the sandbar 8.1

Our coastal resources face a variety of com-peting uses, including fisheries and aquacul-ture, seafood processing, trade, energy pro-duction, tourism, and recreation. Develop-ment pressures and shifting coastlines threat-en water-dependent industries and water andbeach access for coastal residents. Ad-ditionally, our coasts face immense popula-tion pressures. In fact, more than fifty percentof our nation’s residents live in coastal coun-ties. In this edition of The SandBar, we havefocused on various issues surrounding coastaldevelopment.

One of the most critical chal-lenges to coastal developmentis public access to the coasts.While the public has the rightof access to the shore throughcommon law, landowners alongthe coast enjoy private proper-ty rights. In this issue, a feder-al district court case highlightsthe problem. In that instance,the court struck down the NewJersey’s public access require-ments for municipalities.

The cases also highlight chal-lenges of local zoning boardsstruggling to balance therights of coastal landowners to

develop their property and the need to pre-serve the coast from undue development. Forinstance, a Connecticut court affirmed a localboard’s variance allowing construction withina setback, while a Massachusetts court over-turned a board’s decision allowing a septicsystem in a coastal dune.

Please enjoy the issue, and, as always, feel freeto contact us with any thoughts and commentsthat you might have. We are here to serve you,so please let us know how we are doing.

Legal Reporter for the National Sea Grant College Program

TheVolume 8:1, April 2009

Coastal Development IssueCoastal Development Issue

Beach scene courtesy of ©Nova Development Corp.

Borough of Avalon v. New Jersey Dep’t of Envtl.Prot., 403 N.J. Super. 590 (2008).

SSuurryyaa GGaabblliinn GGuunnaasseekkaarraa MM..RR..LL..SS..,, 22LL,,UUnniivveerrssiittyy ooff MMiissssiissssiippppii SScchhooooll ooff LLaaww

In 2007, the New Jersey Department ofEnvironmental Protection (DEP) adopted acomprehensive set of rules expanding publicaccess to beaches and other tidal waterways.When the Borough of Avalon (Avalon) chal-lenged the rules as they applied to municipali-ties, the Superior Court of New Jersey held thatthe regulations were invalid. The court based itsdecision on the fact that the DEP did not havelegislative authority to regulate municipallyowned beaches.

BBaacckkggrroouunnddNew Jersey’s Public Access Rules significantlyexpanded DEP authority over public access tomunicipal beaches and tidal waterways. One ofthe new rules required municipalities locatedon tidal waterways to allow public access tothose waterways “at all times,” unless themunicipality obtained DEP permission toclose those areas during late night hoursbased on threats to public safety or for “exi-gent circumstances.”1 Two other new rulesrequired municipalities seeking appropriationsfrom the state’s Shore Protection Fund to enterinto a State Aid Agreement, which functionallyobligated the borough to provide enough park-ing spaces to accommodate public demand andinstall public restrooms every one-half mileparallel to the beach.2

Coastal Development Issue Volume 8, No. 1 • The SandBar

Court Invalidates New Jersey Public Access RulesSurya Gablin Gunasekara . . . . . . . . . . . . . . 2

California Court Defers to State Agencies on Public Trust Question

Jonathan Proctor . . . . . . . . . . . . . . . . . . . . .5

Georgia Supreme Court Rules Act Does Not Apply to Upland Development

Terra Bowling . . . . . . . . . . . . . . . . . . . . . . . .7

Town Board Grants Variance for Construction within Set Back

Terra Bowling . . . . . . . . . . . . . . . . . . . . . . . 9

Court Upholds City’s Amendment Limiting Harbor Development

Terra Bowling . . . . . . . . . . . . . . . . . . . . . . 11

Florida Court Eases Standing Requirement for Development Challenges

Moses R. DeWitt . . . . . . . . . . . . . . . . . . . . . . 13

Court Overturns Board’s Decision Allowing Septic System in Coastal Dune

Terra Bowling . . . . . . . . . . . . . . . . . . . . . . . . 15

Appellate Court Imposes Strict Requirements on Citizen Suits

Moses R. DeWitt . . . . . . . . . . . . . . . . . . . . . 17

Organization’s Objection to Marine Terminal Is Untimely

Terra Bowling . . . . . . . . . . . . . . . . . . . . . . 19

Publication Announcements . . . . . . . . . . . . 21-22

Coast to Coast . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Table of Contents Court InvalidatesNew Jersey Public

Access Rules

Volume 8, No. 1 • The SandBar Coastal Development Issue

Avalon, a borough situated on Seven MileBeach, a barrier island off the coast of NewJersey, filed suit challenging the rules. The bor-ough argued that the rules were not statutorilyauthorized and constituted an infringement onthe statutory pow-ers of municipalg o v e r n m e n t .Furthermore, thetown already pro-vided significantpublic access to itsbeaches.

Avalon’s entirefour miles of beach-es are open to thepublic without anyrestrictions exceptfor the payment ofa reasonable beachfee. In addition,the borough hassixty-two publicstreets that frontthe beach, the ma-jority of which areopen to the public.These streets com-bine to provide 5,700 on-street public parkingspaces, in addition to 550 off-street parkingspaces, 370 of which are within one-quarter mileof the beach.3 Avalon also maintains fifteen dif-ferent public restrooms; however, the restroomsare not located every half-mile along the beach-front as required by the challenged regulation.4

Avalon claimed that it would have to installportable restrooms at certain locations to com-ply with the requirement.5

2244--HHoouurr AAcccceessssThe New Jersey Superior Court first addressedthe validity of the Public Access Rule thatrequired all municipalities to allow publicaccess to tidal waterways at all times, unless themunicipality obtains the DEP’s permission toclose the area. The application of this rule wasnot contingent upon the municipality applying

for appropriations from the Shore ProtectionFund; therefore, it applied to every municipali-ty located on a tidal waterway. The court notedthat the legislature had delegated broad andgeneral police powers to municipalities for the

protection of its residents and property owners.These general police powers not only extendedto municipally-owned beaches, but municpali-ties also have the statutory authority to “closebeaches and preclude the use of property,” eventhose falling under the umbrella of the publictrust doctrine, “when the public safety and wel-fare is threatened.”6

In contrast, the court found no legislativeauthority for the DEP to supervise a municipal-ity’s operation of its beaches. Moreover, therewas no basis to imply such authority since “[i]tis the municipalities, not the DEP, that ownsand operates and therefore bears responsibilityfor the management of its beaches.”7 The courtacknowledged that while it may be possible forsome municipalities to keep their beaches openat all times, others may need to close areas as amatter of public safety. Either way, the court

Photograph of Avalon beach courtesy of Scott Wahl, Public Information Officer, Borough of Avalon.


explained that a municipality is in a betterposition than the DEP to determine whetherthe beach poses a public safety risk warrantingclosure. Despite the DEP’s authority over landuses in coastal zones, the court determined thatthe legislature did not authorize the DEP tousurp municipal authority to manage and oper-ate beaches, “including deciding when thoseareas should be open to the public.”8

RReessttrroooommss aanndd PPaarrkkiinnggThe court turned next to assessing the validityof the Public Access Rule that required munic-ipalities seeking an appropriation from theShore Protection Funds to enter into a StateAid Agreement with the DEP. According to theregulations, any municipality wishing to par-ticipate in the Shore Protection Program maybe required to provide additional public park-ing spaces and restrooms in proximity to thebeachfront based upon DEP directives. TheDEP claimed that the legislature had implicit-ly approved such requirements through theShoreland Protection Program. The courtfound that the DEP’s authority under theShore Protection Program was limited to“develop[ing] a priority system for rankingshore protection projects and establish[ing]appropriate criteria therefore.”9 The prioritylist compiled by the DEP, however, was simplya recommendation to the legislature, whichretained the authority to determine which pro-jects should be funded.

