5
The Existing Decision-Making Process for Shoreline Protection on Sheltered Coasts

Aspects of decision-making and the factors that influence it have been discussed in previous chapters. Similarly, these chapters have detailed the various options that exist to address the problem of eroding shorelines. The focus of those chapters, however, has not been on the process of making the decision to protect a shoreline or what steps are necessary to reach implementation of a solution. This chapter presents an overview of the current decision-making process for erosion control on sheltered coastlines. The process includes a discussion of who selects responses for shoreline protection and highlights the key factors that influence and constrain those that make the decisions, as well as the complexities of altering and regulating the shoreline.

DECISION-MAKERS

The property owner who perceives a problem with erosion of the shoreline usually initiates the response to the problem. After observation of a problem, an investigation into possible solutions ensues. If the “do-nothing” alternative is discarded, the property owner must proceed through a regulatory process that will involve other decision-makers and, depending on the size and complexity of the situation, be complex and lengthy.

For any segment of eroding shoreline, the choice of which mitigation option to implement is affected by multiple decision-makers. These decision-makers can be broadly grouped into four classes:



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Mitigating Shore Erosion Along Sheltered Coasts 5 The Existing Decision-Making Process for Shoreline Protection on Sheltered Coasts Aspects of decision-making and the factors that influence it have been discussed in previous chapters. Similarly, these chapters have detailed the various options that exist to address the problem of eroding shorelines. The focus of those chapters, however, has not been on the process of making the decision to protect a shoreline or what steps are necessary to reach implementation of a solution. This chapter presents an overview of the current decision-making process for erosion control on sheltered coastlines. The process includes a discussion of who selects responses for shoreline protection and highlights the key factors that influence and constrain those that make the decisions, as well as the complexities of altering and regulating the shoreline. DECISION-MAKERS The property owner who perceives a problem with erosion of the shoreline usually initiates the response to the problem. After observation of a problem, an investigation into possible solutions ensues. If the “do-nothing” alternative is discarded, the property owner must proceed through a regulatory process that will involve other decision-makers and, depending on the size and complexity of the situation, be complex and lengthy. For any segment of eroding shoreline, the choice of which mitigation option to implement is affected by multiple decision-makers. These decision-makers can be broadly grouped into four classes:

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Mitigating Shore Erosion Along Sheltered Coasts property owners, experts and consultants (such as civil engineers), government regulators, permitting and compliance officials, and policy-makers or law-makers. Each of these classes of decision-maker imposes limitations or requirements on the scope of the options that can be considered by the others involved in a particular project. The motivations and constraints of the different groups of decision-makers vary depending on their relation to the property, their knowledge of different types of shoreline protection options, their stewardship responsibilities, their professional interests, regulatory framework, legal precedence, and local preferences. For example, proponents of shoreline protection are usually property owners driven by a desire to preserve upland area and value or by a desire to protect, create, or restore recreational opportunities that a beach may provide, for example. They seek an outcome that will protect and maximize their uses of the shoreline and their investment. The realities of private property insurance or the National Flood Insurance Program (NFIP) may also influence property owners’ decisions. NFIP, run by the Federal Emergency Management Agency (FEMA), informs the zoning decisions made by communities. According to the Coastal Engineering Manual (U.S. Army Corps of Engineers, 2002b): “Any structural or nonstructural change in the design, construction or alteration of a building to reduce damage caused by flooding and flood related factors (storm surges, waves, and erosion) is considered a flood proofing alternative by FEMA,” (see Box 5-1). BOX 5-1 National Flood Insurance Program (NFIP) The NFIP was established with the passage of the National Flood Insurance Act of 1968 (P.L. 90-448). It is a voluntary program based on an agreement between flood-prone communities and the federal government to reduce future flood risk to new construction in floodplains. The Federal Emergency Management Agency (FEMA) publishes maps, called Flood Insurance Rate Maps (FIRMs), to show areas in the community that have a 1 percent or greater chance of flooding in any given year, known as Special Flood Hazard Areas (SFHAs). FIRMs are developed by engineering companies, other federal agencies, or the community at risk and are reviewed and approved by FEMA. FIRMs are used by property owners, buyers, insurance agents, and lending institutions to locate properties and buildings in flood insurance risk areas. Community officials use the FIRM for their area to administer floodplain management regulations and to mitigate flood damage. SOURCE: http://www.fema.gov/plan/prevent/fhm/mm_mca.shtm.

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Mitigating Shore Erosion Along Sheltered Coasts Property owners include individuals or groups with large and small private holdings, as well as entities representing all levels of government. Constraints on their decisions include (1) costs, (2) feasibility, (3) regulatory permissibility, (4) length of time to permit, and (5) lack of knowledge about the potential options available to them. Experts and environmental consultants, including government scientists and engineers, represent the second class of decision-makers. Property owners rely on consultants to provide most of the information that enters their decision-making process. In turn, consultants are motivated by their client’s desired outcome. The geomorphology and hydrodynamics of the site present a number of constraints in addition to cost, feasibility of success, ease of permitting, and the consultant’s familiarity with various mitigation options. In general, the larger a project, the lengthier, more time-consuming, and more complex design and permitting become. Government regulators, permitting officials, and compliance officers at all levels of government are driven by the legal mandates and official policies that apply to and direct activities along the shoreline. Regulators also include county and town civil engineers, building inspectors, zoning officials, and local land use planners. The shoreline and adjacent lands are some of the most highly regulated real estate that exists. The purpose of regulations governing the shoreline is generally to protect public trust areas, such as beaches, wetlands, tidelands, and nearshore coastal waters, while at the same time balancing private property rights. The motivation of a government regulator may often conflict with the desires of property owners. Often regulators seek to limit encroachments into public trust areas—generally the area below mean high water line—see Figure 1-1 (in Chapter 1), making permitting of structures located directly adjacent to eroding upland easier and quicker than permitting of structures in or on the nearshore areas. The feasibility of success and knowledge of the proposed shoreline erosion mitigation options are also major factors that influence regulatory decision-making. Public access to or around a proposed mitigation project can also be a major consideration. Policy-makers comprise the fourth group of decision-makers. These individuals draft and approve federal, state, and local statutes and ordinances that govern activities along the shoreline. Most policy-makers are elected state, county, and municipal officials who must balance public input with the information they receive from respected experts and interest groups. Court cases and legal precedent, such as the evolving nature of the public trust doctrine (see Box 5-2) and wetlands legislation, as well as private property rights and potential takings claims, also influence these decision-makers. These legal issues can limit some shoreline erosion mitigation options, such as extensive fill of wetlands or building restrictions in coastal areas.

