“The effect of any amount of future sea level rise will be an increased rate of coastal erosion as waves will break higher on bluffs and dunes along the south shore for any given storm intensity. Bathing pavilions, hotels, and other buildings now protected by coastal engineering structures will be subject to increased wave attack as the protection structures are overtopped by smaller and smaller storms. Low-lying areas adjacent to the shore front will be subject to “in-place drowning”, i.e., increased flooding during storms.”
RI CRMC Salt Ponds Area Special Management Plan, Section 410.3 Geologic Processes – Sea Level Rise – The Near Geologic Future, Subheading C.
According to the Salt Ponds Special Area Management Plan (SAMP), the south facing shoreline of Rhode Island is not likely to see an abatement of erosion at any time in the near even geologic future.
Yet shoreline property values continue to rise according to Section 610.1 of the Salt Ponds SAMP, and the National Flood Insurance Program (NFIP) is partially to blame for making it easy to build in such highly erosive environments as the Matunuck Shoreline by making it easier to build houses in areas where banks refused to grant mortages after the hurricanes of 1938 and 1945.
Nonetheless, development along the Matunuck shoreline still stands, and a 12-inch water main carries drinking water underneath Matunuck Beach Road to residences throughout the south coast.
The same water main serves as a backup to South Kingstown, connecting it to the Narragansett water system. Not considering the private property issues, all parties, especially the water-drinking public, have a vested interest in preserving the structural integrity of the shoreline as the cost of moving the water main would be far greater than installing a structural shoreline protection option.
The time is now to move forward, according to South Kingstown Planning Department Director Vincent Murray.
“The most recent town action is the Council’s resolution, which provides some specific suggestions we’d like to review with Coastal about exhibiting more flexibility beyond their regulatory role in terms of trying to have a cooperative stance among all the stakeholders…in a positive fashion,” said Murray. “I think some of the permitted mitigation activities simply haven’t worked, specifically sandbags."
Ocean Mist owner Kevin Finnegan would also like to see positive progression.
“[CRMC] might as well work with the property owners to come up with a solution. Get everybody involved, and the business owners will kick in money,” he said. “It’s just a win-win to act now than not act and lose our property. We’ve got to do something, and place everything where it makes sense.”
Mark Melnick pointed out that many coastal projects, such as beach replenishment, receive Federal funding.
South Kingstown’s Planning Department has already outlined options in the Matunuck Coastal Area Report it released in April 2010. In reference to an August 2008 public hearing between South Kingstown town staff, the town’s Local Hazard Mitigation Committee (LHMC) and the CRMC, the April 2010 Report states, “Following the public comment period and a follow up meeting with CRMC, the LHMC determined that the soft-armor alternatives identified would not adequately protect the integrity of Matunuck Beach Road over the long-term, based on the high-energy wave environment.”
The April 2010 report identified four hard-armor alternatives selected for consideration:
- a concrete gravity seawall ($15-17 million)
- a concrete gravity seawall on steel sheet pile foundation ($17-19 million)
- a riprap revetment ($8-11 million)
- an offshore breakwater (reef, $12-15 million; rubble mound, $25 million)
According to the Matunuck Report, two legal avenues exist under which a hard armor shoreline protection option might be permitted.
1. Section 130 of the Coastal Resources Management Program, entitled “Special Exceptions” allows the CRMC to permit normally prohibited activities, so long as the circumstances fall under certain categories. One of those categories is “an activity associated with public infrastructure”.
Given the presence of a crucial 12–inch water main carrying water to a large amount of South Kingstown, a hard-armor shoreline protection structure should be permitted under Section 130 of the Coastal Resources Management Policy.
2. The Matunuck shoreline in the effected area is categorized as “Headlands, Bluffs, and Cliffs”. Due to the more stringent regulations in place protecting more pristine shorelines, the construction of hard armor structures is prohibited. If the CRMC were to re-classify the Matunuck shoreline as a “Manmade shoreline”, such a structure could be permitted.
As for measures property owners might undertake in the interim, not much leeway exists as of yet, hence the Town’s pleas for a greater degree of flexibility.
Section 180 of the Coastal Resources Management Policy is entitled “Emergency Assents”, but does not contain any provisions for action without precedence of a permit, and deals mostly with storm and disaster related permitting.
Such public trust versus private property rights conflicts have been contested before. An article written by Robert Hancock, published in the September-October edition of the National Wetlands Newsletter, entitled “The Highest High Tide: Securing Rhode Island’s Salt Marshes in a Time of Rising Seas” outlines legal conflict between personal property and public trust rights in the prospect of losing salt marshes and shoreline to the ocean.
In his article, Hancock highlights two cases of legal precedent pertinent to this conflict. The Public Trust Doctrine, and Takings.
In Rhode Island, Greater Providence Chamber of Commerce v. State decided with private property rights “whether ownership rights of land reclaimed from the sea due to the placing of fill below the mean high tide mark fell with the private-record title holders or with the state for public-trust purposes.”
Hancock offers that “because the Chamber of Commerce court recognized private property rights over the public trust in cases of previously submerged lands, there is a chance that it may also recognize private property rights where previously dry lands have become submerged. At present it is unclear which way the Rhode Island courts will move.”
The second issue addressed is the issue of Fifth Amendment Takings. Palazzolo v. State sets legal precedent on takings in Rhode Island, according to Hancock’s article. Palazzolo argued that CRMC’s repeated rejection of his applications to “fill and develop 18 acres of salt marsh” constituted Fifth Amendment Taking for depriving him beneficial use of his property.
Hancock states “the CRMC must clearly establish the states intent to hold title over newly inundated lands so that private property owners will be unable to claim that the state has been acquiescent in allowing alterations to the uplands that prevent the migration of salt marshes.”
The precedent set by Palazzolo may establish that preventing natural processes of erosion from occurring constitutes a public nuisance. It does also point out a gray area, that the burden lies on the state to hold title on submerged land.
According to legal representatives at the CRMC, acts of nature are not considered a Taking issue. Such undecided terms validate the unclear nature how courts may handle private property rights versus the public trust. Regardless, there is a consensus calling for the CRMC reconsider its actions.
“I think we have a unique circumstance that does warrant a greater flexibility on how the Red Book is applied,” said Murray.
“There have been things that lead us to revise our program,” said Laura Ricketson-Dwyer, Public Educator and Information Coordinator for the CRMC. “Just the fact this is an ongoing conversation, an ongoing issue, that might spur something at some point. The nice thing about it is that we have conversations here, and that sometimes leads to change.”
Progress is also on the horizon.
“In reaction to the Town Council’s Resolution, we’ve been contacted by Coastal,” Murray explained. “They’re going to be setting up a meeting with the Coastal Council staff and their chair and town staff will be attending to discuss the issue. That has not been set yet but there has been communication back in forth in that respect."
In looking forward, Murray offered a plea to Mother Nature herself.
“We’ve had a situation of erosion and sometimes minor accretion between events where you get some back. That may be hoping against hope, but anything is possible. An abatement of erosion events would assist the process because whatever is arrived at it’s probably a longer-term solution. There’s a ramp up of design consideration, policy development, permitting, resource assembly, those are all complex things to affect, so time could be on our side, it would be nice if it were.”
For property owners that would like to make themselves more aware of regulations requiring a permit, see Section 100 of the Coastal Resources Management Program, also known as “The Red Book”, entitled “Alterations and Activities That Require an Assent from the Coastal Resources Management Council”.