The DEP also argued that the public trustdoctrine provided a required authorization forthe adoption of these regulations. While thepublic trust doctrine precludes municipalitiesfrom limiting public access, the doctrine doesnot require that a municipality provide a spe-cific number of parking spaces or restroomswithin a certain proximity of the beachfront.The court stated that the imposition of suchobligations are under the exclusive jurisdic-tion of the legislature and the DEP cannot cre-ate, without express authority, regulationswhich require municipalities to provide pub-lic parking and restrooms near tidal water-

ways. In addition, the court noted that whileits decision relied upon the DEP’s lack ofstatutory authorization, the parking rule wasso vague that it would be subject to invalida-tion on the grounds that it failed to provide“regulatory standards that would inform thepublic and guide the agency in discharging itsauthorized function.”10

CCoonncclluussiioonnThe court held that the DEP lacked the requi-site legislative and statutory authority neces-sary to create the challenged regulations.Therefore, the Public Access Rules requiring amunicipality to grant public access to tidalwaterways at all times unless it obtains DEPpermission and requiring any municipalitythat seeks appropriation from the Shore Pro-tection Fund to enter into State Agreementsthat obligates the municipality to provideadditional parking spaces and restrooms wereinvalid. The court’s invalidation of the rulesfor lack of statutory support opens the door forfuture challenges to all of the Public AccessRules. In the meantime, the DEP has filed apetition for certiorari with the New JerseySupreme Court.

EEnnddnnootteess1. Borough of Avalon v. New Jersey Dep’t of

Envtl. Prot., 403 N.J. Super. 590, 595 (2008);see also N.J.A.C. 7:7E-8.11(f).

2. Borough of Avalon, 403 N.J. Super. at 602;see also N.J.A.C. 7:7E-8A.2(c)(2)(i).

3. Borough of Avalon, 403 N.J. Super. at 596.4. Id.; see also N.J.A.C. 7:7E-8.11(p)(7)(iii).5. Borough of Avalon, 403 N.J. Super. at 596.6. Id. at 599. 7. Id. 8. Id. at 601. 9. Id. at 604; see also N.J.S.A. 13:19-16.2(a).10. Borough of Avalon, 403 N.J. Super. at 608

(citing N.J. Soc. For Prevention of Cruelty toAnimals v. N.J. Dep’t of Agric., 196 N.J. 366(2008)).


Center for Biological Diversity, Inc. v. FPL Group,Inc., 166 Cal App. 4th 1349 (2008).

JJoonnaatthhaann PPrrooccttoorr,, 22LL,, UUnniivveerrssiittyy ooff MMiissssiissssiippppiiSScchhooooll ooff LLaaww

A California appellate court rejected a suitbrought by an environmental group allegingthat wind turbines were killing thousands ofbirds of prey in violation of the public trustdoctrine. Although the court agreed that thebirds were within the scope of the public trustdoctrine, it ruled that the group improperlychallenged the violation of the doctrine anddismissed the action.

BBaacckkggrroouunnddAccording to the Center for Biological Diver-sity (CBD), since the installation of wind-pow-ered turbines in Alameda County, California in1981, tens of thousands of raptors, includingeagles, hawks, falcons, and owls, have beenkilled by these generators.1 The group claimedthat the more than five thousand turbines inquestion were inefficient and obsolete; newermodels would not only produce more energy,but would inflict significantly less damage onthe bird population.

CBD sought an injunction to stopthe wind farm operators, FPL Group,from using its current turbines. Thegroup claimed that by using the tur-bines, FPL was in violation of stateand federal law, including the publictrust doctrine. CBD argued that thedestruction of wildlife falls under thepublic trust doctrine based on thegeneral public’s loss of a protectedresource: the raptors. The SuperiorCourt of Alameda County dismissedthe claim, holding that private partieswere not permitted to bring an action

for the violation of the public trust doctrinearising from the destruction of wildlife.

EExxppaannssiioonn ooff tthhee PPTTDDOn appeal, the wind farm operators first arguedthat the public trust doctrine only applies totidelands and navigable waters, excludingwildlife.2 Historically, FPL’s assertion is cor-rect. Fundamentally, the public trust doctrineis a principle of common law declaring that thestate holds title to submerged land under navi-gable waters in trust for the benefit of the pub-lic. However, public trust law has evolved.Recognizing that the public has an interest notonly in coastal lands, but also in the wildlifecontained therein, courts have expanded thepublic trust doctrine to include natural re-sources for various public purposes.

Accordingly, the appellate court disagreedwith the lower court’s conclusion that wildlifeis not protected under the public trust doctrine.The court noted that it is well-settled inCalifornia that wildlife is within the scope ofthe public trust doctrine. California courtshave held that the transient nature of wildlifedictates that they may not be “owned” in the

California Court Defers to StateAgencies on Public Trust Question

Photograph of wind turbines courtesy of the US EPA.

traditional sense of property; logically, ifwildlife belongs to no one, then it belongs to thepublic and the state has a duty to protect thepublic’s interest.3 California law explicitlystates that “fish and wildlife resources are heldin trust for the people of the state.”4

SSttaannddiinnggAlthough wildlife is protected by the publictrust, the court questioned whether members ofthe public had standing to sue to protectwildlife under the public trust doctrine. Untilthis case, only actions brought by public enti-ties have attempted to regulate governments’actions regarding wildlife.5 However, the courtstated that individual members of the publicare entitled to bring such suits. “Wildlife,including birds, is considered to be a publictrust resource of all the people of the state, andprivate parties have the right to bring an actionto enforce the public trust.”6 Furthermore, thevery nature of the public trust creates a burdenupon the state to protect such resources, andthe state cannot be solely responsible for over-seeing its own actions. The general public mustbe free to file suit when the state has neglectedits duties. The court noted that protection ismeaningless without the opportunity forenforcement.7

Though CBD had standing to bring thisaction, the court found that the group incor-rectly sought relief from the wind farm opera-tors, not against Alameda County. The govern-ment, in this case Alameda County, bears theresponsibility of protecting the public trust.While FPL may be directly responsible for theturbines which continue to harm the raptor

population, the county allows those turbines tooperate via the issuance of permits. Even ifsome public trust action by CBD existedagainst FPL, the court stated that it wouldabstain from judgment in “deference to the reg-ulatory oversight being provided by publicalternatives.”8 The court also noted that oncethe trial court ruled in FPL’s favor, CBD couldhave requested that Alameda County be joinedin the suit but did not.

CCoonncclluussiioonnThe responsibility to enforce resources protectedby the public trust resides solely with the gov-ernment. Should the government fail, the bene-ficiaries of the trust may seek judicial interven-tion. However, such proceedings must includethe government. By only seeking relief from thewind farm operators, CBD did not properlyaddress their grievances. Had CBD first pursuedrelief from the appropriate regulatory body ofAlameda County and then, assuming that actionfailed, filed suit against the county, the casewould have been allowed to proceed. Mostimportantly, though the court affirmed the trialcourt’s ultimate decision, it did emphasize thatprivate entities may file suit for such claims. Indoing so, it strengthened the general public’sability to enforce the government’s duty to pro-tect resources in the public trust.

