Defining Resilience
Jurisdiction and Planning

The Public Trust Doctrine
Ordinary High Water Mark
Zoning

Resources for Resilience Planning
- Conducting Coastal Adaptation Planning
- Tools to Support the Planning Process

Defining Resilience

Communities need information, tools, and processes to actively plan for and manage the impacts of coastal hazards and climate change on coastal habitats, shorelines, and the built environment. Armed with this information, they can adopt current practices, plans, and policies to account for these factors. Recognizing this need, the Coastal Resilience Planning Guide offers locally relevant stories and case studies that point to data, tools, and strategies as examples of how hazards and climate change information are informing community plans and activities. These activities are increasing the resilience of Great Lakes coastal communities.

For the purposes of this Planning Guide, coastal resilience is defined as a measure of the extent to which a coast is able to respond to external pressures without losing actual or potential functions (Klein et al. 2003). It encompasses planning and actions that reduce vulnerability to coastal hazards, and supports decisions to reduce the socioeconomic and ecological risks of coastal hazards, including those potentially exacerbated by the impacts of climate change.

In practice, however, resilience is an elusive term. Over time it has been defined and redefined by organizations, managers, agencies, and other practitioners who work to protect a range of different resources against an equally diverse set of threats to the vitality of those resources. Because this term lacks one universal definition, individuals who encounter it have come to associate it with different sets of assumptions, connotations, and connections, each based on separate contexts.

Commonalities of “resilience”, a diagram created through the aggregation of 10 different definitions of the term.

This problem is not unique only to broad applications of the term resilience, but also when it is redefined more specifically in terms of climate, community, and coasts; the critical actors who use the term do so with different explicit definitions. These differences in definition are not problematic when working with those who conceptualize the term in the same way. However, when different entities come together to work on resilience issues, even minor variations in meaning can be troublesome. Therefore, it is critical to be mindful of the differences in perspective that exist when engaging in resilience planning.

Flooding, storm surge, and erosion are just a few examples of the natural processes that threaten coastal communities. They are also examples of hazards that are likely to be exacerbated by climate change. When communities planning for the impacts of today's risks also anticipate potential changes from those risks under a changing climate, they improve their coastal resilience for the long term.

Effective planning for coastal resilience includes raising awareness, assessing risk factors, identifying vulnerabilities and analyzing options, and then choosing actionable solutions and strategies. Once actions are taken, further monitoring and measuring of results is needed so that approaches can be adapted as conditions continue to change over time. As with any planning activity in a dynamic environment, the process will be iterative.

Jurisdiction and Planning

Before entering into a discussion about specific actions your coastal community could take to become more resilient, it is critical that decision makers and planners understand the rights and duties that have been conferred upon them by law. The shores of the Great Lakes are subject to a multitude of federal, state, and local laws and standards. These standards dictate the actions allowed and responsibilities possessed by each state as they conduct their regular management activities and make plans for the future.
Communities need the resources for understanding what coastal areas are subject to their respective jurisdiction and what rights and responsibilities are possessed by those who seek to manage or use these lands. This Planning Guide will provide communities with the tools and resources necessary to understand the basic legal constructs, legislation, and associated boundaries that should be considered during a resilience planning process. For a comprehensive list of the executive orders and other pieces of Federal legislation which govern the Great Lakes coasts please consult Appendix B of the NOAA publication Adapting to Climate Change: A Planning Guide for State Coastal Managers.

The Public Trust Doctrine: Origins, Definition, and Spatial Reach

The Public Trust Doctrine is a common law, meaning it originates from centuries-old English and Roman law. This doctrine maintains that the government is obligated to protect the public's access to certain resources for their use and enjoyment. These so-called public trust lands encompass a variety of resources including navigable waters like ocean tidal ways and inland seas such as the Great Lakes, as well as freshwater rivers, lakes, streams, and ponds. By its original interpretation, the public trust doctrine applied only to ocean tidal waters. Consequently, the typically observed boundary of the public trust lands along the shore was the height to which tidal waters reached during high tide. This conventional definition presents a unique challenge when applied to the Great Lakes because they are not subject to tidal fluctuations. Rather, they are subject to seasonal, decadal, and multi-decadal fluctuations of varying extents. Over the preceding two centuries, the public trust doctrine has evolved such that each Great Lakes state has its own unique interpretation. In general, all Great Lakes states maintain that the submerged lands within their jurisdiction are included in the public trust. In addition, as a trustee to the public's interest in these lands, each of the Great Lakes states has been conferred the duty to protect these lands in perpetuity. However, the spatial extent to which the public trust extends landward and the specific rights that individuals have on these lands varies from state to state (Norton et al. 2011).

