Managed Retreat Toolkit

Managed retreat, or the voluntary movement and transition of people and ecosystems away from vulnerable coastal areas, is increasingly becoming part of the conversation as coastal states and communities face difficult questions on how best to protect people, development, infrastructure, and coastal ecosystems from sea-level rise, flooding, and land loss. Georgetown Climate Center’s new Managed Retreat Toolkit combines legal and policy tools, best and emerging practices, and case studies to support peer learning and decisionmaking around managed retreat and climate adaptation. 

Introduction

The impacts of climate change are becoming more apparent and severe, as sea levels rise and the frequency and intensity of extreme weather events increase. Climate change impacts are forcing state and local policymakers to address the risks facing many coastal communities. In addition to undertaking measures aimed at protection (building flood risk reduction structures e.g., levees, hard shoreline armoring devices) and accommodation (building structures to better withstand future flood risk e.g., elevating or flood-proofing structures), coastal governments and communities are increasingly evaluating managed retreat as a potential component of their comprehensive adaptation strategies. 

The aim of managed retreat is to proactively move people, structures, and infrastructure out of harm’s way before disasters or other threats occur to avoid damage, maximize benefits, and minimize costs for communities and ecosystems. For example, policymakers may reduce risks of flooding by conserving wetlands and protecting habitat migration corridors and minimize the social, psychological, and economic costs of relocation by making investments in safer, affordable housing within existing communities.

Under the best of circumstances, managed retreat is the coordinated process of voluntarily and equitably relocating people, structures, and infrastructure away from vulnerable coastal areas in response to episodic or chronic threats in order to facilitate the transition of individual people, communities, and ecosystems (both species and habitats) inland. In practice, however, managed retreat is an inherently complex and challenging subject and adaptation option for state and local governments. This is especially true given the political, economic, and policy imperative to design strategies that maximize benefits and minimize costs for people, communities, and the environment. Beyond the formidable planning, legal, and financial considerations involved, decisionmakers must also ensure that the people most affected are included in designing and implementing these processes and that the outcomes are equitable for the communities involved. If communities with vulnerable coastal areas fail to establish the enabling conditions for a gradual relocation strategy, increasing development pressures and reactive responses to sea-level rise and coastal storms will degrade communities and result in the gradual loss of important coastal ecosystems and protection as shorelines erode or are armored. 

To navigate these challenges, and implement proactive resilience measures like managed retreat, state and local governments need tools that help them evaluate risks and develop legally viable approaches. Georgetown Climate Center’s Managed Retreat Toolkit (toolkit) includes a range of legal and policy tools that state and local governments can consider using to facilitate managed retreat in vulnerable coastal areas experiencing sea-level rise, flooding, and land loss. These include tools related to planning, infrastructure relocation and disinvestment, acquisition, and regulation, as well as market-based tools. The aim of the toolkit is to assist state and local coastal policymakers in advancing discussions within their communities about laws and policies related to managed retreat. Equipped with an understanding of the issues at play and the lessons from other communities’ experiences, decisionmakers will be better prepared to engage coastal communities in conversations regarding different adaptation strategies to respond to coastal threats and to support potential future on-the-ground actions.

Tools

About This Toolkit

Overview

The first comprehensive online resource on managed retreat, the Managed Retreat Toolkit combines legal and policy tools, best and emerging practices, and case studies to support peer-learning and decisionmaking around managed retreat and climate adaptation. Collectively, this toolkit is designed to help policymakers: 

• Identify and assess a range of legal and policy tools available to facilitate managed retreat in vulnerable coastal areas experiencing sea-level rise, flooding, and land loss;
• Implement best and emerging practices by highlighting the most innovative managed retreat practices that are being deployed at the state and local levels around the country; and
• Overcome legal and policy barriers to implementation by providing decisionmaking frameworks for navigating these barriers and evaluating tradeoffs facing people, communities, and the environment.

The primary audiences for the toolkit are state, territorial, and local policymakers in U.S. coastal jurisdictions. Despite this emphasis on the coastal sector, some of the management practices and case studies are drawn from riverine or non-coastal states and communities because of the transferable lessons they can provide others. For example, hazard mitigation buyouts in the U.S. have historically and predominantly occurred in inland riverine areas, but coastal decisionmakers can learn from these buyout programs to avoid “reinventing the wheel.” Of course, many of these tools can also be applied in inland communities at increasing risk of other types of flooding, such as from heavy precipitation events.

The case studies included in this toolkit were selected to reflect the interdisciplinary and complex nature of retreat decisions and underscore the need for comprehensive solutions and fair and equitable decisionmaking processes to address these challenging considerations. By highlighting how various legal and policy tools are being implemented across a range of jurisdictions — from urban, suburban, and rural to both riverine and coastal — these case studies are intended to provide transferable lessons and potential management practices for coastal state and local policymakers. The case studies also highlight the policy tradeoffs and procedural considerations necessitated by managed retreat decisions. Each jurisdiction is confronting different challenges and opportunities and has different, perhaps even competing, objectives for retreat. In addition, stakeholders are attempting to balance multiple considerations, including: fostering community engagement and equity; preparing “receiving communities” or areas where people may voluntarily choose to relocate; protecting coastal ecosystems and the environment; and assessing public and private funding options and availability. 

While the toolkit presents an analysis of managed retreat laws, policies, and case studies from across several U.S. jurisdictions, it is not a 50-state survey. Applications of the legal and policy frameworks and recommended best and emerging practice tips vary state-by-state and on a case-by-case basis, and are provided for educational and informational purposes only to support climate adaptation processes and decisions on the ground. When considering or implementing any managed retreat strategy, government officials and staff should consult their own legal counsel with respect to any questions or concerns that are specific to their jurisdiction and should engage local community members to tailor the program in a way that works for all. 

Organization and Content

The toolkit contains eight sections that present different legal and policy tools state and local coastal governments can evaluate to potentially implement broader managed retreat strategies. These eight sections fall into two categories:

• The toolkit contains five “tools” sections that identify the legal approaches that jurisdictions can consider adapting to meet local context and needs around managed retreat. These include planning, infrastructure relocation and disinvestment, acquisition, regulatory, and market-based tools. State and local decisionmakers can apply each tool individually or advance a potential suite of tools collectively as a part of comprehensive managed retreat strategies. 
• The toolkit contains two “crosscutting” sections on legal and policy considerations, respectively. These sections do a deeper-dive look into legal and policy questions and issues that are raised across all or most tools. 

For the five tools section, each tool includes a definition of the tool; how it can be used in a coastal managed retreat context; the legal and policy considerations or tradeoffs associated with that specific tool; and “practice tips” that provide best or emerging practice recommendations for implementing that tool. 

State and local decisionmakers will need to evaluate the tradeoffs among different managed retreat tools and options. The policy considerations presented for each tool include: 

• Administrative: How easily a tool can be implemented considering technical and political feasibility, its fiscal and administrative capacity, and its administrative complexity.

• Economic: How well a tool maximizes long-term economic benefits (both public and private) and minimizes economic costs, including the costs to implement (build and maintain) it; how well a tool minimizes the loss of taxable land; and how well the tool minimizes economic disruption.

• Environmental: How well a tool minimizes impacts on — and maximizes benefits to — natural resources, ecosystems, and physical environmental qualities and conditions.

• Social/Equity: How well a tool maximizes protection for people, public safety and welfare, and minimizes loss of life and property; minimizes social disruption and the disruption of public services; how it minimizes impacts to cultural and historical resources; how it maximizes protection of low-income, resource-disadvantaged, historically marginalized, and frontline communities; and how a tool equitably distributes economic costs and benefits between private individuals and the general public.

Taken together, these considerations will assist states and communities with weighing the potential costs and benefits of potential tools and policy options based on how they value or prioritize different tradeoffs.^{See footnote 1}

Given the interrelated nature of topics around managed retreat, users can navigate this online toolkit in multiple ways to suit their needs. Reading all or many of the sections and case studies provides a more comprehensive picture of the legal and policy landscape and potential tool options available to coastal states and communities. Alternatively, toolkit users can read any single standalone section to gain an introduction to a particular approach and the relevant legal or policy issues. In addition, where there are notable connections to other sections that may benefit toolkit users, the authors of the toolkit have made explicit cross-references. 

The Process to Develop the Toolkit and Maintain it as a Living Resource

The development of this toolkit was informed by policymakers, practitioners, and community members who have led or participated in the work presented in this report.^{See footnote 2} Between 2018 and 2020, Georgetown Climate Center’s (GCC) outreach efforts related to the development of the Managed Retreat Toolkit engaged more than 1,000 people at more than 20 events, and more than 500 participants who participated in workshops hosted or co-hosted by GCC. Managed retreat is a field that is growing and evolving rapidly, and GCC intends to update the Managed Retreat Toolkit regularly to incorporate user feedback and new information, insights, and case studies.

Photo credit: Georgetown Climate Center

How and When to Talk About Managed Retreat

Source: Louisiana Strategic Adaptations for Future Environments (LA SAFE).

The first questions decisionmakers often ask are: “How should we refer to ‘managed retreat?’ What do we call it? and When should we first talk about it?” There is no universally accepted name or definition for “managed retreat,” let alone a consensus about when communities should first discuss it as a climate adaptation strategy.^{See footnote 3} The idea of retreat can spark challenges that may thwart community dialogues even before they begin, especially given the highly charged political and social dynamics that often surround any discussion of asking people or a whole community to consider moving to a new location due to impending threats. There is no “one-size-fits-all” approach to managed retreat. Moreover, managed retreat will not always be the best or most preferred option to adapt to coastal threats and hazards. However, policymakers and communities should have open and honest discussions about managed retreat at the outset of climate adaptation planning and decisionmaking processes to ensure that everyone affected can adequately consider all options. The answer to the question of when to begin is, ideally, policymakers and communities should bring managed retreat considerations to the table at the same time that more traditional protection and accommodation strategies are presented. 

In addition, state and local policymakers should work together with community members to select a  decisionmaking framework that is respectful of cultural and historical sensitivities and local context to promote effective and informative discussions. Some alternative names for “managed retreat” include variations of the terms “planned, strategic, and adaptive” and “relocation, resettlement, and realignment.” 

Some communities are thinking more creatively to focus less on the name of the activity and more about capturing an accurate description of the adaptation response itself. For example, Hampton, New Hampshire is structuring dialogues with its community members around protection (“keep water out”), accommodation (“live with water”), and managed retreat or relocation (“get out of the water’s way”). One scholar, Liz Koslov, similarly suggests that “[w]hen a shoreline retreats due to erosion or sea level rise, one option is to manage that retreat instead of attempting to prevent it. In this context, managing retreat means removing hard coastal defenses to create space for the coastline to move, for water to come in, and for intertidal habitats such as wetlands and salt marshes to flourish.”^{See footnote 4}

At a minimum, the term should not act as a barrier to these discussions or be counterproductive, offensive, or inappropriate. At best, the right term will resonate with local residents to support robust and thoughtful discussions around the future of their communities and the potential opportunities and challenges of managed retreat, even if it is not selected or applied as an adaptation strategy. Ultimately, the focus of these discussions should be on the risks communities are facing and the range of adaptation responses communities may consider in order to protect their families and the environment. By acting with intention and communicating openly and honestly, policymakers can reduce the likelihood that debates over terminology will derail these important conversations.

