Monday, April 18, 2011

Marti Collins fights for Surfrider Foundation's Mission in Florida

This past weekend was Surfrider Foundation's Florida Chapters Meeting. Environmental attorney Martha Collins from Collins Law Group was able to participate in the conference to give an overview on the new Florida Administration and What Surfrider Can Do to affect policy change. She spoke on issues that are going to continuously affect Florida, like sea level rise, beach fill (or "renourishment") proposals and t-groin/breakwater proposals. Marti is currently working on behalf of Surfrider to work with the Florida Department of Environmental Protection rulemaking process regarding permitting coastal projects. Our comment letter and discussions propose increasing setback requirements for new development and updating mitigation assessment techniques, including UMAM.

Marti Collins was instrumental in garnering the REACH 8 victory for Surfrider Foundation in 2009. Marti represented Surfrider Foundation's Palm Beach County Chapter to set precedent in the arena of beach management processes. After a trial spanning several weeks, Administrative Law Judge Robert E. Meale denied the town of Palm Beach a Joint Coastal Permit for the REACH 8 beach fill project, which would have buried hard-bottom habitat amongst other things. The project was denied based on Surfrider's exposure of the project's potential harm to environmental and recreational resources through the course of the trial.

Watch Marti speak about her work here.

Monday, March 7, 2011

Surfrider Foundation Files Suit to Restore Sharp Park

Surfrider Foundation filed suit today to promote coastal preservation at Sharp Park. Along with our partners at Wild Equity Institute, Sequoia Audobon Society, Center for Biological Diversity, Sierra Club, and National Parks Conservation Association, Surfrider is dedicated to preserving the coastal ecosystem at the park located within the Golden Gate Recreation Area. Surfrider Foundation San Francisco Chapter has challenged this project due to a misplaced sea wall, and proposed $11 million "upgrade" to the financially-troubled golf course, whereas these proposed "improvements" would actually jeopardize the recovery efforts endangered and threatened species in this area. The Chapter is fighting to restore the natural flood-protection features that were destroyed by the golf course and to have the land operated in partnership with the National Park Service, which already owns and manages the adjacent property.

The lawsuit is specifically aimed at protecting coastal resources by protecting the threatened California red-legged frog and the San Francisco garter snake. The Endangered Species Act suit pits conservation groups against the San Francisco Recreation and Park Department for illegal "take" (in this instance, killing) of federally protected species. The crux of the issue for Surfrider is habitat restoration which will lead to better beach management practices and a healthier coast.

According to the Chapter's Vice Chairman, Michael Stewart,

"We feel strongly that an interconnected and protective coastal ecosystem (beach, dune and barrier lagoon) must be recognized as a dynamic, integrated unit; you can't save just one part and expect it to work correctly. This would provide the most benefit to local endangered species, an expansion of desired recreational opportunities, and the best (and least expensive) flood protection for the community at Sharp Park - two, four or even zero legged."

According to a peer-reviewed scientific study by coastal restoration experts, restoration of the natural lagoon and wetlands at Sharp Park will provide the most public benefit, since it (a) is the cheapest public option, particularly compared to the San Francisco Park Department plan or the status quo, (b) will provide the best flood protection for neighbors against sea-level rise and coastal storm events, and (c) is essential for the long-term sustainability of endangered species found on the site.

The full Conservation Group Press Release is linked here.

Friday, February 11, 2011

Trash Talkin' at the West Coast Governors' Agreement meeting

Surfrider Foundation is a member of the West Coast Governors' Agreement ("WCGA") on Ocean Health's Action Coordination Team for Marine Debris. This week, the Team met in San Francisco to discuss solutions for Land-Based Debris. Land-based marine debris is often called ocean litter, plastic pollution or marine plastic pollution and comprises up to 80% of all the trash in our oceans. Naturally, this is an incredibly important topic for Surfrider Foundation, our Rise Above Plastics program, and goes to our mission of protecting our oceans, waves and beaches.