EEnnddnnootteess1. Center for Biological Diversity, Inc. v. FPL

Group, Inc., 166 Cal. App. 4th 1349, 1355(Cal. Ct. App. 2008).

2. Id. at 1350.3. Golden Feather Community Assn. v. Thermalito

Irrigation Dist., 257 Cal. Rptr. 836 (Cal. Ct.App. 1989).

4. CAL. FISH & GAME CODE § 711.7 (2009).5. Center for Biological Diversity, 166 Cal. App.

4th at 1365. 6. Id. at 1354.7. See Illinois Cent. R. Co. v. Illinois, 146 U.S.

387 (1982).8. Center for Biological Diversity, 166 Cal. App.

4th at 1371.

Coastal Development Issue Volume 8, No. 1 The SandBar

. . . the transient nature of wildlife dictates that

they may not be “owned” in the traditional

sense of property . . .


Ctr. for a Sustainable Coast v. Coastal MarshlandsProt. Comm., 284 Ga. 736 (2008).

TTeerrrraa BBoowwlliinngg,, JJ..DD..

The Georgia Supreme Court has ruled that thestate’s Coastal Marshlands Protection Act doesnot extend to residential structures built uplandfrom coastal marshes. The ruling will allowdevelopment to continue on one of the state’slargest private marina projects.

BBaacckkggrroouunnddThe Coastal Marshlands Protection Act(CMPA) regulates activities in Georgia’s coastalmarshlands. The Act charges the CoastalMarshlands Protection Committee with granti-ng permits for projects in the marshlands. TheCMPA specifies, “[n]o person shall remove, fill,dredge, drain, or otherwise alter any marsh-lands or construct or locate any structure on orover marshlands in this state within the estuar-ine area thereof without first obtaining a permitfrom the committee…”1

In 2005, Point Peter LLC, aresidential developer, sought apermit under the CMPA for theconstruction of three communityday docks and two full-servicemarinas, as part of a residentialdevelopment spanning over 1,000acres. After stipulating certainconditions to reduce adverseimpacts to the marshlands, theCommittee approved the permit.

The Center for a SustainableCoast and other environmentalorganizations (CSC) challengedthe permit. CSC argued thatstormwater runoff from the resi-dential development would “oth-erwise alter” the marshlands, and,

therefore, the Committee should have consid-ered the potential harm to the coastal marsh-lands caused by the upland portion of the devel-opment rather than looking solely at the devel-opment in the marsh. An administrative lawjudge agreed and remanded the permit to theCommittee. The Committee and the developerchallenged the remand.

The Georgia Court of Appeals found thatthe permitting power of the Committee did notextend to regulating the residential upland por-tions of the development. The appellate courtfound that the term “‘otherwise alter’ . . . refersto activities of the same kind or class as‘remove, fill, dredge, [or] drain’” and onlyactivities within that class required a CMPApermit. The court concluded that stormwaterrunoff from upland development did notrequire a permit. “‘[O]therwise alter’ applies‘only to the extent that the runoff alters themarshlands in a direct physical manner akin toremoving, refilling, dredging, or draining themarshlands.”2 CSC appealed.

Georgia Supreme Court Rules Act DoesNot Apply to Upland Development

Photograph of Georgia marshland courtesy of the U.S. Department of Agriculture’sNRCS.


The Georgia Supreme Court granted certio-riari. The court considered “whether the CMPAauthorizes the Coastal Marshlands ProtectionCommittee to regulate activities in upland areasthat adversely impact marshlands in connectionwith its consideration of applications for per-mits to build on the marshlands.”3

OOtthheerrwwiissee AAlltteerrThe court first looked at the ALJ and the appel-late court’s interpretation of the term “other-wise alter” in the CMPA. The court agreed withthe appellate court’s interpretation of the term.

To interpret the term, the court of appealsused the statutory canon of construction “ejus-dem generic.” Under the canon, “when a statuteor document enumerates by name several par-ticular things, and concludes with a generalterm of enlargement, this latter term is to beconstrued as being [of the same kind or class]with the things specifically named, unless, ofcourse, that a wider sense was intended.”4 Inthis instance, the supreme court agreed that“‘otherwise alter’ applies only to the extent thatthe runoff alters the marshlands in a directphysical manner akin to removing, refilling,dredging, or draining the marshlands.”5

CSC argued that the canon should only beapplied when a statute is ambiguous, and, inthis instance, the statute was unambiguous. Thesupreme court agreed that the statute wasunambiguous, but noted that ambiguity wouldarise if “otherwise alter” applied to stormwaterrunoff from upland development.

If the term applied to stormwater runoff “itwould require that any project, even an uplandproject located miles from the marshlands,would have to undergo the permitting process ifit could be shown that storm water runoff fromthe project would affect the marshlands.”6 Thecourt reasoned that this would create ambiguitywhen read with the CMPA’s directive statingthat “if the project is not water related or depen-dent on waterfront access or can be satisfied bythe use of an alternative nonmarshland site orby use of existing public facilities, a permit usu-ally should not be granted…”7 Essentially, the

CSC’s interpretation of the term would requirethe Committee to regulate activities fromupland activity, while the CMPA prohibited theCommittee from granting permits for non-waterrelated activities. The court reasoned that this“ambiguity” justified the use of the ejusdemgeneric canon.

The court further reasoned that the appel-late court’s interpretation of “otherwise alter”comported with the reading of the CMPA as awhole. “Requiring that all potential actorssecure a permit from the Committee beforeengaging in such activities is a grant of authori-ty and responsibility to the Committee soimmense that it simply cannot be squared withthe General Assembly’s intent.”8

CSC also argued that if a developmentrequires a permit, the scope of the Committee’sreview extends to all facets of that development.The court found that the Committee’s responsi-bilities were clearly limited to considering acti-vities involving piers, docks, and other marinedevelopments, but not upland residential devel-opments. The court concluded that the role ofthe Committee’s regulation power “is intendedto be limited to the CMPA’s stated scope, themarshlands themselves.”9

CCoonncclluussiioonnIn a 5-2 decision, the Georgia Supreme Courtaffirmed the appellate court’s decision. The dis-sent argued that the trial court prematurelyintervened in the ongoing administrativeprocess.

EEnnddnnootteess1. GA. CODE ANN. § 12-5-286(a) (2008).2. Ctr. for a Sustainable Coast v. Coastal

Marshlands Prot. Comm., 284 Ga. 736, 739(2008).

3. Id. at 736.4. Id at 737-738.5. Id at 739.6. Id. at 738.7. Id. at 738-739.8. Id. at 739.9. Id. at 743.

Volume 8, No. 1 The SandBar Coastal Development Issue

Hescock v. Zoning Bd. of Appeals, 962 A.2d 177(Conn. App. Ct. 2009).


A Connecticut court upheld the StoningtonZoning Board of Appeal’s approval of a coastalsite plan review application and its grant of avariance allowing construction within a regula-tory set back of 100 feet from the reach of meanhigh tide. Despite opposition from adjacentlandowners, the court found that the Board’sdecision was supported by evidence in therecord, that the Board complied with local floodzone regulations in making its decision, andthat although an unusual hardship was notestablished, the reduction ofthe existing house’s noncon-formances was an independentbasis on which the Board couldgrant the variance.