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Mitigating Shore Erosion Along Sheltered Coasts BOX 5-2 Public Trust Doctrine The Public Trust Doctrine (PTD) is a legal concept that often has great impact on how governments manage their tidelands and nearshore waters. The government is the trustee of these areas for the benefit of the public and maintains this stewardship responsibility even though in some cases it may previously have decided to privatize some submerged sovereign lands (see NRC, 1999). The original public trust interests included navigation, fishing, and commerce (Martin v. Lessees of Waddell, 41 U.S. 367 (1842) and Shivley v. Bowlby, 152 U.S. 48 (1894)). However, recent case law in some states since the early 1970s has produced an evolution in the interests that the PTD covers. Thus, depending on state law, the PTD interest may extend to open space protection, environmental quality, and recreation interests. The PTD has implications for all decisions regarding shoreline erosion control options that inevitably produce an impact on public trust lands. The outcome will depend on the dominant interest at stake. For example, some erosion control options, such as wetland creation and “living shorelines” may impede the public trust interest of navigation while enhancing other public interests such as environmental quality and fishery habitat. Other responses, such as bulkheads, may degrade the quality of nearshore environments (e.g., reduce their quality as fish habitat), but maintain navigation. If protecting natural shorelines, wetlands, and beaches is a priority in an area, then some responses to erosion such as vertical walls may not be feasible. In other areas, protection of navigation interests might be paramount and lead to erosion responses that conflict with conservation of natural areas. An additional issue that often complicates decision-making is public access. Not only does common law recognize the riparian right of access to navigable waters, it also guarantees the public’s right to navigate on waters. This later concept may create obstacles for proposals that interfere unreasonably with the public’s access to navigable waters, as well as the public navigation interest. Erosion control options, such as beach creation, may also create new opportunities for public access to the fringes of navigable waters. For example, in Mobile Bay, Alabama, property owners are warned by regulators that the construction of beaches—a mitigation option that increases habitat value as compared to a seawall which does not—will require that the public be granted access to the shoreline in places where it may not have had access previously (Douglass, 2005a). The following table (Table 5-1) summarizes the motivations, information sources and needs, and area of influence of the four categories of decision-makers. As noted in Table 5-1, the motivations and influences affecting individuals and groups of decision-makers vary. Constraints such as knowledge of different types of shoreline protection options, regulatory precedence, costs, and local preferences are equally important in decision-making and differ among the groups of

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Mitigating Shore Erosion Along Sheltered Coasts TABLE 5-1 Characteristics of Various Groups of Shoreline Protection Decision-Makers Decision- Maker Objectives Information Needs Information Sources Area of Influence Property Owners Maximize the use of their property Aesthetics Maximum property value Effectiveness Cost Feasibility Handbook and/or online info Expert/consultant Government regulator Neighbors Flood zone maps Individual’s property,as well as neighbors’ property Note: Large public property owners can have broader geographical influence. Experts and Consultants (includes government scientists and engineers) Satisfy the client Make a prof it Maintain credibility Knowledge of shoreline protection options (Structural and nonstructural) Feasibility (i.e., ease of permitting) Physics, geomorphology, and ecology Professional networks Experience Field work Trade publications Government agencies Vendors Formal Education Geographical region in which they work Government Regulators, Permitting and Compliance Officials Implement and enforce the regulations Resource stewardship Knowledge of shoreline protection options (structural and nonstructural) Physics and geomorphology, and ecology Legal mandates Public trust responsibility Constraints imposed by other regulatory programs Reports or the NRC and other expert bodies Professional networks Experience Consultants Formal education Legal counsel Jurisdiction in which they work Policy-makers and Law-makers Reelection Maintaining the tax base Resource stewardship Serving their constituents Environmental quality Quality of life Public health, safety, and welfare Public trust responsibilities Current law; its impacts and any unintended consequences Perception and understanding of the problem to be solved Press Constituents Staff (trusted experts in the field) Government agencies NGOs Their jurisdiction, as well as their colleagues’ jurisdictions

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Mitigating Shore Erosion Along Sheltered Coasts decision-makers. Ultimately, the final decision regarding selection of a shoreline erosion mitigation approach is guided by the constraints and requirements of the decision-making process. STRATEGIES AVAILABLE TO ADDRESS THE PROBLEM This chapter focuses on decision-making to protect eroding shoreline properties. A property owner who wants to protect an eroding shoreline will, with support from a consultant, consider the options discussed in Chapter 3 (shoreline hardening, vegetative responses, addition or trapping of sand). Regulatory authorities have established criteria for these activities that condition their adoption upon satisfaction of the same. The vehicles for this governmental oversight are the permitting systems discussed here. Permitted mitigation activities all tend to be reactive to existing shoreline erosion problems. One of the constraints mentioned above is the decision-maker’s lack of knowledge of shoreline protection options. Most shore erosion studies, both engineering and environmental, have focused on erosion problems on open coasts and as such have placed less emphasis on discussing options for addressing erosion on sheltered coasts. For example, the Coastal Engineering Manual published by USACE (U.S. Army Corps of Engineers, 2002b) devotes 60 pages to the discussion of hard structures used to mitigate erosion (e.g., seawalls, bulkheads, groins, breakwaters, and revetments) but includes only 3 pages on reefs, sills, and wetlands. Parallel strategies have evolved that attempt to proactively reduce the problem and avoid erosion losses by restricting or prohibiting development in erosion zones (“hazard zones”). The report mentions some of these strategies to manage land use at the beginning of Chapter 3—comprehensive master plans, zoning, acquisition of sensitive or hazardous lands (“property buyouts”), setbacks zones, and subdivision ordinances. Evidence suggests that land use planning techniques are the most effective approaches for promoting sustainable mitigation from hazards and avoiding infrastructure losses (Burby et al., 2000). If communities succeed in limiting or prohibiting construction in shoreline areas that display a high risk of erosion, then shoreline erosion diminishes as a problem. Analogies exist between mitigation of shoreline erosion and mitigation of flood losses. While requirements to elevate buildings in floodplains may reduce losses, these structural requirements do not limit new construction in floodplains (Holway and Burby, 1993). Similarly, regulation of the type and standards of shoreline protection activities does not directly restrict construction in these areas. In fact, shoreline protection may often be an incentive for further shoreline development, which may increase the exposure to additional losses (Burby et al., 2000). Zoning and similar proactive land use planning techniques are tools that can successfully limit development in hazardous areas and, therefore, be more effec-

