East Coast Green - Session Descriptions

East Coast Green is offering over 30 continuing education sessions focused around individual topics tracks throughout the conference.

Below is a detail of one of the courses. To see full course listing and times go back to Speaker Schedule.

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TH16P2
Thursday, September 16, 2010, 11:15 am - 12:15 pm

Rising Sea Levels and Other Cartographical Risks - Drawing Lines in a Time of Climate Change
1.0 HSW/SD LU Hours - Approved
1.0 USGBC CEU Hours - Approved

The presentation will focus on the fact of rising sea levels, the legal rules that will shape property ownership at the Shore, and offer thoughts for how business people, investors and owners should address the changing landscape.

It is undisputed that sea levels are rising. Can the tide be held back? Adaptation and mitigation are how responses are classified. Both will be discussed to set the stage for how legal rules will be applied.

The common law of shorefront property rights is well-established. Property owners take the risk of gaining and of losing their land by the action of the sea. The one constant throughout is that the State owns the land up to the mean high tide mark. What rules will be applied, however, when all shoreline property owners are losing land?

The presentation will focus on a case from 1900 which suggests that even when property has been submerged the former owner retains some rights. That case will be contrasted with recent state and federal Supreme Court cases to derive some potential paths forward.

One central feature of the future will be the mapping of mean high tide (and other changed environmental attributes such as floodplains and wetlands). New Jersey's trajectory in this area took over 15 years to resolve the last time mean high tide was an important issue

In this changing legal environment, what can owners and investors do to protect themselves, or to take advantage of the changing circumstances, in a time of rising sea levels?

Speaker:

J. Wylie Donald
Partner, Co-Chair: Climate Change & Renewable Energy Specialty Group
McCarter & English, LLP

Download PDF of Presentation:
TH16P2 - Rising Sea Levels.pdf
( 1,553 Kb )

Full Program Description: Like lemmings to the sea, Americans cannot help themselves and have moved "down the Shore." There are many aspects of that migration that are problematic. Uncontrolled development and loss of wetlands were two problems the seaward migration caused. Now an even bigger problem looms: rising sea levels.

The presentation will focus on the fact of rising sea levels, the legal rules that will shape property ownership at the Shore, and offer thoughts for how business people, investors and owners should address the changing landscape.

It is undisputed that sea levels are rising. Data from the Jersey Shore document this over the last 100 years. The implications for property owners and developers on the littoral are overwhelming. Can the tide be held back? If not, will property rights change? Who will own the new shoreline property? Will former shoreline property owners be compensated?

The common law of shorefront property rights is well-established. Doctrines of accretion, erosion, reliction and avulsion have evolved over the centuries. Property owners take the risk of gaining and of losing their land by the action of the sea. The one constant throughout is that the State owns the land up to the mean high tide mark. What rule will be applied, however, when all shoreline property owners are losing land? Is there any guidance in current law?

A case from 1900 suggests that even when property has been submerged the former owner retains some rights. Will that be the pivot on which the new shorefront owners are compelled to pay for their windfall? Or will recent state and federal Supreme Court cases based on beach replenishment govern?

New Jersey began to deal with issues regarding the location of mean high tide with a mapping statute enacted in 1968. Resolution of those issues required a constitutional amendment and litigation up to the New Jersey Supreme Court over fifteen years. Will that trajectory be repeated? (Mean high tide is not the only map-makeover that the Shore faces. CAFRA, wetlands, endangered species habitat, and flood plain cartography all may be re-done.)

But for every risk, there are opportunities for those astute enough to recognize them. What can owners, developers and investors do to protect themselves, or to take advantage of the changing circumstances, in a time of rising sea levels?