Managed Retreat Toolkit

 

Regulatory Tools

Given the amount of privately owned land throughout most of the United States,See footnote 1 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.

Tools

Living Shorelines

Traditionally, property owners have turned to hard armoring to protect coastal development from flooding and erosion. 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, including increased flooding and erosion on surrounding properties and beaches. In a managed retreat context, living shorelines can preserve the many benefits of these important ecosystems for communities and the environment.

Setbacks and Buffers

A setback is generally the required distance that 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). Similar to setbacks, buffers or buffer zones require landowners to leave parts of their property undeveloped to preserve them and their important natural functions. In a managed retreat context, state and local governments can use setbacks and buffers to prohibit property owners from building structures on or immediately adjacent to wetlands in order to protect wetlands and coastal dunes and facilitate coastal ecosystem migration.

Development Permit Conditions

In a managed retreat context, state and local governments can require as a condition of a development permit (under coastal management or zoning rules) that owners 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). 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.

Zoning and Overlay Zones

Local governments have the primary authority to regulate land uses in their communities through zoning ordinances. 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). 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 resource protection. Local governments can consider using zoning and overlay zones to support a variety of purposes and goals related to managed retreat including phasing out or reducing development in vulnerable coastal areas and increasing density and new development in higher ground areas.

  Life Estates and Future Interests Living Shorelines