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Ocean, Man, and Policy: Moving Forward to Save Matunuck

Part three of a three-part series addressing a host of issues haunting the Matunuck shoreline.

“The effect of any amount of future sea level rise will be an increased rate of coastal erosion as waves will break higher on bluffs and dunes along the south shore for any given storm intensity. Bathing pavilions, hotels, and other buildings now protected by coastal engineering structures will be subject to increased wave attack as the protection structures are overtopped by smaller and smaller storms. Low-lying areas adjacent to the shore front will be subject to “in-place drowning”, i.e., increased flooding during storms.”

RI CRMC Salt Ponds Area Special Management Plan, Section 410.3 Geologic Processes – Sea Level Rise – The Near Geologic Future, Subheading C.

According to the Salt Ponds Special Area Management Plan (SAMP), the south facing shoreline of Rhode Island is not likely to see an abatement of erosion at any time in the near even geologic future. 

Yet shoreline property values continue to rise according to Section 610.1 of the Salt Ponds SAMP, and the National Flood Insurance Program (NFIP) is partially to blame for making it easy to build in such highly erosive environments as the Matunuck Shoreline by making it easier to build houses in areas where banks refused to grant mortages after the hurricanes of 1938 and 1945.

Nonetheless, development along the Matunuck shoreline still stands, and a 12-inch water main carries drinking water underneath Matunuck Beach Road to residences throughout the south coast.

The same water main serves as a backup to South Kingstown, connecting it to the Narragansett water system. Not considering the private property issues, all parties, especially the water-drinking public, have a vested interest in preserving the structural integrity of the shoreline as the cost of moving the water main would be far greater than installing a structural shoreline protection option.

The time is now to move forward, according to South Kingstown Planning Department Director Vincent Murray. 

“The most recent town action is the Council’s resolution, which provides some specific suggestions we’d like to review with Coastal about exhibiting more flexibility beyond their regulatory role in terms of trying to have a cooperative stance among all the stakeholders…in a positive fashion,” said Murray. “I think some of the permitted mitigation activities simply haven’t worked, specifically sandbags." 

Ocean Mist owner Kevin Finnegan would also like to see positive progression.

“[CRMC] might as well work with the property owners to come up with a solution. Get everybody involved, and the business owners will kick in money,” he said. “It’s just a win-win to act now than not act and lose our property. We’ve got to do something, and place everything where it makes sense.”

Mark Melnick pointed out that many coastal projects, such as beach replenishment, receive Federal funding.

South Kingstown’s Planning Department has already outlined options in the Matunuck Coastal Area Report it released in April 2010. In reference to an August 2008 public hearing between South Kingstown town staff, the town’s Local Hazard Mitigation Committee (LHMC) and the CRMC, the April 2010 Report states, “Following the public comment period and a follow up meeting with CRMC, the LHMC determined that the soft-armor alternatives identified would not adequately protect the integrity of Matunuck Beach Road over the long-term, based on the high-energy wave environment.”

The April 2010 report identified four hard-armor alternatives selected for consideration:

- a concrete gravity seawall ($15-17 million)

- a concrete gravity seawall on steel sheet pile foundation ($17-19 million)

- a riprap revetment ($8-11 million)

- an offshore breakwater (reef, $12-15 million; rubble mound, $25 million)

According to the Matunuck Report, two legal avenues exist under which a hard armor shoreline protection option might be permitted. 

1. Section 130 of the Coastal Resources Management Program, entitled “Special Exceptions” allows the CRMC to permit normally prohibited activities, so long as the circumstances fall under certain categories. One of those categories is “an activity associated with public infrastructure”.

Given the presence of a crucial 12–inch water main carrying water to a large amount of South Kingstown, a hard-armor shoreline protection structure should be permitted under Section 130 of the Coastal Resources Management Policy.

2. The Matunuck shoreline in the effected area is categorized as “Headlands, Bluffs, and Cliffs”. Due to the more stringent regulations in place protecting more pristine shorelines, the construction of hard armor structures is prohibited. If the CRMC were to re-classify the Matunuck shoreline as a “Manmade shoreline”, such a structure could be permitted. 

