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.
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.
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Source: Louisiana Strategic Adaptations for Future Environments (LA SAFE). |
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.
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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:
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Credit: Integration and Application Network, University of Maryland Center for Environmental Science. |
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.
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:
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:
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 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
 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.
This toolkit 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.
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.
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.
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.
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.
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 ActSee 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 ActSee 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.
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 occupationsSee 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.
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.
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.
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.
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:
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
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.”
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
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| 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.
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.
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.
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
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| 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.
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.
In general, governmental entities (states, counties, towns, and municipalities) owe a duty of care to the public to keep roads and bridges under their jurisdictionSee 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
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
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
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:
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.
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.
 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.
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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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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:
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
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 fundingSee 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 modelSee 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.
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).
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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Short-term and long-term visions from the Resilient Edgemere Community Plan. Credit: New York City Department of Housing, Preservation, and Development. |
Long-Term or Visioning Plans (e.g., Norfolk Vision 2100, Virginia, Resilient Edgemere Community Plan, Queens, 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.
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.
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A Flooded road in Princeville, North Carolina after Hurricane Matthew in 2016. Source: Wikimedia Commons. |
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 plansSee 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
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.
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.
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People take part in interactive learning during Love Your Wetlands Day at Blackwater National Wildlife Refuge. Credit: Greg Hoxsie for ReWild Mission Bay. |
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.
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.
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.
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:
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When implementing planning tools in a managed retreat context, decisionmakers may consider the following practice tips:
One challenge that governments face when deciding whether to implement a managed retreat strategy is how to develop that strategy in the context of public infrastructure assets, such as roads and bridges.See footnote 107 Rising sea levels in some areas are causing coastal roads and other public infrastructure to experience more frequent inundation during king tides or even daily high tides, more severe erosion and flooding from coastal storm events, and in some cases inundation or pooling from below that extends further inland as groundwater tables rise. These impacts create public safety hazards and prevent public infrastructure from functioning as intended, as flooded roads cause traffic delays, require detours, and in some cases, temporarily cut off sole access to communities. Roads that have been eroded, washed out, or weakened structurally (e.g., by heightened groundwater tables) can require more frequent and costly maintenance and repairs. Infrastructure agencies are increasingly confronting these challenges and can benefit from tools to help evaluate the tradeoffs of different policy, planning, design, and operational and maintenance strategies to minimize travel-related impacts from coastal hazards. This section currently focuses primarily on decisionmaking considerations for public roads in a managed retreat context, but does include several case studies and examples applicable to other types of infrastructure (e.g., drainage assets).
 Road damage from Hurricane Sandy in Delaware. Source: Delaware Department of Natural Resources and Environmental Control. |
Departments of transportation (DOTs) and other authorities overseeing roads and bridges have many factors to consider in making decisions about infrastructure capital investments, maintenance, and operations. Climate change and sea-level rise increasingly pose a challenge for cost-conscious agencies that must now factor in higher upfront adaptation costs or higher maintenance costs over the lifetime of assets. An expectation that assets will be subject to more frequent and severe flooding and erosion requires infrastructure agencies to consider whether to protect or modify the designs of their assets to withstand future conditions, to realign or relocate certain assets to less vulnerable areas, or to disinvest by phasing out maintenance or abandoning assets altogether.
Further complicating matters, managed retreat strategies may require collaboration between multiple levels of government. Authority over roads and bridges may often be shared by state, county (if the state has county government structure), and municipal governments, as well as regional agencies such as metropolitan planning organizations (MPOs) for urbanized areas. For example, a particular road or bridge asset may primarily serve a specific municipality but may be under state or county jurisdiction; and multiple state agencies and local governments might oversee different types of infrastructure that all occupy the same area, such as roads, bridges, dams, and levees or dikes. In the context of managed retreat, infrastructure owners and operators will likely need to collaborate with other agencies and decisionmakers at local and state levels to ensure that the approaches to infrastructure resilience or retreat are consistent with the larger strategy.
 Utqiagvik, Alaska. Source: NOAA. |
This section focuses on the policy options for state and local governments, particularly transportation agencies, to prepare public transportation infrastructure assets for coastal impacts of climate change by (1) modifying asset design or adding protective features, (2) relocating or realigning assets, or (3) disinvesting in assets in high-exposure areas. These strategies each come with important legal, fiscal, and practical considerations that must be weighed by the decisionmakers overseeing assets, such as asset use and criticality, design life and anticipated lifecycle costs, potential for legal challenges, and more. For each of the policy options, there is an overview of the option, discussion of policy tradeoffs, practice tips to aid in implementation, and case study examples on how some of these options have been implemented in practice.
Governments and infrastructure agencies are increasingly turning attention to the need to ensure that public infrastructure is planned and designed to withstand future climate conditions and extreme events. As the availability and quality of climate data and projections improve, this is slowly becoming a less daunting task. In coastal areas, design and protective modifications include measures such as elevating roads and bridges, protecting assets with hard structures or nature-based features,See footnote 108 and modifying pavement materials or structural design to be more resistant to effects from inundation or to minimize environmental impacts if flooded or washed out (e.g., “sacrificial” roads).
 Corpus Christi is exploring nature-based solutions to protect a vulnerable section of Laguna Shores Road. Source: Corpus Christi MPO. |
Transportation agencies can utilize resources such as the Federal Highway Administration’s engineering circular, Highways in the Coastal Environment: Assessing Extreme Events, to help with evaluating exposure and vulnerability of coastal highways to sea-level rise and extreme events, and identifying appropriate adaptation approaches.See footnote 109
Adaptive design approaches are being implemented on a project-by-project basis in some states and cities. However, states and local governments, and to some extent, regional transportation planning agencies, can also institutionalize climate change-informed design through the following approaches:
In the context of a comprehensive managed retreat strategy, asset design and protective features will likely primarily be used as an intermediate strategy to bridge the gap to more permanent solutions like disinvestment. Depending on the function or use of the asset and the timeframe for comprehensive retreat from coastal areas, a disinvestment strategy for public infrastructure may not be initially feasible. In these instances, infrastructure managers may want to consider design-related adaptation strategies to ensure the adequate functioning of assets, especially those deemed critical. Design modifications can provide an effective intermediate-term strategy for ensuring public safety and infrastructure resilience to coastal hazards while broader long-term retreat strategies and tools are being planned and considered.
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When considering the need for design modifications or protective features for public infrastructure, as compared to alternative strategies (relocation/realignment, disinvestment), decisionmakers may wish to consider the following practice tips to balance policy tradeoffs:
Beyond protecting or redesigning assets in-place, agencies can consider relocating (or “realigning”) as another alternative to formal disinvestment. Relocating or realigning roads, or high-risk segments of roads, to less vulnerable locations may offer a longer-term solution than design modifications or protective measures. This approach has been utilized in some coastal states to ensure longer-term safety of roads threatened by erosion, frequent inundation, or washout from storms and to reduce future maintenance needs of roads.
State DOTs in particular may be encouraged to consider options for realignment when dealing with coastal highways that are vulnerable to extreme events. Under Federal Highway Administration regulations, state DOTs are required to conduct periodic evaluations to determine if reasonable alternatives exist to roads, highways, or bridges that have repeatedly required repair and reconstruction activities due to emergency events such as natural disasters.See footnote 125
 Erosion affecting SR 1 in Sonoma County, CA, where Caltrans is pursuing realignment. Source: Caltrans. |
The intent is to encourage more cost-effective transportation planning and investment. The results of these evaluations are to be incorporated when state DOTs develop projects and are encouraged to be considered in long-range planning.See footnote 126 While these requirements do not apply at the municipal level, nor do they require analysis of repeated damage from non-emergency events such as high tide flooding, they may help encourage infrastructure agencies to plan proactively and build analyses and justifications for relocating infrastructure in high-risk coastal areas.See footnote 127
In the context of a coastal area considering the need for managed retreat in the future, a road relocation or realignment strategy is likely a temporary solution, albeit an often longer-term solution than design modifications or protective features. Where additional near-term managed retreat tools are being pursued, this strategy may not be necessary or appropriate as use of the road would be expected to dwindle as retreat tools are implemented, leading in the extreme to a scenario where a resilient road does not serve any community. Transportation agencies might consider developing a proactive phased approach to public infrastructure disinvestment as part of a managed retreat strategy, which may include road realignment as a strategy to bridge the gap (as with design modifications and protective features) to permanent disinvestment. However, this strategy comes with significant administrative and financial burdens, and accordingly agencies will likely reserve this option for the most critical or heavily used routes.
