No one-size-fits-all prescription for adapting to sea-level rise is possible for Florida’s coastal communities. For example, communities must not only inform people about coastal hazards such as storm surge and sea-level rise but also encourage economic development and investment that makes the community vibrant and contributes to the tax base.
Each community needs to assess for itself its vulnerabilities and how to find the balance between the many competing interests that present themselves in adaptation to sea-level rise and coastal planning generally.
The following materials were created to help planners and attorneys analyze the different planning and policy options for addressing sea-level rise and other coastal hazards.
Infrastructure, Sea Level Rise & the Law
1. Sea Level Rise Adaptation and the Bert J. Harris, Jr., Private Property Rights Protection Act
Format: Law review article
Created by: Florida Sea Grant (Thomas Ruppert, Esq. & Chelsea Miller, J.D.)
Relevant audiences: Local government attorneys, local government planners, local and state decision makers
When the Florida Legislature passed the Bert J. Harris, Jr., Private Property Rights Protection Act in 1995, sea level rise was not on its radar. Many attorneys indicate that the Bert Harris Act has chilled the willingness of local governments to use many of the most powerful tools they have for preventing creation of risks that cost lives, cause human suffering, and cost taxpayers billions each year. The article introduces the Bert Harris Act, and provides both procedural and substantive potential defenses for government. This article examines the Bert Harris Act as of early 2021, including 2021 legislative proposals for changes to the Bert Harris Act, most of which were subsequently enacted into law.
2. Legal Issues When Managing Public Roads Affected by Sea Level Rise: Florida
Format: White paper/policy paper
Created by: Georgia, Florida, North Carolina, and South Carolina Sea Grant legal programs
Relevant audiences: Local government attorneys, local government planners, local and state decision makers
As sea level rise reshapes Florida’s coastline, state and local governments confront more difficult and expensive maintenance of their road systems. As roads increasingly fall into disrepair or disappear, how will government entities address their potential legal and fiscal liabilities? This article examines road jurisdictions, duties for maintenance, tort law, sovereign immunity, and takings law in the context of these challenges.
3. Roads to Nowhere in Four States: State and Local Governments in the Atlantic Southeast Facing Sea Level Rise
Format: Law review article
Created by: Georgia, Florida, North Carolina, and South Carolina Sea Grant legal programs
Relevant audiences: Local government attorneys, local government planners, local and state decision makers
This award-winning article analyzes road infrastructure maintenance as affected by climate change and sea level rise in Florida, Georgia, South Carolina, and North Carolina. It presents a regional analysis comparing how tort and local government law can both further and hinder climate change resilience planning and climate adaptation efforts across these four states. The article presents the idea of an “adaptive duty to maintain” which is related to historic understandings of public goods and which emphasizes the community-centered nature of transportation infrastructure.
4. Castles–and Roads–In the Sand: Do All Roads Lead to a “Taking”?
Format: Law journal article
Created by: Florida Sea Grant (Thomas Ruppert, Esq.)
Relevant audiences: Attorneys
This article dissects a seminal Florida case on local government liability for coastal erosion damage to a road. The examined case altered and expanded the concept of “maintenance” of road infrastructure by a local government as the baseline duty that must be met to avoid potential legal liability. The case also introduced into Florida law the idea that “inaction” may support a Fifth Amendment takings claim. The article evaluates whether and when inaction should be sufficient basis for a takings claim, draws out policy implications in light of sea level rise, and makes recommendations to address fallout from the case.
5. Environmentally Compromised Road Segments—A Model Ordinance
Format: White paper with model ordinance
Created by: Florida Sea Grant (Thomas Ruppert, Esq., John Fergus & Alex Stewart, Esq.)
Relevant audiences: Local government attorneys, local government planners, local and state decision makers.
The legal case of Jordan v. St. Johns County, 63 So. 3d 835 (5th DCA 2011), brought into stark relief for local governments in Florida the physical, legal, and financial dangers coastal hazards pose when they damage infrastructure. This model ordinance, based on an ordinance by St. Johns County in response to the case above, provides a framework in which local governments can balance their interest in protecting property rights and access to property while acknowledging that fiscal responsibility and limited resources may counsel limiting expenditures in some instances.
