Amicus Curiae Brief — Palazzolo v. Rhode Island

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Morcawy al Vy

TAN 2 2 ad | i Fu,

No. 99-2047 :

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In The |

Supreme Court of the United States

+

ANTHONY PALAZZOLO,

Petitioner,

RHODE ISLAND ex rel PAUL J. TAVARES,

GENERAL TREASURER, and COASTAL

RESOURCES MANAGEMENT COUNCIL,

Respondents.

———e o —EEEE——EE

On Writ Of Certiorari To The

Supreme Court Of Rhode Island

¢

BRIEF OF DR. JOHN M. TEAL, DR. FRANK GOLET,

DR. JON C. BOOTHROYD, DR. R. SCOTT WARREN,

DR. SCOTT NIXON, DR. JOY ZEDLER

AND DR. ORRIN PILKEY

IN SUPPORT OF RESPONDENT

+

Tim EICHENBERG, Patrick A. PARENTEAU*

Program Counsel VeRMONT Law ScHoot

CENTER FOR Marini South Royalton, VT 05068

CONSERVATION (802) 763-8303

580 Market Street, oe >

Suite 550 Counsel of Record

San Francisco, CA 94104 Attorney for Amici Curiae

(415) 391-6204

Of Counsel

COCKLE LAW BRIEF PRINTING CO. (800) 225-694

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

PUREE GIE WICC UEETE ceccccccccccsccccescees 1

SUMMARY OF ARGUMENT..................0005: 1

ET cc. Cah C Reese ben eeeuaseeesaeshewenes 2

A. The Functions and Values of the Salt Marsh Eco-

_ _ PPPPPEVTUTITIOTITITT TET TET TELE 2

B. The Ecological Effects of Salt Marsh Destruction.. 10

C. Water Quality and Public Health Impacts of

Coastal Development ...............cceeeeeeees 13

D. The Hazards of Coastal Development.......... 16

SED ac bb Cth cU ss dsvetdecicecoecesceceees 22

RPI A cc ccccccsecccvccccesenescesesevess App. 1

ii

TABLE OF AUTHORITIES

Cases

Lucas v. South Carolina Coastal Commission, 505 U.S.

BGG (UGUEP. oc cccccccecesse0se05 Nunn

United States v. Riverside Bayview Homes, Inc., 474

US. 328 (300)... ccnccccueueecheuue ene

STATUTES

Federal

16 US.C. 1908......00:00ss005cnenneneeeeeeee

16 UGC. OBB. ...00000000000sennneeneeeeeee

26 U.S.C. 160R(1) .....0+0000000050nnneneeneeen

16 U.S.C. 26BBER) ...60050000500000nnueeeenee

16 US.C. 1600D. ....<:..0s<0005s5nenneeeeeeeea

Tova

16 U.S.C. 1455b(g)(5) ... 2.0... cceeceeeeuueeeeeees

RS Coe

Rhode Island

P.L. 1965 ch. 140, § 1, G.L. 1956 §§ 2-1 - 2-17.....

P.L. 1971 ch. 279 § 1, G.L. 1956 ch. 23 of title 46..

Rev. Pub. Laws, pp. 492-97 (1798)............0005.

G.L. 1938 ch. 634, § 2... scccccsesceunenneeneee

OTHER AUTHORITIES

Brown, C., Hurricanes and Shoreline Changes in

Rhode Island, Hurricane in Southern New Eng-

land (Gordon, B., ed.) (1976). ...........ccecuees

iii

TABLE OF AUTHORITIES - Continued

Chabreck, R.H., Coastal Marshes: Ecology and

Wildlife Management (1988) .................-.

Coastal Resources Management Council, Rhode

Island’s Salt Pond Region: A Special Area Man-

agement Plan (1984)......... 2... 6. e eee ee eens.

Coastal Resources Management Council, Rhode

Island’s Salt Pond Region: A Special Manage-

ment Plan (Maushaug *o Point Judith Ponds)

EEE EEE EEE TOTTTTLITILILITT Te

Dahl, T.E., Wetlands: Status and Trends in the

Coterminous United States, mid 1970's to mid

1980's, U.S. Department of the Interior (1991)..

Desbonnet, A.P., et al., Vegetated Buffers in the

Coastal Zone: A Summary Review and Bibli-

ography, University of Rhode Island Coastal

Resources Center and Rhode Island Sea Grant

Ee ecebcebehedddeoedsocceesccecocecces

Frayer, W.E., et al., Status and Trends of Wetlands

and Deepwater Habitats in the Coterminous

United States, 1950’s to 1970’s, U.S. Department

se tic ecosedueeeeooce ce

Friedman, R.M. and DeWitt, C.B., Wetlands as Car-

bon and Nutrient Reservoirs: A Spatial, Historical,

Social Perspective, Wetland Functions and

Values: The State of Our Understanding, Pro-

ceedings of the National Symposium on Wet-

lands, November 7-10, American Water

Resources Assn. (1979) ............ccceceeeeees

Greeson, P.B, et al., Wetland Functions and Values:

The State of Our Understanding, Proceedings of

the National S ium on Wetlands, Novem-

ber 7-10, American Water Resources Assn.

— FESEEPPPPPPPTTTTTTTTTLTTTTTT ETT T Te

iv

TABLE OF AUTHORITIES - Continued

eUE Cvénnésccducéccnceseseceseséecusenetésconcees

The J. John Heinz III Center for Science, Eco-

nomics and the Environment, The Hidden Costs

of Coastal Hazards (2000) ........................

Hoffman, J.S., Keyes, D. and Titus, J.G., Projecting

Future Sea Level Rise, U.S. Environmental Pro-

See Gy Gb 060 erkéceduensecécacceccotss

IPCC Working Group I, The Science of Climate

Change (Second Assessment Report) (1995) .......

IPCC, Report to the Sixth Conference of the Par-

ties of the United Nations Framework Conven-

tion on Climate Change (Nov. 20, 2000)...........

IPCC, Special Report on Land Use, Land Use

Changes, and Forestry (1998) .....................