The Land-based Marine Debris Workshop was attended by officials from NOAA, EPA, Washington Department of Natural Resources, Oregon Department of Fish and Wildlife, the California Coastal Commission, non-profits such as Heal the Bay, SOLV and Surfrider Foundation, and experts on marine debris, including Algalita Marine Research Foundation and Seventh Generations Advisors. The three day discussion focused on obtaining strategy solutions for Reduction & Prevention methods, Database Gathering & Management, Public Education & Outreach, and Coordination. Surfrider Foundation specifically presented on the reduction efforts that are currently going on in the three states, including single-use plastic bag bans, expanded polystyrene foodware bans, and extended producer responsibility efforts and made recommendations for the Governors to adopt bold strategies to support these efforts.

Generally, Action Coordination Team members focused on and recognized the importance of collection of standardized and meaningful data from beach clean-ups, setting target reduction goals for common types of litter, implementing strong and effective stormwater controls and watershed protection, and also tracking, training and supporting volunteer clean-up efforts. There was much discussion and information-sharing surrounding tactics on how to accomplish litter abatement goals: what works, what doesn't work and why? Surfrider encouraged the group to take a proactive approach to the problem and suggested actionable solutions that can be implemented on a timeline.

The core group leaders are scheduled to come up with proposed recommendation in the next several weeks, which will be suggested to the Governors. Also, the next step for the WCGA group is to form a Marine Debris Alliance to help implement the strategies that have come out of these discussions. In the interim, many of the groups working to address marine debris will be present at the 5th International Marine Debris Conference in Honolulu, Hawaii in March, where there is expected to be a Honolulu Agreement for how to effectively address ocean litter. Surfrider continues to work on these important issues and to push for more solutions to plastic pollution.

Wednesday, January 26, 2011

Wall It or Work With It?: Responses to Sea Level Rise in California

The Problem

Approximately 10.2% of California's Pacific Coast is armored by sea walls or hard structures to fight against sea level rise. In some areas, like Carlsbad, it is estimated that over 50% of the shoreline is armored.

Right now, the California Coastal Commission is being faced with controversies over emergency sea wall permits to protect existing structures in Pismo Beach, Broad Beach in Malibu and Carlsbad in Northern San Diego County, to name a few. These "emergency permits" are intended to last merely 18 months but can go unaddressed for over a decade, leaving a major structure affecting the California coastline to persist with out California Enviornmental Quality Act ("CEQA") or Coastal Act review.

The Wrong Solution: Sea Walls

Sea walls are expensive, can intensify wave activity and block the beaches from getting new sand. Eventually, they cause the beach to disappear - this is the worst solution from the perspective of Surfrider Foundation.

California state law technically requires homeowners to eventually obtain a Coastal Development Permit from either their local government, if the local government has a certified Local Coastal Program ("LCP"). All California LCPs require technical or geologic reports to support the proposed coastal armoring project. If no approved LCP exists, the Coastal Commission has jurisdiction over the permitting, which must conform with Public Resources Code sections 30235, 30253, 30610, and 30611.

The Right Solution: Going with the Flow in Managed Retreat

At Surfer's Point in Ventura, there is a novel project being put into play that could serve as a model for threatened coastal areas up and down the coast. The $4.5-million project in Ventura is the result of years of stakeholder input and coordination amongst state officials to accomplish the proactive and reasoned approach to sea level rise.

Rising ocean levels and increased erosion are compelling officials in Ventura to move facilities inland, in an effort that we hope will serve as an example for many of California's coastal communities. At this noted surf spot in Ventura, construction crews are replacing a 120-space parking lot and a weathered bike path with sand and cobblestones. By pushing the parking lot 65 feet inland, the project is expected to give the wave-ravaged point at least 50 more years of life, according to experts.

As Paul Jenkins of the Ventura County Surfrider Foundation Chapter put it, "There's the old-school mentality that when nature threatens you, you fight back...this idea of retreating and moving back was really quite a radical proposition." Other localities and state officials, including in Cardiff-by-the-Sea and Goleta beach in Santa Barbara, are wisely looking to Ventura as a model for future shoreline management.

Of course, managed retreat is somewhat easier for state officials to accomplish if the land in question is a public park. If the threatened coastal area includes a private residence or other private structure, there could be Fifth Amendment Takings issues implicated if state suggests the removal of private property.