Authors and Acknowledgements

Authors and Project Management and Oversight

This report was written by lead author Katie Spidalieri, Senior Associate, and co-author Annie Bennett, Senior Associate, Georgetown Climate Center at Georgetown University Law Center. Between 2018 and 2020, Katie Spidalieri also served as the project manager facilitating the development of multiple elements of the Managed Retreat Toolkit, including: legal and policy research and writing; partner outreach and engagement through one-on-one interviews and group workshops; and external review processes.  

Additional written contributions and editorial and project oversight were provided by Vicki Arroyo, Executive Director, Georgetown Climate Center and Professor from Practice, Georgetown University Law Center; Lisa Anne Hamilton, Adaptation Program Director, Georgetown Climate Center; and Jessica Grannis, formerly Adaptation Program Director, Georgetown Climate Center, now Coastal Resilience Director at National Audubon Society and Adjunct Professor, Georgetown University Law Center. Additional writing and research support were provided by Tiffany Ganthier, Institute Associate, and Katherine McCormick, Institute Associate, Georgetown Climate Center; and Jennifer Li, Staff Attorney, Harrison Institute for Public Law at Georgetown University Law Center. 

Significant research and writing contributions for the case studies and Adaptation Clearinghouse entries included in the toolkit were provided by law students Isabelle Smith (LL.M.), Ju-Ching Huang (S.J.D. candidate), and Blake Hyde (J.D. candidate), Research Assistants, Georgetown Climate Center.

Acknowledgements

The authors would like to thank the Doris Duke Charitable Foundation for its generous support and guidance, and without whom the Managed Retreat Toolkit would not have been possible. 

We are also grateful for additional support from the Georgetown Environment Initiative that enabled us to bring together diverse, interdisciplinary stakeholder expertise and Georgetown University faculty to inform the development of the Managed Retreat Toolkit, including Professors Uwe Brandes, J. Peter Byrne, Beth Ferris, and Sheila Foster and participants at our March 2019 Roundtable on Managed Retreat in Washington, D.C. In addition, Professors Uwe Brandes and J. Peter Byrne contributed their invaluable expertise in constitutional, property, land-use and zoning law and urban planning to help us edit and review multiple sections of the toolkit. 

We also appreciate the diligent work of the following individuals who helped us finalize and publish the toolkit: Peter Rafle, Communications Director, Caren Fitzgerald, Communications Associate, and Kelly Cruce, Consultant, Georgetown Climate Center; and Brent Futrell, Director of Design, Office of Communications at Georgetown University Law Center.

We would also like to specially thank and acknowledge the following individuals for taking the time to speak with us, attend our various workshops held across the country, review drafts, and provide insights that were invaluable in helping to inform the development of the Managed Retreat Toolkit and case studies for the Adaptation Clearinghouse: John Ryan-Henry and Bradley Watson, Coastal States Organization; Erik Meyers, The Conservation Fund; Matt Whitbeck, U.S. Fish and Wildlife Service; Justine Nihipali, Hawaii Office of Planning Coastal Zone Management Program; Mitchell Austin, City of Punta Gorda, Florida; Kelsey Moldenke, Quinault Indian Nation; Charles Warsinske, Quinault Indian Nation; Deborah Helaine Morris, formerly New York City Department of Housing Preservation and Development, New York; Lauren E. Wang, New York City Mayor’s Office of Resiliency, New York; Matthew D. Viggiano, formerly New York City Mayor’s Office of Housing Recovery Operations, New York; Andrew Meyer, San Diego Audubon, California; Tim Trautman, Charlotte-Mecklenburg Storm Water Services, North Carolina; Pam Kearfott, City of Austin Watershed Protection Department, Texas; James Wade, Harris County Flood Control District, Texas; Fawn McGee, New Jersey Department of Environmental Protection; Frances Ianacone, formerly New Jersey Department of Environmental Protection; Thomas Snow, Jr., New York State Department of Environmental Conservation; Dave Tobias, New York City Department of Environmental Protection, New York; Stacy Curry, Office of Emergency Management, Woodbridge Township, New Jersey; Sandy Urgo, The Land Conservancy of New Jersey; Joel Gerwein, California State Coastal Conservancy; Jay Diener, Seabrook-Hamptons Estuary Alliance, Hampton, New Hampshire; Kirsten Howard, New Hampshire Department of Environmental Services Coastal Program; Mathew Sanders, Louisiana Office of Community Development; Liz Williams Russell, Foundation for Louisiana; Joseph (Joe) Tirone, Jr., Oakwood Beach Buyout Committee, Staten Island, New York City, New York; Megan Webb, King County Department of Natural Resources and Parks, Washington State; Carri Hulet, Consensus Building Institute; Kristin Marcell, formerly New York State Department of Environmental Conservation; Thomas Ruppert, Florida Sea Grant; Jason Jurjevich, Portland State University, Oregon; M. Brandon Love, City of Lumberton, North Carolina; Jason Hellendrung, Tetra Tech; Marcos Marrero, Planning and Economic Development, City of Holyoke, Massachusetts; Andrew Smith, formerly Conservation and Sustainability, City of Holyoke, Massachusetts; Charles R. Venator-Santiago, Department of Political Science and El Instituto, University of Connecticut; Carlos Vargas-Ramos, Center for Puerto Rican Studies, Hunter College, The City University of New York; Gavin Smith, Department of Landscape Architecture, North Carolina State University College of Design; Michael J. Paolisso, Christy Miller Hesed, and Elizabeth Van Dolah, Department of Anthropology, University of Maryland; Annie Vest, Meshek & Associates, LLC; Katherine Stein, Sustainability and Resiliency Officer, Town of Surfside, Florida; Shelby Clark, Pennsylvania Department of Environmental Protection; Christine A. Goebel, North Carolina Department of Environmental Quality; Robert W. Scarborough, Delaware Department of Natural Resources and Environmental Control Coastal Program; James Pappas, Delaware Department of Transportation; David J. L. Blatt and David Kozak, Connecticut Department of Energy and Environmental Protection; Michael Ng, San Francisco Bay Conservation and Development Commission; Emily A. Vainieri, Maryland Office of the Attorney General; Barbara Neale, South Carolina Department of Health and Environmental Control; Kelly Leo and Jackie Specht, The Nature Conservancy Maryland–Washington, D.C.; and various staff from the National Oceanic and Atmospheric Administration, Federal Emergency Management Agency, U.S. Department of Housing and Urban Development, California Coastal Commission, New Jersey Department of Environmental Protection, and Rhode Island Coastal Resources Management Commission.  

No statements or opinions contained within this toolkit or affiliated case studies or entries in Georgetown Climate Center’s Adaptation Clearinghouse should be attributed to any individual or organization included in the above Acknowledgements.  

For comments or questions about the Managed Retreat Toolkit please, contact Katie Spidalieri at Katie.Spidalieri@georgetown.edu or climate@georgetown.edu.

Crosscutting Legal Considerations

State and local coastal governments considering and/or implementing managed retreat strategies will have to navigate a multi-jurisdictional legal framework. This section provides an introduction to that framework by highlighting the primary legal authorities and questions that governments may encounter. First, this section provides an overview of an overarching legal framework for managed retreat. Coastal zone management and land-use regulations will play a significant role in managed retreat. Second, this section highlights three primary legal considerations that are likely to arise in a managed retreat context: the regulation of private land uses and “takings” limitations; any duty to maintain public infrastructure and potential for negligence claims; and, the possibilities for cross-jurisdictional or regional governance structures. Within this legal framework, governments will need to balance financial limitations, safety, and environmental benefits with private property rights. Governments may also need to consider innovative cross-jurisdictional or regional managed retreat solutions in order to account for people, economies, and ecosystems that cross boundaries and straddle more than one level of government (i.e., federal, state, and local).

Source: Integration and Application Network, University of Maryland Center for Environmental Science.

Planning for managed retreat must take account of applicable law. State and local policymakers should consult with their lawyers and involve them in planning processes to align community priorities and needs with legally feasible solutions. By involving community members in all stages of decisionmaking, policymakers can maximize environmental benefits and help ensure that policies are meeting community needs. Moreover, attorneys can help policymakers avoid or minimize legal challenges by identifying and addressing them early. Policymakers should not necessarily view all legal questions as insurmountable barriers to managed retreat. Oftentimes, there will be ways to navigate or overcome these legal risks. Proactive legal analysis can support policymaking in the public interest.  

Many or most of the legal authorities and questions identified in this section are “crosscutting,” that is, they apply to more than one of the planning, infrastructure-related, acquisition, regulatory, and market-based tools presented in this toolkit. Accordingly, these legal considerations are presented in this standalone section of the Managed Retreat Toolkit. The authors of this toolkit recommend that state and local policymakers read this section in conjunction with the other sections, particularly that concerning  Regulatory Tools. It is important to note, however, that application of this legal framework and potential takings and governance considerations will vary state-by-state and on a case-by-case basis, and is provided herein for educational and informational purposes only. When considering or implementing any managed retreat strategies, government officials and staff should consult their own legal counsel with respect to any questions or concerns that are specific to their jurisdiction.

Tools

Overview of the Legal Framework

State and local governments will have to consider multiple questions of legal authority and compliance when implementing managed retreat laws and policies. Generally, state and local governments will proceed through a series of three different steps to determine whether they have the authority or power to implement a certain tool and if so, whether the government actions chosen to implement that tool are compliant with all relevant statutes, regulations, common law, and constitutional requirements. 

Step One: Authority

State and local coastal governments interested in implementing tools for managed retreat should first inquire about their legal authority to implement different tools. This step applies to all types of tools — planning, infrastructure-related, acquisition, regulatory, and market-based. 

The source of authority will vary based on the type of tool considered. The primary state and local powers that will come up in a managed retreat context include those for coastal, environmental, natural resources, and floodplain management and land use and zoning, as summarized herein. These powers are just a few among many that have been delegated to state, local, and in some cases regional entities, and do not constitute an exhaustive list of powers that may apply to implement legal tools for managed retreat. Depending on the structure of a state’s coastal, environmental, or natural resources programs, the state and local levels of government could have separate or shared jurisdiction. State agencies are creatures of the state and can only delegate those authorities that have been specifically delegated to them by their state legislature. 

Local governments tend to have primary authority to regulate land uses in their communities through zoning and floodplain ordinances. In particular, zoning ordinances provide the legal framework that governs the use and development of land in a municipality permitting different uses in different districts (e.g., residential, commercial, industrial).^{See footnote 5} Before implementing any zoning or land-use changes, however, local governments must ensure that they have the authority to utilize a tool under authority of state power, particularly in Dillon Rule states. In Dillon Rule states, state legislatures must delegate specific powers to local governments compared to home rule states, where local governments have broader authority.^{See footnote 6} Although, in general, local governments, particularly in home rule states, enjoy broad powers to take actions to protect the public health, welfare, and safety of residents under their existing police powers.

