Law clinic issues public report on sea level rise
Public Relations - Published: May 6, 2014
The Environmental and Natural Resources Law Clinic at Widener Law has issued a public report on legal tools available in Delaware for adapting to the significant challenges posed by sea level rise in the state of Delaware.

The 188-page report, “Assessing the Legal Toolbox for Sea Level Rise Adaptation in Delaware: Options and Challenges for Regulators, Policymakers, Property Owners and the Public was authored by clinic Director and Associate Professor Kenneth T. Kristl with the help of eight clinic students. The students included Harry Cook, Rebecca Drowos, William Eppler, Joshua Grajewski, Kari Hassett, Jay Patel and Adam Wojewodzki,who will all graduate this month, and second-year law student Justin Forcier.

It is being circulated to state, county and local officials for their review and consideration and is being offered to public libraries throughout Delaware. It is available now for purchase online and will be available at no cost online through the Widener Environmental Law Center website, WidenerELC.org, at the beginning of June. Members of the media may obtain a copy by contacting the Public Relations Office at 302.477.2175.

State estimates indicate as much as 11 percent of Delaware land mass could be under water by the year 2100 due to sea level rise. The submergence of what is now dry Delaware land will present complex issues should public and private rights and interests clash. “Assessing the Legal Toolbox” is designed to identify both the legal problems and the tools that can form the basis of an effective strategy to adapt to rising sea levels.

As sea levels rise, Kristl said Delaware has three choices: do nothing, let every governmental and municipal entity act for itself with no coordination, or coordinate a cooperative response that outlines duties and responsibilities.

In researching the document, students and Kristl focused on eight legal tools for adapting to the challenges presented by sea level rise: zoning codes, acquisition and buyout programs, building restrictions, setbacks and buffers, conservation easements, rolling easements, transferable development credits and real estate disclosures. Their report identifies how these tools work, what legal issues can arise from them, the state of each tool under current Delaware law and for those that have not yet been implemented, how to bring them to fruition in Delaware.

Kristl said each of the tools has legal complexities associated with it that would require legislative intervention if it is to be used to combat the effects of sea level rise. For example, creating additional zoning requirements for residential districts along the coast would require a change in Delaware law, as the Court of Chancery has ruled that extra requirements on residential properties would violate a current uniformity requirement in the law.

“Delaware faces an unprecedented challenge in terms of balancing public and private interests as the sea rises,” Kristl said. “Local communities, the three counties, and the state of Delaware need to determine the best strategy for responding to these challenges in a way that makes Delaware more resilient, vibrant, and a national leader in responding to this unique problem of the 21st century. ‘Assessing the Legal Toolbox’ seeks to help regulators, policymakers, private property owners and the public begin the process of formulating that strategy by providing unbiased information about the legal tools available and the legal and policy issues they will raise.”

“Assessing the Legal Toolbox” is the result of nine months of research and writing by Kristl and the clinic interns. The work was funded by a grant from the Coastal Programs Office of Delaware’s Department of Natural Resources and Environmental Control, from funding made available by the National Oceanic and Atmospheric Administration. In addition to the generation and distribution of the report, the grant allows the clinic to conduct public workshops on the topic.

“Our goal in the workshops is to help Delaware residents and officials begin the public conversation that will lead to an informed, well-thought-out strategy for sea level rise adaptation,” Kristl said.

Kristl will conduct three public workshops about the report. They will be held:
  • Wednesday, May 7, 7 p.m., at the DuPont Environmental Education Center, 1400 Delmarva Lane at the Wilmington Riverfront, hosted by the Delaware Nature Society.

  • Thursday, May 15, 6:30 p.m., at the South Coastal Library, 43 Kent Ave., Bethany Beach, Del.

  • Thursday, May 22, 7 p.m., at the New Castle Public Library, 424 Delaware Ave., New Castle, Del.
Kristl began sharing the final version of report Tuesday, May 6 with government officials in Delaware, from the governor and his cabinet, to the General Assembly, mayors and county-level officials in New Castle, Kent and Sussex. He wants to continue running public workshops about the report into the fall and said the clinic is eager to serve as an ongoing resource for sea level rise discussions. The law students, he said, worked diligently alongside him to create a vital document that will serve as the starting point for a critical public conversation.

“These students are to be commended for the intense legal research they conducted in our creation of this report. It now serves as the opening step in a public policy dialogue,” Kristl said. “An informed public can consider these issues more thoroughly and carefully when it has unbiased information available. I am proud of the contributions the clinic has made to our coastal state on this critical issue."

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