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Mitigating Shore Erosion Along Sheltered Coasts tive at reducing property losses. These direct land use approaches that attempt to avoid the problem include acquisition of sensitive and/or hazardous lands, relocation of structures, shoreline setbacks, zoning, and comprehensive planning that incorporates the eroding shoreline. This report focuses primarily on direct mitigation responses to shoreline erosion—specifically structural, vegetative, and sand addition options. However, we realize that proactive land use planning techniques are essential elements for addressing this problem and avoiding losses to property and infrastructure. Regulation of land use and limitation of development are the central concepts in the avoidance of losses in these hazardous areas. These strategies are generally under the purview of local governments—sometimes with standards and mandates that originate at the state level. In summary, decision-makers are influenced by: financial and ecological costs, both incurred and avoided, legal precedent, political feasibility and acceptability, time required for permitting, site conditions, durability of the erosion control technique, spatial scale of the project, and ancillary benefits such as public access, new revenue sources, ecosystem services provided, or broad public support. PERMITTING REQUIREMENTS FOR SHORELINE PROTECTION ON SHELTERED COASTS Federal, state, and/or local governments usually regulate shoreline protection activities by means of a permitting system that establishes criteria and then evaluates whether the proposed action conforms to the accepted criteria. The precise permit requirements depend on the jurisdiction, the exact location of the proposed activities, and, of course, the type and size of the protection strategy proposed. Although great variation exists among shoreline permitting systems in the various jurisdictions in this country, the federal permitting system creates some national uniformity and often influences the permitting frameworks at lower levels of government. The following section discusses the major federal legislation and accompanying state reviews potentially triggered by shoreline protection projects. Federal Permits If an activity will occur in waters of the United States, generally anywhere along a sheltered shoreline, then a permit from the U.S. Army Corps of Engineers (USACE) is required.

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Mitigating Shore Erosion Along Sheltered Coasts Two federal laws serve as the basis for the federal regulation of shoreline activities: the Rivers and Harbors Act of 1899 and the Federal Water Pollution Control Act (FWPCA; Clean Water Act) of 1972. Through its administration of both statutory programs, USACE plays the central role in the regulation of shoreline protection projects. Congress has granted the Secretary of the Army (USACE) the power to regulate navigation and navigable waters through the Rivers and Harbors Act of 1899. Section 10 of this legislation (33 U.S.C. sec. 403) prohibits an individual “to excavate or fill, … modify the course, location, or condition … of any channel of any navigable water of the United States” without authorization of the USACE. In tidal areas, the geographical extent of “navigable waters of the United States, as used in the Rivers and Harbors Act, extends to all areas covered by the ebb and flow of the tides to the mean high water (MHW) mark in its unobstructed natural state.” USACE regulations define the landward limit of this agency’s jurisdiction in coastal waters to be the line reached by the MHW even though some of the water body may be very shallow or support wetland vegetation (33 C.F.R. sec. 329.12) (see Figure 1-1). An estimate of the precise line (averaged over the 18.6-year tidal cycle, according to Borax Consolidated Ltd. v. Los Angeles, 296 U.S. 10 (1935)) may refer to vegetation lines or to physical markings. Federal regulatory authority may extend further inland than the MHW line, depending on the geographical circumstances, according to the amendments to the FWPCA that Congress passed in 1972 (Clean Water Act [CWA]). Section 404 (33 U.S.C. sec. 1344) granted the USACE authority to regulate the discharge of dredge and fill material into navigable waters. While section 404 uses the term “navigable waters,” later in the legislation, Congress defined these as “waters of the United States” (33 U.S.C. sec. 1362(7)). For the purposes of section 404, the USACE regulations define the landward limit of its jurisdiction in coastal waters to be the high tide line, or in cases where adjacent nontidal waters of the United States are present, the jurisdictional limits of those nontidal waters (33 CFR sec. 328.4(b)). Both the USACE and the Environmental Protection Agency (EPA) share administrative responsibility for section 404. In most cases, the USACE determines the geographic extent of section 404, but in special circumstances, the EPA can make the final determination on the geographical reach of section 404. The USACE handles the permitting process. Although both permit programs (Rivers and Harbors Act sec. 10 and Clean Water Act sec. 404) may differ in their geographical coverage, the permitting procedures and forms used for both are identical. The EPA and the USACE regulations both define “waters of the United States” broadly. Not only do they cover traditional navigable waters (i.e., Rivers and Harbors Act), but also interstate wetlands and wetlands adjacent to navigable waters (33 C.F.R. sec. 328.3 - USACE; 40 C.F.R. secs. 112.2 & 116.3 - USEPA). The exact definition of wetlands and their delimitation remain controversial and

