Legal Issues When Managing Public Roads Affected by Sea Level Rise: South Carolina

21 Pages Posted: 26 Aug 2019

See all articles by Heather Payne

Heather Payne

Seton Hall University - School of Law

Rebecca Neubauer

Independent

Kirstin Dow

University of South Carolina - Department of Geography

Eleanor Davis

University of South Carolina

Ian Brown

University of North Carolina School of Law

Date Written: June 1, 2019

Abstract

In South Carolina, sea level rise and sinking land surface means that the coastal areas of the state will experience a relative sea level rise ranging between approximately 0.5 to 1.5 feet in 2030, 0.75 to 3.2 feet in 2050, and 1.75 and 10.8 feet by 2100. These ranges are based on scenarios that encompass uncertainties about physical processes and about future levels of greenhouse gas emissions. They cover low rates of sea level rise and low greenhouse gas emissions to high rates of sea level rise and high greenhouse gas emissions to convey the future risks for the purpose of long-term decision making.

Many communities are already experiencing impacts of recurrent flooding, sometimes called nuisance flooding, associated with “king tides” and meteorological events. For the state and county and local governments, sea level rise and increased flooding pose a significant, costly, and persistent threat to roads and highways. These natural disasters and chronic flood damages will inevitably encourage South Carolinians to reconsider the status quo of road maintenance and repair. Under projected sea level rise, repetitive or severe damages will lead to tough decisions about whether to decrease routine maintenance, transfer control of the roads to different government authorities, or abandon existing roads.

Although the South Carolina Department of Transportation (SCDOT) owns more than 50% of the roads and highways across the state, adaptation efforts related to road maintenance and abandonment can be expected to occur at both the state and local levels. The state, towns, cities, and counties have legal responsibilities to maintain roads, and they all certainly have an interest in ensuring that roads are safe and maintained.

This white paper discusses how South Carolina law may impact local governments that are facing the effects of coastal flooding on their public roadways. The paper first outlines the statutory basis for road ownership and the duties that flow from such ownership. It then reviews potential causes of actions resulting from the breach of duties of maintenance and good repair. Finally, it addresses the procedural requirements for formal road abandonment and takings liability from loss of road access.

Keywords: sea level rise, roads, government duties, abandonment, takings, adaptation

JEL Classification: K32, L98, R42, R52

Suggested Citation

Payne, Heather and Neubauer, Rebecca and Dow, Kirstin and Davis, Eleanor and Brown, Ian, Legal Issues When Managing Public Roads Affected by Sea Level Rise: South Carolina (June 1, 2019). Seton Hall Public Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3441440 or http://dx.doi.org/10.2139/ssrn.3441440

Heather Payne (Contact Author)

Seton Hall University - School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States

Rebecca Neubauer

Independent ( email )

Kirstin Dow

University of South Carolina - Department of Geography ( email )

701 Main Street
Columbia, SC 29208
United States
(803) 777-2482 (Phone)
(803) 777-4972 (Fax)

HOME PAGE: http://www.cas.sc.edu/geog/facStaff/dow.html

Eleanor Davis

University of South Carolina ( email )

701 Main Street
Columbia, SC 29208
United States

Ian Brown

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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