BBaacckkggrroouunnddCoastal landowners, Carol Holtand Thompson Wyper, filed avariance application and acoastal site plan review with theBoard that would allow them toconstruct within a regulatoryset back of 100 feet from thereach of mean high tide. Thelandowners planned to razetheir house, which was forty-four feet from the mean hightide, and construct a new houseforty-seven feet from the meanhigh tide. The Board ap-proved both the variance andthe site plan review. Adjacentlandowners, William andRegina Hescock, brought suit

against the Board challenging the approvals. Alower court dismissed the Hescocks’ challenge.

CCooaassttaall SSiittee PPllaann RReevviieewwOn appeal, the Hescocks first claimed thatapproval of the coastal site plan was not sup-ported by substantial evidence. The court notedthat its review of the Board’s approval was lim-ited to whether there was substantial evidencein the record to support the Board’s decision,and it would not consider whether it would havereached the same conclusion.

The court found substantial support for theapproval of the coastal site plan review applica-tion. For instance, the application “evaluatedland and water resources, stated that there were

Town Board Grants Variance forConstruction within Set Back

Historic photograph of Hurricane Carol flooding the Connecticut coastcourtesy of NOAA’s National Weather Service.


no adverse impacts on those resources and evenproposed mitigating measures, such as thedecreased coverage of impervious surfaces andbest storm water management practices.”1

At the hearing, an employee of theDepartment of Environmental Protection hadsubmitted a letter concluding that the applica-tion was incomplete for the purposes of deter-mining whether the grant of the variancewould be consistent with the Act. Despite this,the court found that other testimony suppliedthe missing information on the day of the hear-ing. Furthermore, in the hearings, no oneoffered evidence of potential adverse impactsfrom the construction. The court concludedthat the Board’s decision was supported bysubstantial evidence.

ZZoonniinngg RReeqquuiirreemmeennttssThe court next addressed the Hescocks’ con-tention that the Board did not comply with zon-ing regulations, which required the Board toconsider the effects of the construction in theflood plains, in making its decision. The Boardhad concluded that the new construction would

actually address and improve flood zone issues.In the hearings, the Board acknowledged that“the new construction would be the only housestanding when the next hurricane hits thearea.”2 The court found that by finding thatflood zone issues would be improved by the newconstruction, the Board had considered thestandards set forth in the zoning regulations.

The court noted that its role is “to determinewhether the board acted arbitrarily, illegally, or

in abuse of its discretion and not to indulge in ahypertechnical examination of whether theboard complied with all the minute require-ments of its regulations.”3 In this instance, thecourt concluded that the record indicated thatthe board carefully considered the zoningrequirements in making its decision.

Interestingly, with regard to the Board’s con-sideration of one of the zoning requirements,the court noted that “[t]he board’s failure tospecifically state, orally or in writing, that it hadmade these findings does not amount to an exer-cise of discretion that is arbitrary, illegal, or anabuse of discretion.” The court cited testimonyheard by the board as evidence that the boardevaluated the zoning requirements under theflood zone regulations.

LLeeggaall HHaarrddsshhiippThe Hescocks’ final claim was that the Boardupheld the variance without substantial evi-dence of legal hardship. The existing house hadbeen damaged by a hurricane and was uninhab-itable. The new construction would eliminateexisting nonconformities and would be fartheraway from the water than any other house onthe street. One of the Board members comment-ed that the development would be on the “cut-ting edge” of development in the years to come.Although there was no evidence of unusualhardship, the court found that the Board couldgrant a variance based on the reduction of non-conformance by the replacement of the existinghouse with new construction.

CCoonncclluussiioonnThe appellate court affirmed the trial court’sjudgment. Barring a successful appeal by theHescocks, the landowners may proceed withtheir new construction.

EEnnddnnootteess1. Hescock v. Zoning Bd. of Appeals, 962 A.2d 177,

185 (Conn. App. Ct. 2009). 2. Id. at 186.3. Id. at 187.

. . . the Board acknowledgedthat “the new construction

would be the only house standing when the next

hurricane hits the area.”


Samson v. City of Bainbridge Island, 2009 Wash.App. LEXIS 454 (Wash. Ct. App. Feb. 24, 2009).


A Washington appellate court upheld a city’samendment of its Shoreline Master Program(SMP) that allowed the city to limit dock andpier development in a harbor that is less devel-oped than other shorelines of the city.

BBaacckkggrroouunnddBlakely Harbor is one of Bainbridge Island’sfour harbors. Land surrounding the harbor wasowned by a timber company for over 100 years.Because of this, the harbor remains largelyundeveloped, with only six existing docks orpiers. Its scenic beauty and intact naturalresources make it a favorite of area residents forkayaking, scuba diving, swimming, and fishing.

In 2003, the city passed an amendment toits SMP to protect the navigability, scenic visi-bility, and naturalresources of theharbor. The amend-ment allows thecity to prohibit theconstruction ofnew single-use pri-vate docks in theharbor and tolimit dock con-struction in theharbor to two joint-use docks, one com-munity dock, floats,and buoys. TheDepartment ofEcology reviewedthe amendmentunder its existingguidelines andapproved it.

Several residents , Kelly and SallySamson and Robert and Joanne Hacker(Samson), appealed the amendment to thePuget Sound Growth Management HearingsBoard (Board). The residents claimed that theamendment was inconsistent with the city’sSMP, Comprehensive Plan Policies, and theDepartment of Ecology’s new guidelines. TheBoard upheld the amendment. A superior courtupheld the Board’s ruling and Samsonappealed.

DDeeppaarrttmmeenntt GGuuiiddeelliinneessIn considering SMPs, the Shoreline Manage-ment Act (SMA) requires the Department tomake written findings regarding the consisten-cy of the amendment with the Department’sguidelines and the SMA.1 The Departmentdeveloped new guidelines regarding SMPs in2004. When the Department approved theamendment in 2003, it found that the amend-ment was in compliance with the SMA but did

Court Upholds City’s AmendmentLimiting Harbor Development

Photograph of Puget Sound courtesy of NOAA's America's Coastlines Collection.


not make findings regarding its draft guide-lines. Samson argued that although the newguidelines were not in effect, the Departmentshould have considered its draft guidelines.

The court found this argument illogical,given the fact that “there would be no guaranteethat the adopted guidelines would contain thesame language and requirements.”2 The courtdismissed this argument and held that theDepartment’s guidelines were not applicable tothe amendment, because they were not in effectwhen the amendment was reviewed.

CCoonnssiisstteennccyyThe SMA requires the city to “plan for and fos-ter all reasonable and appropriate uses.”3

Samson argued that by limiting development,the amendment does not “embody a legisla-tively-determined and voter-approved balancebetween protection of state shorelines anddevelopment.”4 Conversely, the city arguedthat its amendment promoted the public’sopportunity to enjoy the harbor and protectedthe public’s interest in navigation while allow-ing some development in the harbor. The courtfound that the Board did not erroneously inter-pret or apply the law in finding that theamendment was consistent with the require-ments of the SMA.

Samson also argued that the amendmentwas not consistent with the city’s SMP andComprehensive Plan, as required by the state’sGrowth Management Act.5 Samson cited thefact that prior to the amendment the SMP had

allowed dock construction in the harbor. And,furthermore, that the SMP goals and policiesgive preference to water-dependent and water-related uses. The court disagreed, finding “[t]heamendment protects against interference withnavigable waters, protects the public’s use of theshoreline, protects views from adjoining proper-ty, and minimizes adverse environmentalimpacts. Further, the amendment does not pre-vent all or even most uses of the private proper-ties; it simply limits one type of structure inBlakely Harbor.”6 The court held that Samsonfailed to establish the amendment as inconsis-tent with the SMP or Comprehensive Plan.