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Mitigating Shore Erosion Along Sheltered Coasts are based on scientific criteria, as well as politics and social values (40 C.F.R. sec. 230.41; Kalo et al., 2002) For additional information, see also NRC (1995b). The USACE (2001) issues two types of permits: General Permits (Nationwide and Regional) and Individual Permits (33 C.F.R. sec. 325.5). General Permits, in many cases, do not involve individual review of proposed activities and provide expedited authorizations for certain classes of activities that the USACE has determined are similar in nature and cause only minimal individual and cumulative environmental impacts (33 C.F.R. secs. 322.2(f) & 323.2(h)). However, for certain activities General Permits require project proponents to notify the USACE and obtain confirmation that the proposed work is authorized by General Permit, before beginning the work (33 CFR sec. 330.6(a)). General Permits may be nationwide or regional in scope, and their adoption involves normal rule-making procedures, such as public notice of the proposed rule and the opportunity for public comment and perhaps public hearings. One example of a Nationwide General Permit that may, under certain circumstances, be used for some shoreline protection projects is Nationwide Permit 27 (NWP 27) for Stream and Wetland Restoration Activities (67 Federal Register 2020, 2082-2083, (15 January 2002)). This permit allows activities in waters of the United States associated with enhancement of degraded tidal and nontidal wetland and riparian areas, as well as the creation of wetlands and riparian areas. These activities must not convert tidal waters to other uses, and the use native species of flora for the activity is encouraged. In coastal areas, NWP 27 is used primarily for wetland restoration activities, creation of small nesting islands, and construction of oyster habitat. However, in certain situations, NWP 27 activities could also assist shoreline protection and be part of a vegetation mitigation response to shoreline erosion. Another general permit, NWP 13 for Bank Stabilization activities, authorizes the construction of structures and fills necessary for erosion prevention (67 Federal Register 2020, 2080). Under NWP 13, the permittee must notify the USACE before beginning the work if the structure is longer than 500 linear feet or uses more than one cubic yard of fill material per running foot placed along the bank below the plane of Ordinary High Water or the High Tide Line. Thus, small bank stabilization activities (less than 500 linear feet in length and using less than one cubic yard of material per foot) can be constructed without notifying the USACE. The NWP 13 does not authorize stabilization projects in wetlands or in special aquatic sites. Despite the existence of these Nationwide General Permits, they do not have universal application because states can impose conditions that are more restrictive than those of the USACE. These more restrictive regional and state conditions often center on concerns regarding water quality (33 U.S.C. sec. 1341) and consistency with a state’s approved coastal zone management plan (16 U.S.C. sec. 1456(c)). The nationwide permits, therefore, ease the permitting process and shorten the approval time for activities like installing bulkheads or other vertical shore protection directly adjacent to eroding upland shorelines.

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Mitigating Shore Erosion Along Sheltered Coasts An Individual Permit is required if the activity does not fall under the conditions of the Nationwide or Regional General Permits. For example, if a property owner wishes to protect an eroding marsh or install a stabilization alternative, such as a sill or breakwater to protect eroding upland, then neither of the nationwide permits mentioned previously could be utilized. The permit applicant would be required to go through the lengthier and more complex individual permit process described here. These Individual Permits usually have a 30-day comment period during which all interested parties, adjacent property owners, and federal, state, and often local agencies can review the project proposal and submit comments before the USACE makes its decision. Under an abbreviated procedure, the District Engineer may grant a Letter of Permission for some projects determined not to have significant individual and cumulative impacts on environmental values and would have no appreciable opposition (33 C.F.R. secs. 325.2(e)(1) & 325.5(b)(2)). This abbreviated procedure proceeds without the publication of an individual public notice, but with coordination with fish and wildlife agencies and adjacent property owners. The individual permit application is evaluated by means of a Public Interest Review (33 C.F.R. sec. 320.4), which is used to determine if the activity is contrary to the public interest. This review considers all probable impacts, including cumulative impacts, and considers a broad spectrum of factors that are applied in a case-specific manner during the assessment of the project’s benefits and adverse impacts. Factors in the review include conservation, economics, aesthetics, environmental concerns, wetlands, fish and wildlife values, flood hazards, land use, navigation, shore erosion, recreation, water quality, safety, and considerations of property ownership. The Public Interest review process considers (1) general criteria of the public and private need for the work, (2) the practicality of using reasonable alternative locations and methods to accomplish the objective of the proposed work, and (3) the extent and permanence of the benefits and adverse effects on public and private uses. USACE regulations state that unnecessary alteration and destruction of wetlands should be discouraged as contrary to the public interest (33 C.F.R. sec. 320.4(b)(1)). The USACE endeavors to make a decision on an individual permit within 60 days after receipt of a complete application (33 CFR sec. 325.2(d)(3)). USACE regulations recognize the general right of a property owner to protect against erosion (33 C.F.R. sec. 320.4(g)(2)). While building protective structures is generally allowed, and the USACE minimizes to the extent feasible any adverse impacts to adjacent property, public health and safety, wetland values, and the public interest, the Corps does not usually recommend specific design solutions or alternative measures to vertical stabilization at the erosive face of the shoreline. The regulations limit the district engineer’s authority to recommend specific design solutions, to minimize the federal government’s legal liability. Landowners often contract with private engineering or environmental consulting