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When considering the need for relocating/realigning public infrastructure such as roads and bridges, as compared to alternative strategies (redesign in place, disinvestment), decisionmakers may wish to consider the following practice tips to balance policy tradeoffs:
Agencies overseeing transportation infrastructure often must make difficult decisions regarding maintenance needs and priorities given budgetary constraints and other challenges. Disinvestment in general 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 135 This is in contrast to underinvestment in infrastructure, which refers to a gap between funding needs to prevent asset deterioration and actual funding levels but is less of a conscious decision than disinvestment (though it may in some instances have the same practical effect, i.e., infrastructure that does not meet its standard of performance). The need for disinvestment may arise in contexts such as shifting use of the infrastructure, aging infrastructure, budgetary constraints, and climate change-related risks.See footnote 136
 Source: Town of Milton, Massachusetts. |
In this section, the term “disinvestment” is used more specifically to refer to strategies that either phase out maintenance of roads or affirmatively abandon or discontinue roads where coastal conditions make upkeep challenging or prohibitive. Disinvestment strategies may include, for example:
 Road washout on Olympic Peninsula in Washington. Source: National Park Service. |
Ultimately, state DOTs and local governments may have to adopt a disinvestment strategy for road infrastructure that is repeatedly flooded and damaged or otherwise at high risk of regular damage due to sea-level rise and coastal conditions. Where coastal roads are frequently flooded, eroding, or experiencing storm-related damages, underinvestment may already be a concern leading to poor infrastructure performance, traffic delays, and safety concerns. A more deliberate approach through disinvestment may provide the most practical strategy to reduce the risk of public harm caused by traveling a road in unsafe condition – particularly where the alternatives (more frequent maintenance/repairs, road redesign or protection, or realignment) would place a far greater strain on the agency or municipal budget.See footnote 138
These strategies each come with different considerations, benefits, and drawbacks. For example, disinvestment can help address public safety concerns and ease the burden of mounting maintenance costs as coastal roads are more frequently inundated and damaged by tidal flooding and storm events. However, these strategies may come with legal risk. For example, a disinvestment strategy may be challenged as a “taking” of private property (typically, right of access to the road network) without just compensation. Agencies should understand the legal issues arising in the context of disinvestment (overviewed below and discussed further in the Crosscutting Legal Considerations section).
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When considering the need to disinvest in public infrastructure through reduced or phased out maintenance or road closure/abandonment, decisionmakers may wish to consider the following practice tips to balance policy tradeoffs:
Given the amount of privately owned land throughout most of the United States,See footnote 147 particularly on the coast, state and local governments that adopt managed retreat strategies should evaluate opportunities to use land acquisition powers to transfer more land to public ownership. Publicly owned, compared to privately owned land, can be held for the benefit of communities and the environment. Land acquisitions can occur through either the purchase of properties in fee simple or development rights (to part of or an entire property) through easements. Acquisition tools can require the expenditure of public and private funds (buyouts and open space acquisitions) and/or the in-kind exchange of land (land swaps).
Acquisition tools should be conceived of and communicated as one part of a comprehensive managed retreat strategy to facilitate the transition of people and coastal ecosystems away from vulnerable areas. By linking acquisitions with other tools (e.g., planning, regulatory, market-based), decisionmakers can minimize the social disruption of acquisitions and maximize economic, environmental, and social benefits by restoring acquired lands. This toolkit presents examples of how state and local governments and nongovernmental partners are implementing different buyout and acquisition tools to achieve these outcomes. Governments and residents should evaluate and address the tradeoffs that come with land acquisitions at the outset of climate adaptation and retreat decisionmaking efforts. For purposes of this section and the toolkit, all acquisition tools are presented as voluntary acquisitions in contrast to eminent domain. While eminent domain is a legally feasible option state and local decisionmakers may consider for purposes of effectuating managed retreat, it is not likely a politically viable adaptation strategy, particularly for residential areas.
This section will introduce five types of acquisition tools that state and local coastal governments could include — one, a few, or all — as part of a comprehensive managed retreat strategy.
Large-scale flooding, known as the “Halloween Flood of 2013,” in Austin’s Onion Creek neighborhood. Credit: Watershed Protection Department, City of Austin.
When thinking about managed retreat, “voluntary” property buyouts — where people choose to accept a buyout offer — are often the first adaptation tool that comes to mind (compared to eminent domain or "involuntary" buyouts and acquisitions). While buyouts are a valuable tool to acquire properties in vulnerable coastal areas and remove existing structures, they should be coupled with other tools discussed in this toolkit to prohibit, regulate, and discourage future development or redevelopment as part of a comprehensive retreat strategy.
MostSee footnote 149 state and local governments use the terms "buyout" and "acquisition" interchangeably to describe the set of actions whereby a government generally: purchases a property from a willing seller, demolishes existing structures on the property, and prohibits future development (i.e., through deed restrictions or a conservation easement) and allows the property to naturally revert to open space (or be restored to specific environmental conditions depending on varying degrees of human intervention) in perpetuity; post-buyout, property ownership can vary among different entities including the government (federal, state, or local) or nonprofit conservation or land trust organizations. Properties purchased through buyouts are generally acquired for hazard mitigation and passive recreational purposes and will already be developed (compared to open space acquisitions of undeveloped property with a high conservation value). For purposes of clarity in this toolkit, “buyouts” will be used distinctly to only describe the former compared to “open space acquisitions.” Buyout programs can be administered at the state (e.g., New Jersey Blue Acres Program) or local levels (e.g., Charlotte-Mecklenburg County, North Carolina, City of Austin and Harris County, Texas, New York City, New York).
 Credit: Sandy Urgo, The Land Conservancy of New Jersey. |
In regards to scale, buyouts can proceed on a parcel-by-parcel basis or more comprehensively either within a defined area (e.g., a neighborhood), or, where an entire community is relocated (e.g., Isle de Jean Charles, Louisiana). While the latter community-level relocations are an emerging concept in response to climate change and sea-level rise,See footnote 150 and likely to be rare in the foreseeable future, it may become increasingly common for governments to move beyond individual, standalone buyouts and evaluate the need for larger-scale buyouts in a jurisdiction’s most vulnerable coastal areas. Specifically, as the threats of sea-level rise, flooding, and erosion become more widespread over time, an increasing number of people, from residential homeowners to landlords and tenants, to commercial business owners, will have to weigh the costs of “staying in place” against the benefits of relocating to higher ground. Where enough consensus from residents can be generated, state and local governments can seek to work through community-based and -driven processes to facilitate larger areas for buyouts, whether the buyouts occur all-at-once or through a phased approach (e.g., to align with funding availability or when set regulatory requirements are triggered, such as like minimum beach width, are triggered). Larger bought-out areas can maximize the benefits that buyouts can offer, including flood reduction through the greater conversion of open space and minimized or eliminated government costs for providing services (e.g., emergency, infrastructure development and repair) to remaining hold-out residents.
Historically, buyouts in the U.S. have predominantly occurred post-disaster in riverine floodplain communities, particularly in the Midwest.See footnote 151 Moreover, buyouts have not traditionally been implemented as a part of proactive efforts to prepare for climate impacts, but are more often reactive responses to extreme storms or flooding events.See footnote 152 Riverine examples of state and local buyout programs, like those featured in this toolkit, can provide a longer-term lens and lessons learned to avoid “reinventing the wheel” for coastal decisionmakers increasingly encountering similar questions in response to climate change.See footnote 153
Regardless, the large cost of coastal development and its force as an economic driver can pose political and funding hurdles that are likely to be magnified in a coastal context. The high value of coastal properties and potential reductions in local tax bases can act as barriers for governments considering buying out homes even if they will result in post-disaster benefits and reduce risk. This latter barrier is especially challenging for local governments in states like Alaska, Florida, and New Hampshire where property taxes are a primary form of government revenues. Regardless, as sea levels rise and coastal impacts become more pronounced, real estate and insurance markets may begin to factor in increasing risks of flooding that affect property values in high-risk areas ahead of government action. Some communities have successfully mitigated the negative financial consequences of buyouts by: encouraging and facilitating relocation within the same jurisdiction (e.g., Lumberton, North Carolina, Minot, North Dakota); using buyouts to generate overall cost savings by phasing-out infrastructure and services (e.g., Charlotte-Mecklenburg County, North Carolina, Oakwood Beach, Staten Island, New York, Woodbridge, New Jersey); generating additional tax revenues by incorporating trails and other recreational amenities on bought-out properties for nearby homes (e..g, Charlotte-Mecklenburg County, North Carolina, Harris County, Texas, Woodbridge, New Jersey); and generating new sources of revenue from bought-out properties (e.g., leasebacks in Charlotte-Mecklenburg County, North Carolina and Wyoming County, West Virginia). State and local coastal governments could learn from these and other examples to support potential buyout strategies that can act in advance of disasters, increasing climate impacts, and negative-trending market forces and result in long-term economic, community, and environmental benefits.
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When implementing buyouts in a managed retreat context, decisionmakers may consider the following practice tips to address and balance different policy tradeoffs:
State and local open space programs — and similar programs for agriculture and forestry — are designed to protect open space and working lands, respectively. Through these programs, governments voluntarily acquire title to all or part of a tract of privately owned land for specified conservation purposes. Governments can acquire either fee simple title or interests in or use rights to land through easements or covenant agreements. Landowners who decide to participate in one of these programs receive money for the purchase of their land or a conservation easement. In addition, federal, state, or local law may also provide private landowners with tax incentives or credits, particularly for conservation easements.
In contrast to hazard mitigation buyout programs, open space acquisition programs and policies are typically executed for the primary purpose of voluntarily acquiring privately owned land for open space or recreation (e.g., parks, trails) or working land uses (e.g., agriculture, forest) that are compatible with conservation. In addition, the lands purchased tend to be — although are not always — undeveloped or moderately-altered habitats, whereas hazard mitigation properties are more often developed or contain structures. Although the two types of programs are not mutually exclusive in terms of resulting environmental and community benefits, they can be administered separately — even within a single agency — and may have different sources of funding (e.g., New Jersey Green and Blue Acres programs, New York City Land Acquisition and Flood Buyout programs).
As part of a comprehensive managed retreat strategy, open space acquisition programs can support coastal conservation in multiple ways. States and communities can use these programs to protect priority migration corridors that will enable coastal ecosystems — consisting of both habitats (i.e., wetlands and forests) and species — to migrate inland and help to mitigate the overall loss of coastal habitats as a result of sea-level-rise inundation, saltwater intrusion, and salinization. Governments can also use these programs to acquire land in higher ground areas that can serve as future habitat to enable the inland transition or “establishment” of these migrating ecosystems.