PPuubblliicc TTrruusstt DDooccttrriinneeSamson also contended that the amendmentviolated the public trust doctrine by prohibit-ing public access to the waters through the pro-hibition on private docks. The court disagreed,finding “Samsons’ position would turn the juspublicum doctrine on its head. There is nodoubt that the amendment protects the publicinterest in this navigable waterway more sothan allowing the construction of multipledocks and piers would.”7

CCoonncclluussiioonnThe court summarily rejected Samson’s remain-ing arguments and affirmed the lower court’sdecision.

EEnnddnnootteess1. WASH. REV. CODE § 90.58.090(2)(d) (2009).2. Samson v. City of Bainbridge Island, 2009

Wash. App. LEXIS 454, *12 (Wash. Ct. App.Feb. 24, 2009).

3. WASH. REV. CODE § 90.58.020 (2009).4. Samson, 2009 Wash. App. LEXIS 454 at *14,

quoting Biggers v. City of Bainbridge Island, 162Wn.2d 683 (2007).

5. WASH. REV. CODE §§ 36.70A.040(4),36.70A.070 (2009).

6. Samson, 2009 Wash. App. LEXIS 454 at *26-27.

7. Id. at *34-35.

The court disagreed,finding “Samsons’

position would turn the jus publicum doctrine

on its head.”

Save the Homosassa River Alliance, Inc. v. CitrusCounty, 2008 Fla. App. LEXIS 16449 (Fla. Dist.Ct. App. 5th Dist. Oct. 24, 2008).

MMoosseess RR.. DDeeWWiitttt,, 22LL,, FFlloorriiddaa SSttaattee UUnniivveerrssiittyySScchhooooll ooff LLaaww

This article originally appeared in 28:4 of WaterLog, the legal reporter for the Mississippi-AlabamaSea Grant Legal Program.

Florida’s Fifth District Court of Appeals heldthat plaintiffs who have particularized andlegitimate interest in the use and preservationof a specific property have standing tochallenge development projects on thatproperty, even when their interest doesnot differ from that of the communityas a whole.

BBaacckkggrroouunnddThe Homosassa River is a pristinewaterway and unique habitat to bothfresh and saltwater marine life. It alsoserves as a rehabilitation center andrefuge for endangered manatees.1 TheCitrus County’s Board of County com-missioners (Citrus County) grantedpermission to a Florida resort (Resort)along the Homosassa River to redevelopand significantly expand its facilities.Currently, the resort consists of twobuildings containing fifteen residentialcondominium units. The proposedexpansion approved by Citrus Countyincludes the development of four newfour-story buildings containing 87 con-dominium dwelling units, retail space,amenities, and parking.

The Save the Homosassa RiverAlliance, Inc., a non-profit organization“committed to the preservation and

conservation of environmentally sensitive landsand the wildlife in and around the HomosassaRiver and in Old Homosassa, Florida,” andthree local property owners (collectively,Plaintiffs) filed suit against Citrus County.2

They alleged that approval of the proposedexpansion is inconsistent with the county’scomprehensive land use plan, a statutorily man-dated guide prepared by the local planningcommission to control and direct the use anddevelopment of property. The Plaintiffs allegethat the redevelopment plan exceeds the maxi-mum density per twenty acres established byCitrus County’s adopted plan.


Florida Court Eases StandingRequirements for Development Challenges

Photograph of manatee in the Homosassa Rivercourtesy of Jeff Haines/Marine Photobank.


TTrriiaall CCoouurrtt IInntteerrpprreettss SSttaannddiinngg RReeqquuiirreemmeennttssNNaarrrroowwllyy Prior to the enactment of Florida Section163.3215 in 1985, “[A] party had to possess alegally recognized right that would be adverselyaffected by the decision or suffer special dam-ages different in kind from that suffered by thecommunity as a whole” to have standing to chal-lenge development inconsistent with compre-hensive plans.3

The Florida Legislature enacted Section163.3215 to ensure standing for any person “thatwill suffer an adverse effect to an interest [thatis] protected or furthered by the local govern-ment comprehensive plan.4 Citrus Countyinterpreted this statute to mean that thePlaintiffs directly must suffer an adverse effectfrom the redevelopment, or must demonstratethat the redevelopment will impact their inter-ests to a greater degree than the community as awhole. Plaintiffs contended that CitrusCounty’s narrow interpretation was outside theexpress meaning of the statute.

The trial court sided with Citrus County inholding that the Plaintiffs failed to establishstanding under Florida Statute Section163.3215. The court interpreted the statute tomean that the Plaintiffs must sufficiently allegethat their interests are adversely affected by theproject in a way not experienced by the generalpopulation of the community.

TThhee AAppppeellllaattee CCoouurrtt’’ss RReevveerrssaallFlorida’s Fifth District Court of Appealreversed the trial court decision by finding thatFlorida Statute Section 163.3215 speaks to “thequality of the interest of the person seekingstanding” and does not require a unique harmnot experienced by the general population.5

The court asserted that the statute is designed toexpand the class of individuals who can achievestanding, and interpreting the statute in a man-ner that requires a plaintiff to show harm dif-ferent from that of the general population isinconsistent with the statute’s purpose.6

The court stated that a “unique harm” limi-tation “would make it impossible in most cases

to establish standing and would leave countiesfree to ignore the [comprehensive] plan becauseeach violation of the plan in isolation usuallydoes not uniquely harm the individual plain-tiff.”7

In a 2-1 decision surely welcomed by a widevariety of environmental organizations, themajority concluded that Plaintiffs established aparticularized and legitimate interest in the useand preservation of the Homosassa River, whichis of the kind contemplated by the statute.8 Thedissenting jurist suggested that such a broadview of the standing doctrine will allow citizenorganizations to “vindicate their own valuepreferences through the judicial process,”instead of through the legislative process.9

While the court held that these litigantshave standing to pursue their lawsuit, Plaintiffsstill face significant challenges on the merits, asregulatory decisions by elected county boardsoften need not be strictly consistent with plansrecommended by planning commissions.

EEnnddnnootteess1. Southwest Florida Water Management

District, Watershed Excursion of the SpringCoast, Homosassa River, http://www.-swfwmd.state.fl.us/education/interactive/-springscoast/2.shtml (last visited Dec. 22,2008).

2. Save the Homosassa River Alliance, Inc. v.Citrus County, 2008 Fla. App. LEXIS 16449(Fla. Dist. Ct. App. 5th Dist. Oct. 24, 2008).

3. Id. at *15 (citing Citizens Growth Mgmt.Coal., Inc. v. City of W. Palm Beach, 450 So.2d 204, 206-08 (Fla. 1984); Putnam CountyEnvtl. Council, Inc. v. Bd. of CountyComm’rs, 757 So. 2d 590, 592-93 (Fla. Dist.Ct. App. 5th Dist. 2000)).

4. FLA. STAT. §163.3215 (2008).5. Save the Homosassa River Alliance, Inc., 2008

Fla. App. LEXIS 16449, at *18.6. See id. at*16 (internal citations omitted).7. Id. at *28.8. Id.9. Id. at *35-36 (Pleus, J., dissenting) (citing

Sierra Club v. Morton, 405 U.S. 727 (1972)).