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Mitigating Shore Erosion Along Sheltered Coasts firms for advice and design services for bank stabilization activities. In addition, the USACE regulations stress the riparian owner’s right of access to navigable waters, as well as the public’s right of navigation on waters. Permit applications will generally be denied for proposals that create unreasonable interference with access to or use of navigable waters. A Federal Permit granted by the USACE for shoreline protection activities may also trigger additional federal regulatory requirements, as well as tribal coordination, depending on the unique circumstances of the case. The following federal statutes may require additional regulatory reviews: National Environmental Policy Act (Environmental Impact Statements, Environmental Assessments) Coastal Zone Management Act (consistency requirements) Clean Water Act (Section 401 Water Quality Certification) Fish and Wildlife Coordination Act Endangered Species Act National Historic Preservation Act Sustainable Fisheries Act A more detailed description of potential federal requirements appears in Appendix D. State and Local Permits for Shoreline Protection Activities State Permits In addition to federal permits, most shoreline erosion control projects require permits based on state wetland, coastal, or shoreline management legislation. State shoreline and land use planning regulations (coastal construction zones, construction setback zones, erosion control easements, special management areas, among others) have their foundations in the state’s responsibility to protect the health, welfare, and safety of its citizens. Additionally, the state’s proprietary interest in tidelands, generally landward to the MHW line, although a minority of states only own to the MLW line (see Figure 1-1), is the basis for its marine stewardship responsibilities. Moreover, through the common law, the state also has an affirmative duty to protect and promote the Public Trust interests (navigation, fishing, commerce, recreation, open space, and environmental quality) in its submerged lands and tidewaters, even when the state has opted to convey some of its state-owned tidelands or shoreland to private interests and riparian owners. Courts in some states have even held that the state’s public trust responsibilities extend to areas landward of the MHW line, such as the dry sand beach and dunes. An additional source of state authority is delegation through federal legislation. For example, state permit approvals are also often triggered by an application for

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Mitigating Shore Erosion Along Sheltered Coasts TABLE 5-2 Comparative Erosion Response for Sheltered Coasts by State Methods to Address Erosion Common Occasionally Rarely Hardening (Bulkheads and Revetments) SC, NC, FL, GA, AL, WA, VI, MS, LA, TX, MD (revetments), NJ, NY, PR MA, MI, VA, DE WA, MD (bulkheads) Nourishment (Trap and Add Sand) MA, VA, MD FL, MI, TX, NJ, NY AL, SC, WA, MI, MS, GA, NC, VI, LA, DE, PR Alternatives Relying Predominantly on Vegetation MA, LA, VA, MD NC, WA, MI, FL, TX, DE AL, SC, MS, GA, VI, NJ, NY, PR Setbacks and Other Land Use Planning Techniques MA, WA, MI, VA, DE, MD, NJ, NY SC, NC, FL GA, AL, VI, TX, LA, PR NOTE: PR = Puerto Rico, VI = U.S. Virgin Islands. North Carolina Example North Carolina lies within the jurisdiction of four USACE districts and EPA Region 4. The North Carolina Department of Environment and Natural Resources (NC DENR) is the lead permitting agency for shoreline protection activities under a USACE regional permit. NC DENR houses both the state water quality and the coastal zone management programs. If the activity will occur in one of the twenty coastal counties within the jurisdiction of the Coastal Area Management Act (CAMA) and is along an estuarine or tidal shoreline, a CAMA permit is required. The NC DENR Division of Coastal Management has attempted to encourage alternatives to bulkheads, specifically sills, through adoption in 2005 of a General Permit for construction of riprap sills for wetlands enhancement in estuarine and public trust waters (15A NCAC 07H.2700). As with other general permits, it cannot be utilized if there are “unresolved questions concerning the proposed activity’s impact on adjoining properties or on water quality, air quality, coastal wetlands; cultural or historic sites; wildlife; fisheries resources; or public trust rights” (www.nccoastalmanagement.net). This general permit requires consultation with the NC Division of Marine Fisheries and review of potential impacts on essential fish habitat. It is underutilized in part due to a shortage of professionals experienced in the design and installation of alternative erosion control structures.

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Mitigating Shore Erosion Along Sheltered Coasts Texas Example Texas is located in EPA Region 6 and within the jurisdiction of four USACE districts. The Texas Coastal Management Program is housed in the state’s General Lands Office and issues state permits for construction of shoreline protection structures, as well as making consistency determinations for USACE 404 permits. Most shoreline erosion projects are proposed to protect and create beaches impacted by shoreline erosion along sheltered shores. The state permits breakwaters, geotextile tubes, and beach nourishment. Texas also allows projects that create marsh habitat. However, bulkheads are easier to “get through the permitting process” and if time is a critical factor applicants are encouraged to move landward out of federal jurisdiction, thus bypassing the USACE permitting process. Additionally, activities that will occur in the water, such as breakwaters or beach nourishment, require a coastal lease or easement from the state prior to proceeding on state-owned lands. To address the frustration of applicants with the complex and lengthy permitting process, a pilot program was initiated in Corpus Christi, TX. A Permitting Service Center was opened as a “one stop shop to help folks through the process.” Staff at the Center assist applicants with the application process, assure all necessary information is included, and reduce permitting review time by limiting the need for regulatory review personnel to repeatedly contact applicants for additional information. The pilot project has been so successful that a second Permitting Service Center will open in Galveston. Some of the program’s strongest proponents are USACE regulatory staff, who have commented that their review process has been shortened and improved because they are receiving the correct information with the original application. Influence of the Regulatory Process Not surprisingly, if property owners select a shoreline protection alternative that does not encroach into the highly regulated “waters of the United States,” they can avoid significant transaction costs, lengthy permitting times, and numerous other aggravations. The regulatory implications of federal permits and the possibility of additional review under other legislation, sometimes create an incentive for the permit applicant to attempt to avoid the federal permit requirements by siting the project on uplands above the high tide line in coastal areas. State and local land use planning and coastal construction permits may still apply in these cases, but the applicant has simplified the regulatory panorama considerably by eliminating federal review. Of course, the suite of existing state and local regulatory requirements still apply, such as setback zones, stormwater management requirements, building codes, and vegetative buffers. This strong incentive to avoid or minimize encroachment into waters of the United States has created a bias both toward requesting and allowing certain erosion mitigation