In the context of retreat decisions relating to public infrastructure, such as roads and bridges, states, local governments, and other public agencies owning or operating infrastructure should understand who has authority over the infrastructure assets in question, and what responsibilities that authority entails. For example, an agency’s duty to maintain infrastructure may be relevant in the context of decisions to phase out maintenance and potential for negligence claims (discussed further in the toolkit sections on Crosscutting Legal Considerations>Negligence and Infrastructure). Authority to formally abandon infrastructure may help relieve an agency’s duty to maintain and conform to state law,^{See footnote 7} but may not prevent a successful takings claim under certain circumstances (e.g., if it removes an abutting property owner’s only means of access). Questions relating to an agency’s duty to maintain and authority to disinvest in public infrastructure assets may be answered by looking to the jurisdiction’s statutory and case law.  

In some cases, state agencies or local governments may benefit from clearer statutory authority specifically enabling actions designed to address climate change impacts or facilitate managed retreat, warranting legislative actions to amend existing statutes or ordinances at the state or local levels. For example, many states already provide local governments the power to create zoning and overlay districts or Transfer of Development Rights programs for broad conservation purposes. Local governments, however, may require or benefit from explicit statutory authorizations to use either of those tools to achieve managed retreat goals, for example, to protect and remove development from wetland migration corridors. Explicit or clear statutory authorizations can encourage governments to take actions to adapt to climate change by removing the legal uncertainty around their authority to do as such. Regardless, it is important to emphasize that local governments generally have broad powers to take actions to protect the public health, welfare, and safety of residents, and should not let a lack of clear explicit legal authority be an excuse for failing to take actions to address climate threats, like sea-level rise, using existing police powers.

Step Two: Statutory and Regulatory Compliance

Next, state and local governments must ensure that their actions are consistent with federal, state, and local laws. In particular, the coastal zone presents policymakers with complex, often overlapping jurisdictions. Most commonly, coastal retreat will necessitate a review of coastal zone and floodplain management and wetlands laws at the federal, state, and local levels. Notably, the system for regulating wetlands alone can involve many statutes. At the federal level, the U.S. Army Corps of Engineers is one of the primary agencies that regulate activities in intertidal areas that affect wetlands under two statutes, the Clean Water Act^{See footnote 8} and Rivers and Harbors Act.^{See footnote 9} In addition, most states, in coordination with federal agencies, manage their coastal zones under the federal Coastal Zone Management Act^{See footnote 10} and may have special protections for coastal uses and resources, such as wetlands, where certain actions conducted in or adjacent to these resources may be prohibited or require specific mitigations through permit conditions or other approvals (e.g., consistency certifications).^{See footnote 11} For retreat strategies that have an emphasis or focus on conserving coastal wetlands or other resources like dunes and facilitating their inland migration, these laws may play a prominent role in shaping government actions. 

Given the interdisciplinary nature of comprehensive policies for managed retreat, these decisions could also implicate a range of other laws depending on the purpose of or need for a tool. For example, buyout strategies coupled with housing and infrastructure investments in receiving areas could require a municipality to evaluate hazard mitigation, infrastructure, affordable housing, and historic preservation laws. To ensure that all applicable laws are identified and addressed in decisionmaking processes, governments should seek to engage legal staff early and often and coordinate across relevant agencies. 

Step Three: Constitutional Compliance

The two primary constitutional protections governments must evaluate and balance in a managed retreat context are takings and due process rights for private property owners.

First, the Fifth Amendment of the U.S. Constitution mandates that the federal government shall not “take” private property for a public use or purpose without just compensation.^{See footnote 12} This provision of the Fifth Amendment has also been applied to states through the Constitution’s Fourteenth Amendment.^{See footnote 13} Under federal and state law, there are different types of takings that can result. Generally, courts apply a “per se” test to physical occupations^{See footnote 14} and regulations that deprive a private property owner of all or essentially all of his/her property’s economic value;^{See footnote 15} however, in a managed retreat context, most regulations designed to protect people, property, and the coastal environment fall within a “regulatory takings” category and will be evaluated under a case-by-case-specific balancing test.^{See footnote 16} Regardless, state and local governments have navigated takings limits and regulated the use of private property to protect sensitive coastal ecosystems. Generally, governments can restrict or limit development in vulnerable coastal areas and floodplains, so long as a property maintains some economic value and a regulation serves a legitimate public interest, such as safety or to offset ecological impacts resulting from use of private property (federal takings rules and case law are examined further in the toolkit sections on Takings).

In addition to takings, governments must also ensure that managed retreat decisions do not violate a property owner’s due process rights under the Fourteenth Amendment. The Fourteenth Amendment provides that no government “shall . . .  deprive any person of life, liberty, or property, without due process of law.”^{See footnote 17} The U.S. and state constitutions require the governments to maintain both procedural and substantive due process rights. Procedural due process requires that governments provide people and entities fair notice of applicable regulations and an opportunity to seek administrative or judicial appeals. Conversely, substantive due process requires that regulations be “rationally related to a legitimate public interest.”^{See footnote 18} Although this is a low constitutional bar, which to some extent overlaps with requirements for regulatory takings, climate adaptation and managed retreat decisions must meet this level of constitutional scrutiny.

Takings

The Fifth Amendment of the U.S. Constitution mandates that the federal government shall not “take” private property for a public use or purpose without just compensation.^{See footnote 19} This provision of the Fifth Amendment has also been applied to states through the Constitution’s Fourteenth Amendment.^{See footnote 20} The U.S. Supreme Court has come to apply the takings prohibition to a government’s regulation of uses that are “the functional or economic equivalents” of a government using its eminent domain powers or otherwise executing an action that physically occupies all or a portion of a property.^{See footnote 21} This section presents the three most likely takings claims — for regulatory takings and per se takings, which is one type of regulatory takings, and exactions — and legal rules under federal constitutional law that may apply to state and local decisions to regulate development in coastal areas. 

While states are required to meet constitutional minima set by the U.S. Supreme Court, state constitutions, legislatures, and courts may exceed those minimum requirements with stronger protections for private property owners. In addition, state legislatures can create additional causes of action through takings statutes. Notably, Florida and Oregon, and to a lesser extent Louisiana, Mississippi, Texas, and Arizona, have all codified takings protections for private property owners that exceed federal baselines and have created a second cause of action.^{See footnote 22} For example, Florida possesses one of the nation’s most aggressive private property protection statutes, the Bert J. Harris, Jr. Private Property Rights Protection Act.^{See footnote 23} The act provides property owners with a judicially enforceable right to compensation based on “burdensome” regulatory restrictions on the use of real property.^{See footnote 24} Through the act, the state explicitly establishes a second or enhanced ground — in addition to the constitutional case law discussed in this section — for private property owners to assert challenges against regulations that impact the use of their property. Specifically, through the Bert J. Harris Act, the Florida legislature established “a separate and distinct cause of action from the law of takings” wherein a property owner is entitled to “relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects [or inordinately burdens] real property.”^{See footnote 25} The effect that statute has had in terms of potentially discouraging state and local regulations of private real property in Florida is, at best, unclear;^{See footnote 26} however, acts like this one can, at a minimum, create a perception that private property protections are a significant barrier to climate adaptation and managed retreat regulations. As this example shows, state and local governments must therefore look at both federal and state constitutions, statutes, and case law when crafting managed retreat proposals. Given the variation among states, this section does not provide a state-by-state analysis of takings law, but rather a broad overview based on generally applicable constitutional principles developed by the U.S. Supreme Court.  

This section also includes a few case law examples and practice tips for state and local governments to minimize potential legal liability. While takings claims are easy for private property owners to initiate, they are far more difficult to win. Governments can take steps to minimize their potential legal risks and should not be paralyzed from acting by the threat of litigation.

Regulatory Takings

Introduction to Regulatory Takings

This part of the section introduces the different tests courts apply for regulatory takings, including per se takings, which are a subset of regulatory takings. Under the per se test, a court will find a takings has occurred if a government regulation deprives a person of all the economic value of his/her property. If not, courts will then evaluate whether a regulatory takings has occurred under a three-factor balancing test. Private plaintiffs will often stack or layer both per se and fact-specific regulatory takings claims in a single lawsuit with the aim that if the per se threshold cannot be reached, a court may find against the government under the more flexible regulatory takings test. Rules and practice tips to minimize legal risk are described below. There are exceptions to takings in the managed retreat context that can come into play — one is for public nuisances and the other is for the public trust.^{See footnote 27} Given current case law, only the former is discussed in detail herein, but it is important to note that both preclude takings liability. 

Per Se Takings

One clear limit on a coastal government’s regulatory authority is that a regulation cannot amount to a per se takings. The U.S. Supreme Court enunciated the rule for a per se takings in a well-known case called Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992). In Lucas, David Lucas owned two coastal lots in the Isle of Palms in South Carolina. After he bought the properties, South Carolina passed a setback law that prohibited the construction of residential properties on those lots. The U.S. Supreme Court relied on a lower court finding that South Carolina’s law had deprived Lucas of “all economically beneficial uses” of his property to hold that the regulation effected a taking “per se” requiring the government to pay Lucas substantial compensation.^{See footnote 28}

The Lucas or per se takings rule essentially tells policymakers that coastal regulations cannot prohibit or restrict private property uses to the point of depriving an owner of all the economic value of his/her property. In practice, the per se bar can be a hard one for a plaintiff to meet in a court. Here, Professor J. Peter Byrne and other legal scholars have argued that “likelihood that a retreat regulation will be found” to rise to the level of a per se takings will likely depend on “the severity of the economic effect” of that regulation on a property owner.^{See footnote 29} Moreover, the Supreme Court has held that the Lucas rule will only be applied where a government regulation effectively removes a property’s economic value in its entirety;^{See footnote 30} therefore, if a government can show that a property owner retains the right to conduct at least some economically beneficial uses on all or a portion of his/her property, it will be found to have some economic value and there is no Lucas per se takings.^{See footnote 31} In the latter instance, a court will instead apply the more flexible rule for a regulatory takings. 

Regulatory Takings

When a land-use regulation has seriously decreased the value of a property but not deprived it of all “economically beneficial uses,” claims of regulatory taking will be assessed under the fact-specific inquiry established by the Supreme Court in Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978). In Penn Central, the Court employed a three-factor balancing test for courts to analyze a regulatory takings claim. Those three factors are: 

1. The character of the government’s action, perhaps including the weight of the public purpose advanced; 
2. The extent to which the regulation has damaged the property’s economic value; and 
3. The effect of the regulation on the reasonable investment-backed expectations of the owner. 

The Penn Central test is applied on a case-by-case basis. While the application of this test can create uncertainty for coastal governments, case law shows that “governments have generally succeeded in showing that thoughtful regulation does not excessively impinge on the constitutionally protected core of private property.”^{See footnote 32}

Regulatory Takings in a Managed Retreat Context Generally 

Governments should consider how to build comprehensive retreat strategies that minimize regulatory takings claims. In a managed retreat context, a purely regulatory approach is more likely to trigger takings claims, whereas an approach that uses a combination of land-use regulations, voluntary acquisitions/buyouts, and market-based tools, like Transfer of Development Rights or “TDR” programs, is much more likely to pass constitutional muster because these types of tools allow property owners to recoup some economic value for their land. Regulatory tools — like those featured in this toolkit for living shorelines requirements, hard armoring restrictions, setback and buffer requirements, conditional permits, and zoning and overlay zones — have faced legal barriers in some states, and policymakers considering these types of approaches, in particular, should seek guidance from their attorneys.