"High Water" State's Public Trust Boundary
from Putting the Public Trust Doctrine to Work, CSO.

"Low Water" State's Public Trust Boundary
from Putting the Public Trust Doctrine to Work, CSO.

Typically, states can be divided into two broad categories depending on how they bound their public trust lands: high water states and low water states. In high water states, the state owns the entire bundle (private and public) of property rights to all shoreland at or below the ordinary high water mark. The state is then responsible for maintaining and managing these lands in accordance with the responsibilities outlined in its public trust doctrine.

Michigan Homeowners at Odds Over Public Trust Privileges

In 1998 two Michigan home owners butted heads over who, where, and what was permissible on the shores of Lake Huron.

In low water states, the state is not always the sole owner of all shorelands at or below the ordinary high water mark. In contrast, private landowners may hold the property rights to shorelands all the way to the submerged lands. However, states in these cases often still own the public property rights to the lands below the ordinary high water mark. In short, even though a private landowner may "own" the lands below the ordinary high water mark, their ownership cannot limit the public's interest or rights conferred to them under the state's public trust doctrine (Slade et al. 1997).

As a result of these differences, a community's or individual's ability to use tools like zoning, development or privatization of shorelands, or construction of shoreline protection structures will be contingent on each state's interpretation of the doctrine (Norton et al. 2011). Furthermore, this apparent lack of clear definition has been shown to lead to controversy when applying the doctrine. It is important to note that the implications of the public trust doctrine are not limited to what is captured in discussion here. For a more in-depth overview, the NOAA Coastal Services Center has created a free online training video on the doctrine (temporatily unavailable), its origins, and the legal issues associated with it.

Ordinary High Water Mark: Definition, Use, and Jurisdictional Issues

The term Ordinary High Water Mark (OHWM) refers to the approximate elevation at which a discernible line on the shore is established by fluctuations of water, and is indicated by physical characteristics like erosion, destruction of terrestrial vegetation, presence of litter or debris, or changes in soil characteristics ("Ordinary High Water Mark"). However, in practice, two different interpretations of ordinary high water mark are utilized by the Great Lakes states. The Natural (or Actual) Ordinary High Water Mark (NOHWM) refers to the previously described natural line that exists along the shore. The Elevation (or Statutory) Ordinary High Water Mark (EOHWM) is an elevation-based measure. While the EOHWM is determined by the same physical characteristics as the NOHWM, it is fixed at a specific elevation contour reported in feet above sea level; it is subject to regular adjustments ("Ordinary High Water Mark") despite natural fluctuations along the shoreline.

Natural vs. Elevation-Based Ordinary High Water Mark. Diagram displays movement of water in relation to Michigan regulation
Courtesy of Indiana DNR

These seemingly small differences in practice can create questions surrounding shoreline jurisdiction. For instance, the EOHWM acts as the boundary below which certain federal agencies are required to administer their regulatory programs along navigable waterways, including the Great Lakes ("Ordinary High Water Mark"). Section 10 of the Rivers and Harbors Acts of 1899 (see diagram below) maintains that the U.S. Army Corps of Engineers has regulatory authority over any dredging that occurs at or below the EOHWM along the shores of the Great Lakes ("Dredging – What You Should Know"). In addition, both the NOHWM and EOHWM are sometimes used by Great Lakes states to mark the spatial extent to which the public trust lands extend shoreward (Norton et al. 2011). In these cases, both the state and the federal agency have specific duties and permissions that must be completed or obtained prior to taking action along the shore. In order to promote informed resilience planning and prevent jurisdictional issues, decision makers and planners should give ample consideration to their state's definition of the OHWM, as well as the regulations and responsibilities associated with it.

Zoning: Definition, Enabling Legislation, and Limitations

By its most basic definition, zoning refers to a local government's or state's ability to divide a municipality into districts and regulate the types of activities, buildings, and structures that that can occur or be constructed within them. Zoning is a useful tool for protecting sensitive resources, planning and organizing new development, and driving slow, incremental changes in city structure (Daniels and Daniels, 2003). States were granted the ability to zone through the 10th Amendment of the U.S. Constitution and the Standard State Zoning Enabling Act, which was developed in the 1920s (Meck, 1996). Together, these enactments confer upon each state the right to use its "police power" to make land use laws or regulations that promote community health, safety, welfare, and access to public trust lands (Daniels and Daniels, 2003). While every U.S. state has been conferred this power, not all municipalities have been delegated the same authority. Local units of government are granted the right to implement zoning ordinances within city limits in two primary ways: through state constitutional "home rule" or through the passage of enabling legislation by the state legislature (Meck, 1996).