Then again, if nothing is done, the property may fall into the Pacific, as has been seen before.

Friday, December 17, 2010

Closing the Loop: Surfrider Foundation's Settlement regarding 316(b) Regulations

Surfrider Foundation fights for the protection and preservation of coastal marine life by advocating for a halt in harmful practices, such as Once-Through Cooling ("OTC"), an obsolete technology employed by some coastal power plants. Through Surfrider Foundation's Know Your H2O program, Surfrider strives to explain the connection between the environmental degradation of our coasts and our outdated water management technologies. A major part of this fight is the opposition to obsolete once-through cooling and advocating for better technologies, such as closed-cycle cooling for power plants.

On November 22, 2010, Surfrider Foundation, Riverkeeper and other environmental organizations signed a settlement agreement with the Environmental Protection Agency ("EPA") that resolves two lawsuits brought against the EPA in 1993 and 2006 addressing the agency’s failure to issue regulations implementing Section 316(b) of the Clean Water Act. This section of the Act requires power plant operators and other large industrial water users to employ the “best technology available” for minimizing the adverse environmental impact of their operations on aquatic ecosystems. Currently, cooling water intakes at hundreds of facilities across the country take in huge volumes of water from vital ecosystems, resulting in the destruction of huge numbers of fish and other aquatic species at all life stages from being “impinged” against intake screens or “entrained” through the facility cooling system. The harmful impacts from once-through cooling has led to destabilized marine and freshwater ecosystems. For example, the 2007 Riverkeeper Report on Entrainment and Impingement at Indian Point focuses on the severe impacts caused by Indian Point’s cooling water intake and thermal discharge on Hudson fisheries. The number of fish and other marine life that could be saved each year by stronger EPA regulations on cooling water intakes is estimated to be in the billions.

The settlement requires EPA to draft new regulations. The settlement does not go so far as to dictate the content of the new EPA regulations, but does require that the rule promulgations abide by the following schedule:

Proposed regulations due: March 14, 2011
Final action due: July 27, 2012

In addition, the settlement contains the following key provisions:

• In exchange for EPA’s commitment to issue new regulations, the Plaintiffs agreed to dismiss both cases, but retained the right to reopen the 1993 lawsuit if the EPA misses either deadline.

• EPA will solicit public comment on whether to subject the cooling water intakes at these facilities to national performance standards.

• EPA will keep Plaintiffs informed of key milestones throughout the rulemaking process. Senior EPA staff will meet with Plaintiffs if milestones are missed by more than 10 days.

Plaintiffs intend to provide input to EPA throughout the public process to ensure that new regulations will result in long-overdue requirements for existing power plants and other facilities that significantly improve environmental protection. Modernizing cooling water intakes is an important part of the larger effort to transition to a sustainable energy supply that does not degrade our coasts.

To learn more about Surfrider Foundation's efforts on Once-Through Cooling, you can click here.

Monday, November 8, 2010

Texas Open Beaches - The TX Supreme Court Refuses to 'Roll with It' in West Beach, Galveston

The Texas Supreme Court handed down a disappointing ruling on Friday, which only served to muddle the established case law with regard to beach access in Texas and the interpretation of the Texas Open Beaches Act. The recent majority opinion and dissenting opinion in Severance v. Patterson are discussed below.

The case centers around a California resident who bought rental property in Galveston, Texas. The purchaser, Carol Severance, received a disclosure notice explaining that the property may become located on a public beach due to natural processes and that the State could sue to have her forcibly remove any structures that come to be located on a public beach, under the Texas Open Beaches Act. See TEX. NAT. RES. CODE § 61.025; TEX CONST. Art. 1 § 33. As was arguably foreseeable along that part of the Texas coast at some point, Hurricane Rita came in 2005 and shifted the mean high tide line and vegetation line further inland. In 2006, the Texas General Land Office, under Texas Land Commissioner Jerry Patterson, determined that Severance’s house was entirely within the public beach.

The Decision's Findings

The majority held that easements do not move onto previously unencumbered private beachfront property when avulsive events (which are sudden occurrences, which, in this case, include severe storms and hurricanes) cause dramatic changes in the coastline. Specifically, here in Galveston where there is a Republic’s land grant, the history of public enjoyment of beaches does not extend to use of West Beach properties, which were formerly private property and not impressed with pre-existing public easements.