Court Overturns Board’s DecisionAllowing Septic System in Coastal Dune

Macero v. Macdonald, 73 N.E.2d 1256 (Mass.App. Ct. 2008).


The Board of Health in Falmouth,Massachusetts granted variances from the stateenvironmental code and the town’s health regu-lation to allow the construction of a septic sys-tem in a coastal dune. Recently, the AppealsCourt of Massachusetts vacated the lowercourt’s decision affirming the variances. Theappellate court found that the Board did notaddress siting criteria of the state code, thetown’s regulation, or the variance test in statelaw when making its decision.

BBaacckkggrroouunnddThe oceanfront lot at issue, which is in anenvironmentally sensitive area adjacent toBuzzard’s Bay, contained an existing four-bed-room home that included a septic system.Planning to reconstruct the home, the

landowner applied to the Board to permit anew, enlarged septic system located in acoastal dune.

The town’s health code specifically prohibitsseptic systems from being located in a coastaldune. However, the code allows the board togrant variances to this and other provisions ofthe code when “(1) the enforcement thereofwould do manifest injustice; and (2) the appli-cant has proved that the same degree of healthand environmental protection required underthis title can be achieved without strict applica-tion of the particular provision.”1

The state environmental code also prohibitsseptic systems in coastal dunes, unless an appli-cant meets seven specific siting criteria.2 Inaddition to the siting criteria, an applicant mustmeet a two–part variance test. The test requiresthe applicant to show that enforcement of theprovision “…would be manifestly unjust, con-sidering all the relevant facts and circumstancesof the individual case; and [t]he person request-ing a variance has established that a level of

environmental protectionthat is at least equivalent .. . can be achieved withoutstrict application of theprovisions . . .” and, “withregard to variances for newconstruction, enforcementof the provision . . . mustbe shown to deprive theapplicant of substantiallyall beneficial use of thesubject property.”3

Adjacent landown-ers, SPD InvestmentTrust (SPD), appearedat the Board’s adminis-trative hearings to contestthe variances, citing con-cern that a septic system

Photograph of Buzzard’s Bay courtesy of NOAA, photographer Edgar Kleindinst, NMFS WoodsHole Laboratory.


located in the dune would reduce the ability ofthe dune to buffer flood waters and increasethe potential for storm damage to its property.Despite this, the Board approved the varianceswithout addressing the siting criteria, the vari-ance test, or the town’s health code. SPD filedsuit in superior court, which upheld theBoard’s decision. SPD appealed.

IInnaaddeeqquuaattee DDeecciissiioonnOn appeal, SPD argued that the judge erred infinding that the Board was not required tomake additional findings or explain its rea-sons for granting the variances. The appellatecourt agreed.

First, the Board failed to find whether thereconstruction was merely a remodeling of theexisting home or a demolition and new con-struction. The court noted that this distinctionwas important because for new construction, thetwo-part variance test requires the board todetermine whether the enforcement of the pro-vision will “deprive the applicant of substantial-ly all beneficial use of the subject property.”4

Second, the Board failed to consider the sit-ing considerations as required by the state

environmental code. For instance, the Boarddid not investigate whether the new septic sys-tem could be located in an area other than thecoastal dune.

Ultimately, the court found the Board’sfindings to be inadequate. “The authority ofthe [B]oard is broad. However, competent judi-cial review of such decisions is often, as here,rendered difficult if not impossible by the lackof specific findings and rationale for theagency decision.”5

CCoonncclluussiioonnThe appellate court vacated the trial court’sjudgment. The case was remanded to the Board,with instructions to make specific findings andreasons for granting the variances.

EEnnddnnootteess1. FALMOUTH HEALTH REG. 15.1(3).2. 310 MASS. CODE REGS. § 15.213(2) (1995).3. Id. § 15.410.4. Id. § 15.410.5. Macero v. Macdonald, 73 N.E.2d 1256, 1261

(Mass. App. Ct. 2008).

Photograph of Buzzards Bay courtesy of NOAA, photographer Edgar Kleindinst, NMFS Woods Hole Laboratory.


Ctr. for Biological Diversity v. Marina PointDevelopment Co., 535 F.3d 1026 (9th Cir. 2008).

MMoosseess RR.. DDeeWWiitttt,, 22LL,, FFlloorriiddaa SSttaattee CCoolllleeggee ooff LLaaww

In a case regarding alleged Clean Water Act(CWA) and Endangered Species Act (ESA) vio-lations at a lakeside development, the UnitedStates Court of Appeals for the Ninth Circuitruled in favor of the developer. The court heldthat the notice given to the developer was inad-equate according to the CWA and that the vio-lation of the ESA was moot because the baldeagle was no longer a listed species.

BBaacckkggrroouunnddMarina Point Development Company (MarinaPoint) purchased a 12.51 acre parcel of land onthe north shore of Big Bear Lake and the eastshore of Grout Bay in the San BernardinoMountains of California. Marina Point plannedto build a residential condominium project onthe property that was previously used as a tav-ern, recreational vehicle park, campground, andcommercial marina. However, some concernarose that this development would harm thebald eagle and its habitat.

In response to that concern, Marina Pointsecured permits from the United States ArmyCorps of Engineers (Corps) and the UnitedStates Fish and Wildlife Service (FWS). Bothagencies approved the planned developmentafter determining that the upland portion of thesite was not a suitable bald eagle habitat.However, to ensure the continued protection ofthe bald eagle’s habitat, the agency sought toprotect the water quality of the lake and bay byforbidding Marina Point from placing rock atelevations below lake bottom contours, fromdepositing sand below the ordinary high watermark, and from transferring fill or structures toneighboring wetlands.1 Marina Point was also

barred from working during winter months inorder to protect bald eagles’ seasonal behaviors.2

Marina Point began development in May2002. Shortly thereafter, the Center forBiological Diversity (Center) sent four separatenotices of intent to commence a citizen suit andfiled an action on April 7, 2004 to enjoin MarinaPoint from any further development, allegingviolations of the CWA and the ESA.Specifically, Marina Point had stockpiled mate-rial below the ordinary high water mark andcaused incidental fallback of soil into the lake,which could potentially damage the lake andthe bald eagle’s habitat. The district courtdenied Marina Point’s motion to dismiss forlack of subject matter jurisdiction and “perma-nently enjoined Marina Point from any devel-opment on the site without the court’s priorauthorization.”3 Marina Point appealed.

CCiittiizzeenn SSuuiitt aanndd tthhee CClleeaann WWaatteerr AAccttA citizen suit allows a citizen or entity to bringan action for the purpose of enforcing a provi-sion of an environmental regulation. Both theCWA and the ESA allow these types of lawsuits.However, the CWA has a strict notice require-ment that must be complied with.4 The CWArequires a sixty-day notice of the intent to suebefore a citizen action may be commenced. Thenotice must include “sufficient information topermit the recipient to identify the specificstandard, limitation, or order alleged to havebeen violated, the activity alleged to constitute aviolation, the location of the alleged violation,and the full name, address, and telephone num-ber of the person giving notice.”5

Requiring notice allows the governmentalagencies to take responsibility for the enforce-ment of the regulation and allows the allegedviolator to bring itself into compliance. Thisrequirement is “intend[ed] to strike a balancebetween encouraging citizen enforcement of

Appellate Court Imposes StrictRequirements on Citizen Suits


environmental regulations andavoiding burdening the federalcourts with excessive numbers of cit-izen suits.”6

The Court of Appeals for theNinth Circuit held, in part, that theCenter for Biological Diversity’snotice was insufficient because thenotice refers to the violation in gen-eral terms and does not give specificdetails. The notice’s lack of detailsdid not give governmental agenciesor the alleged violator the opportuni-ty to cure the problem and was not incompliance with the intent of theCWA. The Court of Appeals heldthat the district court did not havesubject matter jurisdiction because acitizen’s action suit cannot bebrought under the CWA when insuf-ficient notice has been issued.

