SAN FRANCISCO—California often leads the pack in regulatory efforts to address climate change. For example, governor Jerry Brown was recently appointed a UN climate-change advisor for states and regions. And, the state's integrated climate strategy looks to reduce greenhouse gas emissions to 40% below 1990 levels by 2030, while California's decision to join with Ontario and Quebec to create the second-largest global carbon market, are other examples.

Now, California is adding to its climate-conscious resume, and coastal landowners and developers should take notice. The California Coastal Commission recently issued draft residential adaptation policy guidance to help municipal governments evaluate residential development compliance with the California Coastal Act, GlobeSt.com learns in the first of a two-part exclusive.

“Once finalized, the draft guidance will be only advisory but it gives important insight into the commission's understanding of relevant law and foretells legal obligations municipal governments likely will impose as they approach to sea-level-rise adaptation,” George Gigounas, a partner in DLA Piper's litigation and environment, health and safety practices, tells GlobeSt.com. “And, it suggests particular legal issues and liabilities developers may encounter as policies take shape around the draft guidance.”

Enacted in 1976, the California Coastal Act protects public access to California's coastal zone and preserves coastal resources for future generations, while striking a balance with the need to productively develop coastal lands. The 15-member commission, part of the Natural Resources Agency, has broad jurisdiction over activities relating to coastal areas, including coastal development.

Under this mandate, the commission publishes interpretive guidelines to help foster compliance with the act.

“While not mandatory regulations, these guidelines are influential with municipal development authorities,” Jesse Medlong, litigation associate in DLA Piper's San Francisco office, tells GlobeSt.com. “The commission issued the draft guidance in July 2017 and invited the public to comment until September 29, 2017, with the revised, final version expected by last month.”

The draft guidance is particularly important to local governments within the coastal zone which must develop and implement a local coastal program/LCP for any coastal zone within each government's jurisdiction. The commission must approve all LCPs and review every LCP at least once every five years after certification to ensure effective and act-compliant implementation.

The commission has made incorporation of adequate sea-level-rise measures into the LCP review process a top priority, as outlined in three key sections of the draft guidance. The first highlights the commission's policy recommendations for all areas vulnerable to rising sea levels. The second offers guidance on developing adaptation strategies for specific areas. And the third discusses legal issues that may arise when municipalities implement the recommendations.

The commission's guidance will help communities learn about the increasing hazards that may threaten coastsides and coastal resources, options for protecting threatened built and natural assets, and how to choose an adaptation pathway in light of each particular circumstance. The draft guidance advises communities to plan by identifying “how and where to apply different adaptation mechanisms based on Coastal Act requirements, other relevant laws and policies, acceptable levels of risk, and community priorities.”

Seven broad categories of model policies underlie the commission's general recommendations: understanding sea level rise hazards, avoiding new development or perpetuating redevelopment in hazard areas, designing for the hazard, moving development away from hazards, moving hazards away from development, building barriers to protect from hazards, and community-scale adaptation planning.

“Municipalities can adopt more specific policies within these categories based on their individual circumstances. The commission sets this menu of policy options within four overarching recommendations to municipal governments,” Gigounas says. “First, vulnerability assessments should be conducted according to the best available science. Second, communities should disclose planned adaptation to property owners and the public through various mechanisms. Third, municipalities should avoid hazards through siting and design measures; i.e., imposing setbacks from potential hazards. Finally, redevelopment should be regulated to meet expected future needs.”

Once municipalities have evaluated vulnerabilities and established appropriate policies, the draft guidance advises following one of the specific channels identified to focus on specific vulnerable areas. The first channel, protection, involves engineering measures to defend existing development without significant change. Another channel, accommodation, involves modifying existing developments or designing new developments so as to limit exposure to risks from sea-level rise. The third channel identified is retreat, which involves relocating or removing development to avoid hazards, and limiting new development within vulnerable areas. The draft guidance describes how municipalities should analyze and choose from among the alternative strategies, along with a few concrete examples to show how these concepts work in the real world.

Instant Insights /

Guidelines Evaluate CA Coastal Act Compliance

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