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Mitigating Shore Erosion Along Sheltered Coasts options, such as bulkheads and similar vertical structures. Thus, these structures may be constructed completely outside of the federally regulated area (i.e., above the MHW line and, therefore, not in navigable waters, as well as outside “waters of the United States”) and still may meet a property owner’s desired outcome of protecting upland properties. Constructing a bulkhead above the MHW line may be quicker and easier than obtaining a permit for a vegetative solution developed in the nearshore waters because it potentially avoids the multiple layers of federal review. In this way, the regulatory framework affects choices and outcomes. The permitting process is generally reactive—rather than proactive. While the USACE has a long-established partnership with the states with respect to oceanfront responses to erosion, this partnership is much less developed for sheltered coasts. For example, the USACE’s National Shoreline Erosion Control Development and Demonstration Program (Section 227 Program) is a research effort to construct, administer, and evaluate innovative and nontraditional coastal shoreline protection structures. The USACE and the states cooperate in site selection, administration, and evaluation. Most of the twelve Section 227 Program sites are located on the open-ocean coastline, rather than sheltered coasts (see further discussion of the Section 227 Program in Chapter 3). Comparisons exist between public policy and perceptions regarding erosion responses on the oceanfront versus on sheltered shorelines. During the 1980s, many communities and states focused on the appropriate response to oceanfront erosion. Significant long-term commitment to beach nourishment, as opposed to structures that hardened the shoreline, such as bulkheads, seawalls and revetments, was the norm. In some states, such as South Carolina, North Carolina, and Georgia, the permitting of these hard structures has now been prohibited on the oceanfront. Conversely, attention to the erosion issue on sheltered shorelines in the same states has yet to occur in any significant way, and hard structures are routinely permitted. COST CONSIDERATIONS The comparative costs of the erosion mitigation alternatives are an important factor in the decision-making process. However, these considerations include more than simply comparative construction costs. Some innovative alternatives may have high associated transaction costs that include additional time for approval, as well as additional studies and permit requirements. The impacts of the technology may be beneficial or adverse on adjacent upland properties and nearshore lands, waters, and associated living resources. Although a challenging exercise, internalization of these potential benefits and adverse impacts into the decision-making process can help create a more realistic and coherent evaluation of costs and benefits.

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Mitigating Shore Erosion Along Sheltered Coasts Transaction and Administrative Costs of Shoreline Management Transaction costs borne by property owners may include some or all of the following: site analysis, design, permitting, bidding, construction oversight, construction and monitoring of the chosen protection measure, as well as “lost” time. Protection measures may include no action, moving an endangered structure, nonstructural approaches (beach nourishment, zoning, vegetative), revetments, offshore breakwaters, groins, and bulkheads. These costs are likely to be lower in jurisdictions where (1) a plan exists, (2) an administrative structure is in place that allows local, state, and/or federal officials to respond to individual requests for protection measures in the context of an overall plan, and (3) the regulatory structure creates an incentive to select certain options (i.e., general permits for certain structures). Costs will be higher if the protection measure requires federal permits—both the fees charged by the consultant and the time to achieve the desired outcome. If a project can be carried out solely under state and/or local permitting, the cost still varies with the size of the project and the protection measures sought. Administrative costs occur at local, state, and/or federal levels. This category includes the permit technical review, permit completeness review, public hearings, meetings and consultations with project proponents, construction review, monitoring, potential litigation, and legislation. Criteria to Assess the Costs of Shoreline Protection Measures An evaluation of the economies of shoreline protection measures should be much broader than simply capital and operating costs. A more complete picture of criteria that should figure in the evaluation includes the following: Capital costs Operating costs, including monitoring and maintenance Probability that the actions will reduce/eliminate erosion for X years Impacts (positive and negative) on adjacent upland properties Impacts (positive and negative) on public uses Impact on environmental functions and thus on ecosystem services Aesthetics Items 1 through 5 can be assessed by competent professionals with experience in permitting erosion control techniques. Consideration of Item 6 has two parts: first, what must happen for these functions/services to be considered; second, how the evaluation is accomplished. It is likely that ecosystem values would be incorporated into the decision-making process when a proposed action spurs local groups (advocates for fisheries, water quality, bird or marine mammal habitat, for example) to appear at public hearings. The method for assigning values is described in Valuing Ecosystem Services (NRC, 2005), especially Chapter 4. The

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Mitigating Shore Erosion Along Sheltered Coasts NRC report points out that, while there is “growing recognition of the importance of ecosystem functions and services, they are often taken for granted and overlooked in environmental decision-making.” The report further states that “the economic values of these ecosystems goods and services to society have to be known, so that they can be compared with the economic values of activities that may compromise them and improvements to one ecosystem can be compared to those in another” (NRC, 2005, p. 29). Who Performs This Assessment and How? All of the decision-makers mentioned earlier in this chapter have roles to play in the assessment of the various shore management options. Property owners, working with their consulting engineers, must evaluate the cost (time and money) against the benefits (protection of desired features for some period of time). Experts and consultants understand well the costs (capital, operating, administrative, and transaction) of various options, as well as the shoreline benefits. Many engineering consultants, however, may lack a clear understanding of the environmental costs and benefits of the various options. Government regulators and compliance officials, working within a standard permitting process that allows for public comment, evaluate the proponents’ desired choice of protection measure against local, state, and/or federal standards (either written or unwritten). The USACE evaluates in the context of general permits and individual permits as described above. Policy-makers do not usually engage in the evaluation of costs and benefits unless a particularly controversial permit has come to their attention. It is inappropriate to require that an individual permit application include a cost-benefit analysis of alternative protection measures. This responsibility for evaluation of erosion control techniques across the same criteria should pertain to the regulatory agencies. Potential Use of Mitigation Banks for Shoreline Erosion Control Permits Wetland protection regulations began in the United States over 35 years ago when individual states and the federal government acted to protect the functions wetlands provide. While regulations vary from state to state, all allow wetland alteration under special conditions, and most jurisdictions require compensation or mitigation. Banked wetlands are systems that have been restored or created in advance of the unavoidable impacts to wetlands that regulatory authorities do permit.

