Dear Adaptation Mavens,

Sea-level rise in Florida and associated impacts are being documented today, we will soon have to acknowledge that Florida is drowning in a slow-motion disaster. In the meantime, Florida communities are taking serious steps towards Post-Disaster Planning (i.e. what to do about waterfront property when the next hurricane blows it away). Can the right to rebuild be taken away from coastal property owners? Do municipalities have to rebuild infrastructure to service those properties? These property rights questions are common to sea-level rise retreat strategies and post-hurricane response.

Please send ice cream before the waters rise.

Sincerely,

Habeas Corpus

Dear Legal Eagle,

First, the Mavens want to make it perfectly clear that we are not lawyers, have never attended law school and don’t even know many lawyers, so we are not going to give legal advice. However, as former academics we are always happy to share what we know (and even what we don’t know) and proffer a random opinion.

Your first question, whether the right to rebuild can be taken away, clearly depends on jurisdiction, but there certainly are places where it can be.  In some locales the coastline is owned by the public and when the shoreline migrates to what was once inland that property reverts to the state, commonly called “rolling easements”. An alternative to outright prohibition of rebuilding is to allow insurance rates to reflect the actual risks to property owners. While this would mean that most homeowners in flood zones or other high-hazard zones would be unable to afford insurance, it would also mean that fewer lives would be lost and that those of us who don’t live in high-risk areas would no longer be subsidizing those who do. It would also heavily limit rebuilding in high-risk zones without actually prohibiting it. Unfortunately, some states have taken a reverse tactic, limiting the rates insurance companies can charge in areas prone to natural disasters. Most major national insurers pulled out of the Florida homeowners market when Florida’s limits on insurance rates meant they were losing millions of dollars a month, and Florida responded by setting up a state-financed insurance system to make sure people could still get affordable insurance on what were, and perhaps should be, in reality uninsurable properties.

The federal government’s National Flood Insurance Program initially functioned much as Florida’s state-run program, essentially providing insurance for properties that would be uninsurable in the open market because of their location in areas at high risk of flooding.  Shockingly, this approach proved to be a major money sink, and NFIP has instituted several reforms geared towards reducing long-term risks. One approach is to mandate that houses rebuilt using federal funds be constructed in ways that won’t just let history repeat itself next time a big storm comes through, for example by having the first floor be higher than the 100-year flood level. Another approach is to use government funds to purchase property outright rather than funding rebuilding in a high-hazards zone at all (an amazing concept indeed—not using taxpayer funds to promote people living in unsafe areas). Harris County, Texas, took advantage of a combination of such programs created in collaboration between FEMA and the State of Texas after Tropical Storm Allison in 2001 to buy out 2000 homes that had been destroyed by flooding. These properties, now owned by the county, were transformed into community space, including parks, gardens and natural open space.

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Floodplains of Harris County, Texas

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Tropical Storm Allison visiting the flood plains of Harris County, Texas

The answer to question number two, whether municipalities are responsible for providing infrastructure to properties in harm’s way, also depends on where you are. There are certainly cases where municipalities make the decision that providing services to the original service area is no longer possible. For example, cities like Detroit and Flint, MI have vast swathes of once developed city land that is no longer lived in and they are considering contracting the city and no longer offering city services in the abandoned regions. Granted the root cause there was an economic rather than a climatic disaster, but the concept is the same—infrastructure that can no longer be supported because it is a financial burden is no longer serviced. In one case it is because no one lives there and it is not paid for any longer, in the other it is because the cost of repair or extreme measures to make it functional becomes too great a burden on the community. 

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Detroit. (Image courtesy of A Town Square)

In short, there certainly are mechanisms that are used in some locations to deal with the types of challenges we are just beginning to see from climate change as well. There are not many examples of implementation…yet. As in so many cases, prevention (for example, not allowing permanent construction in flood zones in the first place) is much easier and cheaper than the cure.

Thanks for reading the column. Hope you find the advice and the ice cream useful. Maybe save the latter for an extra hot day.  Be sure to keep it out of the water. Salty ice cream is rarely good.

Yours truly,

The Adaptation Mavens