Kana, T.W., et al., The Physical Impact of Sea Level

Rise in the Area of Charleston, South Carolina, in

Barth and Titus, Greenhouse Effect and Sea

Level Rise: A Challenge for This Generation

SoA 0cus cocesccundusedueencesentenseudessosness

Knudson, P.L., et al., Wave Dampening in Spartina

Alterniflora Marshes, Wetlands (Journal of the Soci-

ety of Wetland Scientists) 2 (1982)..................

Lee, G.F., et al., Effects of Marshes on Water Quality,

in Coupling of Land and Water Systems (A.D.

ts CI a

Lee, Virginia, An Elusive Compromise: Rhode

Island Coastal Ponds and Their People (1980).....

Lee, Virginia and Olson, Stephen, Eutrophication

and Management Initiatives for the Control of

Nutrient Inputs to Rhode Island Coastal Lagoons,

Eotuaries Vol. § No. 2B (1996)... ccccccccccccecs

v

TABLE OF AUTHORITIES - Continued

Page

Myshrall, D.H.A., et al., Salt Marsh Restoration

Monitoring at the Galilee Bird Sanctuary, Nar-

ragansett, R.I. (2000) ........ 0... 0c cece cece eee eeeees

Niering, W.A., Endangered, Threatened, and Rare

Wetland Plants and Animals of the Continental

United States, National Wetlands Newsletter (May-

Jeune 1987)... 0.0... cc eeeccccccccccccccccessevccvees

Nixon, Scott W., Coastal Marine Eutrophication: A

Definition, Social Causes, and Future Concerns,

Ophelia 41 (1995) .........:ec cece eee ee eee eeeeeeees

Nixon, S.B., et al., Nutrient Inputs to Rhode Island

Coastal Lagoons and Salt Ponds: Final Report to

Rhode Island Statewide Planning (1982).............

Nixon and Pilson, Nitrogen in Estuarine and Coastal

Marine Ecosystems, Nitrogen in the Marine Envi-

gomment (1963) ....... cc cee cc ccccecccecceecceceees

Oceans and Coastal Resources: A Briefing Book, 23

Congressional Research Service Rep. 97-

SOGHINR (1997). ......cccccccccccccccccccsccccece 4,

Office of Technology Assessment, Wetlands: Their

Use and Regulation (1984) ...........-02eeeeeeeeeee

heim, T., Wetland Losses Have Continued but

Have Slowed, National Wetlands Newsletter (Nov.-

Peters, R., and Lovejoy, T., Global Warming and

Biological Diversity (1993) .........--+++e+eeeeeees

The Providence Journal, Sept. 8, 1954........----+++++

vi

TABLE OF AUTHORITIES - Continued

Revkin, A., Scientists Now Acknowledge Role of

Humans in Climate Change, The New York Times

SY GS MEI ane6dcccscerccnconceueesétce

State of Rhode Island Coastal Resource Management

Pt Didi on padéseneddekesaenbedddbandiabnne

Teal, J.M., Salt Marshes: They Offer Diversity of Hab-

ina I i

Teal, John and Mildred, Life and Death of the Salt

ct ccksbeidendelenetchcudecducuseuce

Tiner, R.W., Wetlands of Rhode Island, U.S. Fish and

Wildlife Service, National Wetlands Inventory

EN 46 0c cncensensednccceséoseéeceaccouceesses

Titus, J.G. and Narayanan, Vijay, The Probability of

Sea Level Rise, U.S. Environmental Protection

EY Gn 6006000 cédedcecceacecncuseesees

Titus, J.G., et al., Greenhouse Effect and Sea Level

Rise: The Cost of Holding Back the Sea, Coastal

CE EE ci idilc sencuudneneascenece

U.S. Army Corps of Engineers, Hurricane Survey

Interim Report, Narragansett Pier, Rhode Island,

Se An budeadcncduceddedecdntsanssecteces:

U.S. Environmental Protection Agency, National

Water Quality Inventory: 1994 Report to Congress

SP +6 bRedncencdendecddenesuseeunedeeucecdeses

U.S. Fish and Wildlife Service, 1996 National Sur-

vey of Fishing, Hunting, and Wildlife-Associated

I i ie a

Page

STATEMENT OF INTEREST

Pursuant to Supreme Court Rule 37, we file this brief

with the consent of the parties as amici curiae in support

of Respondent, the State of Rhode Island.'

Amici are distinguished scientists with special exper-

tise in America’s coastal and estuarine ecosystems. Scien-

tists authoring this brief include members of the National

Academy of Sciences, and leading authors on estuaries,

salt marshes, salt ponds, water quality, coastal barrier

systems, and coastal hazards. Amici include scientists

who have served on scientific panels advising govern-

ment bodies on management of coastal ecosystems. Sev-

eral have direct experience with the Rhode Island Coastal

Resources Management Program and are quite familiar

with the physical setting of this case and with the scien-

tific and technical issues presented. Appendix A contains

a brief biography of each scientist.

o

SUMMARY OF ARGUMENT

This Court has recognized that “coastal property may

present such unique concerns for a fragile land system”

that a state may be justified in restricting inappropriate

development in the most sensitive and hazardous areas

without running afoul of the Fifth Amendment. Lucas v.

South Carolina Coastal Commission, 505 U.S. 1003, 1035

(1992) (Justice Kennedy, concurring). As the majority in

1 This brief was not authored in whole or in part by counsel

for a party. The Beldon Fund contributed $2500 towards the cost

of preparing and printing this brief.

Lucas pointed out, it is important, when evaluating regu-

latory takings claims, to carefully consider the “degree of

harm to public lands and resources, or adjacent private

properties, posed by the claimant's proposed activities,”

as well as “their suitability to the location in question.”

Id. at 1031. The following information is intended to

provide the Court with a clearer picture of the geographi-

cal, ecological, and hazardous conditions that make the

salt marsh ecosystem precisely the kind of place that is

not suitable for the intensive and poorly planned devel-

opment Petitioner wishes to put there.

®

ARGUMENT

A. The Functions and Values of the Salt Marsh

Ecosystem.