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Mitigating Shore Erosion Along Sheltered Coasts Ideally, banked wetlands should be managed, protected in perpetuity, functionally similar to the altered systems, and within defined geographical areas. Wetland mitigation banks are established under either or both state and federal guidance (Federal Register, 1995; FR 60(228) 58605). They have some or all of the following characteristics: a mission statement and agreement signed by regulators/other agency overseers, and bank sponsor; funding; a geographical scope (state, county, watershed, estuary, or bay); accounting procedures; methods for determining credits and debits; and policies on public review, land ownership, long-term land management; and wetlands types and conditions suitable for mitigation (USACE et al., 1998). Compensation ratios may vary with type, size, and location of the wetland to be altered (Environmental Law Institute [ELI], 1994; Federal Register, 1995; FR 60(228) 58605; Zedler, 1996). As an example, one hectare (approximately two acres) of restored salt marsh credits may be required for each acre altered; two hectares (approximately five acres) of restored beach credits may be required for each acre altered. These ratios reflect local conditions and therefore will vary among jurisdictions. At least 400 mitigation banks have been approved to provide credits, the majority of which have been established in the last decade to provide credits to the general public or permit applicant (Environmental Law Institute, 2006, USACE 2006b. This mitigation approach has caught the attention of the U.S. Congress, most recently in their call for rule-making for application of equivalent standards and criteria to each type of compensatory mitigation as part of the National Defense Authorization Act for Fiscal Year 2004 (Pub L., 108-136). This legislation, in effect, calls for other mitigation options, such as permittee-responsible mitigation and in-lieu fee mitigation (third party mitigation) to have standards equivalent to mitigation banking. EPA and USACE proposed revisions to their regulations on compensatory mitigation for losses of aquatic resources in March 2006 (71 FR 15519, 28 March 2006). Many consider wetland mitigation banking to be an evolving institutional mechanism (Environmental Law Institute, 1994; Marsh et al., 1996; Stein, 1999). For example, stream mitigation banking (for compensation for impacts to streams) and conservation banking (endangered species) approaches have been adopted in the last decade as part of the banking approach. In some instances, it might be feasible to establish a mitigation bank for shoreline erosion projects. For example, some small individual projects that would adversely impact nearshore habitats could contribute to a mitigation fund or bank in compensation for the natural resources that they will degrade. The fund would accumulate contributions from many small projects and subsequently pay for a larger and more comprehensive restoration project than would have been possible with the small individual projects. The larger restoration project would ideally be located close to the affected area and would replicate the damaged resources—compensating for the damage to ecosystem services.

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Mitigating Shore Erosion Along Sheltered Coasts PLANNING CONSIDERATIONS Few states have plans for their sheltered shorelines. Most regulatory agencies generally react to requests for shoreline alteration and seldom adopt strategies for determining desired shoreline features, habitat types, uses, and densities of uses. Generally, planning for responses to erosion occurs on a project-by-project basis on our sheltered shorelines. The major driver is the property owner’s desire to protect his or her investment. Regulatory responses are usually associated with construction of new erosion control structures or the repair of existing structures. Integrated planning efforts on sheltered coasts are increasing, however. Wetland restoration is very proactive and often involves quantitative performance goals. Shoreline protection is often one of the primary goals of estuarine habitat restoration. For example, the loss of wetlands in Jamaica Bay (NY) is a visible shoreline erosion issue for the New York-New Jersey Harbor Estuary Program Office (HEP) of the USEPA. The HEP’s research and pilot wetland restoration projects are not responses to permit applications for shoreline protection projects, but rather, stem from a desire to reverse the trend in wetland losses. A number of additional National Estuary Program (NEP) sites have taken proactive roles addressing coastal erosion problems in areas under their authority. In Florida, the Tampa Bay Estuary Program has coordinated larger proactive shoreline erosion control efforts in association with its habitat restoration efforts. These efforts are not estuary-wide, however, but have occurred on stretches of shoreline several hundred meters in length. The USACE possesses experience in conducting integrated planning in river basin, watersheds, and coastal systems—although the agency’s use of integrated planning techniques could be improved (NRC, 2004b). The Corps’ projects, such as the California Master Plan for Coastal Sediment Management, do not focus specifically on sheltered coastal systems nor on shoreline erosion. Nevertheless, the agency recognizes that “[s]ustainable solutions to beach erosion problems are not found through shoreline protection or beach nourishment on a local scale, but require a regional approach that links sediment sources and pathways to beach erosion and deposition.” Integrated planning approaches require an adequate information base. The applicant and/or planner must be cognizant of the specific nature of the erosion problem at the site and in the broader region (estuary, lagoon, or littoral cell). Current information and maps on estuarine erosion zones and rates are non-existent in many areas. For example, although the National Flood Insurance zone maps indicate high hazard flood zones, they do not consider shoreline erosion trends. As a result, property insurance premiums paid into this federal program do not reflect the risk of loss from shoreline erosion (Heinz Center, 2000). Besides information concerning high risk erosion sites, data concerning estuarine habitats and their ecological significance; shoreline density and development trends; and

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Mitigating Shore Erosion Along Sheltered Coasts potential sites for shoreline and habitat restoration can all be useful in addressing erosion. The Surfrider Foundation [http://www.surfrider.org/stateofthebeach/home.asp] annual reports show that states lack data on existing shoreline structures, detailed habitat maps, or plans for shoreline protection. Some states still have not mapped the erosion zones on their sheltered shores. It is often difficult for the individual project applicant to obtain broad system-wide information. Basic information for evaluating a site and selecting the most appropriate option will include the following: Erosion history at the site and evidence of recent erosion activity Fetch General shape of the shoreline Shoreline orientation Slope and depth of the tidelands in front of the shoreline property Boat traffic Width of the beach above the MHT Bank height Bank composition Potential planting area Onshore gradient Beach vegetation below the project Shoreline and bank vegetation Existence of erosion control measures on adjacent properties Several worksheets have been developed to assist in the evaluation of these factors to determine Cumulative Erosion Potential Values (e.g., Riggs, 2001). System planning also requires coordination among various regulatory agencies (federal, state, and local regulatory agencies), as well as government and private landholders. A shared vision of the various social actors and public officials would form the basis for viable future shoreline plans. System Planning Integrated environmental planning involves several coordinated steps. The initial phase requires an evaluation of the erosion problem at the site. It is necessary to determine the site conditions, the nature of the erosion problem, and its causes. Greater amounts of appropriate information about the system will lead to a more rational assessment of the needs, consideration of the best erosion mitigation options, and selection of the most appropriate alternative. The “site” could be an individual parcel of land. However, advantages flow from embracing a more holistic regional perspective rather than mere consideration of a single land holding. It might be better to conduct this type of planning

