Legal Doctrines Existing Norms in the Common Law Common law of erosion and accretion Loss of title Public Trust Doctrine Waters of the state are a public resource Under-utilized?

Policy Options Possible Legislative Responses Rolling Easements Rolling Easements Statewide Policy of Retreat Statewide Policy of Retreat Hybrid approach? Hybrid approach?

Image taken from EPA:

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