To support open space acquisition programs, state and local coastal governments can leverage voluntary buyouts for hazard mitigation purposes to conserve land to enhance coastal resilience and accommodate migrating ecosystems. Governments can also evaluate opportunities to build climate change and projected habitat data into these programs so that land purchases are informed by future impacts.
Acquisition programs and the funding sources that support acquisitions often specify the types and uses of properties that can be acquired and the purposes for which land can be acquired. As a result, governments will need to ensure that the lands they are identifying for acquisition for retreat purposes meet the requirements of the particular program and funding sources.
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When implementing open space acquisitions in a managed retreat context, decisionmakers may consider the following practice tips to address and balance different policy tradeoffs:
Conservation land trusts (“land trusts”) are nonprofit organizations that are incorporated for the purpose of acquiring and holding land for the public benefit. Conservation land trusts often focus on preserving and restoring undeveloped lands for their natural resource values, such as protecting natural habitats and watersheds, or for preserving working lands for farming or forestry. They preserve important lands with high ecological or conservation values by acquiring land or interests in land, through conservation easements.See footnote 155
Conservation land trusts can be constructive partners in helping governments facilitate retreat from vulnerable flood-prone areas and efforts to restore and maintain natural floodplains. In some areas, land trusts are already helping governments facilitate retreat by acquiring flood-prone properties, restoring natural floodplains, and creating new “receiving” developments to help families relocate to homes out of harm’s way.
State and local governments can work with land trusts to support managed retreat efforts by:
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When using or working with conservation land trusts in a managed retreat context, decisionmakers may consider the following practice tips to address and balance different policy tradeoffs:
A land swap is the exchange or “swap” of title to land in perpetuity between two or more property owners. This acquisition tool typically centers on an in-kind exchange of property between parties instead of the purchase of land, although money can supplement in-kind exchanges. Land swaps can take a diversity of forms, involve different numbers and types of property owners, and can be highly complex, but they also provide an effective means of effectuating retreat on a large scale. Land swaps can occur between a government and private landowners, like residents or businesses, or involve other parties or intermediaries, like nonprofits or land trusts.
Governments that own public land, including vacant lots, may consider land swaps to implement retreat for different purposes. In a managed retreat context, land swaps can be used for different purposes including to facilitate:
Depending on the purpose, state and local coastal governments and other nongovernmental partners can design land swaps for retreat in ways that meet community needs.
While larger size properties are often used to implement land swaps, parcel size alone should not be a determinative factor for decisionmakers evaluating this potential acquisition tool. For example, in Long Beach, California, a public-private land swap is planned that would exchange 154 acres of land currently in private ownership for five acres of publicly owned land. In addition, housing in higher ground receiving areas could be consolidated on denser, upzoned parcels.
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When implementing land swaps in a managed retreat context, decisionmakers may consider the following practice tips to address and balance different policy tradeoffs:
A leaseback is a legal tool that governments can use to lease acquired properties to their original owners to generate revenue or a third party to reduce maintenance costs. A government compensates a property owner for purchase of the land and then leases the property back to the former owner, now the lessee, who pays rent (either monetary or in-kind) to the government as lessor. In exchange for rent, the lessees can use their property according to the terms and conditions on the lease, but no longer own it. Leasebacks can also be one option for governments to assign land management to a third party private or nongovernmental entity without permanently transferring ownership.
Leasebacks can be structured in different ways, including the following common forms:
A government’s ability to use leasebacks may depend on the sources of funds it uses to acquire a property. For example, the Federal Emergency Management Agency must approve leases and transfers of title for buyouts funded by its Hazard Mitigation Assistance Grant Programs, where full title can only be transferred to another public entity or conservation nonprofit (i.e., not private entities).See footnote 157 Governments should consult funding requirements that may affect their ability to enter into a certain type of leaseback or how a lease may be structured or drafted.
Leasebacks provide governments with a more flexible means to acquire vulnerable properties for hazard mitigation or eventual open space purposes by meeting private landowners’ present needs. Similar to life estates, leasebacks can encourage property owners to participate in buyouts by offering them a limited amount of time in their homes to facilitate easier transitions to new ones. For example, Charlotte-Mecklenburg Storm Water Services in North Carolina has used leasebacks with elderly homeowners or people who need additional time to purchase new homes. Leasebacks can increase participation in buyouts but should be integrated into an overall acquisition program to avoid checkerboarding. They should be used on a case-by-case basis and may not always be a prerequisite to facilitate participation in buyouts. Alternatively, leasebacks may not be a viable option if imminent physical risk or damage precludes buyout participants from living in their homes any longer than necessary.
Furthermore, some landowners may not be incentivized to participate in leasebacks. People’s homes are often a huge component of their personal net worth and may play a large role in their long-term estate planning, inheritance, and retirement. While leasebacks might be appropriate for some property owners in certain circumstances, they may not be feasible for others who are counting on long-term ownership of their property and increasing property values as a part of their overall financial wellbeing.
To effectively help people relocate out of harm's way and protect environmental resources, decisionmakers will need to carefully consider the terms and conditions of leasebacks based on future sea-level rise, flooding, and land loss projections to ensure that people are not allowed to stay on a parcel beyond its safe use or time span. For example, leases could expire after a standard, reasonable period of time (e.g., a few months to one year) or include “triggering” conditions that require a lease to end when forecasted physical impacts manifest (e.g., a property is damaged beyond a certain threshold or after a specific number of flood events occur, the mean high tide line migrates to a given point on a lot).
Governments can also evaluate the use of orphan parcel leasebacks after buyouts occur to help reduce or offset some of the administrative and economic costs associated with maintaining properties as open space in perpetuity. This type of leaseback can also provide benefits for individual lessees (e.g., rights to use surrounding properties) and promote local community and environmental stewardship. Similar to triple net leasebacks, governments should also carefully craft the terms and conditions of orphan parcel leasebacks to ensure that potential property uses do not violate funding requirements or interfere with the long-term objectives for flood risk reduction and open space conservation.
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When implementing leasebacks in a managed retreat context, decisionmakers may consider the following practice tips to address and balance different policy tradeoffs:
The property law of every state allows ownership to be divided in time between a present possessory estate and various future interests. This law can be highly technical, but it offers approaches to managed retreat that have significant benefits for both current landowners and governments. For example, a government can purchase a remainder interest in a parcel leaving the property owner with a life estate, which will give the landowner a possessory ownership interest that will terminate at his/her death, automatically vesting full ownership at that time in the government.See footnote 158 Present possessory interests can also be structured to terminate on the occurrence of events related to climate change, such as a rise of the mean high tide line to a certain level.
In a managed retreat context, governments and other nongovernmental partners, like land trusts or nonprofits, can purchase and hold title to future interests in land. Once the future interest held by the government or nongovernmental partner becomes possessory, they will enjoy full ownership and can manage the land for conservation or related purposes.
The acquisition of future interests should be coupled with other tools like hazard mitigation buyouts, open space acquisitions (e.g., Florida Forever Land Acquisition Program), or development permits (e.g., Norfolk, Virginia). Governments with new or active Transfer of Development Rights (TDR) programs can also attain future property interests through their “banks,” in addition to current development rights to all or part of a property. With a TDR bank, developers purchase TDR credits from a government or third-party entity instead of directly from landowners. A TDR bank can make programs more predictable and manageable for both landowners and developers (for more information, see the Market-Based Tools>Transfer of Development Rights section of this toolkit).
Like with leasebacks, state and local governments can consider leaving private owners with present possessory estates like life estates to encourage participation in hazard mitigation and open space acquisition programs. Acquiring only future interests can help facilitate property acquisitions in the short term where sea-level rise and other climate impacts are projected to occur over a long-term time horizon. Moreover, acquiring only future interests can help bring along property owners who want to stay in their homes or continue using their properties for other uses like working lands for agriculture or forestry. Acquiring only a future interest will eventually give the government full fee simple ownership of the parcel, but allow a private owner substantial discretion in the use of the parcel during the possessory estate.See footnote 159 In addition, depending on the level of participation in an acquisition program, leaving private owners with present possessory interests could allow governments to better plan for and allocate funds to phase acquisitions that will not all happen at once, compared to after a post-disaster event.See footnote 160
Future interests should be acquired on a case-by-case basis where they can be justified by the physical environment, local support, funding availability, and level or ease of government administration, among other factors. Governments may avoid acquiring future interests for properties facing severe, imminent threats from sea-level rise, flooding, and erosion. Acquiring future interests may be less attractive for landowners with long-standing or significant economic, cultural, historical, or sentimental ties to their homes or where there is an expectation or desire that homes will be passed from one generation to another. Moreover, land without a “clean” title or mortgage (e.g., liens) could complicate or prevent governments from acquiring a future interest.
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When implementing life estates and future interests in a managed retreat context, decisionmakers may consider the following practice tips to address and balance different policy tradeoffs:
Given the amount of privately owned land throughout most of the United States,See footnote 161 particularly on the coast, state and local governments pursuing managed retreat strategies will need to evaluate potential opportunities to regulate private land uses. Most regulatory tools for managed retreat will be implemented through coastal, environmental, and natural resources regulations and land-use and zoning powers that govern development and redevelopment in both vulnerable coastal areas and relocation or “receiving” areas.