State and local governments have successfully navigated takings limits to protect people, property, and sensitive coastal areas and floodplains. For example, in Chatham, Massachusetts, the town passed a zoning bylaw that designated a “conservancy overlay district” that encompassed the town’s entire 100-year floodplain to protect people and properties from future flooding risks.^{See footnote 33} The conservancy district prohibited uses, such as the filling of land and the construction of residential structures, but permitted limited uses like recreational and water-dependent activities.^{See footnote 34} One property owner in Chatham wanted to sell her property to a prospective buyer couple who made the deal contingent upon their ability to obtain a development permit to build a home; this deal occurred after the conservancy district was established. When Chatham denied the development permit, the property owner sued alleging claims that either a per se or regulatory takings had occurred as a result of the bylaw.

The town’s floodplain regulations survived this legal challenge. In 2005, the Massachusetts Supreme Court found in favor of the town, holding that no takings had occurred.^{See footnote 35} Under the Lucas per se analysis, the property still had economically beneficial uses, just not for residential purposes.^{See footnote 36} Then, under the Penn Central balancing test, the court found that: the city had a legitimate public purpose in protecting people and property from flood risks; the property still had economic value; and the property owner had no reasonable investment-backed expectations in the property to build a residential structure since the bylaw prohibiting such residential structures predated the purchase offer.^{See footnote 37} To reach its conclusion, the court cited supporting factors, including how Chatham: (1) clearly articulated public safety goals in its zoning bylaws; (2) did not apply the regulation to a greater spatial area than was necessary to meet its stated purposes; and (3) gave residents adequate notice because the conservancy district existed prior to the town receiving the development application.^{See footnote 38} At least in Massachusetts, the Chatham case established that local governments can restrict or limit development in vulnerable floodplains, so long as a property maintains some economic value and a regulation serves a legitimate public interest. 

As the Chatham case illustrates, takings challenges are a legal risk that state and local governments must consider in the context of managed retreat; however, state and local governments also have tools to minimize their own potential legal risk. For example, in Chatham, the court pointed to the town’s purposes and findings in its bylaws, which demonstrated a clear threat to people and property. Moreover,  the conservancy district was fair and consistently applied to all property owners in the 100-year floodplain that share the same risk. Other governments can similarly seek to prepare strong justifications to support their regulatory actions, for example, by collecting and documenting best available scientific evidence and community knowledge and lived experiences. Governments should carefully develop such evidence and findings in the administrative record, which justifies the regulation of private property in relation to the Penn Central factors. Based on the evidence justifying a regulation, governments should apply regulations proportionally to address the risk or need confronting people under its jurisdiction. In a managed retreat context, that may mean applying a tool judiciously in a jurisdiction’s most vulnerable coastal areas subject to imminent threats from sea-level rise, flooding, and erosion. In addition, the property owner in the Chatham case had advance notice of the conservancy district, since purchase of the property was contingent on securing a new development permit. Governments can provide notice to property owners through a variety of means such as plans (notably local comprehensive plans and policies), community engagement processes, and real estate disclosures,^{See footnote 39} which courts consider when analyzing a property owner’s “economic or investment-backed expectations.”

Regulatory Takings Relating to Infrastructure Disinvestment

Additional takings considerations could potentially arise in the context of disinvestment decisions relating to public roads, although there are few if any cases addressing this issue directly in the context of sea-level rise and coastal hazards, and state and local governments could further reduce legal risk with proactive planning, policies, or laws and ordinances. Tools and strategies for infrastructure disinvestment are discussed further in the Infrastructure section of this toolkit.

Disinvestment may increasingly become an attractive strategy for dealing with rising safety risks and maintenance costs to keep roads open in vulnerable coastal areas. “Disinvestment” in the infrastructure context generally refers to a process of consciously allowing an infrastructure asset to “fall below previously accepted standards of condition or performance,” typically to be able to reduce long-term investment in the asset and prioritize resources elsewhere.^{See footnote 40} In this context of managed retreat, the term “disinvestment” is referring more specifically to strategies that either phase out maintenance of roads or affirmatively abandon or discontinue roads (e.g., via legislatively authorized procedures) where coastal conditions make upkeep challenging or prohibitive. Although disinvestment decisions will often relieve a government of its duty to maintain infrastructure (as discussed in the Negligence section), nearby landowners may still challenge that action as a “taking” of their property without just compensation. The closure of a road can prevent or diminish a landowner’s ability to access abutting public roads and/or the general public road network, and the takings claim in this context therefore would derive from a landowner’s loss of access.^{See footnote 41}  

In some states, courts have examined the question of when a government action that results in a road closure or otherwise affects a landowner’s access amounts to a taking, although not in the specific context of disinvestment in the face of increased flooding and road damage.^{See footnote 42} In states where loss of access has been evaluated as a potential taking, it has typically been a fact-dependent exercise, based on the level of interference a road closure causes for property owners. If the loss of access to public roads is total (e.g., that road is the only access point to a person’s property) or “unreasonable” or the access is “substantially impaired,” a court is more likely to find that a taking has occurred.^{See footnote 43} For partial losses of access where alternative, though perhaps more circuitous, access routes exist,^{See footnote 44} the analysis may also involve looking at how the road or road system is used and whether alternative routes offer the same level or type of use (e.g., whether the road can accommodate the same load).^{See footnote 45} Additionally, a loss of access specific to one landowner is more likely to be found as a takings than a closure that affects the general public more broadly.^{See footnote 46}

Credit: Tom Horton, in the State of Maryland report, Sea-Level Rise: Projections for Maryland 2018.

It is also important to distinguish between whether the abandonment is a formal action by the government (e.g., going through statutory abandonment, closure, or discontinuance procedures) as opposed to inaction (e.g., underinvestment or failure to maintain, leading to an effective partial or total loss of access). Typically takings claims require some kind of government action in order to succeed,^{See footnote 47} although inaction in this context could alternatively give rise to claims that the duty to maintain has been breached, as discussed further in the Negligence section.

Governments considering the need to disinvest in high-exposure coastal roads may reduce the risk of successful takings claims by integrating a disinvestment strategy into planning and policy. This might be done, for example, by establishing clear frameworks for phased out maintenance or closure as environmental conditions degrade or reach certain flooding thresholds. While there may still be some risk of successful takings claims, formal policies or ordinances laying out a disinvestment strategy can help put landowners on notice of potential access restrictions, thereby helping set reasonable investment-backed expectations under the Penn Central framework.^{See footnote 48} Additionally, the purpose of the policy would be relevant; a disinvestment policy that seeks to avoid public harm (e.g., by demonstrating safety considerations, such as protecting the public from repeated flood conditions) is more likely to survive a takings claim than a disinvestment action that is primarily for public benefit.^{See footnote 49} Agencies considering disinvestment strategies for public roads in high-risk areas should evaluate the potential for negligence claims and takings claims in different road maintenance and abandonment scenarios, and consider proactive policy options to reduce legal risk. 

Public Nuisance Exception to Regulatory Takings

Before concluding the discussion on regulatory takings in a managed retreat context, it is worth mentioning that the U.S. Supreme Court has recognized that a regulation that abates a nuisance cannot be a taking, since the owner has no property right to engage in a nuisance.^{See footnote 50} A public nuisance is generally a private property use that interferes with the public welfare, health, or safety or the public’s ability to use public property.^{See footnote 51} 

One case from Nags Head, North Carolina provides some context to evaluate this exception. Under state law, North Carolina provides a right of public access to the beach.^{See footnote 52} Due to erosion, many homes in Nags Head are now located in the public trust area between mean high water and coastal dunes. In 2009, the Town of Nags Head declared a row of cottages along East Seagull Drive that had been severely damaged by a nor’easter storm as public nuisances that had to be demolished.^{See footnote 53} The town’s public nuisance determination was based on the fact that, due to coastal erosion, this row of cottages —  located halfway between mean high water and the dunes — was now located in the public trust domain and posed a safety threat and obstructed public access to the beach.^{See footnote 54} The majority of homeowners agreed that their homes could be demolished, but three groups of homeowners who owned nine of the cottages challenged the town’s nuisance declaration and findings.^{See footnote 55}

Although the plaintiffs, in one of their claims against Nags Head, alleged that the town’s action was in effect a taking that required “just compensation,” Nags Head declared the properties to be a public nuisance, which did not require compensation to private property owners under state law.^{See footnote 56} The decision ultimately was overturned on appeal, although on other grounds.^{See footnote 57} Specifically, the North Carolina Court of Appeals found that a state public trust statute preempted or precluded local governments from declaring public nuisances.^{See footnote 58}

As sea levels rise, lands erode, and the line demarcating public from private ownership of coastal lands (usually the mean high tide line) migrates inland, public nuisance declarations and lawsuits may become more common, particularly as an avenue to avoid takings issues. Regardless, it would behoove governments to be proactive and truly “manage” or plan retreat from vulnerable coastal areas by taking early actions to prepare for climate change impacts. Even if other state and local governments have a clearer authority to declare public nuisances than Nags Head initially did,^{See footnote 59}  governments should seek to have these discussions with their communities before sea-level rise begins threatening properties to maximize benefits for communities and the environment. 

Exactions and Development Permit Conditions

Introduction to Exactions

In addition to per se and regulatory takings, the U.S. Supreme Court recognizes special rules for exactions. Exactions are regulatory obligations imposed as conditions for the grant of a development permit that require a private property owner to convey to the public an interest in real property or the monetary equivalent.^{See footnote 60} The purpose of such conditions will be to mitigate the public harm caused by new private development.  The property interest required to be conveyed can be a fee interest in land or a public easement authorizing public access. The Supreme Court also has held that exaction analysis is appropriate when a property owner is required to pay money to the government as a substitute for conveying a real property interest.^{See footnote 61}

Exactions raise takings concerns because they require a property owner to convey property to the government without the payment of just compensation. The U.S. Supreme Court has found that exactions do not effect a taking when two requirements are met. First, there must be an “essential nexus” between the character of the exaction and the public harm that the exaction is mitigating.^{See footnote 62} Second, there must be a “rough proportionality” between the value of the property rights conveyed and the harm to the public interest that the exaction mitigates.^{See footnote 63} The principal cases for those two requirements are Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1978) and Dolan v. City of Tigard, 512 U.S. 374 (1994), respectively. Legal experts often refer to the two cases concurrently as the “Nollan/Dolan” test when describing the constitutional requirements for exactions. 

Exactions and Development Permit Conditions in a Managed Retreat Context

In a managed retreat context, states and local governments can set conditions for new development and redevelopment through coastal zone management, environmental, and land-use and zoning permits. For example, governments could require a property owner to remove or relocate structures upon the happening of some event, such as a beach eroding to a minimum width (for more information, see the Regulatory Tools>Development Permit Conditions section of this toolkit). A condition that would likely amount to an exaction would be allowing an existing public easement along the beach to migrate inland with the beach. Here, it is important to distinguish between permit conditions that require the conveyance of an interest in property, which are analyzed as exactions, and other permit conditions on land use that do not involve the transfer of an interest in property, which are analyzed under the general Penn Central regulatory takings analysis. Under Nollan/Dolan, governments will be expected to meet a heightened takings threshold for exactions compared to regulatory takings under Penn Central. For exactions subject to the Nollan/Dolan test, a government can minimize its potential takings liability by having a clear nexus or link between an exaction and the government’s purpose for imposing that condition.^{See footnote 64} Here, the purpose will likely be related to protecting people, property, and the coastal environment — including public access and public trust resources — from sea-level rise, flooding, and erosion. In addition, as long as a government’s permit condition does not take more land than necessary to facilitate a public purpose for retreat, and that land interest “does not exceed in size or value the portion permitted to be developed,” that exaction should pass the Dolan rough proportionality test.^{See footnote 65}

For comparison to the case in Encinitas, this is an image of cliff-top development and erosion in Isla Vista, California. Credit: Patrick Limber, U.S. Geological Survey.