6. Drowning in Place: Local Government Costs and Liabilities for Flooding Due to Sea Level Rise
Format: Florida Bar Journal article
Created by: Thomas Ruppert, Esq. & Carly Grimm, Esq.
Relevant audiences: Local government attorneys, local government planners, local and state decision makers
This article discusses potential legal liabilities and context for local government maintenance and upgrading of drainage systems in response to the decreasing efficacy of such systems due to sea-level rise. The article concludes that in Florida it is likely that whether a local government will be liable for failure of a drainage system to keep properties drained in the face of sea-level rise will hinge on the legal determination of whether such flooding is ascribed to a failure to maintain or a failure to upgrade the drainage system. While the analysis in the article focuses specifically on Florida law, the reasoning and much of the law may be similar in other states.
7. Sea Level Rise and Infrastructure: A Challenge for Local Government
Format: Magazine article/summary in a publication of the American Bar Association
Created by: Florida Sea Grant (Thomas Ruppert, Esq.)
Relevant audiences: Local government attorneys, local government planners, local and state decision makers.
For those seeking a condensed version of discussion about sea-level rise, infrastructure, and legal liability for local governments, this article provides an overview of many of the issues that are addressed in more depth in other resources on this page.
8. Legal Considerations Surrounding Adaptation to the Threat of Sea Level Rise, City of Coral Gables
Format: White paper
Created by: The City of Coral Gables
Relevant audiences: Local government attorneys, local government planners, local and state decision makers
This document takes a broad look at the challenges that sea level rise presents to the City of Coral Gables in southeast Florida.
9. Reasonable Investment-Backed Expectations: Should Notice of Rising Seas Lead to Falling Expectations for Coastal Property Purchasers?
Format: Law review article
Created by: Florida Sea Grant, Thomas Ruppert, Esq.
Relevant audiences: Attorneys
This article delves into “reasonable, investment-backed expectations” in federal takings law. This leads into an analysis of the importance of “notice” in evaluation of reasonable, investment-backed expectations. The importance of notice—and issues of fairness and personal responsibility—coalesce to support the idea that local governments could institute notice or disclosure ordinances for coastal hazards. The article provides examples of notice in other contexts and makes recommendations for drafting of a local notice ordinance.
Sea Level Rise & Land Use Planning
1. The Link Between Future Flood Risk and Comprehensive Planning
Format: Newsletter article
Created by: Erin Deady, Esq., AICP, LEED AP & Thomas Ruppert, Esq.
Relevant audiences: Local government attorneys, local government planners, local and state decision makers
This article traces Florida’s efforts to integrate climate change and sea level rise in comprehensive planning. The article examines Florida law requiring consideration of sea level rise in the coastal management element of local comprehensive plans. It highlights how the National Flood Insurance Program and its Community Rating System include sea level rise and looks at federal policies, such as those of the U.S. Army Corps of Engineers, the National Environmental Policy Act, and the Federal Flood Risk Management Standard. The article argues that local governments should look at the bigger picture from all of these laws, policies, programs, and regulations and holistically plan for sea level rise and flood risk to address them all. The article begins on Page 7 of the PDF.
2. Managing Property Buyouts at the Local Level: Seeking Benefits and Limiting Harms
Type: Law journal article
Created by: Florida Sea Grant (Thomas Ruppert, Esq., John Fergus, & Enio Russe-Garcia, Esq.)
Relevant audiences: Local government attorneys, local government planners, floodplain managers, land acquisition staff, local and state decision makers
Efforts to conduct buyouts of at-risk properties represent an increasingly popular resilience tool, often receiving support as the least-cost option for the costs of flooding. This article addresses the potential harm to neighborhoods and communities conducting buyouts. After introducing context and legal bases for buyouts, the article presents a model local-government ordinance to achieve the benefits of reduced flood risk while avoiding the most negative impacts of buyouts on communities.
3. No Adverse Impact: Floodplain Management Tools from the Association of State Floodplain Managers
Format: Web page of legal and planning resources
Created by: Association of State Floodplain Managers
Relevant audiences: Floodplain managers, local government planners, local and state decision makers
As rising seas exacerbate flooding, the adaptation community can learn a lot from the floodplain management community. The Association of State Floodplain Managers has an extensive suite of tools to help local governments. These tools can identify and explain policies that may be implemented at the local level to prevent increasing flood losses–specifically by focusing policy on building in ways that have “No Adverse Impact” on existing development and existing flood risk.