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Mitigating Shore Erosion Along Sheltered Coasts and analysis with a geographical scope that covers the entire estuary or embayment, the littoral or littoral cell, or an entire community. A coordinated community response could be the key to successful shoreline protection. Planning is performed at a scale that allows for coordinated response to a shoreline erosion phenomenon. A community response may also reduce the adverse impacts that one structure might have on adjacent properties. A subsequent step for the property owner(s) or manager(s) would be to identify the management goals for the site and establish the priorities. These might include: Prevention of loss of taxable land Enhancement of water quality by managing runoff Protection of structures from loss to erosion Enhancement of coastal wetlands Provision of access to the beach Enhancement of recreational opportunities The planner could then consider the most realistic options that would be most likely to meet the management goals. Alternative analysis involves a comparison of the different possible responses that the applicant is considering, the environmental costs and benefits of each, long-term durability of materials and lifetime of the project, the cost of the project, the likelihood of success of the efforts. Ease of permitting requirements might also be a consideration for the landholder or planner. Cumulative Impact Analysis The installation of any single shoreline erosion project may not significantly alter the local ecosystem, but the combination of many small projects over time may have a large impact on the types of habitats and ecosystem services available in the coastal zone. Under the National Environmental Policy Act (NEPA), these cumulative impacts are part of the evaluation of the range of policy alternatives included in environmental assessments and impact statements mandated for federal actions (Council on Environmental Quality, 1997). The Council on Environmental Quality defined cumulative effects in regulations for implementing NEPA as: “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-federal) or person undertakes such other actions (40CFR § 1508.7).” Assessment of cumulative effects is not just a federal requirement; many states also require cumulative impact analysis as part of environmental decision-making. While system level planning can allow individual actions to be considered in a broader context, continual reassessment of the system state is necessary

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Mitigating Shore Erosion Along Sheltered Coasts BOX 5-3 Precautionary Approach To ensure the sustainability of ecosystems for the benefit of future as well as current generations requires that decision makers follow a balanced precautionary approach, applying judicious and responsible management practices based on the best available science and on proactive, rather than reactive, policies. Where threats of serious or irreversible damage exist, lack of full scientific certainty should not be used as a justification for postponing action to prevent environmental degradation. Management plans and actions based on this precautionary approach should include scientific assessments, monitoring, mitigation measures to reduce environmental risk where needed, and periodic reviews of any restrictions and their scientific basis. SOURCE: U.S. Commission on Ocean Policy, 2004. because the cumulative impacts of actions within the system can have dramatic effects. For example, studies of the effects of development around lake shores on fish assemblages (Jennings et al., 1999) and habitat for northern pike and bluegill (Radomski and Goeman, 2001) have indicated the need to consider the cumulative effects of small habitat modifications. Although the effect of any individual protection measure on fish assemblages is difficult to identify during planning and permitting, or even post construction, the net effects of changes along the shoreline have been documented in many cases (e.g., Woodford and Meyer, 2003). Cumulative effects may be an additive response to individual actions of the same type or the interactive consequence of multiple actions of different types (Spaling and Smit, 1993). Incorporating any potential cumulative effects of multiple actions into the planning process often requires a regulatory agency to look beyond issues within their own jurisdiction, as well as considering future, as yet unproposed, actions. Understanding the cumulative effects of shoreline protection measures within social, political, and ecological frameworks is an important component of an effective watershed or embayment plan. This provides a more holistic planning context that can reduce the unintended or unanticipated consequences of decision making on shoreline modification projects. In situations where insufficient information is available to provide an assessment of cumulative effects, a precautionary approach can be used to prevent irreversible loss of valuable habitats and other shoreline features (see Box 5-3). FINDINGS There is an incentive to install seawalls, bulkheads, and revetments on sheltered coastlines because these erosion control structures can be built landward

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Mitigating Shore Erosion Along Sheltered Coasts of the federal jurisdiction of the U.S. Army Corps of Engineers and thus avoid the need for federal permits. Existing biases of many decision-makers in favor of bulkheads and revetments with minimal footprints in public trust areas limit installation of other erosion control options that may provide more ecological benefits. The regulatory framework affects choices and outcomes. Producing a different outcome requires altering the incentives that emerge from the regulatory framework. Regulatory factors include the length of time required for the permit approval; incentives that the regulatory system creates to favor one technology over another; general knowledge of the options and understanding of the consequences, availability of information on the alternative technologies, planning support, and comparative costs. Traditional structural erosion control techniques may appear to be the most cost-effective. However, they do not account for the cumulative impacts that result in environmental costs nor the undervaluation of the environmental benefits of the nonstructural approaches. Nonstructural erosion control techniques provide both shoreline protection and ecosystem services (creation of fish habitat, habitat restoration, recreation benefits of nourished beaches). There is a general lack of knowledge and experience among decision-makers regarding options for shoreline erosion mitigation on sheltered coasts, especially options that retain more of the shoreline’s natural features. The regulatory response to shoreline erosion on sheltered coasts is generally reactive rather than proactive. Most states have not developed plans for responding to and managing erosion on sheltered shorelines. Some states have not mapped the erosion zones on their sheltered shores, hindering informed decision-making by policy-makers and project applicants.