To counterbalance these police powers, the Fifth Amendment of the U.S. Constitution maintains that the government entity in question must demonstrate a significant connection or "nexus" between the zoning ordinance passed and the actual protection afforded the community's health, safety, welfare, and/or access to public trust lands. When this significant nexus cannot be demonstrated and the zoning ordinance restricts private property owners' ability to use or develop to the extent that no "reasonable" use of the property remains, those rights to development are said to be "taken" from property owners, who are then entitled to "just compensation" for those taken rights. This apparent tension between a government entity's right to zone and a landowner's right to develop their private property has the potential to make zoning a politically sensitive issue, and is a common source of land use litigation (Daniels and Daniels, 2003).

Resources for Resilience Planning

After sufficient consideration has been made in relation to the laws that enable, regulate, and limit shoreland planning activities, a community can enter into a planning process with a sound foundation of knowledge on the types of resilience strategies that could be adopted with regard to climate change and natural hazards.

An enormous wealth of resources is available to communities, counties, and states that wish to complete and implement adaptation plans. The tools and resources required to complete and support a planning process of this kind will vary from community to community based on their experience, needs, and existing resources. In an effort to bridge the gap between our users' existing needs and the resources available, a suite of guidebooks and tools has been collected and organized based on their function, audience, and utility during the planning process. The first series of resources listed are intended to provide comprehensive guidance on how to conduct an adaptation planning process and the questions that need to be asked throughout.

Conducting Coastal Adaptation Planning

1. The International Council for Local Initiatives (ICLEI) has, in partnership with King County, Washington and the University of Washington Climate Impacts Group, created a guidebook for climate change preparation. Designed for community decision makers in a local, state, or regional governance role, this guidebook offers a detailed and easily understood process for climate change preparedness. This resource is based on sound science and provides critical guidance on the tools that should be utilized throughout any proposed planning strategy.
2. Intended for local government planning and decision-making, the National Oceanic and Atmospheric Administration's Coastal Services Center (NOAA-CSC) has designed the Coastal Planning Advisor to encourage collaborative process design and connect decision makers to the resources necessary to make informed choices. This web-based tool provides an easy to use process for 12 different coastal management issues; each decision-making step features an extensive series of questions designed to foster critical thinking and allow for needs-based process customization.

Tools to Support the Planning Process

The products of the planning process a community chooses to employ may be greatly improved if they are founded on the best available science, robust community involvement, and a complete understanding of the strategies that could be leveraged to improve resilience. The tools and resources summarized below are intended to empower communities to complete the planning process to the best of their ability and understanding.

