The Climate Resilient Development Framework was created by Professor John Nolon, Distinguished Professor of Law Emeritus, alongside Research Scholars at the Land Use Law Center. The Framework is a compilation of land use policies from across the United States that advance Climate Resilient Development (CRD). CRD is relied upon by the “Intergovernmental Panel on Climate Change (IPCC) as a primary method of managing climate change.” CRD incorporates adaptation, mitigation, resilience, enabling conditions, and equity to promote climate change-friendly land use planning. The CRD GreenLaw series highlights case studies from the Framework and is led by Land Use Law Center Research Scholars.
Retreat from Flooding
The frequency and intensity of flood events in the United States is increasing, due to factors like sea level rise and changing rainfall patterns. In the wake of major disasters, flood-prone communities are faced with a decision: rebuild in place, or relocate? Rebuilding in place, perhaps with more flood-resistant materials or designs, may be cheaper and more convenient than relocating entire communities. However, avoiding future flood damage may necessitate relocation for some communities.
In land use law, managed retreat refers to the strategic relocation of buildings, infrastructure, and communities away from areas at high risk of exposure to natural hazards, such as flooding. This approach allows natural processes, like shoreline erosion or migration due to sea level rise, to occur without interference from human development. Thus, retreat is an alternative to often-insufficient protective measures like levees and seawalls. It is a proactive strategy for mitigating risks associated with climate change and increased flood frequency.
While effective in theory, local governments have faced several challenges in implementing managed retreat policies. The primary issue is cost: it can be prohibitively expensive to relocate and rebuild entire communities and business centers. The Federal Emergency Management Agency (FEMA) offers funding for such efforts through its Hazard Mitigation Grant Program and its Flood Mitigation Assistance Grant Program. FEMA accepts applications from local governments, and selects projects that are cost-effective and designed to reduce the risk of damage from recurring floods.
The City of Fair Bluff, North Carolina, has used FEMA funding to build a new commercial district. Located in the floodplain of the Lumber River, Fair Bluff has experienced repeated flooding over the years. Particularly devastating for Fair Bluff was Hurricane Matthew in 2016, which caused flooding that destroyed many downtown businesses. The new “Uptown” commercial district is only a few blocks away from the old downtown, but sits several feet higher than the city’s highest recorded flood elevation. Many businesses have moved into the new space, which opened in 2024.
Taholah Village, located on Washington’s Olympic Peninsula, has also benefited from FEMA funding. Taholah’s proximity to the Pacific coast and the Quinault River has left it vulnerable to both tsunamis and storms. The Quinault Indian Nation initiated a project in 2017 to move the village inland and upgradient from its original site. In 2022, Taholah received $25 million in federal funding to support the relocation. Significant construction has occurred at the new site, which is located about a mile inland.
Another challenge to the implementation of managed retreat is the takings clause of the 5th Amendment, which prohibits the government from taking private property for public use unless “just compensation” is paid. Takings are relevant to managed retreat strategies when, for example, laws forbid or severely restrict development in floodplains or coastal areas. In Lucas v. South Carolina Coastal Council (1992), the Supreme Court considered whether the state’s Beachfront Management Act, which prohibited building on certain coastal land to prevent beach erosion, constituted a taking of the appellant’s land. The court held that a categorical taking occurs, and thus that the government must provide just compensation, when government action completely deprives a property owner of all economically beneficial and productive use of their land. Yet this type of complete taking seems to be one of the only means of controlling development in floodplains and coastal areas.
Modern government land buyout programs are designed to balance this tension between private property rights and land use control in floodplains and coastal areas. They ensure that property owners are fairly compensated while adhering to constitutional and statutory safeguards, including provisions for just compensation and procedural fairness. New Jersey Department of Environmental Protection’s (DEP) Blue Acres Program has found great success as a voluntary buyout program, and has bought over 1,000 homes to date. The acquired land is held as permanent open space and acts as a buffer to protect nearby communities from flooding. Mecklenburg County, North Carolina, has implemented a similar Floodplain Buyout Program, which has purchased nearly 500 homes in floodplains, avoiding an estimated $50 million in losses.
The Village of Sidney, New York, has acquired floodplain land along the flood-prone Susquehanna River, but has gone beyond buyouts alone. The Sidney GreenPlain project was launched after destructive floods in 2006 and 2011. The project is committed not only to land acquisition, but to floodplain restoration and the construction of flood-resistant apartment buildings outside the floodplain. Sidney has partnered with the Nature Conservancy to restore wetlands in the floodplain that are capable of storing 12 million cubic feet of floodwater and stormwater. So far, 100 floodplain properties have been acquired and 60 new apartments have been erected outside the floodplain. Wetland restoration work in the floodplain will begin this year.
Other challenges stem from culture and tradition, illustrating the complexity of implementing managed retreat strategies. The residents of Princeville, North Carolina, rejected a government buyout and relocation proposal after Hurricane Floyd wreaked havoc upon the town in 1999. Cultural pride runs deep in Princeville, which in 1885 became the first U.S. town to be founded by freed slaves.The residents feared that relocating would cost them elements of their shared heritage, and they were willing to face the risk of flooding. Nonetheless, recurring flood damage since 1999 has led to the development of a new comprehensive plan that calls for movement away from high-flood-risk areas.