This extensive specificity requirement isanother hurdle citizens must overcome toenforce the regulations of the CWA. Acquiringsuch detailed information is an expensive andburdensome task that may deter many citizensand organizations from bringing suits againstalleged violators.

BBaalldd EEaaggllee aanndd tthhee EEnnddaannggeerreedd SSppeecciieess AAccttThe Center for Biological Diversity alsobrought a claim against Marina Point under theESA for the destruction of the bald eagle’s habi-tat. However, after the district court’s ruling andduring the appeal, the FWS delisted the baldeagle from the Endangered Species List. TheCourt of Appeals for the Ninth Circuit held that“to qualify as a case fit for federal-court adjudi-cation, an actual controversy must be extant atall stages of review, not merely at the time thecomplaint is filed.”7 The action filed was to pro-tect the bald eagle in accordance with the ESAand, because the bald eagle is no longer listed asan endangered species, no present controversyremains.

The Ninth Circuit did not address whetherthe controversy would re-arise if the bald eagle

were to again be placed on the EndangeredSpecies List. However, the ESA only allows forinjunctive relief and the damage from MarinePoint’s development would most likely alreadybe completed. Therefore, no remedy would beavailable under the ESA.

CCoonncclluussiioonnThe United States Court of Appeals for theNinth Circuit held that a citizen suit must givethe alleged violator of the CWA detailed noticeof the specific violations. The court also heldthat the removal of a species from the En-dangered Species List moots any claim or con-troversy of an ongoing appeal.

EEnnddnnootteess1. Ctr. for Biological Diversity v. Marina Point

Development Co., 2008 U.S. App. LEXIS16599 (9th Cir. July 14, 2008).

2. Id. at *3.3. Id. at *5.4. Id. at *7.5. Id. at *10-11.6. Id. at *7.7. Id. at *19.

Photograph of bald eagle courtesy of NPS, Canaveral National Seashore.


Organization’s Objection toMarine Terminal Is Untimely

S.C. Coastal Conservation League v. S.C. Dep’t ofHealth & Envtl. Control, 2008 S.C. App. LEXIS174 (S.C. Ct. App. Oct. 23, 2008).


A South Carolina appellate court ruled that aconservation organization’s request for a finalreview of permit applications for the construc-tion of a 300-acre marine container terminalwas untimely, because the organization did notconform to mandatory filing requirements.

BBaacckkggrroouunnddThe South Carolina State Ports Authority(SPA) and the South Carolina Department ofTransportation (DOT) filed permit applica-tions for the construction of a 300-acre marinecontainer terminal with the South CarolinaDepartment of Health and EnvironmentalControl (DHEC). The terminal would be in anarea around the former Charleston Naval Baseand the project would include an access road.

During hearings regarding the permits, theSouth Carolina CoastalConservat ion League(CCL), a conservationorganization, providedcomments expressing con-cern over the negativeeffects of the construction.The DHEC granted thenecessary permits for theproject. The SPA and CCLfiled a request with theSouth Carolina Board ofHealth and Environ-mental Control (Board)for a final review of thepermits. Prior to the finalreview the SPA resolved itsissues regarding its per-

mit; however, the Board continued the hearingto hear CCL’s concerns regarding the project.The SPA and DOT objected to the review asuntimely, because South Carolina law requiresrequests for final review to be filed within fif-teen days from the date the notice was mailed topermit applicants.1 After the hearing, the Boardissued a final agency decision granting the per-mits with only minor revisions.

CCL requested a hearing with an Ad-ministrative Law Court (ALC) regarding thepermits. SPA argued that court lacked jurisdic-tion to hear the case, because CCL’s reviewbefore the Board was untimely. The courtagreed and dismissed the case.

UUnnttiimmeellyy RReevviieewwOn appeal, the court considered whether theALC was prevented from hearing the case dueto the untimely filing of the motion. The CCLfiled its request for final review more than fif-teen days from the date the notice was mailedto the SPA and DOT. South Carolina lawstates that the decision becomes final “fifteen

Photograph of container ship at Charleston Port courtesy of Rich Bourgerie, Oceanographer, CO-OPS, NOS, NOAA.


days after notice of the department decisionhas been mailed to the applicant.”2 CCLargued that the fifteen-day limit should runfrom the time that the notice was actuallyreceived. Because the statute was clear andunambiguous in stating that the time ran fromwhen the notice was sent, the court reasonedthat it must abide by the “plain meaningrule,” which means that the court must con-strue the statute in accordance with its usualand customary meaning. The court found thatbecause CCL did not comply with the filingdeadlines, the Board did not have jurisdictionto hear the case.

The CCL also argued that the time limitwas affected by waiver, estoppel, and equitabletolling. These three doctrines would have theeffect of allowing CCL more time to file itspetition with the Board. The appellate courtheld that because these issues were not ini-tially raised before the ALC, the issues werenot preserved and could not be addressed bythe court.

Finally, CCL argued that its constitutionaldue process rights were violated by the ALC’sapplication of thefifteen-day limit.Under the U.S.Constitution, pro-cedural due processessentially requiresa party whose prop-erty or liberty inter-ests are affected theright to notice anda meaningful op-portunity to beheard. In this case,CCL claimed thatit would be denieddue process if theALC did not hearits case. The courtrejected this argu-ment, since CCLhad notice and theopportunity to be

heard, but merely failed to follow the properadministrative procedures that would haveallowed them be heard.

CCoonncclluussiioonnThe court affirmed the ALC’s decision. Thepermits issued by the DHEC will stand asfinal agency decisions.

EEnnddnnootteess1. S.C. CODE ANN. § 44-1-60(E) (2007). 2. Id.

Photograph of container terminal courtesy of NOAA.

. . . the statute was clear and unambiguous in stating that the time

ran from when the notice was sent . . .


A recently released report, Coastal Sensitivity toSea-level Rise: A Focus on the Mid-Atlantic Region,explores the impacts of sea-level rise on thecoastal landscape, communities, and habitats ofthe mid-Atlantic region. The report, issued bythe U.S. Environmental Protection Agency, theU.S. Geological Survey, and the NationalOceanic and Atmospheric Administration,examines various ways governments and coastalcommunities may plan for and adapt to risingsea levels. The report was commissioned by theU.S. Climate Change Science Program.

Through scientific literature and policy doc-uments, Coastal Sensitivity to Sea Level Rise exam-ines not only the effects of sea level rise, but alsothe impacts on society and opportunities to pre-pare for those consequences. The report findsthat the effects of sea level rise, including ero-

sion, wetland conversion, and increased flooding,will be increased if the rate of sea-level rise accel-erates. Coastal Sensitivity to Sea Level Rise exam-ines prospective ways natural and social scienceresearch may improve comprehension of poten-tial impacts of sea-level rise and society's abilityto respond. The report looks at opportunities foradaptation, as well as institutional barriers toadaptation. Coastal Sensitivity to Sea Level Riseoutlines the current coastal policy context in themid-Atlantic region and describes the implica-tions for the other regions of the U.S. The reportconcludes that preparing for sea-level rise nowcan reduce future environmental and economicimpacts of sea level rise.