Identifying Sensitive Areas and Resources:
1. If detailed information is needed on the potential social, economic, and physical losses that could be incurred from the onslaught of hazards like flooding, wind, and earthquakes, the Federal Emergency Management Agency (FEMA) has developed the HAZUS Multi Hazard (MH) software program to model predictions of damage costs for infrastructure. HAZUS MH combines current scientific and engineering expertise with Geographic Information Systems (GIS) technology to create nationally applicable program outputs that have been used in local government, county, and state planning and risk assessment initiatives alike. FEMA offers its HAZUS MH software and related technical support to federal, state, and local agencies for free.
2. Not all planning processes require or allow for the completion of a detailed vulnerability assessment. To facilitate a basic analysis of a community's climate readiness and related vulnerabilities, Illinois-Indiana Sea Grant has developed a simple self-assessment tool that helps users identify the key areas in their community that are most threatened by climate change impacts. The self-assessment requires users to answer simple yes or no questions related to existing infrastructure, habitats, industries, utilities, and plans, then tally their responses and evaluate them using a "readiness index" to determine what resources and areas are most vulnerable to climate change. This tool was specifically designed for local governments and communities. Consequently, it may not offer optimal results when used to assess resources on a larger geographic scale.
3. Recognizing that hands-on training is sometimes more appealing than guidebooks or self-assessments, the NOAA-CSC has created Using Flood Exposure Maps . The course is offered in a two-part, “blended webinar” format. Participants view Part 1, a recorded demonstration on how to use the Coastal Flood Exposure Mapper (about 1 hour). Later, they can join other participants for Part 2, a live, online session (about 1 hour) that includes both an opportunity to ask questions about the mapper and hear an interview with a guest speaker.
Selecting Resilience Strategy Alternatives:
When working to identify resilience strategies that could be employed in a community, the examination of what others have done when facing similar challenges can yield critical knowledge on what strategies work and when they can be appropriately applied. In these instances, case studies and existing plans are essential knowledge vectors for communities. This planning guide is a great place to begin looking for examples of this kind, particularly because it connects maps, tools, and data with the case studies featured. Thus a simple keyword search of the planning guide could yield a diverse range of examples, tools, resources, and most importantly, the people who have the experience on which to draw as alternatives are identified.
1. Another important resource that can be combed for resilience strategy alternatives is the NOAA-CSC Coastal Climate Adaptation website. This page is intended to help build and foster a network of practitioners from any echelon of government who work on coastal and climate related issues by providing them with a venue for discussion and sharing of knowledge. At present, more than 600 different climate change adaptation resources have been shared on the website, covering a range of topics including case studies, outreach materials, existing adaptation plans, communication strategies, training manuals, and related guidebooks. The diversity of subject matter, various levels of government planning represented, and related resources aggregated on this site make it an ideal reference for local government, county, state, and federal users alike.
2. Recognizing that some communities would benefit from having access to simple descriptions of the possible coastal resilience strategies that can be employed, Appendix A of the publication "What Will Adaptation Cost? An Economic Framework for Coastal Community Infrastructure" offers one-page summaries of the benefits and challenges related to a multitude of policy, structural, and ecosystem-based alternatives that can be used to combat impacts induced by climate change and coastal hazards. This publication is designed to meet the needs of municipal practitioners, planners, and decision-makers, and is published by NOAA-CSC.
3. For those who are looking for a more comprehensive overview of the various resilience alternatives that can be implemented, the Association of State Floodplain Managers (ASFPM) has partnered with NOAA to create the Coastal No Adverse Impact (CNAI) Handbook. The CNAI Handbook covers a broad range of community development concerns (e.g. legal, planning, infrastructure) and provides alternatives for increasing resilience to coastal hazards based on three levels of effort: basic, better, and no adverse impact. This publication was written to appeal to a varied audience—from individuals to entire communities.
Evaluating Alternatives – Predicting Benefits and Costs of Coastal Management Actions:
After resilience strategy alternatives have been identified, a methodology for selecting between competing options must be developed and applied. Deciding which evaluative criteria to apply to forecast the outcomes of each resilience strategy alternative can be a lengthy process, and will vary based on values and the needs and resources available to the community in question. Nevertheless, an evaluation of economic efficiency can be a powerful tool for all community planning initiatives. When properly prepared, an analysis of each resilience strategy's costs and benefits can be used to determine which strategies will maximize the social, economic, and environmental resources available, as well as shed light on potential trade-offs that may have to be made in order to meet goals. In order to facilitate the use of this critical evaluative tool, two options have been provided below.
1. Navigating the economics of coastal resources can be a challenge because it requires placing a monetary value on goods and services that are not typically traded in markets. To help communities face this challenge, NOAA-CSC has produced a brief and insightful guidebook designed to act as an introduction to economics for coastal resource managers, specifically. This guidebook is intended offer a primer on the different ways coastal resources are assigned value, methods for comparing and assessing different coastal resilience strategy alternatives, and also features case studies that show how these tools have been used in practice. The insights gained through this introduction will equip coastal resource managers with a better understanding of the techniques and methods that would need to be leveraged to complete an economic assessment in their communitie.
  In addition to this guidebook, NOAA-CSC has also produced a brief video series to clarify the oftentimes confusing discussion of formal economic principles and reveal the common sense hidden beneath the jargon.
2. For those who are seeking to complete an in-depth economic analysis, NOAA-CSC has published an economic framework for coastal community infrastructure that is designed to meet the needs of municipal practitioners, planners, and decision-makers. This framework links users with the tools, resources, and equations necessary to conduct detailed economic analyses.
Stakeholder Engagement – Facilitating Decision Making, Implementation, and Programmatic Delivery:
While not all governance and decision-making related to natural resources needs to have a public involvement process associated with it, when dealing with the development of new regulations, zoning ordinances, and other potentially controversial policies, public engagement can help to better foster a community's acceptance and understanding of the new policy in question. This acceptance and understanding in turn has the potential to prevent conflict and ease the implementation process of a new policy or regulation.
1. To provide an introduction to the reasoning behind public engagement, when to use it, who needs to involved, and how to evaluate it, NOAA-CSC has written a guidebook for stakeholder engagement targeted toward coastal resource managers. This high-level publication is part of a larger series of introductory publications on the different social science tools available to coastal resource managers, which includes the previously mentioned NOAA-CSC publication on economics.
2. Recognizing that every community will have different engagement needs, the U.S. Environmental Protection Agency (EPA) has compiled a diverse collection of Internet resources for public participation. This toolkit is a centralized hub for various resources on topics such as the principles, benefits, process designs, and techniques for conducting public engagement, as well as for case studies and tools that can be used to facilitate successful public engagement processes. The resources featured on this page are aimed at a broad audience—ranging from the municipal to the federal governance level. To leverage this tool efficiently, communities should think critically about the intended audience of the guidebook, tool, or resource in question when selecting between different options.

Great Lakes Coastal Resilience Planning Guide

Planning for Climate Change