The conclusion of the 6 majority justices states:
“Land patents from the Republic of Texas in 1840, affirmed by legislation in the new State, conveyed the State’s title in West Galveston Island to private parties and reserved no ownership interests or rights to public use in Galveston’s West Beach. Accordingly, there are no inherent limitations on title or continuous rights in the public since time immemorial that serve as a basis for engrafting public easements for use of private West Beach property. Although existing public easements in the dry beach of Galveston’s West Beach are dynamic, as natural forces cause the vegetation and the mean high tide lines to move gradually and imperceptibly, these easements does [sic] not migrate or roll landward to encumber other parts of the parcel or new parcels as a result of avulsive events. New public easements on the adjoining private properties may be established if proven pursuant to the Open Beach Act or the common law"at p.32.

The Decision Was Limited

The majority limited its decision in this case not only to opine on how major storms affect public easements, but also only as to how they are affected in this certain area of West Beach, Galveston.

As the opinion states in regards to avulsion:
"Courts generally adhere to the principle that littoral property owners gain or lose land that is gradually or imperceptibly added to or taken away from their banks or shores through erosion, the wearing away of land, and accretion, the enlargement of the land. Id. at 952. Avulsion, as derived from English common law, is the sudden and perceptible change in land and is said not to divest an owner of title. Id. We have never applied the avulsion doctrine to upset the mean high tide line boundary as established by Luttes, 324 S.W.2d at 191." at p.22.

And with regards to the geographic limitations of the opinion:
"There is no support presented for the [the easement] that, during the time of the Republic of Texas or at the inception of our State, the State reserved the oceanfront for public use. In fact, as discussed above, the Texas Legislature expressly disclaimed any interest in title obtained from the Jones and Hall Grant after our State was admitted to the Union...On this issue of first impression, we hold that Texas does not recognize a 'rolling' easement on Galveston’s West Beach…The State, as always, may act within a valid exercise of police power to impose reasonable regulations on coastal property or prove the existence of an easement for public use, consistent with the Texas Constitution and real property law” at pp. 20 & 25.

The court goes on: "We have determined that the history of land ownership in West Beach refutes the existence of a public easement by virtue of continuous right “in the public since time immemorial, as recognized in law and custom,” TEX. NAT. RES. CODE § 61.001(8) at p.28. And at page 31, the opinion reads: "the original patent of Galveston’s West Beach from the Republic to Jones and Hall refutes the existence of custom."

The Strong Dissent

The dissent, by Justice Medina, joined by Justice Lehrmann, aptly points out the flaws in the majority’s logic and reading of the case law. They argue that the natural laws of the coast have compelled Texas common law to recognize rolling easements, even for storms. The wise dissent recognizes the need for a more proactive approach to anticipate storms and coastal movement without taking on a large burden for the State (which is currently in debt) or the people of the state that want to enjoy the natural beauty and resource of the coastline. The dissent focuses on the intent of the Texas Open Beaches Act, a comprehensive reading of the vast Texas court case law on the subject and incorporates a forward-thinking viewpoint in terms of public policy.

Specifically addressing the West Beach Area, the dissent notes:
"Through shoreline erosion, hurricanes, and tropical storms, these lines are constantly moving both inland and seaward. In the West Bay system, whence this litigation arose, forty-eight percent of the shoreline is retreating, forty-seven percent is stable and six percent is advancing, at an average rate of -2.9 feet per year.8 The beaches on west Galveston Island, where Severance’s property is located, have even higher retreat rates (a loss of over seven feet per year) because of their exposure to wind and waves. Natural erosion from waves and currents causes an overall shoreline retreat for the entire Texas coast." dissent at p.4.