 Source: Integration and Application Network, University of Maryland Center for Environmental Science. |
This toolkit section presents examples of how state and local governments are implementing various types of regulatory tools. Each tool presents governments and residents with different tradeoffs that should be evaluated and addressed at the outset of decisionmaking efforts. Among the four buckets of non-infrastructure-related tools presented in this toolkit — planning, acquisition, regulatory, and market-based — regulatory tools likely necessitate the greatest consideration of potential legal challenges, particularly from private property owners alleging takings claims. Accordingly, the authors of this toolkit recommend that this section on regulatory tools be read in conjunction with the one on Crosscutting Legal Considerations. Collectively, these two sections can provide state and local policymakers with a framework for evaluating legal barriers and identifying opportunities to minimize legal risk.
Policymakers may be able to minimize legal risks by developing regulatory tools through meaningful community engagement processes and identifying economic, environmental, and social benefits that can be delivered through regulatory approaches. As highlighted and emphasized throughout this toolkit, the most successful managed retreat strategies will be comprehensive — by building on the different types of legal and policy tools available — and developed with the support of communities. These principles hold for state and local governments evaluating regulatory tools as a part of a comprehensive and community-based and -driven approach.
 Source: Integration and Application Network, University of Maryland Center for Environmental Science. |
To date, this toolkit does not feature an exhaustive list of all theoretically possible regulatory tools and case studies for a few reasons. First, many state and local governments are actively working with their communities to consider and implement potential regulatory strategies for managed retreat; however, a lot of these discussions are currently at the planning or proposal stages and have yet to be finalized. In addition, there are several other potential regulatory tools, like rebuilding restrictions or moratoria and subdivision regulations, that have primarily been proposed in academic literature but not implemented yet by any jurisdictions to facilitate managed retreat. As coastal states and communities continue to innovate and implement regulatory tools for managed retreat, this section will be updated with more types of tools and case study examples as they become available.
This section will introduce four types of regulatory tools that state and local coastal governments could include — one, a few, or all — as part of a comprehensive managed retreat strategy.
Traditionally, property owners have turned to hard armoring or man-made engineered techniques like bulkheads, sea walls, revetments, dikes, tide gates, storm surge barriers, and groins to protect coastal development from flooding and erosion.See footnote 162 Increasingly, however, coastal states and communities are considering or encouraging the use of living shorelines or other “soft armoring” techniques (e.g., dune creation, wetland restoration) to avoid the negative impacts of hard armoring structures that can divert flooding and exacerbate erosion on surrounding properties and beaches.See footnote 163 While there are many definitions for what constitutes a living shoreline, a recent report by the National Wildlife Federation and Coastal States Organization provides as follows:
The term “living shorelines” is used to describe a broad range of techniques and approaches for providing shoreline stabilization through the use of ecological, or “soft” approaches, as opposed to hard infrastructure. Although often solely associated with engineered approaches for shoreline stabilization, the concept of living shorelines spans the full range of natural defenses, from fully functioning natural systems to hybrid green-gray features. Such approaches, whether natural or engineered, typically serve to accommodate natural coastal processes as a means to reduce shoreline erosion, provide storm protection, and enhance habitat value.See footnote 164
The intended purpose of living shorelines is to conserve or enhance an existing shoreline so that the land-water interface does not move further landward.
 Credit: Kirsten Howard, New Hampshire Department of Environmental Services |
As many state and local governments move to promote the use of living shorelines on private property, they are simultaneously evaluating ways to prohibit or restrict the use of hard armoring structures.See footnote 165 Living shorelines are commonly proposed as a more environmentally acceptable option to protect development and maintain coastal ecosystems. Policymakers are requiring property owners to evaluate soft armoring techniques like living shorelines before they can get a permit for hard armoring, and must use soft approaches, where feasible.See footnote 166 Governments can concurrently restrict the use of hard armoring techniques by prohibiting the construction of new armoring structures, limiting hard armoring to areas where living shorelines are infeasible, and, in some case, requiring the removal of a hard armoring structure after it has been damaged or if it is having negative impacts on coastal ecosystems like adjacent beaches or wetlands.
In a managed retreat context, living shorelines can stabilize shorelines and preserve the many benefits (see table below) of coastal ecosystems for communities and the environment. Living shorelines can forestall or slow down the retreat of shorelines in some places, which can allow property owners to stay in place longer in response to sea-level rise and erosion. Living shorelines can also facilitate the inland retreat of coastal ecosystems that are unable to adapt-in-place. Specifically, living shorelines can limit or preclude the construction of hard armoring barriers that prevent the inland migration of wetlands, forests, and natural resources to higher ground establishment areas.
State and local coastal, environmental, and natural resources laws and policies, and local land-use, zoning, and floodplain regulations provide the greatest opportunities to encourage or require the use of living shorelines and implement hard armoring restrictions. Governments considering living shorelines should evaluate how to develop effective laws and policies in light of the impacts of sea-level rise, flooding, and erosion in their particular jurisdiction.
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The primary legal considerations concerning living shorelines will relate to constitutional takings and wetlands, environmental, and natural resources statutes and regulations at the federal, state, and local levels.
Jurisdictions can create living shorelines regulations and hard armoring restrictions to withstand potential regulatory takings challenges. The Fifth Amendment of the U.S. Constitution and analogous provisions of state constitutions prohibit governments from “taking” private property without just compensation.See footnote 167 While there are different types of takings, living shoreline hard armoring regulations designed to protect people, property, and the coastal environment will be evaluated under a case-by-case-specific balancing test.See footnote 168 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 offsetting ecological impacts from the use of private property.
Living shorelines provide an alternative to regulatory prohibitions on hard armoring structures. Living shorelines allow people to preserve their property and can thus preclude potential takings claims. However, private property owners could still challenge living shoreline regulations that restrict the use of hard armoring as a regulatory takings. To minimize potential legal risk, governments should: clearly justify the need for living shorelines based on best available science; articulate the purpose for these requirements in planning and other documents that put affected private property owners on sufficient notice; and allow exceptions for hard armoring structures, for example, based on prior use or where living shorelines will be less successful due to highly erosive coastlines or other environmental factors. For more information on takings and recommendations to minimize legal risk, see the Crosscutting Legal Considerations>Takings section of this toolkit.
In addition to takings, living shorelines located in the coastal zone will intersect with a cross-jurisdictional framework that involves multiple federal, state, and local laws and agency players. The design and construction of living shorelines may require federal permits from the Army Corps of Engineers under the federal Clean Water ActSee footnote 169 and federal Rivers and Harbors ActSee footnote 170 for activities that discharge dredged or fill material into wetlands and/or create potential obstructions in navigable waterways. Living shorelines often require fill, and sometimes site grading, that triggers the need for approvals by the Army Corps, in addition to those at the state and local levels. At the state level, one or more agencies can be responsible for the permitting of living shorelines.See footnote 171 Additional state approvals may be needed for the use of state-owned submerged lands. States also possess the authority to review and approve Army Corps permits, both through Clean Water Act Section 401 water quality certification and Coastal Zone Management Act federal consistency authorities.See footnote 172 States can work together with the federal government to identify and implement strategies that reduce the permitting barriers associated with living shorelines.See footnote 173 At the local level, floodplain, environmental protection, and natural resources regulations may come into play for living shorelines that extend landward of intertidal areas, depending on their size and design and impacts on surrounding areas. In conclusion, governments and landowners should evaluate the range of federal, state, and local laws and agencies that may have regulatory authority or management and oversight over living shorelines.See footnote 174
When implementing living shorelines regulations and hard armoring restrictions in a managed retreat context, decisionmakers may consider the following practice tips to address and balance different policy tradeoffs:
In the coastal context, a setback is generally the required distance a structure must be located behind a baseline, like a tidal line (e.g., mean high or low water) or various types of natural features (e.g., a coastal dune, wetland, or floodplain).See footnote 175 Setbacks are typically designed to keep development away from portions of a property that are subject to coastal threats like flooding or erosion.See footnote 176
Setbacks are often specific to or tailored for individual properties whereby governments apply any combination of three common factors, as specified in the relevant law or regulations: (1) the size or square footage of a proposed development or structure; (2) the location of a baseline relative to the proposed development or structure; and (3) the level and severity of the physical risk facing that structure over a given time period (e.g., the lifespan of a structure). Nonetheless, governments can also implement standard setback distances for every property to which the requirement applies.
Similar to setbacks, buffers or buffer zones require landowners to leave parts of their property undeveloped to preserve them and their important natural functions.See footnote 177 Governments commonly use buffers to prohibit property owners from building structures on or immediately adjacent to wetlands and coastal dunes.See footnote 178
Setback and buffer requirements vary and are usually implemented via state and local coastal, environmental, and natural resources laws and regulations and local land-use and floodplain ordinances.
With setbacks and buffers, state and local governments can require property owners seeking a development (or redevelopment) permit to site structures and infrastructure away from vulnerable coastal areas, while simultaneously conserving important habitats and natural resources. Most setbacks and buffers will cover areas and be designed in ways that serve a dual or reciprocal benefit to protect people and the structures behind it, in addition to protecting the natural features they are conserving; however, the purpose and ecosystem benefits of some setbacks and buffers may be different based on location or type of physical risk. For example, setbacks and buffers could be used to site development away from highly erosive shorelines or intertidal areas that will be lost in the future and/or higher ground or adjacent tidal areas that can facilitate inland wetland migration.