One recent case illustrates many of these concepts and provides takeaways for state and local governments about how to draft legally viable permit conditions. In one California case, the California Court of Appeals upheld coastal restrictions to protect coastal development and ensure continued public beach access from bluff erosion. In Lindstrom v. Cal. Coastal Comm’n,^{See footnote 66} property owners sought a coastal development permit to construct a home on a bluff in Encinitas. The city approved the permit with conditions, including that the home be set back 40 feet from the edge of the bluff for safety reasons.^{See footnote 67} Dissatisfied with the outcome, the property owners appealed the local decision to the state’s coastal management agency, the California Coastal Commission. Ultimately, the commission added conditions to the permit including a larger 60- to 62-foot setback, a waiver prohibiting any future hard armoring structures, and managed retreat conditions requiring the removal of structures in whole or part if the bluff erodes to a certain point.^{See footnote 68} 

On appeal from the commission’s decision, the California Court of Appeals upheld the constitutionality of almost every one of the conditions, including the ones for managed retreat. Notably, the court upheld the requirement that the Lindstroms follow the recommendations in a geotechnical report to remove unsafe portions of their home if the bluff recedes to a point within 10 feet of it.^{See footnote 69} While another condition requiring structure removal was held to be “overly broad” as currently drafted, the court allowed the commission to revise the condition in accordance with its order.^{See footnote 70} In other words, at least in California, the court found that removal conditions can be constitutional so long as they meet minimum requirements. 

Based on the plaintiff’s complaint, the court analyzed the permit conditions under state law claims as well as takings and procedural and substantive due process claims. The condition that bans a seawall was the only one evaluated as a regulatory taking, and the court found that it did not raise Lucas or Nollan/Dolan concerns.^{See footnote 71} Under the Lucas framework, the court found that the property would still retain economic value despite that condition, so it did not cause a complete deprivation of economic use or value.^{See footnote 72} Under Nollan/Dolan, the court found that the condition was not an exaction because it did not require the conveyance of a property interest or payment of money; thus, the condition did not have to meet the nexus/proportionality requirements. In contrast, the conditions requiring the removal of structures (in whole or part) if the bluff erodes to a certain point were only challenged on procedural and substantive due process grounds, which the court found lacked merit due to a lack of factual arguments made by the plaintiffs.^{See footnote 73} The main takeaways from this California case are that: (1) restrictions on property (as opposed to requirements to dedicate land or pay fees) are not exactions that are subject to Nollan/Dolan scrutiny; and (2) the court upheld the commission’s ability to restrict someone’s future ability to build a seawall, which will help ensure natural shoreline processes continue unabated. As to the former takeaway, this case illustrates the point that not every permit condition or development restriction has to meet Nollan/Dolan nexus/proportionality requirements. Accordingly, governments may be able to avoid meeting heightened scrutiny under Nollan/Dolan if permit conditions are drafted as land-use regulations rather than exactions. More broadly, as the use of exactions and permit conditions in coastal and land-use permits evolve at the state and local levels, governments should keep apprised of new federal and state case law on the subject and the multiple and different claims plaintiffs may assert.

Negligence

Decisions relating to public roads and other infrastructure are likely to be an important component of an overall managed retreat strategy. As discussed in the Takings section, this may entail decisions to disinvest through reduced maintenance or abandonment of infrastructure. Many disinvestment strategies (in particular, formal closure, discontinuance, or abandonment of a road) will eliminate the duty to maintain the infrastructure and thereby preempt any potential negligence claims for inadequate maintenance in the face of increasing erosion, inundation, or other hazards affecting road condition. However, agencies with jurisdiction over transportation assets in high-risk areas may still want to understand the legal framework for negligence and how it has been interpreted in the context of maintenance of public infrastructure in their jurisdiction, as it could affect the nature or timing of decisions to disinvest and avoid potential negligence claims. 

In any negligence claim, four elements must be met: (1) the existence of a legal duty (in this context, duty to maintain); (2) breach of duty (i.e., inadequate maintenance or failure to maintain); (3) causation (i.e., that the breach of duty caused some sort of harm); and (4) damages (i.e., actual harm or damage experienced). This overview is not intended to provide a comprehensive or state-by-state analysis of negligence elements, remedies, or defenses, but rather provides a brief introduction to the duty and breach elements of negligence in the context of maintaining public roads in coastal areas and typical defenses that might be available. For more information on tools to relocate or disinvest in infrastructure in a managed retreat context, see the Infrastructure section of this toolkit. 

Duty to Maintain

In general, governmental entities (states, counties, towns, and municipalities) owe a duty of care to the public to keep roads and bridges under their jurisdiction^{See footnote 74} in reasonable repair; that is, they have a legal duty to maintain the infrastructure.^{See footnote 75} The level of maintenance required, and whether it encompasses an affirmative duty to improve the asset, varies according to state law; different standards may apply for different classifications of roads and may also differ somewhat for state-, county-, and municipally-owned roads. For example, the standard might be framed in safety-based terms (e.g., Florida and Georgia’s requirements that municipal roads be kept in a “reasonably safe condition”) or in more performance-based terms (e.g., Florida’s requirement that county roads can provide “meaningful access,” or Georgia’s requirement that county roads can accommodate “ordinary loads”).^{See footnote 76}

Breach of Duty to Maintain

The second element of negligence occurs when the public agency has failed to meet (i.e., breached) that duty of care, typically by failing to maintain the infrastructure according to the safety or performance-based standard as established by statutory and/or case law, which in turn may be informed by industry standards or best practice. In the context of flooding, this breach of duty could occur when, for example, repeated tidal inundation events cause structural damage to the roadway that renders the road unsafe for travel because the government responsible for the roadway did not ameliorate the known and recurring dangerous condition (repeated tidal inundation events). 

In an era of climate change and sea-level rise, it is becoming more challenging for infrastructure agencies to budget for routine maintenance or improvements to mitigate or prevent water obstructions, damage, and other safety hazards. With more frequent erosion, inundation events, and storm-related damage, maintenance costs are increasing — which will make it more costly and difficult for agencies to meet their duty of care. In some areas, “routine” maintenance (e.g., repaving) may cease to be sufficient. Although the duty to maintain and repair would not typically require an agency to upgrade (e.g., adapt road design or alignment to make it more resilient to sea-level rise), upgrades may in fact be necessary in order to maintain road safety and performance.^{See footnote 77} In other words, when it comes time to repave a road segment — an activity that historically would fall within the category of routine maintenance and repair — an agency may find it necessary to elevate the road (which would normally fall within the category of upgrades) in order to prevent increasing flooding and ensure safe travel and levels of service. State courts have not addressed this issue of where the lines are drawn between routine maintenance and upgrades in the context of sea-level rise and increasing coastal hazards. However, there could be costly implications for potential liability for infrastructure and potential losses if state courts were to consider upgrades, such as road elevations, as falling within the duty to “maintain.”^{See footnote 78} For this reason, agencies may wish to consider a proactive disinvestment strategy (e.g., abandoning or reclassifying roads to reduce maintenance standards) that removes or modifies the duty to maintain.^{See footnote 79}

Defenses 

Given the considerations noted above, infrastructure agencies that are opting for an ongoing maintenance strategy (as opposed to disinvestment) in the face of increasing coastal hazards should understand whether they can defend against any potential negligence claims. In some jurisdictions, government agencies may do so by claiming sovereign immunity, a legal doctrine preventing the government from being sued without its consent — which applies under different circumstances to different government actors (federal, state, local). State tort claims acts often provide a framework for when government can be liable for harm resulting from conditions of highways and roads.^{See footnote 80} Typically, government entities can claim immunity for any discretionary or planning activities (i.e., activities that require exercise of judgment), but not for activities categorized as ministerial, operational, or proprietary.^{See footnote 81} In general, then, this defense will depend on whether state courts have interpreted repair and maintenance to be discretionary or ministerial/operational.^{See footnote 82} The distinction may depend upon how specifically maintenance duties and activities are prescribed,^{See footnote 83} and the distinction may be different depending on the jurisdictional level, e.g., municipal vs. county vs. state.^{See footnote 84} “Upgrades” (e.g., design adaptations to render a road more resilient) are more likely to be considered discretionary and therefore subject to immunity — though as noted above, this may not always be a clear distinction in a climate change-driven sea-level rise context.

Aside from immunity defenses, a government may also succeed against a negligence claim if the government has acted reasonably under the circumstances (i.e., met its duty to maintain). In the case of hazards, such as flooding and inundation, the government should provide warnings about the hazard and take steps to prevent harm to users. If sovereign immunity would not apply, agencies should evaluate the circumstances in which courts have interpreted maintenance actions as reasonable in the face of coastal hazards like flooding and erosion.^{See footnote 85}

Governance

Given the cross-jurisdictional impacts of sea-level rise, flooding, and land loss, states and local governments may contemplate regional approaches for managed retreat. The need for regional governance structures could be compounded by shifting populations and ecosystems that move from one jurisdiction to another. Notably, if people choose to leave vulnerable coastal areas, those municipalities may suffer losses to their tax bases. This will hinder municipalities’ ability to provide basic and essential services and make sustained investments in their communities (e.g., building and maintaining infrastructure, schools) more difficult. While larger urban municipalities may be able to absorb some or many of the costs associated with these tax transfers, these losses could exacerbate resource inequities in underserved smaller and frontline communities. Compartmentalized governmental structures could also contribute to the insufficient oversight of important shared coastal resources and public assets, which can lead to their deterioration or destruction. In addition, governments will have to meet the needs of “receiving” communities in different jurisdictions.

One potential solution to avoid or mitigate economic, environmental, and social impacts on individual municipalities would be to share the costs of sea-level rise, flooding, and erosion by distributing them across a greater number of people over a larger area.^{See footnote 86} Regional solutions could be more equitable in addition to better protecting migrating ecosystems and public beaches and coasts. To overcome these challenges, state and especially local governments can consider various approaches for regional governance including:

• Establishing regional government entities that supplement, but do not displace independent local authorities to administer prescribed government functions like collecting and distributing tax revenues; building, maintaining, and funding cross-jurisdictional investments in infrastructure like roads and drinking and stormwater systems; or implementing tools for larger-scale retreat strategies like buyouts and Transfer of Development Rights programs (e.g., San Francisco Bay Conservation and Development Commission; Maryland Senate Bill 547; Charlotte-Mecklenburg Storm Water Services Floodplain Buyout Program, North Carolina; Harris County Flood Control District, Texas; King County Transfer of Development Rights Program, Washington State; New Hampshire Senate Bill 285);
• Altering municipal boundaries either by dissolving and merging independent municipalities together or annexing parts of other municipalities to create consolidated local government units and acquire higher ground land that can serve as receiving areas (e.g., Princeville, North Carolina; Punta Gorda, Florida); 
• Engaging in regional planning for managed retreat to identify and prioritize coastal adaptation actions and leverage funding and other resources to implement those actions (e.g., Louisiana Strategic Adaptations for Future Environments or “LA SAFE”); or
• Entering into informal, non-binding agreements (e.g., memoranda of understanding or agreement) or regional collaborations to better guide and coordinate the actions of individual municipalities to achieve mutual benefits and shared outcomes (e.g., Southeast Florida Regional Climate Compact). 