Viewed from above, the coastline of Rhode Island,

like much of the eastern seaboard, reveals a striking

mosaic of interconnected geological features and biolog-

ical systems. Barrier beaches and coastal dunes front the

ocean, absorbing the sometimes violent energy of wind

and waves in their shifting sands. Behind the dunes lie

the great salt ponds, brimming with life, running parallel

to the coast like a string of pearls. Arrayed along the back

of these barrier ponds and along the tributaries and

embayments are the salt marshes, blanketed in tidally-

influenced grasses (Spartina alterniflora), the principal

food factory for this rich estuarine system. Woven into

this natural fabric are uplands and dunes, adding still

more diversity.”

This is a remarkable landscape: dynamic, diverse,

productive, beautiful, dangerous. Here the work of

nature is spectacularly displayed, bestowing rich gifts

upon the human inhabitants. One of the keystones of this

coastal environment, and_the focus of the controversy

here, is the salt marsh ecosystem. Salt marshes are

among the most biologically productive ecosystems on

earth, rivaling the richest agricultural land in terms of

organic output.* Salt marshes are the “primary pro-

ducers” that fuel the complex web of life within the

coastal estuarine system, while providing a critical nurs-

ery and “refugia” for fish and shellfish of enormous

economic and cultural importance. But these systems do

much more than simply produce biomass. A partial

inventory of the functions and values of this ecological

system would include the following.

Fish and Wildlife Habitat

As this Court has previously recognized, wetlands

“serve significant natural biological functions including

food chain production, general habitat, and nesting,

spawning, rearing, and resting sites for aquatic species.”

2 See generally, John and Mildred Teal, Life and Death of the

Salt Marsh (1969); Chabreck, R.H., Coastal Marshes: Ecology

and Wildlife Management, 21-28 (1988).

3 Tiner, R.W., Wetlands of Rhode Island, U.S. Fish and Wildlife

Service, National Wetlands Inventory, 59-60 (1989) (hereafter,

Wetlands of Rhode Island).

United States v. Riverside Bayview Homes, Inc., 474 U.S. 121,

134 (1985).

Salt marshes are the crown jewels of wetlands, sup-

porting an extensive complex of terrestrial and marine

biological diversity by providing a variety of habitats and

landscapes at the edge of the sea.4 Many different life

forms — aquatic, terrestrial, marine, freshwater - come

together in this transition zone. The marsh integrates

land and sea, pulsing with life in rhythm with the tides.

Approximately 70% of the commercial fisheries in the

United States depend on estuaries and salt marshes for

nursery or spawning grounds.® In 1995, the commercial

fishery catch totaled 4.5 million metric tons and was

valued at a record $3.8 billion.* Seafood is a significant

component of the American diet, and a major sector of

the economy. In 1995, Americans consumed an average of

15 pounds of seafood per person, and spent a total of

$38.6 billion.”

Coastal wetlands are crucial for the existence of

many birds, ranging from waterfowl, wading birds, and

shorebirds to wetland-dependent songbirds. Some spend

their entire lives in wetland environments, while others

4 Teal, J.M., Salt Marshes: They Offer Diversity of Habitat, 14

Oceanus 13 (1996)

* Id. at 55. Among the more familiar wetland-dependent

fishes are menhaden, bluefish, flounder, white perch, sea trout,

mullet, croaker, striped bass, and drum.

® Oceans and Coastal Resources: A Briefing Book, 23

Congressional Research Service Rep. 97-588ENR (1997)

(Hereafter, Oceans and Coastal Resources)

7 Id. at 35.

primarily use these areas for breeding, feeding or rest-

ing.®

The survival of many rare, threatened and endan-

gered plants and animals depends upon coastal marshes.

About 50% of the animals and 28% of the plants listed as

threatened and endangered species under the Endan-

gered Species Act, 16 U.S.C. § 1331, are wetland-depen-

dent.’ According to the Rhode Island Natural Heritage

Program, approximately one-third of all the State’s rare

plants occur in salt marshes and estuarine waters.!°

Water Quality

Wetlands help maintain water quality in several

ways: (1) by removing, retaining, and transporting nutri-

ents such as nitrates and phosphates, (2) by processing

chemical and organic waste, and (3) by reducing sedi-

ment loads.'! Wetlands are particularly good water filters

because of their location between fast land and open

8 A recent survey of birds at the Galilee Bird Sanctuary in

Narragansett, R.I. revealed 76 species of waterbirds and 42

species of landbirds. Key wetland-dependent breeding birds

included Green Heron, American Black Duck, Mallard, Clapper

Rail, King Rail, Killdeer, Willet, Marsh Wren, and Saltmarsh

Sharp-tailed Sparrow. Myshrall, D.H.A. et al., Salt Marsh

Restoration Monitoring at the Galilee Bird Sanctuary, Narragansett,

R.I., 17-19 (2000)

9 Niering, W.A., Endangered, Threatened, and Rare Wetland

Plants and Animals of the Continental United States, National

Wetlands Newsletter, 16-19 (May-June 1987)

10 Id. at 55.

1! Lee, G.F. et al., Effects of Marshes on Water Quality, in

Coupling of Land and Water Systems (A.D. Hastler, ed.) (1975)

water. They can intercept runoff from land before it

reaches water and help filter-out nutrients, wastes and

sediment. !2

Perhaps the best known demonstration of the purify- |

ing capabilities of wetlands is Tinicum Marsh, a 512 acre

tidal marsh lying south of Philadelphia, Pennsylvania.

Three sewage treatment plants discharge treated waste

into the marsh. On a daily basis, the marsh removes 8

tons of biological oxygen demanding waste, 5 tons of

phosphorous, 4 tons of ammonia, and 138 pounds of

nitrate. In addition, the marsh adds 20 tons of oxygen to

the water each day.'3

| Coastal wetlands also play a valuable role in reduc-

ing turbidity of flooding waters. This is especially impor-

tant for aquatic life and for reducing siltation of ports

harbors, rivers, and reservoirs. Removal of sediment load

is also valuable because sediments often transport

adsorbed nutrients, pesticides, heavy metals, and other

toxins.