To support managed retreat efforts, setbacks and buffer distances can factor in future sea-level rise and erosion rates, but to do so requires significant investment in data collection and science to determine the rates that will be used to best achieve regulatory objectives. Governments may also have to evaluate and amend setback and buffer requirements, including what serves as the baseline, as physical conditions change over time (e.g., the rate of sea-level rise or erosion accelerates). For example, governments could consider setting fixed or permanent baselines for setbacks and buffers — for which no future development could occur seaward of that baseline — or move a baseline landward, as desired in response to local needs or concerns. From an administrative perspective, periodic updates to baselines can require lengthy and staff intensive regulatory processes. In comparison, dynamic baselines that, by law, are allowed to migrate landward (or seaward) with shifting coastlines and would not require a statutory or regulatory change can create more flexibility for agencies and potentially serve as a more effective climate adaptation strategy.
Setbacks and buffers allow governments to facilitate managed retreat in a way that can enable people to stay on their properties longer. These tools are likely to be more feasible and a regulatory option in rural areas or communities with more land and larger lot sizes where setbacks and buffers can be implemented without preventing all development on a given parcel.
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The primary legal considerations concerning setbacks and buffers will relate to constitutional takings and environmental and natural resources statutes and regulations at the state and local levels.
Jurisdictions can design setbacks and buffers to withstand potential regulatory takings challenges. The Fifth Amendment of the U.S. Constitution and analogous provisions of state constitutions prohibit governments from “taking” private property without just compensation.See footnote 179 While there are different types of takings, courts apply a “per se” test to physical occupationsSee footnote 180 and regulations that deprive a private property owner of all or essentially all of his/her property’s economic value;See footnote 181 however, in a managed retreat context, most setback and buffer regulations designed to protect people, property, and the coastal environment will be evaluated under a case-by-case-specific balancing test.See footnote 182 Generally, governments can use setbacks and buffers to 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.
Governments can avoid or mitigate potential takings risks by ensuring that setback and buffer requirements are informed by science and plans. At a minimum, governments should: clearly justify the need for setbacks and buffers based on best available science; articulate the purpose for these requirements in planning and other documents that put affected private property owners on sufficient notice; and design and implement them on a spatial scale that is proportionate to the coastal hazard being mitigated. For more information on takings and recommendations to minimize legal risk, see the Crosscutting Legal Considerations>Takings section of this toolkit.
In addition to takings, governments should also evaluate how setbacks and buffers may intersect with other environmental and natural resources laws and regulations, particularly under the federal Clean Water ActSee footnote 183 and complementary state and local laws that protect wetlands and open space areas. By comprehensively viewing these types of laws in a managed retreat context, policymakers can avoid potential conflicts between laws and agencies by assessing where there are synergies to promote coastal conservation in a changing climate.
When implementing setbacks and buffers in a managed retreat context, decisionmakers may consider the following practice tips to address and balance different legal and policy tradeoffs:
States and local governments can set conditions for new development and redevelopment (e.g., above a certain threshold) through coastal, environmental, natural resources, and land-use and zoning permits. Permit conditions are often recorded with a property’s deed to bind future owners. Permits can include many types of terms and conditions, such as requiring private property owners to pay impact fees, dedicate portions of their land for specific purposes (e.g., conservation), or restrict the use of their land;See footnote 184 however, this subsection on regulatory tools is focused on one type of condition that requires property owners to remove or relocate structures, as described in the next section.
In a managed retreat context, state and local governments can require the owners of private properties covered by a permit condition to remove or relocate vulnerable or damaged structures upon the happening or occurrence of a “triggering” event (e.g., minimum beach width, a permanent movement of the tidal line demarcating public versus private lands like mean high or low water). This type of condition allows landowners to develop property but with the expectation that development will eventually have to cede to future coastal climate impacts. These tools can require moving physical structures out of harm’s way and can facilitate the inland migration of changing coastlines and ecosystems, like wetlands, in response to sea-level rise, flooding, and erosion.
While the specifics of these types of conditions will vary, the general public purpose would be to remove or relocate development to protect the coast, people, and property from the threats of sea-level rise, flooding, and erosion. The condition to remove or relocate the structure would be tied to a physical or environmental impact trigger. By being written into coastal management regulations and local land-use and zoning ordinances, in addition to the permits themselves, these conditions would have the effect of putting property owners on advanced notice to plan for these requirements. For example, in Big Lagoon in Humboldt County, California, the California Coastal Commission — the state’s coastal management agency — conditioned a development permit by approving the permit with adaptive measures instead of denying a permit application for a new home being built on a high eroding bluff.See footnote 185 The commission determined that, based on sea-level rise and erosion rates, the house had about 50 years before it would need to be removed to avoid falling onto the beach below.See footnote 186 Accordingly, the commission is allowing the property owners to live in their home until bluff erosion reaches a point at which it is no longer safe to live there; it then has to be removed or relocated.See footnote 187
It is important for governments to consider who is responsible for the costs associated with enforcing removal and relocation conditions. These conditions would likely place the removal or relocation costs on private property owners — barring any other legal arrangements to the contrary provided for in the permit. For larger structures or privately owned infrastructure (e.g., septic systems) in vulnerable coastal zones, state and local governments could go further and explicitly require a permittee to obtain a bond or other types of financial assurances to proactively ensure that these actions will be funded once a future condition occurs. These types of measures can preclude those costs from being passed on to the public-at-large, which could help to address concerns about public subsidies for people that may choose to live in areas prone to flooding and disaster events, like severe storms.
However, governments should evaluate and seek ways to minimize the potential disproportionate effects permits could have on frontline communities and residents who would likely be unable to afford the costs associated with removing or relocating structures. Moreover, some of the people living in vulnerable coastal areas may not be there by choice, but may instead lack the financial resources to be able to voluntarily move away. Without potential mitigating measures, this type of permit condition could exacerbate or compound economic and social inequities on the coast.
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Jurisdictions can draft development permit conditions to withstand potential regulatory takings challenges. The Fifth Amendment of the U.S. Constitution and analogous provisions of state constitutions prohibit governments from “taking” private property without just compensation.See footnote 188 While there are different types of takings, courts apply a “per se” test to physical occupationsSee footnote 189 and regulations that deprive a private property owner of all or essentially all of his/her property’s economic value;See footnote 190 however, in a managed retreat context, most regulations designed to protect people, property, and the coastal environment will be evaluated under a case-by-case-specific balancing test.See footnote 191 Removal and relocation permit triggers are analyzed under the general Penn Central regulatory takings framework because they are conditions on land use and do not involve the transfer of an interest in property.See footnote 192 State and local governments considering removal and relocation conditions can succeed in takings claims if the property covered by a permit maintains some economic value and the regulatory purpose of the condition serves a legitimate public interest. To satisfy these legal requirements, governments should, at a minimum, clearly justify the need for triggering conditions based on best available science; articulate the purpose for these conditions in planning and other documents so as to put affected private property owners on sufficient notice; and apply the permits on a spatial scale that is proportionate to the coastal hazard being mitigated. For more information on takings and recommendations to minimize legal risk, see the Crosscutting Legal Considerations>Takings section of this toolkit.
When implementing permits conditions in a managed retreat context, decisionmakers may consider the following practice tips to address and balance different legal and policy tradeoffs:
 Credit: Jay Diener, Seabrook-Hamptons Estuary Alliance. |
Local governments have the 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 according to different districts based on the uses that are permitted (e.g., residential, commercial, industrial).See footnote 196 Overlay zones or districts can impose additional regulations on an existing zone based on special characteristics in that zone, such as for natural, historical, or cultural resources protection.See footnote 197 One advantage of overlay zones is that they enable local governments to address area-specific needs or requirements without disrupting underlying zoning classifications. To establish an overlay zone, local governments must: (1) establish the purpose for creating the district; (2) map the district; and (3) establish regulations to achieve the purposes for creating the district.See footnote 198 Before implementing any zoning or land-use changes, however, local governments must ensure that they have the authority to utilize a tool under state law.
Local governments can use zoning and overlay zones to support a variety of purposes and goals related to managed retreat including to:
Zoning and overlay zones can be combined with other planning, acquisition, and regulatory tools to facilitate larger-scale or layered retreat strategies. Notably, local governments should seek to coordinate zoning decisions with coastal zone regulations (at state and/or local level; it varies by state) that can overlap with and serve similar purposes to balance human coastal uses and conservation. Moreover, local governments should look at managed retreat strategies comprehensively to ensure that one type of tool or legal or policy decision will not undermine or conflict with another. For example, after conducting a neighborhood-wide buyout of 200 homes, Woodbridge Township, New Jersey rezoned the 120-acre buyout area from Residential to Open Space Conservation/Resiliency in order to, among other requirements, prohibit new development and only allow for passive recreational amenities like trails and open space uses to preserve the floodplain. Regulations can also be combined with incentives through acquisition or market-based tools (e.g., tax benefits, conservation easements) to remove or relocate structures in vulnerable coastal areas or floodplains.
Although zoning is inherently a local government power, the state may also serve as a regulator in the coastal zone in some jurisdictions. In addition to their regulatory authority, states can be engaged in local land-use and zoning discussions and provide funding, technical, or other types of support to facilitate these managed retreat decisions. For example, states can consider working with local governments to fund and pilot the development of retreat-related overlay zones and create template language that could be adapted and replicated in other jurisdictions (e.g., Florida Adaptation Action Areas). In addition, states can play a key role in coordinating regional or cross-local government policies or actions that would require independent actions in more than one county or municipality. Local governments may also choose to work with state legislatures to amend or supplement zoning authorities — particularly in Dillon Rule states — where necessary.
Zoning decisions and overlay zones can vary in terms of purpose and scope, among other factors; therefore, it is difficult to assess the policy tradeoffs of these tools generally. There are, however, some overarching policy considerations for local governments.