As climate change and coastal hazards increase in frequency and intensity, local governments and particularly smaller municipalities may have an increasing need to evaluate regional models for the purpose of administering or supporting either select or multiple government functions. 

States may also consider developing inter-state regional approaches for retreat.  In addition, states can provide different types of support for intra-state regional efforts at the local level, including through technical and funding assistance and amending existing or creating new laws to meet regional governance needs.

Related Resources

Planning Tools

Planning will be a critical component of managed retreat strategies. A diversity of plans can be used as a strategic and guiding mechanism to proactively evaluate and implement actions for managed retreat to maximize benefits and minimize costs for multiple stakeholders and the environment. Comprehensive managed retreat strategies will ideally consist of plans and a combination of infrastructure, acquisition, regulatory, and market-based tools.

All plans should be developed through highly participatory public processes that provide interested stakeholders with an opportunity to meaningfully engage and inform the plan’s development. Furthermore, governments should coordinate across agencies and clearly link different plans that include elements of managed retreat.

Flooding at Studemont Street and Buffalo Bayou in Houston from 2016.
Credit: Harris County Flood Control District.

Tools

Plans

Introduction to Planning

Source: Louisiana Strategic Adaptations for Future Environments (LA SAFE).

Plans are important collaborative tools at all levels of government. Planning initiatives simultaneously help state and local governments prepare their communities for the future while also having the practical effect of establishing frameworks for future collaboration between diverse government agencies and stakeholders. Plans come in a variety of types and sizes at all levels of government and have different spatial and temporal attributes. In addition, some plans may be legally mandated or have legal force or effect, while others may have no particular legal mandate or requirements and are initiated primarily because of the strategic policy benefits they can provide governments. Plans should be developed through highly participatory public processes that provide all interested stakeholders an opportunity to meaningfully engage and inform the plan’s development. Plans often require updates and can evolve as living documents as changes occur, such as with community needs and environmental considerations. 

Planning in a Managed Retreat Context 

The Benefits of Planning

Planning will be a critical component of managed retreat strategies for many reasons. These include: (1) plans serving as useful organizational and implementation tools; (2) elevating and encouraging proactive discussions about managed retreat; (3) supporting the phasing of actions over time; and (4) promoting community participation and support. 

First, plans and planning processes can serve as tools to help states and communities evaluate and balance legal and policy tradeoffs for managed retreat and organize and prioritize strategies that inform future implementation actions. There is no “one-size-fits-all” approach to managed retreat and governments and residents will have to consider what acquisition, infrastructure, regulatory, and market-based tools, if any, can be adapted to meet state and local needs. In addition, plans can assist governments in identifying more resilient and adaptive investments, particularly for urban development and infrastructure that will be directly impacted by long-term sea-level rise. 

Second, plans can proactively engage stakeholders about managed retreat as a part of comprehensive adaptation processes. Due to the challenges associated with managed retreat, governments and communities have primarily thought about retreat in a post-disaster or reactive hazard mitigation context. As a result, protection and accommodation strategies have historically been prioritized. Importantly, plans can elevate discussions about managed retreat and put it on an equal playing field with protection and accommodation at the start of decisionmaking efforts. This is not to say that managed retreat will always be the best or preferred adaptation strategy, endorsed by community members, or even appropriate given the physical risks facing an area. Nonetheless, by elevating discussions about managed retreat, plans can help maximize benefits (e.g., social, economic, environmental) and minimize costs by bringing a comprehensive suite of adaptation strategies to state and local decisionmaking tables at the outset. Notably, proactive plans can also help policymakers and communities better “manage” retreat over a long period of time. “Unmanaged” retreat can exacerbate historical inequities and environmental degradation and should therefore be avoided, when and where possible, to provide policymakers and community members with an opportunity to evaluate and consider a feasible range of adaptation alternatives (for more discussion, see the Crosscutting Policy Considerations>Community Engagement and Equity section of this toolkit). 

Third, plans can be used to phase implementation actions over time so that governments can better formulate budgets and investments with the timelines associated with physical coastal impacts. Plans can also help governments identify legal and policy changes that must take place before certain actions can be implemented (e.g., state grant of authority to local governments, amend land-use and zoning regulations). In addition, phasing actions can minimize the potential adverse consequences or costs of managed retreat by distributing those costs over extended time periods. For example, if voluntary buyouts are scheduled to occur over a ten- rather than a one-year period, residents may be more willing to participate in buyout programs and support managed retreat strategies because community character and tax bases will not shift as suddenly. 

Fourth, participatory planning can help educate stakeholders and build support for complex community solutions. Through the visionary component of plans, governments can give residents a voice to inform the future state of their communities in light of changing coastlines. Plans can potentially mitigate the sense of loss people may feel by giving them a platform to influence the future of their communities and providing them with a tangible vision for which they can aim. In short, plans can potentially aid governments in creating managed retreat processes that reflect community transformation instead of loss. 

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Developing Plans for Managed Retreat

The issues associated with coastal zone management should not be considered separate or apart from ongoing land-use and infrastructure planning. As such, these issues need to be explicitly incorporated into the regular cycle of legally mandated planning documents. There may, however, also be an opportunity to pursue supplemental planning initiatives for discrete purposes or areas. These efforts might be out-of-cycle or discretionary planning initiatives that explore solutions to challenges, such as specific inter-governmental coordination efforts, or unique conditions associated with inter-jurisdictional challenges, such as metropolitan-scale coordination or ecological asset-based planning centered on watersheds or regional wetlands.  

Among the many types of planning efforts that can be applied in a managed retreat context, below are nine types of plans that states and local governments can consider developing:

• Hazard Mitigation Plans
• Coastal Management Plans
• Local Comprehensive Plans
• Climate Adaptation Plans
• Long-Term or Visioning Plans
• Post-Disaster Recovery and Redevelopment Plans
• Managed Retreat or Relocation-Specific Plans
• Wetlands Migration or Ecosystem-Specific Plans
• Long-Range Transportation Plans

These particular plans, described in detail below, reflect current examples of coastal jurisdictions that have developed or are in the process of implementing plans with a strong or explicit nexus to managed retreat. This list and these case study examples will be updated as other jurisdictions incorporate managed retreat in their plans.   

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Hazard Mitigation Plans (e.g., State of Hawaii and City and County of Honolulu): In hazard mitigation plans, state and local governments develop strategies to protect people and property from future disaster events. These plans must meet requirements set by the Federal Emergency Management Agency (FEMA).^{See footnote 87} Hazard mitigation plans start by identifying risks and vulnerabilities related to a given disaster or multiple types of disasters, like hurricanes, tsunamis, or flooding, and then potential strategies to reduce those risks and vulnerabilities.^{See footnote 88}  In a managed retreat context, hazard mitigation plans can identify and increase awareness of coastal risks and vulnerabilities related to climate change. Hazard mitigation plans can also include strategies like buyouts that can be used to implement retreat. 

Source: Wikimedia Commons.

While hazard mitigation plans can serve as an effective planning tool for managed retreat, they are also notable because a hazard mitigation plan approved by FEMA is a prerequisite for state and local governments to receive funding from FEMA’s Building Resilient Infrastructure and Communiteis (BRIC), Hazard Mitigation Grant, and Flood Mitigation Assistance programs.^{See footnote 89} Hazard mitigation plans provide the dual benefit of making state and local governments eligible for potential federal funding opportunities to implement retreat strategies. Only those strategies that are included in or consistent with hazard mitigation plans, however, can be funded; therefore, it is important for state and local governments to evaluate potential managed retreat strategies in these plans if they want to preserve their options for future funding consideration. 

Hazard mitigation plans can be cross-jurisdictional and cover multiple hazards in multi-hazard mitigation plans. The physical impacts of sea-level rise, flooding, and land loss may necessitate regional and multifaceted approaches to planning for retreat that hazard mitigation plans can offer because coasts and flooding extend across jurisdictional boundaries and can be influenced by various climate- and disaster-related factors. Although distinct, hazard mitigation plans can be similar to and aligned with climate adaptation plans and incorporated into other types of state and local plans.^{See footnote 90}   

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Coastal Management Plans (e.g., Hawaii Feasibility Study on Managed Retreat, Louisiana Coastal Master Plan, Rhode Island Shoreline Change Special Area Management Plan or “Beach SAMP”): Coastal management plans are a way for state and local governments to consider and articulate balancing human uses and development with ecosystem conservation and protection in vulnerable coastal areas. The federal Coastal Zone Management Act (CZMA) and state-developed coastal management programs approved by the U.S. Secretary of Commerce under the CZMA regulates the “coastal zone” as a unique legal jurisdiction.^{See footnote 91} 

In a managed retreat context, this type of plan can specifically guide development and conservation actions within a jurisdiction. While governments can develop new coastal management plans to meet individual needs, jurisdictions may not have to “reinvent the wheel” and can think creatively about existing plan opportunities, templates, and models and adapt them for climate change and managed retreat purposes. For example, Special Area Management Plans or “SAMPs” can be developed using coastal zone enhancement funding^{See footnote 92} from the National Oceanic and Atmospheric Administration (NOAA) under the CZMA.^{See footnote 93}  SAMPs are resource management plans developed to better manage specific geographic areas, although this may include a state’s entire coastal zone (e.g., Rhode Island). Notably, the CZMA provides that SAMPs can be used to “provide for increased specificity in protecting significant natural resources, reasonable coastal-dependent economic growth, improved protection of life and property in hazardous areas, including those areas likely to be affected by land subsidence [and] sea level rise . . . .”^{See footnote 94} Rhode Island capitalized on its extensive experience with the existing SAMP model^{See footnote 95}  to create the nation’s first coast-wide adaptation plan, the Beach SAMP, that mapped climate and flooding impacts along the state’s coastline to inform more resilient development and redevelopment and potential retreat or relocation strategies. In contrast, some states or local governments may choose to pave the way with new examples of coastal management plans for retreat. In 2019, the State of Hawaii released the first example of a non-SAMP coastal plan assessing the potential feasibility of managed retreat in Hawaii. States and local governments can evaluate opportunities for both adapting existing types of plans like SAMPs and creating new types when reinvention is needed.  

Coastal management plans can complement or supplement state and local pre-disaster mitigation planning and recovery efforts, and local comprehensive plans and zoning regulations. 

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Local Comprehensive Plans (e.g., plaNorfolk 2030, Punta Gorda, Florida): Municipalities are generally required to have a long-term comprehensive plan that anticipates future land-use controls, such as zoning and special urban design districts.^{See footnote 96}  A comprehensive plan provides the legal basis and support for land-use regulations.^{See footnote 97}  Comprehensive plans are often referred to as general or master plans as well. Comprehensive plans are generally prepared for anywhere from a 10- or 25-year time horizon. Typically, legislation mandates updates (e.g., every five years) and that plans must be informed by many different studies, not the least of which are demographic projections, assumptions around the economy, housing, and infrastructure, as well as environmental studies. After this document has been completed (typically with robust stakeholder engagement), it is usually adopted by either a jurisdiction’s city council, board of supervisors, or a dedicated planning commission. Once adopted, comprehensive plans become the legal foundation for zoning in a jurisdiction, which typically specifies site-specific standards for discrete land-use proposals.^{See footnote 98}  

Source: Wikimedia Commons.

