A new William & Mary Law School clinic will address prickly legal and policy questions arising from endemic flooding in Virginia’s vulnerable Tidewater lowlands.
by James A. Bacon
No one knows how fast the sea level off Virginia’s coast will rise by the end of the century. It could be more than a foot, if the trend of the last century prevails. It could be closer to three feet, if some of the more pessimistic warnings come true. Whatever the future portends, almost everyone agrees that storm surges and high tides are inundating more of Virginia’s low-lying land than in the past. Hampton Roads — after New Orleans, the metropolitan region in the United States with the lowest elevation — is at tremendous risk, even if the more ominous predictions are decades away.
Rising sea levels — or, if you find that phrase too ideologically loaded, recurrent flooding — confronts Virginia with a host of engineering, political and legal questions that few Americans have given thought to. As Wetlands Watch Executive Director Skip Stiles puts it, most law and public policy assumes a static coastline. “Our law doesn’t deal with a shoreline that moves.”
Shana Jones, director of the newly created Virginia Coastal Policy Clinic, hopes to help the commonwealth grapple with a wide range of policy and legal issues relating to the increase in inundations. Working with the Virginia Institute of Marine Science (VIMS) and Old Dominion to gather relevant scientific and technical information, the clinic has the goal of providing lawmakers “the best information we can.”
Lawmakers need help, for questions abound. What options do local governments around Hampton Roads and the Chesapeake Bay have to cope with the rising tide? How much will it cost to harden the coastline? What changes should localities make to building codes, zoning codes and comprehensive plans? What role should the state play in regulating flood insurance — and to what effect? What rights do property owners have to build in flood-prone zones that governments cannot economically serve? “They are very thorny questions,” says Jones.
Adding another layer of complexity is Virginia’s state constitution. The Old Dominion is a Dillon Rule state which allows local governments only those powers expressly granted them by the General Assembly. What authority should the legislature grant local governments in harm’s way? Would those newly created powers set precedents that other jurisdictions, further inland, might find obectionable?
The coastal policy clinic, based in the College of William & Mary Law School, is receiving funding from the Virginia Environmental Endowment. Executive Director Gerald McCarthy describes it as one of the most exciting and potentially significant programs he has underwritten in three-and-a-half decades of running the endowment.
The sea level has been inching higher since Virginians first began measuring it in the 1920s. Although the rise has been slow, little more than an inch a decade, it adds up over the generations. “People think of sea-level rise as like sitting in a slowly rising bathtub,” says Jones. “The problem comes when we get a nor’easter, a full moon or a hurricane. It’s the surge that is problematic.” Read more.