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By amending zoning ordinances, the most common legal challenge governments may face is takings claims. Jurisdictions can design zoning changes in ways that can withstand potential regulatory takings challenges and minimize potential legal risk. The Fifth Amendment of the U.S. Constitution and analogous provisions of state constitutions prohibit governments from “taking” private property without just compensation.See footnote 200 While there are different types of takings, courts apply a “per se” test to physical occupationsSee footnote 201 and regulations that deprive a private property owner of all or essentially all of his/her property’s economic value;See footnote 202 however, in a managed retreat context, most zoning regulations designed to protect people, property, and the coastal environment will be evaluated under a case-by-case-specific balancing test.See footnote 203 Generally, courts will uphold zoning changes that restrict or limit development in vulnerable coastal areas and floodplains if an affected property maintains some economic value and a regulation serves a legitimate public interest, such as safety or to offset ecological impacts resulting from the use of private property.
Governments can avoid or mitigate potential takings risk by ensuring that zoning changes and overlay zones are informed by relevant data and plans, particularly local comprehensive plans. At a minimum, governments should: clearly justify the need for zoning amendments based on best available data; articulate the purpose for new development and redevelopment requirements in planning and other documents that put affected private property owners on sufficient notice; and design and implement zoning decisions on appropriate spatial scales that are not greater than the spatial area necessary to achieve their stated purpose (e.g., establishing lower density development requirements only in a municipality’s coastal areas most vulnerable to sea-level rise and erosion to protect people and property from these physical threats). For more information on takings and recommendations to minimize legal risk, see the Crosscutting Legal Considerations>Takings section of this toolkit.
When implementing zoning changes and overlay zones in a managed retreat context, decisionmakers may consider the following practice tips to address and balance different legal and policy tradeoffs:
Among a suite of planning, infrastructure, acquisition, and regulatory tools, state and local governments can also consider “market-based tools” or financial incentives — like Transfer Development Rights (TDR) programs or tax credits — to encourage people to move away from, protect, or relocate structures in areas on the coast that are identified for open space preservation or conservation. In addition, governments can also use market-based tools to increase density in higher ground or inland urban or suburban areas. States, municipalities, and communities from across the country have expressed an interest in using market-based tools to facilitate managed retreat; however, there are currently few examples of how these tools have been directly applied to implement managed retreat as a coastal adaptation strategy. There are likely several reasons why these examples are rare, including two worthy of particular note. First, while market-based tools are often favored as cost-effective policy instruments, market-based tools for managed retreat will have to overcome the unique challenge of creating incentives that will encourage people to phase out or relocate or remove development in vulnerable, but highly desirable coastal areas and/or move away from the coast. Second, given the voluntary nature of market-based tools, governments will also have to evaluate how to raise public support for and awareness of these types of programs and how to design incentives in ways that maximize participation as sea-level rise increases. In short, governments will have to comprehensively value the community and environmental benefits of managed retreat and be able to communicate those benefits in a way that will encourage public participation in the absence of an enforcement mechanism. As coastal states and communities continue to innovate in this space, this section will be updated as more tools and case study examples become available.
This section will introduce different types of market-based tools that state and local coastal governments could include as part of a comprehensive managed retreat strategy.
Transfer of Development Rights (TDR) programs create market incentives to shift development away from areas where it is discouraged (called “sending areas”) to areas where development is preferred (called “receiving areas”).See footnote 204 Sending areas typically include undeveloped areas with natural resource or agricultural value, and receiving areas are typically urban and suburban areas with existing services and infrastructure where additional growth and development can be accommodated. Local governments, like counties and towns, generally designate sending and receiving areas using zoning ordinances and maps. Under a TDR program, landowners in a sending area can choose to sever and sell some or all of their unused development rights from their property as “TDR credits.” In selling TDR credits, landowners agree to forgo development and preserve their property through a conservation easement. TDR credits can be bought and sold as a tradable commodity separate from the land itself. Separated TDR credits are typically sold to developers in receiving sites, who can then use the TDR credits to increase the density of proposed development above base zoning standards in the receiving area.
Property owners in sending areas are encouraged to participate in TDR programs because they can often receive two types of financial incentives: a payment (at the prevailing market price) for their extinguished development rights; and tax cuts or exemptions by dedicating parts or all of their land to conservation uses. Property owners in sending areas may also be motivated to participate due to the knowledge that they are contributing to conservation efforts in their communities. Developers in receiving areas can benefit from the purchase of TDR credits to maximize project outcomes and returns on investment. For example, by acquiring a requisite number of TDR credits, developers can increase the number of dwelling units or parking spaces in a housing development to provide more homes for people and increase their own profits. As envisioned, developers will ideally recoup the initial costs allocated to purchase TDR credits by enhancing the density or other features of their projects.
All TDR programs can require short-term start-up investments and long-term administration costs. Although most TDR programs share these common components, each program is different and tailored to meet local context. In addition, four programmatic differences are noted here for their application to thinking about managed retreat (see below). First, TDR programs can be managed by governments — typically at the county or municipal level — or third-party entities, like nonprofits or consultants. Second, TDR programs can operate on different scales, for example, within a single municipality or county jurisdiction, or across multiple jurisdictions. Third, TDR programs can be mandatory or voluntary; however, for purposes of this toolkit section on market-based — compared to regulatory — tools, only the latter will be discussed. Fourth, programs can be structured as “TDR banks” or through sales directly between property owners and developers seeking credits on a project-by-project basis. With a TDR bank, developers purchase TDR credits from a government or third-party entity instead of directly from landowners. A TDR bank can make programs more predictable and manageable for both landowners and developers. Government staff, however, are needed to administer both types of program structures.
In a managed retreat context, TDR programs could be used in two primary ways. First, governments could use TDR programs to transition or create disincentives for new development in vulnerable coastal sending areas by transferring TDR credits to increase density in more inland or higher ground receiving areas. The sale of TDR credits could also encourage property owners with already developed lots to remove or relocate structures that could act as barriers to the inland migration of coastal habitats being inundated by rising seas and unable to adapt in their current location. At present, however, there are few examples of TDR programs in the U.S. that were or are being created for the explicit purpose of managed retreat.
While there are some TDR programs that exist to protect coastal ecosystems, sea-level rise will present novel legal and policy questions that decisionmakers, particularly at the local level, will have to factor into the design of these programs to implement managed retreat. Importantly, local governments will have to evaluate whether they have the legal authority to create TDR programs for managed retreat. Most TDR enabling statutes were likely written before policymakers and communities started thinking about using them in a managed retreat context. Depending on how each statute is written, governments will have to determine whether current statutory language is broad enough to cover these types of programs; if not, statutory amendments may be needed. In addition to specific statutory authorizations in land-use and zoning enabling statutes, local governments, particularly in home rule compared to Dillon Rule states, may be able to rely on their plenary police powers to establish a TDR program. In Dillon Rule states, state legislatures must delegate specific powers to local governments compared to home rule states, where local governments may have broader powers.
Similarly, the coastal impacts of climate change will often extend across jurisdictional boundaries at the local level and may necessitate regional or cross-jurisdictional adaptation strategies, especially for managed retreat. Many existing examples of TDR programs only operate within a singular jurisdiction. Accordingly, state and local governments may have to evaluate how they can create programs that can operate at a regional or cross-jurisdictional level. State and local decisionmakers should first determine whether local governments have the authority to transfer TDR credits across jurisdictions; if not, potential statutory amendments may be needed.
The intermunicipal transfer of TDR credits may also implicate other legal and policy considerations regarding potential revenue shifts across sending and receiving areas. Specifically, sending areas may experience a loss in property tax rateables (i.e., for properties protected by conservation easements), and receiving areas with increasing populations may need to fund investments in supporting infrastructure and community services. For receiving areas in particular, the price of TDR credits may not be sufficient to support these additional costs. State and local governments should consider ways to mitigate these potential impacts on both sending and receiving areas in order to encourage and facilitate their participation in TDR programs. Local governments — with either or both sending and receiving areas — will also have to assess whether TDR programs are compatible with their existing local plans (e.g., comprehensive plans, longer-term visioning or strategic plans) and land-use and zoning ordinances, or whether they can and should be amended to accommodate new zoning designations (e.g., for open space) and density requirements (e.g., upzoning receiving areas).
In addition to questions about legal authority and the intermunicipal transfer of TDR credits and revenue sharing, local decisionmakers should consider how they can structure effective financial incentives in this unique context. Most existing TDR programs have financial incentives that direct development away from more sparsely populated, presumably more affordable rural areas to denser, more expensive urban areas. This difference in property valuation and densities can create a demand for increased density that drives the sale of TDR credits. In contrast, coastal sending areas, while vulnerable to climate change, are likely highly desirable areas supported by strong real estate markets. It could be more challenging for governments to create the right types of and price for market incentives to encourage people to phase out development in more expensive areas with a greater demand for development and increase development in an area with a lesser demand for increased density. Moreover, many coastal properties, particularly in urban areas, are likely to have smaller lot sizes with less acreage to sever development rights from sending areas, unless TDR allocation ratios are adjusted to establish a meaningful incentive even for small lots with less development potential. For example, governments can choose to incentivize conservation by awarding more TDR credits than the number of development units a parcel would allow. In the absence of effective TDR ratios though, there could be potentially less of a supply for TDR credits in these sending areas.
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When implementing TDR programs in a managed retreat context, decisionmakers may consider the following practice tips to address and balance different policy tradeoffs:
Although the specific form of managed retreat strategies will vary based on local need and context, coastal governments and communities will nonetheless face many of the same issues, such as funding, impacts on coastal ecosystems, community engagement and equity, and the challenges for “receiving” communities (those that take in others moving away from coasts and other flood-prone areas). Building on the policy tradeoffs analyzed for each tool, this section presents four “crosscutting” policy considerations that will affect the development of most, if not all, managed retreat strategies that follow a comprehensive approach.