At least in theory, municipalities possess tools and legal structures to anticipate coastal change and plan for managed retreat — where appropriate and prioritized by communities — through existing comprehensive plans and land-use and zoning regulations and programs. It is important to note that to date, there are only a handful of municipalities in the United States that have meaningfully incorporated sea-level rise into their comprehensive plans. Comprehensive plans can play an important role in identifying and coordinating many actions related to retreat including: identifying areas most suitable for long-term land uses; designating open space zones for wetlands migration corridors; providing legal justification for coastal setbacks or other regulatory tools for new development; and factoring future demographic data about population shifts due to climate change into demographic projections to support housing and infrastructure investments in higher ground receiving areas.

By meeting the legal requirements for comprehensive plans, local governments can develop a key tool to enhance the potential for incorporating sea-level rise, flooding, and land loss considerations into local land-use and zoning decisions. In addition, local governments can utilize comprehensive plans as a tool to integrate and potentially implement other types of plans for retreat that traditionally lack a concurrent legal nexus, particularly hazard mitigation plans and climate adaptation plans (e.g., Punta Gorda, Florida). 

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Climate Adaptation Plans (e.g., Punta Gorda, Florida, Louisiana Strategic Adaptations for Future Environments or “LA SAFE” Adaptation Strategies, Virginia Beach Sea Level Wise Strategy): Climate adaptation plans outline or direct how states and local governments will prepare to address forecasted climate change impacts. These plans vary in format, level of detail, and sectors covered, among other factors, and are often preceded by and aligned with or include a climate vulnerability assessment. 

For coastal states and communities, climate adaptation plans will ideally provide an opportunity for governments and other stakeholders to consider the full range of climate adaptation strategies for protection, accommodation, and retreat. This decisionmaking process informs where and when, if at all, each strategy will be prioritized and potentially implemented through different legal and policy tools. While managed retreat may not play a role in or be appropriate for all climate adaptation plans, the key is that these plans can be used as a mechanism to elevate proactive discussions about managed retreat to put it on an even playing field with protection and accommodation strategies. Where managed retreat is identified as a preferred coastal adaptation strategy, these plans can better enable states and communities to mitigate potential costs (e.g., economic, environmental, social) at the outset of these processes and not solely view retreat as an option of last resort.

As sea-level rise, flooding, land loss, and disaster events are expected to increase in frequency and intensity, it will become increasingly important to prepare these comprehensive adaptation strategies early and not just in a post-disaster context. Early discussions are particularly advantageous where efforts to conserve coastal ecosystems require more lead time to protect migration corridors and prepare receiving areas for people choosing to relocate away from the coast. These efforts may also require significant investments in housing and supporting infrastructure and services.

Climate adaptation plans may overlap with other types of plans, particularly longer-term or visioning ones, and can be integrated with or implemented through hazard mitigation plans and disaster recovery funding or local comprehensive plans and land-use and zoning regulations. 

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Long-Term or Visioning Plans (e.g., Norfolk Vision 2100, Virginia, Resilient Edgemere Community Plan, New York City, New York): Long-term or visioning plans are distinct from local comprehensive plans because they are not legally required and can help communities plan over longer time periods (i.e., beyond a 10-25-year time horizon) by taking a forward-facing look at what their communities could look like in light of anticipated climate impacts. These types of plans can also provide municipalities with more flexibility to engage communities and design plans to suit their unique climate adaptation and managed retreat needs and priorities without having to meet specific legal requirements (e.g., complex plan formats, extraneous elements). For example, while Norfolk Vision 2100 encompasses the entire municipality of Norfolk, the Resilient Edgemere Community Plan was drafted through a community engagement process to address the specific needs of one neighborhood in Queens after Hurricane Sandy.

While these types of plans are likely to play a greater role at the local level with communities on the front lines of coastal change, states can also consider long-term or visioning plans that complement or support local initiatives (e.g., Louisiana Coastal Master Plan). Since physical impacts on the coast will manifest over present and future time periods, long-term and visioning plans can help states and communities better plan for and make smarter, more resilient investments in coastal development that will be in place for more than a few years. 

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Post-Disaster Recovery and Redevelopment Plans (e.g., State of Florida, State of Georgia, Princeville, North Carolina): Post-disaster recovery and redevelopment plans guide how a community will recover and rebuild after a major disaster. Post-disaster recovery and redevelopment plans can help state and local governments implement post-disaster response and recovery actions to mitigate future risk in coastal areas. These plans can be integrated with hazard mitigation and local comprehensive plans. Like hazard mitigation plans, post-disaster recovery and redevelopment plans can help align state and more often local actions with comprehensive managed retreat strategies in a coordinated rather than a haphazard fashion. While governments should strive to proactively plan to “manage” retreat, discussions about retreat have traditionally been and will necessarily continue in a post-disaster context. Coordinated responses and recovery actions can also help governments avoid conflicts with longer-term managed retreat policies.  

In a managed retreat context, local governments can develop a post-disaster plan to identify opportunities to enhance resilience during disaster recovery efforts. Post-disaster plans prioritize the use of disaster recovery funding to discourage or prohibit redevelopment in repeatedly flooded areas through tools like rebuilding moratoria or stricter regulatory standards (e.g., setbacks and coastal buffers, minimum greenspace requirements). In addition to local comprehensive plans, local governments can utilize these plans to proactively make investments in higher ground, safer affordable housing options that can temporarily or permanently receive people after disasters.

Federal and state governments can provide support for local planning efforts through funding and technical assistance and possibly even require that local governments prepare these plans for statewide consistency in administering emergency management programs. Notably, the State of Florida requires that local governments prepare post-disaster redevelopment plans and provides best practices and guidance for developing them. In addition, Georgia’s coastal program, emergency management agency, and FEMA Region IV are coordinating with four coastal counties to complete disaster recovery and redevelopment plans^{See footnote 99} with funding from the National Oceanic and Atmospheric Administration’s Coastal Resiliency Grant Program.^{See footnote 100} Similar to Florida, Georgia also created a guidance document to assist the counties going through this process.^{See footnote 101}  

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Managed Retreat or Relocation-Specific Plans (e.g., 2018 Green Cincinnati Plan, Ohio, Hawaii Feasibility Study on Managed Retreat, Quinault Indian Nation Taholah Village Relocation Master Plan [Washington State]): Managed retreat or relocation-specific plans are an emerging example of plans that guide how communities can proactively plan for different aspects of a managed retreat strategy. These plans are focused on a community’s specific managed retreat goals and objectives and can facilitate easier project implementation because they provide a strategic look or analysis on this one subject, in lieu of solely including managed retreat as one element of a larger plan. For example, Quinault Indian Nation in Washington State created a comprehensive relocation master plan to direct and inform the phased relocation of its Taholah Village from a lower to higher elevation location. Communities or neighborhoods, like Quinault Indian Nation, that choose to relocate in whole or in part may consider this type of plan to be a useful tool.

Given the complex and interdisciplinary nature of managed retreat, managed retreat or relocation-specific plans can help communities identify, prioritize, organize, and coordinate a multifaceted approach to climate adaptation for a defined spatial area or a number of interested parties. Local governments can also tailor these plans to meet their individual needs around managed retreat. In the future, Cincinnati, Ohio anticipates receiving people moving away from the nation’s coast. In its 2018 Green Cincinnati Plan, Cincinnati aims to prepare to become a receiving area as one part of its resilience strategy. Here, managed retreat or relocation-specific plans can provide support to fill specific goals or objectives.

Given their place-based need and focus, these plans are more likely to be developed at the local level and can supplement other broader or longer-term or visioning plans. Nonetheless, states can provide support for plan development, like technical assistance and funding. 

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More than 250 residents participated in the 2018 Green Cincinnati Plan Kickoff held at the Cincinnati Zoo. Source: City of Cincinnati, Ohio. 

Wetlands Migration or Ecosystem-Specific Plans (e.g., Blackwater 2100, ReWild Mission Bay, San Diego, California): Wetlands migration or ecosystem-specific plans can help direct state and local actions to facilitate coastal ecosystem changes in response to sea-level rise, flooding, and land loss. These plans can ensure that public and private efforts are compatible with comprehensive managed retreat strategies addressing structures, infrastructure, and other community needs.

As sea levels rise, wetlands are encountering physical barriers to inland migration in a phenomenon known as "coastal squeeze." Wetlands are being squeezed between sea-level rise on one side and human development on the other, preventing their natural ability to adapt by moving to higher ground. As wetlands migrate, they encroach on existing land uses, such as agriculture, forestry, and residential communities, raising additional questions about shifting economies, equity, and wetlands and private development regulations (e.g., Clean Water Act, coastal zone management and local land-use regulations).

Wetlands migration plans can help state and local governments identify and prioritize areas for coastal restoration that can serve as migration corridors and higher ground wetlands establishment areas before future development exacerbates coastal squeeze and precludes wetlands from transitioning inland. Wetlands migration plans can also be used as a tool to proactively seek community input to avoid or mitigate potential land-use conflicts. These plans can vary based on their spatial scale to cover a protected area (e.g., Blackwater National Wildlife Refuge) or a state’s or municipality’s entire coastline to elevate awareness of this challenge, particularly given the extensive and multiple benefits wetlands provide people, economies, and the environment. For example, a statewide wetland mitigation or adaptation plan could help guide state acquisition efforts, and a local one could support the development of zoning or overlay districts that enhance open space and natural resources conservation. For similar reasons, ecosystem-specific plans could be created for other types of coastal habitats, like forests, and species that are being impacted. 

For more information on wetlands migration, see the Crosscutting Policy Considerations>Wetlands Migration section of this toolkit. 

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Long-Range Transportation Plans (e.g., Miami-Dade Transportation Planning Organization’s 2045 Long-Range Transportation Plan): As a condition of receiving federal surface transportation funds, state transportation agencies and metropolitan planning organizations (MPOs) are required to engage in performance-based planning for the transportation system in their state or region.^{See footnote 102} States and MPOs must develop long-range plans (Long-Range Statewide Transportation Plan, or LRSTP, and Metropolitan Transportation Plan, or MTP, respectively) that detail performance measures and targets that will help to further national transportation goals set out in federal law.^{See footnote 103} Long-range plans typically have a 20- to 25-year planning horizon and provide a vision and overarching policy, and in some cases cite specific transportation projects planned. They provide the framework for developing the required short-term (four-year) plans, which detail specific priority projects and improvements that will be funded (Statewide Transportation Improvement Programs, or STIPs, in the case of states; and Transportation Improvement Programs, or TIPs, in the case of MPOs). 