Flood and Shoreline Erosion Control

Coastal areas are particularly susceptible to floods

and storms, as discussed in greater detail below. Coastal

'2 See generally, Greeson, P. B. et al., W

| " » RB. -, Wetland Functions and

score The State of Our Understanding, Proceedings of the

ational Symposium on Wetlands, November 7-10, American

Water Re

Values) sources Assn. (1979) (Hereafter, Wetland Functions and

‘8 Wetlands of Rhode Island, supra n.3, at 58.

marshes and floodplains, because of their strategic loca-

tion between the open ocean and upland, help protect

upland areas from erosion while providing other valuable

ecosystem services. Wetland vegetation can reduce shore-

line erosion in several ways, including (1) anchoring sedi-

ments, (2) dampening wave action through friction, and

(3) reducing current velocity through friction." Coastal

marshes and barrier beaches are far more resilient to

erosion than adjacent upland areas. They tend to recover

over time as a result of sedimentation and accretion

induced by tidal flow during quiet periods. Uplands,

once eroded, have little or no potential for recovery

except through human effort. The economic benefits of

these functions are substantial. Property owners within

the coastal zone receive reciprocal benefits from main-

taining the integrity of these natural flood control and

storm buffering features of the salt marsh ecosystem.

Climate Control

Wetland soils typically are highly organic and serve

as “sinks” for carbon.'5 As these soils are drained or

otherwise disturbed, they tend to oxidize, releasing car-

bon dioxide to the atmosphere and contributing to global

warming. An overwhelming majority of scientists now

14 Knudson, P.L., et al., Wave Dampening in Spartina

Alterniflora Marshes, Wetlands (Journal of the Society of Wetland

Scientists) 2:87-104 (1982)

15 Friedman, R.M. and DeWitt, C.B., Wetlands as Carbon and

Nutrient Reservoirs: A Spatial, Historical, Social Perspective, in

Wetland Functions and Values, supra n.12, at 175-85.

believe that anthropogenic (human) sources of carbon

dioxide and other “greenhouse gases” are at least partly

responsible for the documented increases in the earth’s

temperatures and changing weather patterns around the

globe.'° The Intergovernmental Panel on Climate Change

(IPCC), a United Nations advisory group comprised of

2500 scientists, recently revised their projected warming

trends upwards with a consequent increase in negative

environmental impacts from such effects as rising sea

levels. It is now widely accepted that sequestration of

carbon in natural systems such as wetlands and forests is

a critical component of any successful strategy to deal

with the pressing problem of global warming.!”

Recreation and Aesthetics

Many recreational activities take place in or around

wetlands. Hunting and fishing contribute significantly to

the local and national economies. In 1996, 77 million U.S.

'e As the Chairman of the Intergovernmental Panel on

Climate Change recently reported to the United Nations:

[T]he overwhelming majority of scientific experts,

whilst recognizing that scientific uncertainties exist,

nonetheless believe that human-induced climate

change is already occurring and that future change is

inevitable. It is not a question of whether the Earth’s

climate will change, but rather by how much, how

fast and where.

IPCC, Report to the Sixth Conference of the Parties of the United

Nations Framework Convention on Climate Change, November

20, 2000.

17 See, IPCC, Special Report on Land Use, Land Use

Changes, and Forestry (1998)

residents participated in wildlife-related recreation activ-

ities..8 During that year 35.2 million people fished, 14

million hunted, and 62.9 million enjoyed at least one type

of wildlife-watching activity. Expenditures associated

with wildlife-related recreation totaled $101 billion in

1996.19

It is much harder to put a dollar value on the sheer

beauty of the coast, and the sense of awe and wonder it

inspires. Perhaps the image painted by naturalist-author

John Hay will suffice:

I sat on the sands and listened to the sonorous

heave and splash of low waves. The sun, like a

colossal red balloon filled with water, was sink-

ing in to the horizon. It swelled, flattened, and

disappeared with a final rapidity, leaving a

foaming, fiery band behind it. I suddenly heard

the wild trembling cry of a loon behind me, and

then saw it fly over heading north. The wind

grew cool, after a hot day when the light shone

on metallic, glittering slow waters, and sharp,

pointed beach grasses clicked together, while I

watched the darkness fall around me.?°

18 U.S. Fish and Wildlife Service, 1996 National Survey of

Fishing, Hunting, and Wildlife-Associated Recreation, 4 (1997).

19 Id.

20 John Hay, An Imagined Frontier, in The Great Beach (1964)

10

B. The Ecological Effects of Salt Marsh Destruc-

tion

According to current estimates by the U.S. Fish and

Wildlife Service (USFWS), only 5.1 million acres of

estuarine inter-tidal wetlands remain in the coterminous

United States.?! This figure represents about 5% of the

nation’s total wetlands resource.22

Between the 1950’s and 1970’s, New England saw a

major loss of coastal wetlands. For example, some 10 % of

Rhode Island’s coastal wetlands greater than 40 acres

were filled between 1955 and 1964.23 In response, coastal

states began enacting wetlands protection laws. Rhode

Island passed the nation’s first Inter-tidal Salt Marsh Act

in 1965. P.L. 1965 ch. 140, sec 1, G.L. 1956 sec 2-1 through

2-17. In 1971, Rhode Island became the first state to enact

21 Opheim, T., Wetland Losses Have Continued but Have

Slowed, National Wetlands Newsletter, 7-9 (November-December

1997)

*2 Nationwide, wetlands have been disappearing at a rapid

rate throughout most of the nation’s history. USFWS estimates

that 104 million acres remains of the 220 million that existed

when the country was first settled. Office of Technology

Assessment, Wetlands: Their Use and Regulation, 87 (1984).