This section provides a deeper dive into the following four topics.
Adequate and available funding will be a prerequisite for state and local governments to implement managed retreat strategies. Nationally, there is a perception that retreat can only occur — or primarily occurs — in the aftermath of a disaster or extreme weather event. Part of this narrative is driven by the availability of federal funding in disaster recovery contexts, which are delivered through the Federal Emergency Management Agency’s (FEMA) Hazard Mitigation Grant Program (HMGP) and the U.S. Department of Housing and Urban Development’s (HUD) Community Development Block Grant–Disaster Recovery (CDBG–DR) program. As governments implement a diverse suite of tools in a pre-disaster and more comprehensive fashion, increased types and amounts of funding across all levels of government will be needed. Most managed retreat strategies will require funding — particularly those involving acquisitions, environmental conservation and restoration, and affordable housing and infrastructure investments in receiving communities. Generally, there is insufficient funding for climate adaptation, let alone managed retreat. This lack of funding will be exacerbated by the global coronavirus pandemic because of the crisis’s impacts on federal, state, and local budgets and the economy.
The section presents a thorough, but non-exhaustive list of funding options and examples that have been used nationally to fund the implementation of different tools for managed retreat and different components of comprehensive strategies. This section includes federal, state, and local funding sources that could be applied in a managed retreat context. This section also includes examples of funding from case study programs and projects featured in this toolkit. Although the focus of this toolkit is on developing proactive or “managed” retreat responses, both pre- and post-disaster sources are included below given the amount of money that flows in a disaster context that can supplement pre-disaster sources.
Overall, most of the currently available funding sources can be used to support planning initiatives; acquire property for hazard mitigation or open space purposes; and implement projects to restore, conserve, and facilitate the inland migration and higher ground establishment of coastal ecosystems, namely wetlands. This summary, however, reveals gaps in the funding system for managed retreat. In particular, new types of funding will be required for data collection and monitoring, community engagement efforts, and affordable housing, infrastructure investments, and critical services in receiving areas. In addition, federal, state, and local policymakers should assess whether there are opportunities to use existing funding in new ways under current legal and policy authorities, or if more significant reform is needed.
Priority and overarching practice tips for funding managed retreat include:
 Credit: Greg Hoxsie for ReWild Mission Bay. |
As sea levels rise, wetlands are encountering physical barriers to inland migration — 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 inland to higher ground. To respond to these threats, there are two primary management responses state and local governments may consider: (1) maintaining existing or restoring coastal wetlands; and (2) facilitating their migration inland.See footnote 206 Each management response raises similar and yet distinct questions that decisionmakers will have to address to enhance wetlands and support their long-term viability. For example, maintaining existing or restoring coastal wetlands and adequate sediment supplies will require that decisionmakers evaluate water management requirements regarding allowable discharges and deposits to government-regulated water bodies (that can restrict sediment flows) and the use of clean fill in wetlands, including from dredging. Allowing the migration inland of wetlands raises different issues, since migrating wetlands may encroach on existing land uses, such as agriculture, forestry, and residential communities. As a result, decisionmakers will need to address additional questions about shifting economies, environmental justice and equity, and wetlands and private development regulations. Ideally, governments will develop comprehensive managed retreat strategies to implement both types of management responses. However, there is deficient information about legal and policy tools that state and local governments can use to adapt to sea-level rise and limit the impacts of coastal squeeze on migrating wetlands. This section attempts to fill that informational gap.
This section first provides a short background on the law and federal, state, and local actors that could impact state and local decisions, including considerations for wetlands on public versus private property. This section then identifies six components of a comprehensive wetland migration strategy as recommended practice tips for state and local coastal governments: (1) data; (2) planning; (3) voluntary land acquisitions; (4) legal tools; (5) community engagement; and (6) funding. This section concludes with case study examples to illustrate each of these six components. While other coastal ecosystems, like forests, and myriad species are also capable of and will need to shift their habitats to adapt to different climate threats, this section focuses on wetlands. This section will be broadened in the future as more on-the-ground actions occur.
It is important to note that, as multiple coastal ecosystems change and encroach on human development, land managers and communities will have to weigh decisions about whether to prioritize the conservation of some habitats or species over others. For example, in Dorchester County, Maryland, the inland migration of salt marshes is killing forests, resulting in a phenomenon known as “ghost forests.”See footnote 207 While sea-level rise may continue unabated, governments and people can take short- and long-term actions that affect the survivability of each habitat. For example, governments could help marshes migrate inland by removing roads or conversely, protect forests by erecting a flood barrier to keep marshes at bay. As people and ecosystems retreat away from the coast, land-use decisions should reflect human priorities for the environment.
A loblolly pine "ghost" forest in Blackwater National Wildlife Refuge in Dorchester County, Maryland (June 2018). Sea-level rise and land subsidence result in brackish water intruding on forested land and killing trees. Credit: Will Parson, Chesapeake Bay Program, U.S. Fish and Wildlife Service. |
Wetlands are regulated under a complex, and often overlapping jurisdictional framework at the federal, state, and local levels. At the federal level, the U.S. Army Corps of Engineers (Corps) is one of the primary agencies that regulate activities in intertidal areas that affect wetlands under two statutes, the Clean Water Act, 33 U.S.C. §§ 1251 et seq. and Rivers and Harbors Act of 1899, 33 U.S.C. §§ 403 et seq.).See footnote 208 States also regulate their coastal zones under the federal Coastal Zone Management Act, 16 U.S.C. §§ 1451 et seq. and may have special protections for wetlands, where certain actions conducted in or adjacent to wetlands may be prohibited or require specific mitigations through permits. Local governments have the 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 according to different districts based on the uses that are permitted (e.g., residential, commercial, industrial).See footnote 209 Overlay districts can impose additional regulations on an existing zone based on special characteristics in that zone, such as for natural resource conservation.See footnote 210 Before implementing any zoning or land-use changes, however, local governments must ensure that they have the authority to utilize a tool under state law, particularly in Dillon Rule states. In Dillon Rule states, state legislatures must delegate specific powers to local governments whereas, in home rule states, local governments generally have broader authorities.See footnote 211
Governments will have more control to actively manage wetlands and facilitate migration on publicly owned lands. In contrast, where wetlands are being affected by private development, governments will need to consider protections for private property rights. Most land in the U.S. is privately owned.See footnote 212 As wetlands migrate inland, governments will have to consider how development regulations intersect with private property rights.
The greatest concern for most decisionmakers will likely be potential conflicts with the U.S. Constitution’s Fifth Amendment prohibition against the “taking” of private property for public use without “just compensation.”See footnote 213 This protection for private property rights is also included in state constitutions. There are different types of takings that can result. Generally, courts apply a “per se” test to physical occupationsSee footnote 214 and regulations that deprive a private property owner of all or essentially all of his/her property’s economic valueSee footnote 215 but most regulations designed to protect wetlands will be evaluated under a case-by-case-specific balancing test.See footnote 216 Regardless, state and local governments have successfully navigated takings limits and protected sensitive ecosystems analogous to migrating wetlands. While state and local governments must consider constitutional and statutory protections for private property rights, policymakers can likely minimize their legal risk for implementing environmental regulations by being cognizant of existing federal and state takings law (for more information on takings law in a managed retreat context, see the Crosscutting Legal Considerations>Takings section of this toolkit).
As climate change impacts alter both built and natural landscapes, state and local governments should have proactive discussions about the conservation and protection of migrating wetlands. Any actions should be supported by public-private partnerships and communities to balance the tradeoffs and impacts of wetlands on human values and land uses. Policymakers can consider the following practice tips to facilitate wetland migration as a part of comprehensive managed retreat strategies:
 Source: New York City Department of Housing, Preservation, and Development. |
While managed retreat tools and strategies will vary based on local context, one crosscutting element is critical: these decisions must be community-based, -driven, and -supported. It will be important for state and local governments everywhere to design and implement equitable community engagement and adaptation approaches. This will be particularly relevant for the development of laws and policies affecting frontline communities in both coastal and “receiving” areas. Frontline communities include people who are both more exposed to climate risks (because of the places where they live and the projected changes expected to occur in those places) and have fewer resources or safety nets to respond to and recover from those risks (e.g., individuals who may lack financial resources).See footnote 222 Frontline communities living and working on the coast are being disproportionately impacted by sea-level rise, flooding, erosion, and other coastal hazards like extreme storms.See footnote 223 While some people a part of frontline communities may choose to live on the coast or in floodplains for economic, historical, cultural, or personal reasons (e.g., fishermen, watermen, shrimpers, and those working in the shipping and port industries), others have been forced to live or resettle there due to systemically racist and discriminatory government policies and decisions.See footnote 224 Those living on the coast — even if initially forced or displaced — have built lives there and have ties to these places that will make it difficult to move away from their homes and property, despite present and future climate threats.