As for measures property owners might undertake in the interim, not much leeway exists as of yet, hence the Town’s pleas for a greater degree of flexibility.

Section 180 of the Coastal Resources Management Policy is entitled “Emergency Assents”, but does not contain any provisions for action without precedence of a permit, and deals mostly with storm and disaster related permitting.

Such public trust versus private property rights conflicts have been contested before. An article written by Robert Hancock, published in the September-October edition of the National Wetlands Newsletter, entitled “The Highest High Tide: Securing Rhode Island’s Salt Marshes in a Time of Rising Seas” outlines legal conflict between personal property and public trust rights in the prospect of losing salt marshes and shoreline to the ocean.

In his article, Hancock highlights two cases of legal precedent pertinent to this conflict. The Public Trust Doctrine, and Takings.

In Rhode Island, Greater Providence Chamber of Commerce v. State decided with private property rights “whether ownership rights of land reclaimed from the sea due to the placing of fill below the mean high tide mark fell with the private-record title holders or with the state for public-trust purposes.”

Hancock offers that “because the Chamber of Commerce court recognized private property rights over the public trust in cases of previously submerged lands, there is a chance that it may also recognize private property rights where previously dry lands have become submerged. At present it is unclear which way the Rhode Island courts will move.”

The second issue addressed is the issue of Fifth Amendment Takings. Palazzolo v. State sets legal precedent on takings in Rhode Island, according to Hancock’s article. Palazzolo argued that CRMC’s repeated rejection of his applications to “fill and develop 18 acres of salt marsh” constituted Fifth Amendment Taking for depriving him beneficial use of his property.

Hancock states “the CRMC must clearly establish the states intent to hold title over newly inundated lands so that private property owners will be unable to claim that the state has been acquiescent in allowing alterations to the uplands that prevent the migration of salt marshes.”

The precedent set by Palazzolo may establish that preventing natural processes of erosion from occurring constitutes a public nuisance. It does also point out a gray area, that the burden lies on the state to hold title on submerged land.

According to legal representatives at the CRMC, acts of nature are not considered a Taking issue.  Such undecided terms validate the unclear nature how courts may handle private property rights versus the public trust. Regardless, there is a consensus calling for the CRMC reconsider its actions. 

“I think we have a unique circumstance that does warrant a greater flexibility on how the Red Book is applied,” said Murray.

“There have been things that lead us to revise our program,” said Laura Ricketson-Dwyer, Public Educator and Information Coordinator for the CRMC. “Just the fact this is an ongoing conversation, an ongoing issue, that might spur something at some point. The nice thing about it is that we have conversations here, and that sometimes leads to change.”

Progress is also on the horizon.

“In reaction to the Town Council’s Resolution, we’ve been contacted by Coastal,” Murray explained. “They’re going to be setting up a meeting with the Coastal Council staff and their chair and town staff will be attending to discuss the issue. That has not been set yet but there has been communication back in forth in that respect." 

In looking forward, Murray offered a plea to Mother Nature herself.

“We’ve had a situation of erosion and sometimes minor accretion between events where you get some back. That may be hoping against hope, but anything is possible. An abatement of erosion events would assist the process because whatever is arrived at it’s probably a longer-term solution. There’s a ramp up of design consideration, policy development, permitting, resource assembly, those are all complex things to affect, so time could be on our side, it would be nice if it were.”

For property owners that would like to make themselves more aware of regulations requiring a permit, see Section 100 of the Coastal Resources Management Program, also known as “The Red Book”, entitled “Alterations and Activities That Require an Assent from the Coastal Resources Management Council”.