Despite various obstacles, managed retreat strategies have successfully moved a number of flood-prone communities out of harm’s way. With rising seas and more severe storm events predicted for the coming years, other communities in coastal and floodplain landscapes would benefit from a survey of the methods used by Fair Bluff, Taholah Village, New Jersey DEP, Mecklenburg County, and others. When the waters rise, these towns will be high and dry.
Retreat from Wildfire
Though typically associated with flood hazards, managed retreat strategies have also been explored by communities faced with the risk of wildfire. Climate change has produced increases in fire frequency and intensity over the past few decades, and these trends are expected to continue. Western states such as California and Arizona are especially at risk, since they are located in fire-adapted ecosystems. The natural systems in these regions depend on regular burning to promote biodiversity, but are damaged by the massive wildfires that result from poor land management practices and climate change. Human life, infrastructure, and biodiversity are all at risk.
When it comes to implementing retreat strategies, fire-prone communities face challenges similar to those faced by flood-prone communities: funding hurdles, takings challenges, and strong relationships between culture and place. Similar solutions to these challenges have been found in FEMA grants and voluntary government buyout programs. However, two important differences are noteworthy. First, fire-prone land that is abandoned through a land-buyout program may increase a community’s wildfire risk, while abandoned floodplain land is more likely to decrease flood risk. In the case of floodplain or coastal plain land buyouts, the purchased land immediately becomes a buffer between floodwaters and development. Of course, the buffer’s effectiveness can increase if the purchased land is repurposed and managed as a wetland, but mere abandonment can reduce flood risk by placing distance between people and floodwaters. Some research indicates that the same is not true of abandoned land in fire-adapted ecosystems. Cessation of all land management practices in such ecosystems has been associated with increased fuel buildup and higher fire frequency, suggesting that purposeful management (e.g. prescribed burning) of government-purchased land may be necessary in fire-prone regions.
A second difference between managed retreat strategies for wildfire and flooding is the scale on which they are needed in the United States. An estimated 44 million homes are located in the Wildland-Urban Interface (WUI), where houses are in close proximity to fire-prone wildland vegetation. This is nearly twice the number of homes estimated to be at risk of flooding.
A number of fire-prone communities have implemented creative retreat strategies. Pima County, Arizona, has established a Transfer of Development Rights (TDR) program, designed to shift development pressure away from the WUI. Landowners in designated “sending” districts may voluntarily sell part or all of their rights to develop to landowners in designated “receiving” districts. The “sending” districts are typically located in the WUI, and “receiving” districts are located in areas zoned for higher-density development. By purchasing development rights, receiving landowners may develop their land at a higher density than the base zoning allows. Prices are market-driven, and “sending” land is protected from future development by restrictive covenants. This program is a win-win solution for the community: development is shifted away from the WUI, and property values are preserved. Ultimately, fewer residents and buildings are exposed to wildfire risk.
The town of Paradise, California, is also working to shift development away from fire-prone forested areas, planning instead to manage these areas as wildfire buffer zones. After Paradise was devastated by the Camp Fire in 2018, the town’s Recreation and Parks District developed a plan to purchase large areas of privately-owned forest to create a green belt surrounding the town. The land will not be left alone, but managed to reduce fuel load and fire vulnerability, giving residents more time to react to local fires. The plan also incorporates parks and trails within the buffer. To avoid takings challenges, the land buyout is designed to be entirely voluntary, at the risk of failing to elicit sufficient landowner participation to form the buffer. Nonetheless, some landowners have already agreed to sell, and one landowner even donated land. The community witnessed the harm that wildfires can inflict, and desires to prevent future destruction.
The greatest limitation that the Paradise project faces is funding for land purchases: it may cost over $50 million to purchase enough private property to form the buffer zones, an amount that far exceeds the Recreation and Parks District’s annual budget. To this end, the town was awarded significant funding through FEMA’s Building Resilient Infrastructure and Communities (BRIC) program, as well as several state sources. While it will take some time for Paradise to purchase land and assemble the buffer, the town is becoming a safer and better-prepared community.
The city of Rolling Hills, California, has implemented a retreat strategy not for people, but for infrastructure. In 2020, the city was awarded $1.5 million in grant funding to relocate electric utilities away from fire-prone areas. $1.1 million came from FEMA’s Hazard Mitigation Grant Program, and the rest from non-federal sources. This comes after a series of destructive brush fires in the city during the past few decades, mostly caused by fallen power lines and damaged electrical equipment. Since 2020, Rolling Hills has relocated transformers away from the WUI, and has rerouted nearly 2,000 feet of formerly overhead cable below ground.
While questions remain about the feasibility of implementing managed retreat strategies for wildfire hazards at a large scale, the methods used by Pima County, Paradise, and Rolling Hills offer promising examples. These communities have learned lessons from past disasters that motivate their work toward climate resilient development and a better future.