 Source: New York City Department of Housing, Preservation, and Development. |
Additionally, people living and working in higher ground “receiving” areas will also be affected by managed retreat. In many places, “climate gentrification” is an emerging trend whereby traditionally low-income and communities of color are now being displaced from inland or higher elevation neighborhoods that are generally less vulnerable to climate impacts including sea-level rise and flooding. Black and other people of color who were historically shut out from more desirable areas within different regions because of economic limitations and discriminatory redlining policies now face displacement due to climate change.See footnote 225 Redlining, a practice — where banks restricted mortgage lending to black people in specified, and typically undesirable areas — reinforced racial segregation in residential housing and education and contributed to social and economic disparities in access to jobs and essential services that remain today.See footnote 226 In some instances, these policies ultimately forced communities of color to find housing in undesirable areas, for example, at the extreme reaches of the coast in Louisiana and further inland in South Florida.See footnote 227 While the official policies were discontinued in the 1960s, the effects of redlining, which include a lack of neighborhood investment that reinforced social and economic disparities, remain for many black communities and other low-income communities of color.See footnote 228 Climate gentrification now threatens to disproportionately displace the same communities of color that were subject to segregation and redlining policies. Specifically, many of the individuals and communities of color that contributed to the neighborhoods, businesses, and cultural hallmarks and traditions that emerged despite the burden of housing discrimination now face housing vulnerability and potential evictions as real estate values and rents increase in areas that are being valued for their resiliency. For cities like Miami, as sea levels rise, developers and homeowners are looking to higher ground in the Liberty City, Little Haiti, and West Coconut Grove neighborhoods to shift development away from the coast.See footnote 229 Prevented from living on the coast, people in these Miami communities are being displaced from their homes and businesses in areas that are considered receiving or less climate vulnerable locations where new development is intensifying.See footnote 230
Managed retreat should be viewed comprehensively and implemented in ways that can help alleviate or mitigate some of the physical climate and coastal hazard impacts and present inequities facing communities. Moreover, if retreat is “managed” in a proactive, pre-disaster context, it can also help minimize the economic, environmental, and social costs of sudden displacements and more haphazard post-disaster or “unmanaged” responses.See footnote 231 Managed retreat may even create new opportunities for policymakers to better support people who choose to move from riskier coastal areas to safer receiving communities. This section provides some case studies and practice tips compiled from current and emerging examples where community engagement and equitable considerations were or are successfully being integrated into decisionmaking processes around managed retreat.
State and local governments can start engaging communities by equitably fostering discussions about managed retreat at the outset of climate adaptation and resilience discussions. While managed retreat will not always be the best or a preferred adaptation strategy in every location, governments should encourage proactive discussions about it to avoid precluding the consideration and potential implementation of viable and less costly or disruptive adaptation alternatives. As climate change intensifies and sea levels continue to rise, short-term and short-sighted decisionmaking could exacerbate the physical, fiscal, and economic risks already facing many communities and governments. Before convening these discussions, however, governments must work with communities to build trust where it may not already exist. Additionally, governments should work with community members and community-based organizations — especially in economically- and resource-disadvantaged communities — to identify and provide them with tools and information (e.g., data, mapping, and metrics) that are prompting decisionmakers to take action and include the community as a partner in the process. The work to build local capacity and educate residents should be viewed as a sustained goal — and not a one-off project — so that people can actively participate in and contribute to legal and policymaking processes over the long term. Specifically, state and local governments need to engage people in both vulnerable coastal areas and receiving communities throughout the entirety of these processes from the early planning stages to legal, policy, and project implementation. Further, governments have to design and structure these processes in authentic and meaningful ways beyond merely “checking a box.” Notably, policymakers must recognize and be open to actively listen to the history, needs, and values of community members themselves and evaluate these processes to ensure that all sides feel heard and empowered. This will require that governments — and public-private partnerships — dedicate the funding and staffing resources necessary to support and sustain them.
 Source: Georgetown Climate Center. |
While there are resources available on community engagement and equitable adaptation,See footnote 232 there is a general recognition among state and local policymakers and community-based and grassroots organizations that more tools, resources, and innovation are needed to support more effective dialogues on this specific subject. This is underscored by the unique and encompassing challenges associated with managed retreat that include legitimate and deeply felt concerns about leaving one’s home, the loss of a sense of place, severing cultural and historical ties, and fears and mistrust of the government and its encroachment on private property rights, among others. Some organizations, like the Climigration Network run by the nonprofit Consensus Building Institute,See footnote 233 are actively working in this space to help support community-led processes around managed retreat by providing funding for small projects on the ground;See footnote 234 however, much more support and engagement are needed given the scale of the challenge. Regardless, it is necessary to highlight that all examples, takeaways, and lessons learned will have to be adapted to the local context, including the relevant legal and policy considerations.
 Source: New York City Department of Housing, Preservation, and Development. |
While the focus of this section is on incorporating equity into community engagement, it is crucial to note the connection between these processes and the implementation of managed retreat strategies on the ground. For those who choose to move away from the coast, state and local governments must build on community engagement efforts to craft managed retreat laws and policies that do not exacerbate historical and systemic discrimination and inequalities. While this will be important for the consideration and implementation of all legal and policy tools, it will be especially magnified in the context of buyouts and other acquisition tools, like land swaps, where people decide to physically relocate away from their homes.See footnote 235 Notably, studies have shown that many buyout programs have disproportionate impacts on low-income communities and communities of color and that people participating in buyouts will not always be made whole.See footnote 236 Here, policymakers need to be mindful of supporting equitable transitions that help people move somewhere safer (e.g., outside of vulnerable floodplains) where they can, at a minimum, attain comparable housing, infrastructure, and services. State and local governments can play important roles in facilitating transitions for residents that can help minimize some of the economic, social, and psychological impacts of buyouts. For example, the New Jersey Blue Acres Buyout Program and City of Austin, Texas provide buyout participants with individual case workers to guide them through the process and navigate questions about how to find new, comparable homes or rental units. One municipality participating in the New Jersey Blue Acres Program, Woodbridge Township, worked with Catholic Charities to help people find rental housing in buyouts post-Hurricane Sandy.
In addition to helping to facilitate more equitable transitions, governments must address the implications of managed retreat on anticipated receiving communities. By prioritizing the need to assess and mitigate the impacts of managed retreat on a receiving community, governments can ease transitions for people moving into these areas, and also alleviate the potential resource burdens on those already living there. By factoring the needs of the receiving communities into decisionmaking, governments will be able to proactively invest in affordable housing, infrastructure, and critical services. These investments should support and sustain relocated residents, while simultaneously reflecting — and not displacing — the needs, priorities, and historic and cultural character of current residents and neighborhoods. This is a tall order, especially in resource-strapped and already densely populated communities.
Given the crosscutting purpose of this section, in-depth recommendations for how state and local policymakers can equitably design and implement each tool are provided in individual tool sections of this toolkit.
Meaningful community engagement can be safeguarded through carefully designed processes. State and local governments can consider applying the following practice tips to actualize and center community engagement processes in equity:
 Source: King County Parks. |
Working with communities to facilitate voluntary transitions is only one side of the managed retreat coin. “Receiving communities” — or “receiving areas” — is the broad term used to refer to locations where people may be relocating in response to coastal hazards and climate impacts. Receiving areas can be located within the same municipality as a “sending” area or in a different municipal, county, state, or national jurisdiction. While the geographic characteristics and land-use patterns of individual receiving communities will vary, they will ideally be located at a higher elevation and/or further inland away from coastal sending areas experiencing sea-level rise, flooding, and/or erosion. This will better ensure that people are safer and better off, at least from a reduced risk standpoint. Receiving communities can apply in both a pre- and post-disaster context where people seek refuge in response to either episodic (e.g., hurricanes) or chronic (e.g., high tide flooding) threats. People may choose to stay there temporarily or indefinitely. Given the focus on proactive managed retreat strategies, this toolkit section primarily discusses and proposes legal and policy recommendations for receiving communities where people permanently choose to relocate in a non-disaster-related context.
To adequately prepare receiving areas, state and especially local governments should aim to plan for and make proactive investments in affordable housing, infrastructure, and critical services (e.g., schools). These actions are necessary to support anticipated population increases unless particular regions or municipalities already possess sufficient but underutilized capacity. The growth of receiving communities will present governments with important fiscal and social questions. Fiscally, governments will have to evaluate how to fund the implementation of potential policies and projects and assess the impacts of population changes and these investments on state and local budgets and tax bases. Socially, governments must work with both current and new residents to guide and inform the future development of these areas.
Where governments implement hazard mitigation buyouts (e.g., Minot, North Dakota), land swaps (e.g., Resilient Edgemere and New Orleans, Louisiana), or Transfer of Development Rights (TDR) programs (e.g., King County, Washington), policymakers will be directly confronted by some or all of these considerations; however, some areas will indirectly receive people from outside their jurisdiction and not as a direct result of their managed retreat policies. For example, some places that will serve as receiving communities will choose to adapt through non-retreat strategies or will not experience significant sea-level rise or coastal erosion. These locations would include urban cities with seawalls that protect shorelines; and non-coastal cities like Buffalo, New York or Cincinnati, Ohio that are anticipating future population growth as people leave the coast. Regardless of the cause or impetus, governments should be aware of the potential ways they could become receiving communities. Governments can use demographic and other types of data to track or monitor these shifts.
In elevating and prioritizing considerations about receiving communities, it is important for governments to simultaneously recognize that not everyone will choose or be able to move away from vulnerable coastal areas (e.g., people who desire to stay in place and/or lack the financial resources to leave). Different adaptation strategies are needed for low risk receiving areas with growing populations and high and moderate risk areas that may be losing population; therefore, measures are also needed to help residents and businesses that will continue to occupy higher risk areas. Policies and programs can be designed to help communities transition and mitigate impacts from population losses and reduced tax bases — for example, by making investments to sustain communities by enhancing the resilience of homes and infrastructure (e.g., through floodproofing or elevation).
State and local governments that anticipate becoming receiving communities may consider the following practice tips:
Flooding in Charlotte, North Carolina after Hurricane Florence in 2018. 