Beachview March 17, 2011 at 11:09 AM
With regards to Mr. Browning. What do we do about Matunuck Road being breached? Did the town take a gamble when they built the road? Did everyone who has to travel down that road to get home gamble that someday they would have to have a kayak to get home. You are focusing on some of the waterfront homes, while missing the point that this is a collective problem for all of Matunuck and especially those who use Matunuck Beach Road to get home. Oh...forgot to mention the water main that runs under the road. Residents who count on the water main running under Matunuck Beach Road took a gamble as well? Enough of the class warefare...i.e., let the rich property owners loose their homes, and lets come up with a comprehensive plan to save Matunuck as we know it.
Robert Trager March 17, 2011 at 02:18 PM
Some very tough decisions will have to be made. There's pros and cons to each solution. The debate is going to hinge on the cost and feasibility of a man made seawall. Like Mr. Browning said, any seawall will affect adjacent property. The same, I think, can be said for an individual property owner setting up a hard barrier. There is no doubt that this problem is of major concern for the town as well as the individual property owners. The biggest concern that I have, is spending millions on a temporary solution. Any solution has to a resonable chance of withstanding a Category 3 hurricane or it would be money poorly spent. We all know that it is only a matter of time until the next big hurricane.
Frank Mastrobuono March 17, 2011 at 04:25 PM
Mr. Trager, you articulate an excellent point. While there is certainly no doubt that it is only a matter of time until the next big hurricane, the question still stands--how much time? It could be two years, or two hundred. Recently I've been reading a book titled 'A Wind to Shake the World', detailing the story of the 1938 hurricane. It is a reminder of the absolute power of the ocean. We all might have trouble admitting to ourselves just how bad it could be, but there exists a great amount of uncertainty. Regardless, the argument is that awareness of such a situation constitutes the need for action. Engineered ocean structures are designed to withstand at least a '100 year' event, either storm or wave action. And while a structure would affect adjacent property- there are existing structures on that shoreline. If there was a collective 'throwing in of the towel', with things left as they are, a storm of much less intensity could wipe out the road-and the water main- and cause a huge, really, really, expensive and laborious problem, not to mention leave a whole lot of people without drinking water. Doing nothing, it seems, would expose the town to far greater risk than taking action. The town already has a vested interest in preserving the integrity of Matunuck Beach Road as a result of the water main underneath. From speaking with many of them, the consensus among the people at this point seems that doing nothing to preserve the road's integrity would be negligent.
mark melnick March 17, 2011 at 06:29 PM
The bottom line is that this problem has been known about for many many years and nothing has been done to deal with it. RI's best natural resource is being eroded away at year by year while people stand back and let it happen, saying it serves them right that's nature? Organizations like coastal have failed to do their job!!! Communities have failed to face the reality, and people like Mr. Browning mock the situation. Open your eyes: this is issue is much bigger than a few houses! There are hundreds of millions of federal money being spent on projects to protect beach area's every year. In RI's case, it is its communities at risk. The RI government needs to find ways to tap into federal resources to help out!!!!
susan Russo March 31, 2011 at 03:25 PM
Mr. Melnick mentions that "the problem has been know for many years"... It is actually over 40 years. Back then, one landowner continously filled in wetlands on Potter Pond, Barney Road and the back of the campgrounds and 'nothing' was done. Then we see the piece of land at Deep Hole is being filled in, in an area the was wiped out by the 38 hurricane, and again "nothing" is done. However, the effects began to show on the beach infront of the "former" SeaView with a rippling effect progressing to Carpenters Bar/Ocean Mist, Cavanaughs/Joyces Pub/Taras and further down to The Breakers. As the situation became more obvious that it was and would continue to get worse, Mrs. Cardy, owner of the Breakers, Mr. Rivera, property owner and many others with summer homes and rental property in the effected area, approached the town. The town fathers then went to those at URI who presented ideas ranging from ridiculous to possible, got bounced around and in the end..."nothing was done". Now, when it appears the horse is out of the barn, and the town is going to lose revenue because they are close to not having any beach for locals or out of town/state visitors to go something is being done. Hopefully for the homeowners that are now third and fourth generation owners, that were raised on our beautiful beach, made friends that have lasted forever and want future generations to have the same, the town will finally find a way to save what to some of us was our own Camelot.

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