By Stephen Nellis Friday, April 4th, 2014

The seas are rising, threatening billions of dollars of California’s coastal real estate.

But the question of whether property owners can armor against the waves or must fall back as their holdings wash away is at the heart of an obscure policy document making its way through the California Coastal Commission. The rules would require local governments to ask how much the seas around a project will rise over the next 100 years. Projects that are determined to need protection to deal with sea-level rises would be nearly impossible to approve.

“The idea is to let nature take its course and ultimately wipe out homeownership along the coast,” said Paul Beard, an attorney with the Pacific Legal Foundation, a Sacramento-based property rights advocacy group that is opposing the rules. “That is ultimately the idea at the Coastal Commission — to eliminate private property ownership along the coast.”

Meanwhile, local government officials from throughout the Tri-Counties say they are concerned that the rules wouldn’t allow them to maintain the beaches and harbors that anchor their economies. They worry that the policies would expose them to lawsuits from landowners and potentially expensive appeals from environmental groups or project opponents.

Several cities, such as Ventura and Santa Barbara, have critical wastewater facilities that would be incompatible with the rules but would be impossible to move. And virtually all cities said they aren’t equipped to issue regulations that would extend to 2100.

“Eighty-six years is an unrealistic planning horizon, rooted in speculation,” Santa Barbara officials wrote to the Coastal Commission. “No current city plans or documents span that horizon.”

Part of the issue is the circuitous process by which the Coastal Commission’s “policy guidance” would gain the force of law. The Coastal Act, which governs the commission, doesn’t have much to say about sea-level rise or armoring. But most of California’s coast is governed by local rules that are tighter than the statewide act. It’s against the law for the Coastal Commission to dictate what goes into those local rules, but the commission regularly makes suggestions. The Coastal Commission also has the legal authority to certify those local rules. The cumulative effect, said Beard of the Pacific Legal Foundation, is that when the Coastal Commission makes a suggestion, local agencies know they must adopt it.

“It has used its power of certification to basically pressure local governments into adopting more restrictive policies than the Coastal Act,” Beard said. “What the Coastal Commission is doing is using these local coastal programs to make [sea level guidelines] into law.”

The challenge for local governments is that any permits they issue would likely be appealed to the Coastal Commission if they don’t update their rules to reflect the organization’s wishes.

“The Coastal Commission has urged the local agencies to update their local coastal programs, which is an extremely rigorous, lengthy and expensive process, especially for areas where there’s an existing approved plan,” said Craig Beam, a land-use attorney with Jackson DeMarco Tidus Peckenpaugh in Westlake Village. “Implicit in the sea-level rise policy guidance is that projects that come forward under a local coastal program might be appealed to the Commission if they don’t show responsiveness to some of the draft considerations.”

Unlike some East Coast states, the beaches are owned by the public under California law. Brian Trautwein of the Environmental Defense Center in Santa Barbara said the core issue with sea-level rise policies is that it shouldn’t encourage private property owners to armor their projects in ways that harm the public’s property.

“Seawalls direct wave energy down into the sand. They can provide some protection for developments, but at the cost of the beach,” Trautwein said. “If we lost the beaches, that would be a huge hit to our economy.”

In its comments to the Coastal Commission, the Environmental Defense Center is pushing for a policy of putting firm dates for the removal of coastal developments into permitting documents. If, for example, a gas station would become threatened by sea-level rise in 70 years, the owner would be required to remove it at the end of that time.

Trautwein said such a policy would give property owners a chance realize long-term economic benefits from their land and the certainty they need to make risk and return decisions about investing. “In order to protect your investment, you set it back as far as you can, and then you have a project life set forth in the beginning so you know how many years of life you’re going to get out of it,” he said.

The Coastal Commission is preparing a final draft for the sea-level rise policy. Beard, of the property rights group, said that local implementation of the rules is still an open question throughout the state. He pointed to examples such as Malibu, where local officials have long fought a long simmering “sand war” with the Coastal Commission over eroding beaches and the city’s response.

“Local governments can take power into their own hands, and it’s up to the people to vote in City Council members and Supervisors that are brave enough to take on the fight,” he said.