In strong defense of the rolling easement doctrine in Texas, the dissenters point out the following case law chain:
"See Feinman, 717 S.W.2d at 111 (finding that rolling easement shifted after Hurricane Alicia moved the vegetation line landward causing homes to be seaward of vegetation line and subject to removal under OBA); Matcha, 711 S.W.2d at 98–100 (finding public easement shifts with natural movements of the beach); Arrington v. Tex. Gen. Land Office, 38 S.W.3d at 766 (affirming summary judgment for Land Office because once public easement is established “it is implied that the easement moves up or back to each new vegetation line”); , 767 S.W.2d at 958 (affirming that the “easement migrates and moves . . . with the natural movements of the natural line of vegetation and the line of mean low tide”); Moody, 593 S.W.2d at 379 (recognizing that the boundary lines shift just like navigable rivers but can “be determined at any given point of time”)
. See also Mikeska v. City of Galveston, 451 F.3d 376, 378 (5th Cir. 2006) (recognizing public beach easement’s “natural demarcation lines are not static” but rather “change with their physical counterparts”); Hirtz v. Texas, 974 F.2d 663, 664 (5th Cir. 1992) (recognizing location of public beach easement “shifts as the vegetation line shifts”)." Dissent at p.11.

Finally, the dissent offers a masterful understanding of the Texas Open Beaches Act through their well stated summary:
"The OBA recognizes the dynamic nature of beach boundaries by defining the public beach by reference to the vegetation line and tide lines, which shift with the movements of the ocean, whether those movements are gradual from erosion or dramatic from storm events. Requiring that existing easements be re-established after every hurricane season defeats the purpose of the OBA: to maintain public beach access." Dissent at p. 19

Shoreline Turbidity

The Severance v. Patterson Texas Supreme Court decision muddied the waters for the interpretation of the Texas Open Beaches Act, which could lead to more litigation due to the now conflicting case law in Texas and questions left unanswered, such as the contractual obligations of shoreline property owners who have been given notice of the shifting shoreline and the nuisance cause of action for scenarios concerning structures on the beach. Sellers of property on or near the coastline are required to include in the sales contract a “Disclosure Notice Concerning Legal and Economic Risks of Purchasing Coastal Real Property Near a Beach.” TEX. NAT. RES. CODE § 61.025(a). The notice specifically warns that "if you own a structure located on coastal real property near a gulf coast beach, it may come to be located on the public beach because of coastal erosion and storm events, and that "[o]wners of structures erected seaward of the vegetation line (or other applicable easement boundary) or that become seaward of the vegetation line as a result of natural processes such as shoreline erosion are subject to a lawsuit by the State of Texas to remove the structures." It is not state action that subjects beachfront property to a new easement after a storm but rather a force majeure. The majority opinion would have the state internalize the cost of poorly planned coastal development.

The Dissent points out:
"The state is not responsible for the ocean’s movement and therefore owes no compensation when enforcing this existing easement. Because the Court requires the state to re-establish its easement after avulsive events and to pay landowners for risks they have voluntarily assumed, I must dissent. I would instead follow the constitution and the long-standing public policy of this state and hold that the beaches of Texas are, and forever will be, open to the public." Dissent at p. 19

According to the Houston Chronicle report of the decision: "Justice David Medina, who wrote the dissent, argued that the court's vague distinction between gradual and sudden changes to the Texas coast jeopardizes the public's right to open beaches, 'recognized over the past 200 years, and threatens to embroil the state in beach-front litigation for the next 200 years.'" In a game of semantics, the majority opinion says that an easement can be dynamic but not rolling. Confusingly, the majority opinion for the Court seems to say that the public easement on the beach does not automatically “roll” with the changing coast, BUT is expected to change with the dynamic shoreline:
“While the boundaries of easements on the beach are necessarily dynamic due to the composition of the beach and its constantly changing boundaries, easements for public use of privately owned dry beach do not necessarily burden the area between the mean high tide and vegetation lines when the land originally burdened by the easement becomes submerged by the ocean.” at p. 21

The dissenting opinion does address Texas nuisance law, whereas the majority opinion admittedly does not. In nuisance law, property owners may not use their property in a way that unreasonably interferes with the property rights of others. As pointed out by the dissent, "an action that does not begin as a nuisance may nevertheless become a nuisance due to changing circumstances. See Atlas Chem. Indus., Inc. v. Anderson, 524 S.W.2d 681, 685–86 (Tex. 1975) (finding that heavy rains causing previously discharged pollutants from upstream manufacturing plant to spread more broadly across downstream land to be a nuisance)."