Between the 1950’s and 1970's the rate of loss was over 500,000

acres per year. Frayer, W.E., et al., Status and Trends of Wetlands

and Deepwater Habitats in the Coterminous United States,

1950’s to 1970's, U.S. Department of Interior (1983). This trend

has slowed considerably thanks to stronger wetland protection

laws. Between 1985 and 1995, the net loss was 117,000. See, Dahl,

T.E., Wetlands: Status and Trends in the Coterminous United

States, mid 1970's to mid 1980’s U.S. Department of the Interior

(1991)

23 The State of Rhode Island Coastal Resource Management

Plan, 57 (1990)

11

a comprehensive Coastal Resources Management Act,

which established the Coastal Resource Management

Council (CRMC). P.L. (1971) ch.279 sec 1, G.L. (1956)

chapter 23 of title 46. In fact, Rhode Island’s concern for

protecting coastal resources dates back even further.

There were laws on the books as early as 1798 protecting

salt ponds. Rev. Pub. Laws, pp 492-97 (1798). Since 1938,

the state has prohibited the introduction of “every sub-

stance that would injuriously affect the natural and

healthy propagation, growth, or development of any fish

or shellfish in the waters of the state.” G.L. (1938) ch. 634,

Sec 1.

Today the major causes of coastal wetland losses are

urban development and encroachment of coastal water

caused by dredging projects, impoundments, and sea

level rise. The case at bar is an example of the kind of

development that would do great damage to our remain-

ing salt marshes. Petitioner seeks permission to construct

a bulkhead on the shore of Winnapaug Pond and fill

approximately 18 acres of salt marsh in order to create a

74 lot subdivision. The marsh on Petitioner's property is

part of a 160 acre salt marsh complex that extends from

Weekapaug on the east to Misquamicut on the west,

bordering the southern shore of Winnapaug Pond. J.A. 7.

The record reveals that this is “one of the more valuable

tidal salt marshes in Rhode Island.” J.A. 35. The marsh is

“extremely valuable in terms of plant species that grow

there and as habitat for birds.” J.A. 35. According to the

Field Biologist’s report:

There is overwhelming evidence that the biolog-

ical communities indigenous to this coastal wet-

land will be seriously and deleteriously effected

12

(sic) by the proposed filling and bulkheading

activity. Valuable wildlife habitat will be

destroyed outright, habitat necessary for the

survival and maintenance of the shellfish and

finfish populations will be lost, and there is a

very reasonable probability that a species of

bird and two species of plants now listed as

species of significance will be eliminated from

the area. J.A. 4.

The 18 acres of marsh on Petitioner’s property repre-

sents 12% of the salt marsh associated with Winnapaug

Pond. Given the relatively small size (approximately 2000

acres) of the pond’s watershed, this is a “highly signifi-

cant number” according to the expert testimony before

the Rhode Island Coastal Resources Management Council

(CRMC). (J.A. 35) Filling the marsh “would destroy the

natural shoreline protection, decrease sediment trapping

and accretion, decrease flood storage, and eliminate or

greatly reduce nutrient retention.” (J.A. 27)

The impacts on Winnapaug Pond are cause for

serious concern. Salt ponds are shallow, productive

estuarine embayments separated from the ocean by a

narrow barrier spit. They provide prime habitat for com-

mercial and recreational fish and shellfish, as well as

resting and feeding stops for waterfowl, wading birds,

shorebirds and other wetland-dependent birds migrating

along the Atlantic flyway. Rhode Island’s salt ponds have

been an important source of fish and shellfish for people

long before recorded histories. Archeological evidence

from the 1600’s indicates the tremendous bounty yielded

to the native peoples that first used these areas and to the

13

colonists that followed.2* These ponds have been an

important factor in the quality of life for local residents

and a prime recreational attraction for tourists in the

region.

C. Water Quality and Public Health Impacts of

Coastal Development

Rhode Island’s salt pond region, which includes Win-

napaug Pond, is especially vulnerable to water quality

problems related to the density and distribution of devel-

opment within the relatively small watersheds of the

ponds.?> Bacterial contamination and nutrient enrichment

are the primary threats to water quality. Indeed, these are

the principal water quality problems of other estuaries all

along our nation’s coasts. More square miles of estuarine

waters are polluted by nutrients and bacteria than any

other type of contaminant.?¢

Sewage disposal through septic systems is a major

documented source of nitrogen and bacteria loading for

many coastal environments.” Failing and substandard

24 Virginia Lee, An Elusive Compromise: Rhode Island

Coastal Ponds and Their People, 22 (1980)

25 Coastal Resources Management Council, Rhode Island's

Salt Pond Region: A Special Area Management Plan, 25 (1984).

26 U.S. Environmental Protection Agency, National Water

Quality Inventory: 1994 Report to Congress, 11 (1995)

27 Nixon, S.B., et al., Nutrient Inputs to Rhode Island Coastal

Lagoons and Salt Ponds: Final Report to Rhode Island Statewide

Planning (1982); Nixon and Pilson, Nitrogen in Estuarine and

Coastal Marine Ecosystems, in Nitrogen in the Marine

Environment (1983)

14

individual sewage disposal systems (ISDS) and resultant

contaminated runoff are the principal sources of bacterial

contamination to the salt ponds. In fact ISDS’ contribute

almost ten times as much as any other source of nitro-

gen. Most of the existing residential and commercial

development in the salt pond region, including the Win-

napaug Pond watershed, rely upon ISDS for disposal of

sewage. Petitioner's development would also rely on

ISDS. J.A. 8

Excess input of nutrients leads to eutrophication of

water bodies. In marine ecosystems nitrogen is the essen-

tial nutrient that stimulates plant growth. As nutrient

loading increases in salt ponds, massive growth of algae

occurs and the dissolved oxygen necessary for aquatic

life is depleted. During extreme low oxygen events,

hypoxia (less than 3 mg of oxygen per liter) or anoxia (all

the dissolved oxygen is consumed) can occur with conse-

quent fish kills, reduced biodiversity of fish and shellfish

populations, mass mortality of benthic organisms, bacte-

rial slimes, foul smelling odors, and in some cases toxic

levels of hydrogen sulfide.2® Eutrophication of estuaries

has become a major issue in Rhode Island and other

coastal states.*°

28 CRMC, Rhode Island’s Salt Pond Region: A Special

Management Plan (Maushaug to Point Judith Ponds), ch. 1, at 6

(1999) (Hereafter, Salt Pond SAMP).