Some state departments of transportation and MPOs (e.g., Maryland Department of Transportation; Miami-Dade Transportation Planning Organization; North Florida Transportation Planning Organization) have begun integrating climate change and sea-level rise considerations in their long-range plans. These plans could provide an appropriate means to consider transportation infrastructure needs relating to a managed retreat strategy. For example, state DOTs and MPOs that opt to include performance targets in their long-range plans relating to climate change resilience and sea-level rise will then have to link their investment priorities (as laid out in STIPs and TIPs) to those targets. These plans can then further describe how planned transportation improvements and investments will help achieve targets relating to resilience. Furthermore, the Fixing America’s Surface Transportation or “FAST” Act (the five-year surface transportation authorization passed in 2015) added new requirements for long-range plans to consider projects, strategies, and services that improve system "resiliency and reliability" and reduce or mitigate stormwater impacts.^{See footnote 104} State DOTs are also now required to conduct periodic evaluations on whether "reasonable alternatives" exist to roads, highways, and bridges that have repeatedly required repair or reconstruction as a result of emergency events.^{See footnote 105} In addition, state DOTs are required to consider these evaluations when developing projects and are encouraged to integrate findings in their planning documents as well, such as long-range plans.^{See footnote 106} These new planning requirements, while not citing climate change or sea-level rise specifically, may help encourage the consideration of strategies like managed retreat and asset relocation or disinvestment as long-term approaches to improving resilience and reliability of transportation infrastructure and networks. 

For more information on infrastructure tools for managed retreat, see the Infrastructure section of this toolkit. 

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The types and examples of plans described above can serve as a starting point for state and local governments looking to incorporate or elevate discussions about or goals and objectives for managed retreat into one or multiple types of planning efforts. Other project- or subject-based plans or guidance documents could be tiered from or created independently of any of these plans. For example, state and local governments that administer buyout programs could produce a plan or policy document that includes criteria to prioritize buyouts among properties volunteered to be acquired.

The important takeaways are that plans, whatever number and/or type, can be used as a strategic and guiding mechanism to proactively plan for managed retreat to maximize benefits and minimize costs for multiple stakeholders and the environment. Furthermore, different plans including elements of managed retreat should be coordinated and clearly linked. 

Policy Tradeoffs of Plans 

Plans can be used as a mechanism to help governments and communities decide among and prioritize different acquisition, infrastructure, regulatory, and market-based tools in their communities. Governments will have to choose between different types of plans to determine which options are better suited to meet state and local needs and specific objectives for managed retreat (e.g., an ecosystem plan to facilitate wetland migration in a more rural area, updates to comprehensive plans to prioritize investments in receiving areas in urban centers). Plans should be used in combination with and not to the exclusion of acquisition, infrastructure, regulatory, and market-based tools. Accordingly, it is more important for decisionmakers to determine what types of plans and planning processes can best meet state and local needs for retreat than weigh the policy tradeoffs of plans against other tools to select one type of tool over the other. 

Moreover, since plans come in a variety of types and sizes, since they are created for different purposes, and take place at multiple jurisdictional levels, it is difficult to present every potential policy tradeoff of planning tools in a single table. For example, a local government with limited staff and funding resources might decide to prioritize investments in plans that can come with potential project funding opportunities, like a hazard mitigation plan, over a local long-term visioning plan. In contrast, some municipalities may have multiple types of plans with a managed retreat nexus. There are, however, some overarching policy considerations state and local governments can think about before initiating planning efforts:

• Administrative: Whether a short- or longer-term plan, plans require investments in government staff to start and sustain planning processes for activities that can often span multiple months or years and engage many diverse stakeholders. Smaller or rural communities may face more resource constraints and have less funding allocated to support specialized planning staff for these purposes. In addition, preparing a plan can be expensive and potentially cost-prohibitive for some governments. There are costs associated with the staff time needed to administer the process, retain specialty consultants to draft the plans, and expenses for data collection and engaging with the public. Federal and state grants to local governments are often limited by caps on how much money grantees can spend on planning or administrative functions and tasks. It is important that governments consider opportunities to fund planning processes in conjunction with project implementation. 

• Social/Equity: Plans are more successful when communities are engaged throughout their conception, development, and implementation. Plans can serve as an effective vehicle for bringing communities together, elevating community voices and concerns, ensuring communities have influence on the process and are included in the decisionmaking, and minimizing inequities by enabling governments to “manage” or be more strategic, inclusive, and thoughtful about the social and economic consequences of climate adaptation and managed retreat. For more information on community engagement and equity in a managed retreat context, see the Crosscutting Policy Considerations>Community Engagement and Equity section of this toolkit. 

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Practice Tips

When implementing planning tools in a managed retreat context, decisionmakers may consider the following practice tips: 

• Invest in data at an appropriate scale: Physical impacts from sea-level rise, storm surge, different types of flooding (e.g., precipitation), and coastal erosion are the impetus or drivers for state and community decisions to retreat. Accordingly, governments will need the best available scientific data and information on an appropriate scale to effectively guide and inform planning, legal, policy, and project decisions on the ground. This data must be highly placed-based and is key to helping governments and communities identify what coastal areas may necessitate retreat and if so, when and how. While some governments may already have the necessary data, others will have to invest in or look for opportunities to obtain data before they can engage their agencies and communities in discussions about managed retreat. Federal agencies (e.g., National Oceanic and Atmospheric Administration, U.S. Geological Survey) and conservation nonprofits (e.g., The Nature Conservancy) may already have data on an appropriate scale that governments can use to inform the development of their plans and corresponding legal and policy decisions. Alternatively, state and local governments may have to consider grant or other funding opportunities to initiate partnerships to collect this data from scratch. Of particular note, flood data from the Federal Emergency Management Agency (FEMA) can serve as a starting point, but it has its limitations. Specifically, FEMA’s data only includes historical and not future flood data, does not incorporate climate change considerations, and may not present data for a community’s most at-risk areas outside of the 100-year (one-percent annual chance) floodplain, particularly for locations that are experiencing compounding flood risks.
  
  While scientific data is important, community residents — particularly those who have lived in an area for a long time or have historical or cultural ties — can provide additional types of data or information based on historical or lived experiences that, among other things, can help governments better understand cyclical or long-term changes on the coast to inform climate adaptation discussions (e.g., Louisiana Strategic Adaptations for Future Environments or “LA SAFE,” Quinault Indian Nation Taholah Village Relocation). Governments, therefore, should aim to make data collection processes as comprehensive as possible and reach out to more than just scientific and coastal experts. In addition to scientific data, it will also be important for governments to gather and analyze other types of data like economic, housing, demographic, and habitat- and species-specific data to make more resilient investments to account for shifting human and natural resources populations (e.g., Louisiana Coastal Master Plan). Complementary datasets will be key to crafting well-rounded, interdisciplinary approaches for managed retreat.

• Collaborate across agencies and levels of governments: Given the interdisciplinary nature of managed retreat, it will be crucial for governments to collaborate across agencies and different levels of government (i.e., federal, state, and local) and integrate relevant plans that address various components of a managed retreat strategy. Although government collaboration and planning integration require investments in staff time and resources, they can contribute to more comprehensive strategies that increase the potential for maximizing and more equally distributing the various benefits of managed retreat while minimizing associated costs. For example, plans can enable governments to leverage limited staff time and funding to identify and implement managed retreat laws, policies, and projects that can achieve co-benefits for multiple stakeholders and the environment. Strategic and guiding mechanisms like plans  — or intra- or inter-governmental committees or coordinating bodies built around a plan — can allow different agencies and levels of government to contribute their individual jurisdiction or expertise to a collective “bigger picture” vision for managed retreat. 

• Plan over both short- and longer-term time horizons: One of the systemic risks associated with short-term planning is that the long-term impacts of climate change are not being adequately incorporated into decisionmaking. Since there is no “one-size-fits-all” approach for planning, governments should consider developing plans over different and multiple temporal horizons. Physical impacts from climate change will manifest differently over time in places and planning processes can help governments coordinate the legal and policy decisions related to those impacts. Planning over shorter-term (e.g., ten years or less) and longer-term time horizons (e.g., more than ten years) will prompt different types of questions and needs that should be addressed proactively in the appropriate types of plans to guide managed retreat decisions both today and tomorrow. Importantly, short-term or present decisions about investments with multiple-decadal life spans (e.g., infrastructure) will have long-term consequences if future development and redevelopment are not designed and sited with sea-level rise, flooding, and coastal erosion in mind.
  
  In addition, states and communities make decisions along different time horizons (e.g., two- or four-year election cycles, 20-30-year mortgage or infrastructure investments). As a result, plans can be used as a tool to foster cooperation among policymakers and residents in ways that align with important life decisions and milestones. A coordinated approach can help to frame discussions about climate adaptation and managed retreat in more understandable or analogous terms that can create political and community buy-in to advance and support planning and potential implementation efforts. 

• Create flexible planning models and tools, including phased approaches: State and local governments should consider opportunities to design and implement flexible planning models that can absorb and respond to different factors like changing physical impacts on the coast, community needs and priorities, and other administrative factors (e.g., funding availability, state and local policy or political changes). For example, governments can evaluate how to apply adaptive management principles in their plans, particularly for novel or evolving projects that are anticipated to be implemented and have uncertain impacts or effects. Moreover, flexible and phased approaches to community-driven plans can be used to shape and manage community expectations and mitigate the potential costs of managed retreat. Notably, elected officials, agency policymakers, and residents may be more willing to engage in longer-term planning efforts for managed retreat if potential policies and tools are phased in over time. Specifically, a plan to implement policies over a longer time horizon can mitigate potential losses to local tax bases, economies, and community character and networks. 

• Align plans with the prerequisite and supporting actions needed to implement managed retreat strategies: Plans can serve as strategic guidance for implementation and help coastal communities respond to climate change impacts. Durable planning documentation can provide enhanced legal certainty to support resilient investments in communities. Plans can also assist governments in taking actions that will have to occur or take place before managed retreat strategies can be implemented. These actions can include removing barriers to implementation by proactively identifying potential funding sources or amending land-use and zoning ordinances. By incorporating these supporting actions into planning efforts, governments can also assess the feasibility of different managed retreat strategies and either prioritize or eliminate many at the early planning phase before investing time and resources into those strategies at the point of implementation.   

• Remove procedural barriers to equitable participation in planning processes: As with all aspects of developing comprehensive managed retreat strategies, governments should provide communities with the tools, information, and opportunities they need to meaningfully engage and actively participate in planning processes. Governments can make upfront investments to support outreach and educational and information needs by providing meals, daycare, and compensating participants for their time with a stipend to defer travel costs. Allocating funding to support community engagement removes procedural barriers to equitable participation. These investments can ultimately increase the number of people who are able to participate and encourage valuable input through sharing important first-hand knowledge of coastal flooding impacts and community needs. Community insights can be factored into the design and selection of a plan’s mission and vision statements, goals, objectives, and potential adaptation projects. For more information, see the Crosscutting Policy Considerations>Community Engagement and Equity section of this toolkit and Georgetown Climate Center’s Equitable Adaptation Legal and Policy Toolkit. 

• Build community capacity to participate in planning efforts: In addition to encouraging and facilitating participation from all interested residents, governments should also evaluate opportunities to build local capacity for residents to lead and meaningfully contribute to planning processes and their implementation. For example, as part of the Louisiana Strategic Adaptations for Future Environments or “LA SAFE” community engagement planning process, the state partnered with a nonprofit, the Foundation for Louisiana, to train local facilitators who played an active role in leading the development of local adaptation plans. Facilitators were offered stipends to compensate them for their time and contributions to the process. Governments can also design and implement plans in ways that can be used as a vehicle to build local capacity.
  
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