Rolling On

Surfrider Foundation will continue to work for strong public beach access in the State of Texas, regardless of this enigmatic decision. It is in the best interest of Texans across the state and visitors to the Texas coast to push for proactive and forward-thinking coastal planning, such as with the Erosion Response Plans adopted by localities. As is encouraged by the General Land Office, these plans should incorporate coastal development guidelines that take into account any gradual erosion AND anticipated avulsive events, such as hurricanes.

As for the Severance case, the suit was initially filed in federal district court, which dismissed the case. The U.S. Court of Appeals for the Fifth Circuit affirmed the lower court's dismissal but sent some questions to the Texas Supreme Court for answers, prompting Friday's ruling. (Surfrider Foundation issued an amicus brief to the Texas Supreme Court in support of full and fair beach access.) Unless the Texas Attorney General seeks a rehearing, the decision will be certified to Fifth Circuit for a supplemental opinion.

Tuesday, November 2, 2010

What's in a Name?

Lawyers understand how important words are, as evidenced by the care with which we choose words to characterize our legal battles. Words and labels are also very important for educational outreach purposes. For Surfrider Foundation, every legal issue and litigation endeavor is coupled with a full campaign plan, including an outreach and public education component.

One important and heated debate over semantics centers around the words we choose to characterize the vast amount of trash that ends up in our oceans. The cigarette butts, plastic bags, plastic bottles, polystyrene, etc…that never break down fully when they enter the ocean, and sometimes end up washed back ashore. This material is what comprises the North Pacific Garbage Patch, and what was the impetus for the start of Surfrider Foundation’s Rise Above Plastics program.

The common label used by the National Oceanic and Atmospheric Administration, the West Coast Governors’ Agreement and most governmental bodies is “marine debris”. For instance, the West Coast Governors’ Agreement has an Action Coordination Team (“ACT”) for Marine Debris. Surfrider Foundation sits on this ACT due to our efforts to address plastic pollution in the ocean. Also, NOAA has funded educational outreach materials specifically addressing plastics in the ocean, here: "A Citizen's Guide to Plastic in the Ocean: More than a Litter Problem" - published by the Center for Environmental Education and funded by NOAA and the Society of the Plastics Industry (SPI).

Recently, state agencies in California have begun to switch from the use of “marine debris” to more accurately depict the ailment to our oceans as “trash” and “ocean litter”. The California Ocean Protection Council, which was established by the Ocean Protection Act of 2004 signed into law by Governor Schwarzenegger, has extensively studied the problem of ocean pollution. After four years of analysis and public input, the OPC released “An Implementation Strategy for the California Ocean Protection Council: Resolution to Reduce and Prevent Ocean Litter” (Available under Ocean Litter Implementation Strategy at The State Water Board of California has also recently proposed a "Trash Policy" for statewide efforts in controlling the trash in the waters of the state. Below, you will find the paragraph submitted in comments by Surfrider Foundation last week (and echoed by the Clean Seas Coalition sign-on letter) that describes the importance of properly defining trash and the pollution problem in our oceans:

Definition of “Trash”. The State Water Board should make clear that the definition of “trash” is intended to mean waste in the form of discarded or littered items, and not organic debris. For instance, the current definition of “trash” as articulated by the State Water Board should not include the word “wood”. One of the most common criticisms of the term “marine debris” is that the word “debris” could mean something found in nature, such as leaves or organic matter turned up after a storm. This is confusing for people who need to understand the problem of ocean litter. Similarly, the inclusion of “wood” in the definition of “trash” could include driftwood and other naturally occurring forms of wood within a definition that should only include waste and post-consumer products, which is the commonly understood definition of “trash”. A piece of naturally occurring driftwood is not “trash” in the sense that it is a major threat to our waterways, and it should not be incumbent upon the localities to regulate this. However, lumber or other manufactured wood products should be included in the definition of trash. Additionally, the definition of trash should include explicit mention of plastics, expanded polystyrene and cigarette butts, which are three of the most commonly found items polluting our waterways.