2? Nixon, Scott W., Coastal Marine Eutrophication: A

Definition, Social Causes, and Future Concerns, Ophelia 41:199-219

(1995)

% Virginia Lee and Stephen Olson, Eutrophication and

Management Initiatives for the Control of Nutrient Inputs to Rhode

Island Coastal Lagoons, Estuaries Vol. 8 No. 2B, 191-202 (1995)

ee

15

Excess loading of nitrogen to groundwater also cre-

ates serious public health problems. Nitrogen in ground-

water takes the form of nitrate, a very stable anion that is

relatively unaffected in the subsurface environment. A

high level of nitrate in groundwater is a public health

problem since groundwater is the sole source of drinking

water for public water supplies and private wells

throughout the salt pond region.*! In some areas around

salt ponds, nitrate levels already exceed safe thresholds

for drinking water.*?

In inland areas, the solution to these problems might

be to build a public sewer system. However, sewer sys-

tems encourage high density development and increase

runoff contamination of adjacent water bodies. Sewers

are an appropriate solution for urbanized areas where

other alternatives are no longer available, but not for

areas such as the salt pond region where less dense

development is both feasible and desirable. Adequate

buffer zones are needed around the salt ponds, their

tributaries and wetlands to help control nitrogen contam-

ination.*9 -

31 Salt Pond SAMP, supra n.28, at Ch 3.

32 Id.

33 Desbonnet, A.P., et al., Vegetated Buffers in the Coastal

Zone: A Summary Review and Bibliography, University of

Rhode Island Coastal Resources Center and Rhode Island Sea

Grant, 61 (1994).

16

D. The Hazards of Coastal Development

People are drawn to the coast. Nearly 50% of the U.S.

population resides in coastal areas.*4 From 1960-1990, the

population in U.S. coastal areas increased from 80 to 110

million and is projected to reach 127 million by 2010.35

Significant economic activity and growth has’ occurred as

coastal residential, commercial, and recreational develop-

ment has accelerated in recent decades. For example,

approximately 50% of annual U.S. residential construc-

tion during the past two decades occurred in coastal

areas.** Much of this development has been encouraged,

whether intentionally or not, by government-funded

infrastructure developments such as highways, water and

sewer service, causeway access, and beach nourish-

ment.*” Federal programs such_as the National Flood

Insurance Program and the Federal Disaster Assistance

Program have subsidized the risk of loss from floods and

storms.**

This increasing concentration of development along

the Nation’s coasts entails a risk to life and property from

major storms. For example, hurricane Andrew, one of the

most devastating natural disasters to strike the United

States, roared across southern Florida and into the low-

34 Oceans and Coastal Resources, supra n.6, at 41.

35 Id.

36 Id.

37 The H. John Heinz III Center for Science, Economics and

on = The Hidden Costs of Coastal Hazards, 19

38 Id.

17

lying coastal areas of Louisiana in August 1992, destroy-

ing 28,000 homes, leaving 180,000 temporarily homeless,

and affecting the lives of 275,000 residents of these two

states.3? This one storm did an estimated $30 billion in

damage. Hurricane Hugo, the 1989 storm that struck the

U.S. Virgin Islands and Puerto Rico, and came ashore at

Charleston, South Carolina, caused damage estimated at

$6 billion.” On average, two hurricanes strike the U.S.

coast each year, with two intense storms (like Andrew

and Hugo) hitting every three years.

Rhode Island is particularly susceptible to hurricane

damage. Unlike many Atlantic coastal states, its ocean

shoreline runs east-west and lies exposed to the full force

of a tropical storm approaching from the south. It is

directly in the path of most hurricanes that reach New

England before the storm tracks veer east over the North

Atlantic, and it is unprotected by large islands such as

Long Island, Fisher’s Island or Martha’s Vineyard that lie

off other stretches of mainland to the north and south.*!

In the Great Atlantic Hurricane of 1938, the southern

shore of Rhode Island experienced winds and waves of

the greatest speed and height recorded anywhere in New

England.‘42 Over 300 people lost their lives. Nearly 2000

homes were destroyed. Property damage exceeded $100

million. The storm reshaped the coastline, pushing the

39 Id. at 65.

40 Id. at 63.

41 Brown, C., Hurricanes and Shoreline Changes in Rhode

Island, in Hurricane in Southern New England (Gordon, B. ed.)

14-28 (1976)

42 Id.

18

large dunes at Weekapaug back fifty feet, eroding the

cliffs at Watch Hill by thirty-five feet, and inundating the

salt ponds and wetlands. The area around Winnapaug

Poni, including the property now owned by Petitioner,

was completely flooded out.

According to the U.S. Army Corps of Engineers, 71

hurricanes have struck Rhode Island’s shore since 1635

with an average frequency of one every seven years.* Of

course hurricanes do not stick to any schedule. After the

disastrous 1938 hurricane, many of the coastal areas were

rebuilt, additional “armoring” was installed, and then

Hurricane Carol struck in 1954, killing 19 people, destroy-

ing 3800 houses, sweeping the barrier clean, and causing

another $90 million in damage.

Hurricanes are not the only threat to coastal develop-

ment. Sea levels have been steadily rising as a result of

thermal expansion of the oceans and the melting of gla-

ciers and ice sheets in response to global warming.*> Sea

#3 U.S. Army Corps of Engineers, Hurricane Survey Interim

Report, Narragansett Pier, Rhode Island, GPO (1960)

“4 The Providence Journal, p. 1 (Sept. 8, 1954).

45 Global average temperatures have increased by 1.1

degree F since 1900. During that same time period carbon

dioxide emissions have increased by 30%. The decade of the 90’s

was the hottest one on record and 1997 was the hottest year ever

recorded. Increased globai temperatures are expected to

increase the number and severity of extreme weather events

such as floods, hurricanes and tornadoes. According to the 1995

Report of the IPCC, sea levels are expected to rise by 1 meter by

2100. IPCC, Working Group I, The Science of Climate Change

(Second Assessment Report) (1995); A. Revkin, Scientists Now

Acknowledge Role of Humans in Climate Change, The New York

19

level is rising more rapidly along the U.S. coast than

worldwide. Studies by EPA and others have estimated

that along the Gulf and Atlantic coasts, a one foot rise in

sea level is likely by 2050 and could occur as early as

2025. A sea level rise of one foot would increase the size

of the 100-year floodplain in the U.S. from 19,500 square

miles to 23,000 square miles, and increase flood damages

by 36-58 percent.