4. Adaptation Tool Kit: Sea Level Rise and Coastal Land Use
Format: Interactive website of resources and examples
Created by: Harrison Institute and Georgetown Climate Center (Jessica Grannis)
Relevant audiences: Local government attorneys, local government planners, local and state decision makers, and more general public audiences
This document covers four broad areas of tools that local governments can use to adapt to sea-level rise: 1) Planning tools, 2) Regulatory tools, 3) Spending tools, and 4) Tax and Market-based tools. While it is not specific to Florida, the broad overview it provides is worthwhile.
Sea Level Rise Adaptation & Policy
1. A Blueprint for Coastal Adaptation Uniting Design, Economics, and Policy
Format: Book chapter in “A Blueprint for Coastal Adaptation”
Created by: Florida Sea Grant (Thomas Ruppert, Esq.)
Relevant audiences: Local government attorneys, local government planners, local and state decision makers, concerned citizens.
As we inevitably lose places to sea level rise, how will we clean up the residential areas we leave behind so that our coastlines are not foul, toxic, dangerous places? Who is responsible for cleaning up abandoned properties? How will this be funded? What might an effective cleanup program look like? How could such a program integrate social justice, equity, and disparate impacts concerns? This chapter begins this conversation by presenting legal analysis of Florida law and a potential path to ensuring communities are able to protect coastlines for future generations and allow some coastlines to evolve naturally with rising seas.
2. Sea Level Rise Adaptation Financing at the Local Level in Florida
Format: White paper
Created by: Florida Sea Grant (Thomas Ruppert, Esq. & Alex Stewart, Esq.)
Relevant audiences: Local government attorneys, local government planners, local and state decision makers
Adaptation to sea level rise is expensive. How can local governments pay for such expensive infrastructure work? Despite some state and federal government grants, much of the cost falls to local governments. This white paper examines some of the most likely candidates for funding mechanisms that local governments may use for adapting to sea level rise, as well as the strengths and weaknesses of each approach.
3. Rolling Easements
Format: White paper
Created by: Climate Ready Estuaries Program and the U.S. Environmental Protection Agency (James G. Titus)
Relevant audiences: Local government attorneys, local government planners, local and state decision makers
This detailed primer offers a thorough and detailed introduction to the concept of rolling easements, defining them and providing examples. The document recognizes its own limitation as a national-level document. Thus, while it sometimes presents examples from states, the document is not designed to evaluate state property law. As a beginning point in evaluating rolling easements in Florida, this document may be combined with the resource “Use of Future Interests in Land as a Sea Level Rise Adaptation Tool.”
4. Florida’s Coastal Hazards Disclosure Law: Property Owner Perceptions of the Physical and Regulatory Environment
Format: Florida Sea Grant Technical Publication
Created by: Kevin Wozniak, J.D., LL.M., Garin Davidson, M.A. & Tom Ankersen, Esq.
Relevant audiences: Local government attorneys, local government planners, local and state decision makers
This document contains research, findings, and recommendations related to Florida’s current coastal disclosure statute. This statute requires that potential purchasers of coastal property that is seaward of the Coastal Construction Control Line (CCCL) receive certain information about the dynamics of coastal property and regulations such as the CCCL that impact uses of property. Research indicated that the current law is not accomplishing its stated goal, so the document addresses shortcomings in the statute by offering proposed statutory revisions. These revisions reflect the legal analysis in the above document “Reasonable Investment-Backed Expectations: Should Notice of Rising Seas Lead to Falling Expectation for Coastal Property Purchasers?”
Access the full report here.
Access the executive summary here.
5. Use of Future Interests in Land as a Sea Level Rise Adaptation Strategy in Florida
Format: White paper
Created by: Thomas Ruppert, Esq.
Relevant audiences: Local government attorneys, local government planners, local and state decision makers
This three-page document examines the prospects of using future interests in land for adaptation purposes in Florida. James Titus of the U.S. EPA advocated for rolling easements, and his 2011 primer on the topic extensively treats the possibility of using future interests in land to implement the rolling easement concept. Specifics in Florida law present serious difficulties that likely mean future interests present less viable, flexible options than conservation/environmental easements in Florida.
