That Sinking Feeling: Legal Strategies for Waterfront Property Owners Facing Sea-Level Rise

Sea levels around Rhode Island are now rising at a rate of up to 1 inch every 8 years, and tidal flooding in some areas has increased by 380% since 2000. In Massachusetts, sea levels have risen by 0.11 inches per year in Boston since 1921, totaling over 11 inches in the past century.

The RI Coastal Resources Management Council (CRMC) projects upwards of 12 vertical feet of sea level rise by 2100 in worst-case scenarios, potentially transforming Rhode Island into an archipelago. For Massachusetts, sea levels along the South Coast are projected to rise over two feet by 2050. Property owners cannot afford to wait – the time for legal preparation is now.

The CRMC manages Rhode Island’s shoreline with jurisdiction within 200 feet of any coastal feature, requiring permits for virtually any significant coastal modification. The groundbreaking regulation “Climate Change and Sea Level Rise” (650-RICR-20-00-1.1.6(I)) represents the first of its kind nationally.

Critical tools include STORMTOOLS, a GIS mapping system for storm inundation scenarios, and the Coastal Hazard Application (CHA) developed in 2020 to assess potential hazards for development planning. Property owners must understand that the mean high water mark, which determines whether land is public or private, will shift landward as sea levels rise.

The 2023 shoreline access law clarifies public rights up to 10 feet landward of the visible high tide line, adding complexity to property boundary determinations.

The Massachusetts Office of Coastal Zone Management (CZM) provides oversight through tools like the Sea Level Rise and Coastal Flooding Viewer, supporting vulnerability assessments for community facilities and infrastructure. Local municipalities implement crucial zoning bylaws and coastal floodplain management ordinances.

Oak Bluffs exemplifies progressive local regulation, prohibiting new residential development in the most hazardous flood zones (V, VE, or AO zones on FEMA maps) while requiring special permits for development in less hazardous A zones. Chapter 91 authorization is required for structures within 3 miles of the mean high tide line.

Strategic Legal Planning and Property Protection

Waterfront property owners must develop comprehensive strategies that address both immediate regulatory compliance and long-term adaptation. Essential first steps include conducting thorough due diligence using state mapping tools, such as STORMTOOLS and CHA in Rhode Island, and the Sea Level Rise and Coastal Flooding Viewer in Massachusetts.

Understanding evolving property boundaries becomes increasingly critical as sea levels rise. Rhode Island employs a public trust doctrine, where submerged land is considered publicly owned, while land situated shoreward of the mean high tide line belongs to property owners. However, this boundary shifts landward as sea levels rise, potentially reducing the area of private property.

Property owners should engage with regulatory agencies early, understand permit requirements, and consider the timing of applications strategically. Both states favor nature-based solutions over hardened structures, which can cause downstream erosion and regulatory complications.

Building Codes and Elevation Requirements

Both states have adapted building codes to address sea-level rise. Rhode Island’s 2019 law altered the method for measuring building height to enhance coastal structures while preserving property values. The law allows builders to bypass FEMA flood maps and use more accurate CRMC-developed maps, potentially reducing elevation requirements and construction costs.

The CRMC works with the State Building Commission to incorporate freeboard calculations based on sea level rise scenarios. Initial policies accommodated 3-5 feet of sea level rise by 2100, although current projections suggest higher levels. Massachusetts requires Chapter 91 authorization for structures within coastal zones and emphasizes compliance with local conservation commission requirements for wetland buffer zones.

Insurance and Risk Management

The intersection of property insurance and sea-level rise creates critical planning considerations. The National Flood Insurance Program (NFIP) provides foundational coverage, but insurance costs can eliminate property values or render properties unmortgageable well before physical impacts occur.

Property owners should regularly review coverage in light of changing risk profiles and consider policy modifications as conditions evolve. The strategic timing of insurance renewals becomes crucial as risk assessments evolve and new data become available.

Adaptation and Emerging Legal Issues

Forward-thinking property owners are exploring various adaptation strategies combining legal compliance with practical risk reduction. Elevation remains among the most effective approaches, with both states providing mechanisms for building above projected flood levels.

Conservation easements and similar legal mechanisms can offer tax benefits while ensuring long-term protection of coastal lands. The concept of “managed retreat” is gaining attention, with environmental groups supporting legislation for Flood Risk Protection Programs that would purchase at-risk properties for restoration as protective marshes and beaches.

Emerging legal issues include potential liability for shoreline protection measures that affect neighboring properties, regulatory takings claims as restrictions increase, and the impact of climate migration on property values. Many existing revetments were installed before current regulations came into effect and may exacerbate storm damage, thereby creating liability concerns.

Property owners should document current values and understand legal standards for takings claims. The rapid evolution of climate impacts creates an environment in which new legal theories and regulatory requirements emerge regularly, necessitating ongoing vigilance and adaptive legal strategies.

Rise to the Challenge

Sea-level rise challenges for waterfront property owners demand immediate attention and strategic long-term planning. While rising seas represent a physical reality, evolving legal and regulatory responses create both challenges and opportunities for proactive owners.

Successful strategies combine a thorough understanding of current regulatory requirements with flexible planning adaptable to changing conditions. Property owners should engage qualified coastal property legal counsel, maintain current knowledge of regulatory developments, and consider both defensive and adaptive strategies. Property owners who invest in understanding these changes and developing comprehensive legal strategies will be best positioned to protect their investments and navigate unprecedented challenges ahead. The time for action is now, while options remain available and regulatory frameworks continue developing.

Contact Sayer, Regan & Thayer for more information on this topic.

Note: This article is for informational purposes only and does not constitute legal advice. Companies should consult with qualified legal counsel for specific guidance on regulatory compliance.