Rising sea levels will continue to inundate wetlands

and lowlands, accelerate coastal erosion, exacerbate

coastal flooding, threaten coastal structures, raise water

tables, and increase the salinity of rivers, bays and aqui-

fers. For example, studies have shown that a one meter (3

foot) rise on the Atlantic coast would result in the erosion

of from 50 to 100 meters from New England to Maryland.

This would enable a 15-year storm to flood many areas

that would otherwise only be flooded by a 100-year

storm.*” Nationwide, the total cost of damages from a sea

level rise of one meter would be $270-475 billion, ignor-

ing future development.*

Times, A-1 (October 26, 2000); R. Peters and T. Lovejoy, Global

Warming and Biological Diversity, xii-xiv (1993)

4 See, Hoffman, J.S., D. Keyes, and J.G. Titus, Projecting

Future Sea Level Rise, U.S. Environmental Protection Agency

(1995); Titus, J.G. and Vijay Narayanan, The Probability of Sea

Level Rise, U.S. Environmental Protection Agency (1995).

47 Kana, T.W., et al., The Physicai Impact of Sea Level Rise in

the Area of Charleston, South Carolina in Barth and Titus,

Greenhouse Effect and Sea Level Rise: A Challenge for This

Generation (1984)

48 Titus J.G., et al., Greenhouse Effect and Sea Level Rise: The

Cost of Holding Back the Sea, Coastal Management 19:171 (1991)

20

With potential costs of this magnitude, there will be

tremendous social and political pressure to “armor-plate”

the beach with levees and bulkheads, and to expand

“beach nourishment” projects (i.e. importing replacement

sand).4? But the environmental costs of such engineering

would be enormous. Bulkheading and filling along the

inland perimeter of a marsh prevents inland migration of

wetland vegetation as sea level rises. This kind of struc-

tural approach would eliminate most of the nation’s

coastal wetlands. A more prudent approach would be to

avoid, or if necessary to restrict, intensive development

in high hazard areas such as the one involved here.

States like Rhode Island find themselves caught

between opposing forces in dealing with these problems.

On the one hand, Congress, in the Coastal Zone Manage-

ment Act of 1972 (CZMA), 16 U.S.C. § 1451, has stated a

national policy to “encourage the states to exercise effec-

tively their responsibilities in the coastal zone through

the development and implementation of management

programs to achieve wise use of the land and water

resources of the coastal zone.” 16 U.S.C. § 1452(1). Such

programs must provide for “the protection of natural

resources, including wetlands, floodplains, estuaries,

beaches, dunes, barrier islands, coral reefs and fish and

wildlife and their habitat within the coastal zone,” as well

as “minimize the loss of life and property caused by

improper development in flood-prone, storm surge, geo-

logical hazard and erosion-prone areas.” 16 U.S.C. § 1452

(2). As mentioned, Rhode Island led the way by adopting

49 Id., at 209.

50 Id.

21

a coastal zone management program one year before

enactment of the CZMA.

In 1996, Congress amended the CZMA to add a spe-

cial program to control “nonpoint” source pollution in

the coastal zone. 16 U.S.C. § 1455b. This provision directs

states to prepare and adopt “management measures” to

control the addition of pollutants from new and existing

sources — including septic systems - that reflect “the

greatest degree of pollutant reduction achievable through

the application of the best nonpoint pollution control

practices,” including siting criteria for new development.

16 U.S.C. § 1455b(g)(5). Failure to adopt such controls

results in loss of financial assistance to implement the

overall CZMA program. 16 U.S.C. § 1455b(c)(3).

Congress has further decreed that, to qualify for

insurance coverage under the National Flood Insurance

Program, states and local communities must adopt strict

floodplain management requirements including perfor-

mance standards for new construction and a prohibition

on unnecessary and incompatible developments in spe-

cial flood hazard areas as listed on the Flood Insurance

Rate Maps required by the Flood Insurance Act. 42 U.S.C.

§ 4784.

On the other hand, when states like Rhode Island,

which has been diligent and thorough in its approach to

dealing with these difficult problems, take the steps

called for under these national policies and programs,

they are sometimes met, as here, with outraged owners of

coastal property demanding the right to do the very

things that sound coastal management says they should

not do. The fact is that Petitioner’s property is not an

22

island separate and apart from the rest of the coastal

system. Land is not merely a commodity, to be bought

and sold; it is also a community of living organisms,

human and non-human, to be respected and properly

cared for. What happens on Petitioner’s land has tremen-

dous spillover effects on other landowners and on the

ecological system which supports everything that exists

in the coast.

On the Flood Rate Maps the area in which Peti-

tioner’s property is located is labeled “V Zone” which

stands for “high hazard zone.” J.A 26. There is good

reason for the label, and the State of Rhode Island had

good cause to reject Petitioner’s proposal to place still

more lives and property at risk from the next storm to

come sweeping up the coast.

¢

CONCLUSION

For the foregoing reasons, amici urge the Court to

uphold the judgment of the Supreme Court of Rhode

Island.

Respectfully submitted,

Patrick A. PARENTEAU*

VERMONT Law SCHOOL

South Royalton, VT 05068

(802) 763-8303

*Counsel of Record

Attorney for Amici Curiae

App. 1

APPENDIX A

BIOGRAPHIES OF AMICI

Dr. John M. Teal is a Scientist Emeritus at Woods Hole

Oceanographic Institution where he was Chair of Biology.