The report is available at http://www.epa. -gov/climatechange/effects/coastal/sap4-1.html .

Report Examines Impact of Sea LevelRise on Mid-Atlantic Region

Study Estimates Commercial Ship EmissionsA new study provides a comprehensive estimateof maritime shipping’s contribution to air parti-cle pollution based on direct measurements ofemissions. The study found thatworld-wide, commercial ships emitalmost half as much particulatematter pollutants into the air as thetotal amount released by the world’scars. Researchers conducting thestudy noted that ship pollutantshave an immense impact on coastalair quality and the health of peopleliving along coastlines, given that70% of shipping traffic takes placewithin 250 miles of the coastline.

Researchers from NOAA andthe University of Colorado atBoulder conducted the studyaboard the NOAA ship Ronald H.Brown, analyzing the exhaust from

more than 200 commercial vessels, includingcargo ships, tankers and cruise ships, in the Gulfof Mexico, Galveston Bay, and the Houston Ship

Photograph of tanker courtesy of NOAA.


Coastal cities face multiple challenges,including violent storms, flooding, and ero-sion. In addition to these challenges, coastalcities are densely populated, as they play vitalparts in trade, fishing, and tourism indus-tries. The challenges facing the coast are mag-nified by the implications of climate change,such as the possibility for more frequent andmore intense storms, higher sea levels, andmore coastal erosion.

To examine legal and policy issues thatmight come into play as a result of climatechange, Texas Sea Grant and the National SeaGrant Law Center have collaborated to pub-lish “The Resilient Coast: Policy Frameworksfor Adapting the Built Environment toClimate Change and Growth in CoastalAreas of the U.S. Gulf of Mexico.”

The publication examines legal and pol-icy frameworks that could affect adaptationto global climate change and populationgrowth along the Gulf Coast. The publica-tion also offers recommendations for improvedplanning and mitigation practices.

The Resilient Coast outlines existing federal,state, and local frameworks in place to managedevelopment on the coast. Next, it examinesadaptation to climate change and populationgrowth, including mitigation and responsepractices that may be used by coastal communi-ties to handle both current hazards and thosethat may occur as a result of climate change.The authors note that Hurricane Katrina pro-vided valuable lessons for disaster response,

including the need to encourage more intergov-ernmental cooperation. The Resilient Coast alsoaddresses the role of integrated coastal zonemanagement in adaptation to climate changeand growth, the question of urban resiliency,and the question of who should bear the burdenof risk for development in these areas.

The publication is available online at http://www.urban-nature.org/publications/publications.htm .

Sea Grant Publication Addresses DevelopmentPractices Along Gulf Coast

Channel. The authors concluded that ships emitabout 2.2 million pounds of particle pollutioneach year.

The researchers also examined the chemistryof particles in ship. The authors found that sul-fate emissions from ships, which make up justunder half of shipping's total particle emissions,

vary with the concentration of sulfur in ship fuel.Organic pollutants and sooty, black carbon makeup the other half of emissions.

The study appears in the Journal ofGeophysical Research. More information is avail-able at http://www.noaanews.noaa.gov/sto-ries2009/20090226_shipping.html .


Offices at the Santa Monica Pier Aquarium were flooded thanks to a tiny octopus that tugged on avalve releasing hundreds of gallons of water from its tank. Staff report that the octopus is knownfor its curious nature. Although no sea life was harmed in the flood, the aquarium reported dam-age to its new ecologically designed floors. (Associated Press, Feb. 26, 2009)

British scientists plan to release robotic fish designed to detect pol-lution off the coast of Spain. The fish are fitted with detectors thatcan identify the source of pollution, such as fuel or chemicals. Thefish cost about $29,000 each and run on an eight-hour battery-noremote control required. The researchers hope the fish will one daybe used to detect hazardous discharges at sea. (Agence France Presse,Mar. 19, 2009)

Before cooking a pot of fresh crabs, note that researchers have foundthat crabs not only suffer pain, but retain a memory of it (arguably,

not for long.) The researchers conducted an experi-ment to test pain using wires to deliver mild shocks tohermit crabs. The crabs vacated their shells-indicat-ing an unpleasant experience. The scientists nextoffered the shocked crabs a new mollusk shell“home” to determine if the memory of the shockwould cause the crabs to switch to a new shell. Theshocked hermit crabs overwhelmingly chose thenew home. (LiveScience.com, Mar. 27, 2009).

In a new study, the U.S. Environmental ProtectionAgency reports that fish from five U.S. rivers con-tained residue from medications and common chemi-

cals. The tested fish were from waterways in or near Chicago, Dallas, Philadelphia, Phoenix, andOrlando. The pharmaceuticals found include a common antihistamine, an anticonvulsant, and twotypes of antidepressants. Prior research has shown that antidepressant medications negativelyaffect mating and fighting behavior of fish. (HealthDay News, Mar. 27, 2009).

The captain of a 2007 oil spill in the San Francisco Bay has pleaded guilty to two misdemeanorenvironmental crimes. In exchange, the prosecutors will drop felony counts against the captain.The oil spill occurred when the ship crashed into the San Francisco-Oakland Bay Bridge. The shipspilled more than 50,000 gallons of oil, killing and injuring thousands of birds. Several lawsuitshave been filed by federal, state, and local governments to recoup the cost of the clean up.(Associated Press, Mar. 6, 2009).

Photograph of hermit crab courtesy of NOAA.

Photograph of octopus courtesy ofNOAA’s Ocean Explorer.

Sea Grant Law CenterKinard Hall, Wing E, Room 258P.O. Box 1848University, MS 38677-1848

The University of Mississippi

THE SANDBAR

THE SANDBAR is a result of research sponsored inp a r t b y t h e N a t i o n a l O c e a n i c a n dAtmospheric Administration, U.S. Department ofCommerce, under Grant Number NA16RG2258,the Sea Grant Law Center, Mississippi LawResearch Institute, and University of MississippiLaw Center. The U.S. Government and the SeaGrant College Program are authorized to pro-duce and distribute reprints notwithstandingany copyright notation that may appear hereon.This newsletter was prepared by the Sea GrantLaw Center under award NA06OAR4170078from NOAA, U.S. Department of Commerce. Thestatements, findings, conclusions, and recommen-dations are those of the author(s) and do not nec-essarily reflect the views of the Sea Grant LawCenter or the U.S. Department of Commerce.

The University of Mississippicomplies with all applicablelaws regarding affirmativeaction and equal opportunityin all its activities and pro-grams and does not discrimi-

nate against anyone protected by law because ofage, creed, color, national origin, race, religion,sex, handicap, veteran or other status.

MASGP 09-004-01 April, 2009

Editor: Terra Bowling, J.D.

Publication Design: Waurene Roberson

Research Associates:Moses R. DeWitt, 2LSurya Gablin Gunasekara, 2LJonathan Proctor, 2L

THE SANDBAR is a quarterlypublication reporting onlegal issues affecting the U.S.oceans and coasts. Its goal isto increase awareness andunderstanding of c o a s t a lp r o b l e m s a n d issues. Tosubscribe to THE SANDBAR,

contact: the Sea Grant Law Center, Kinard Hall, WingE, Room 262, P.O. Box 1848, University, MS, 38677-1848, phone: (662) 915-7775, or contact us via e-mail at:[email protected] . We welcome suggestions for top-ics you would like to see covered in THE SANDBAR.

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