He is a recipient of the National Wetlands Award for

Science Research from the Environmental Law Institute,

U.S. Environmental Protection Agency, U.S. Fish & Wild-

life Service, and National Marine Fisheries Service, and

the 1999 Odum Award from The Estuarine Research Fed-

eration. The author of over 140 scientific publications, his

1969 book, Life and Death of a Salt Marsh, played a major

role in increasing public awareness of the importance of

wetlands. He is a past president of the Society of Wetland

Scientists, and is also a member of Ecological Society of

America, Estuarine Research Federation, Society for Eco-

logical Restoration, American Association for the Advan-

cement of Science, Ecological Engineering Society, and

Society of Limnology and Oceanography

Dr. R. Scott Warren holds the Temple Chair in the

Department of Botany at Connecticut College. He

received his Ph.D. from the University of New Hamp-

shire, and has worked in tidal wetlands for over 25 years,

where his research has focused on salt and brackish

marsh vegetation dynamics, impacts of sea-level rise,

tidal wetland restoration, and effects of Phragmites inva-

sion on angiosperm community structure, invertebrate

populations and fish. He teaches courses in tidal marsh-

estuarine ecology, and has appeared in numerous peer-

reviewed publications and scientific meeting presenta-

tions. He is currently on the editorial board of the journal

Estuaries and served in a similar capacity for the journal

App. 2

Wetlands from 1992 — 1996. He has been president of the

New England Estuarine Research Society, the Northeast

Section of the American Society of Plant Physiologists,

and a member of the Governing Board of the Estuarine

Research Federation.

Dr. Francis Golet is Professor of Wetland Ecology in the

Department of Natural Resources Science at the Univer-

sity of Rhode Island. Dr. Golet is co-author of the Classi-

fication of Wetlands and Deepwater Habitats of the United

States, a publication that was adopted as a National Stan-

dard by the Federal Geographic Data Committee of the

Office of Management and Budget in 1996. His principal

areas of research expertise include: wetland classification,

wetland wildlife habitat assessment, forested wetland

ecology, ecology and conservation biology of wetland

songbirds, wetland vegetation dynamics, and wetland

restoration. In 1988 he received the Rhode Island Coastal

Conservation Award from the Rhode Island Coastal

Resources Management Council. For the last 9 years Dr.

Golet has been Principal Investigator for one of the larg-

est salt marsh restoration projects in New England, at

Galilee, Rhode Island; in 1999 he and his research team

received a Coastal America Partnership Award for their

accomplishments in this successful project.

Dr. Jon C Boothroyd is a Professor of Geology at the

University of Rhode Island and the Rhode Island State

Geologist. He served as the National Chair of the Geolog-

ical Society of America, Northeastern Section, Associate

Editor of the Journal of Sedimentary Research, Panel mem-

ber of the Quaternary Geology and Geomorphology Divi-

sion of the Geological Society of America, and President

of the Society for Sedimeritary Geology. He is primarily a

App. 3

field geologist specializing in coastal, braided river, and

various glacial environments with 35 years of field expe-

rience in New England, South Carolina, Alaska, Iceland,

Saudi Arabia, Madagascar, Ecuador and Mexico. He

wrote the coastal hazards section of the Rhode Island

Coastal Resources Management Plan, a special area man-

agement plan for the Salt Ponds of Rhode Island, and an

atlas and habitat inventory/resource mapping for Nar-

ragansett Bay and associated coastlines.

Dr. Joy Zedler is the Aldo Leopold Professor of Restora-

tion Ecology at the University of Wisconsin-Madison

Arboretum and Botany Department, and is the Director of

Research for the UW-Madison Arboretum. Dr. Zedler’s

research interests include restoration and wetland ecol-

ogy, role of biodiversity in ecosystem function, use of

mesocosms in wetland research, invasive plants, and

adaptive management. She helps edit four peer-reviewed

journals (Ecological Applications, Wetlands Ecology and

Management, Ecological Engineering, and Ecosystems). She

is a member of Ecological Society of America, Estuarine

Research Federation, Society for Ecological Restoration,

Society of Weiland Scientists. Dr. Zedler collaborates on

research to improve the effectiveness of salt marsh resto-

ration in southern California, and recently published

Handbook for Restoring Tidal Wetlands (J. Zedler, ed. 2000.

CRC Press).

Dr. Scott Nixon is Professor of Oceanography at the

University of Rhode Island, and Director of the Rhode

Island Sea Grant program. He is a recipient of the New

England Estuarine Research Society award for outstand-

ing contributions to estuarine research, the First “Wiese

App. 4

Lecturer” in Marine Science from the University of South-

ern Alabama, and the B. H. Ketchum Award for excel-

lence in coastal research from the Woods Hole

Oceanographic Institution. He is o-editor-in-Chief of the

journal ESTUARIES, and a member of the National

Research Council’s Ocean Studies Board, and Committees

on the Coastal Ocean, the Role of Terrestrial Ecosystems

in Global Change, and the Restoration of the Greater

Everglades Ecosystem (Vice Chair). He is also a member

of the American Society of Limnology and Oceanography,

American Society of Environmental History, and the

Estuarine Research Federation, and the author of

numerous publications on the coastal ecosystem includ-

ing, A Coastal Marine Ecosystem: Simulation and Analysis

(Ecological Studies, 1978), Coastal marine eutrophication: A

definition, social causes, and future concerns, (Ophelia 1995)

Dr. Orrin Pilkey is the James B. Duke Professor emeritus

of Earth and Ocean Science, and the Director of the

Program for the Study of Developed Shorelines in the

Nicholas School of the Environment at Duke University.

Dr. Pilkey has written more than 200 publications on

shoreline processes, erosion, barrier islands and coastal

management issues including the Corps and the Shore

(Island Press), and Living by the Rules of the Sea (Duke

Press). He is a recipient for numerous awards including

the Francis Shepard medal for excellence in marine geol-

ogy, the American Association of Petroleum Geologist’s

George V. Cohee Public Service Award, the American

Ecological Institute’s Outstanding Public Communication

Award, the Federal Emergency Management Agency’s

Outstanding Public Service Award, and the Geological

Society of America’s Public Service Award. He is the

Smee s

App. 5

former president of the Society of Sedimentary Geology,

president of the North Carolina Academy of Science,

member of the council of the Geological Society of Amer-

ica, and co-editor and author of the 22-volume Journal of

Sedimentary Petrology.