December 2002 “The Beach Zone”

“The Beach Zone: Using Local LandUse Authority to Preserve Barrier Islands”
by Tiffany Eisberg and Jessica VanTine
A Critique by the Fire Island Association

The article whose title and authors appear above, appeared in
successive issues of Environmental Law in New York, Vol. 13, Nos. 10 and
11, October and November, 2002. It puts forward a misguided and
uninformed theory aimed at removing residential property from the Fire
Island National Seashore. The authors seem unaware of existing law on
the subject and are not informed as to the scientific or technical
background of the issues the article discusses.

The article analyzes “the bleak prospect of permanently losing our
beaches to a wave of development, particularly fostered by a lack of
informed land use decisions.” After at-tempting to explain why the
“natural processes” involved make barrier islands “unsuitable for
permanent development, and why “solutions that involve structural
engineering … have been futile,” the article sets forth “a regulatory
solution … that is both effective and practical.” In fact, the article
answers none of the questions it poses. Instead, it demonstrates the
potential harm that can result when a social policy agenda determines in
advance the outcome of re-search. By quoting selectively from relevant
materials, but relying for the most part on like-minded theorists
speaking in a seriously out of date tract that is aimed at a
non-technical audience, the article contributes little to an
understanding of the coastal policy issues under discussion.

The following comments and observations are keyed to page numbers:

The authors introduce the article by describing the coastal
environment as “a place of insurmountable beauty, serenity and grandeur”
but noting (p. 176) “Dozens of homes are built every day on this fragile
environment.” And, while “[s]table beaches can withstand an in-crease in
development, … barrier islands are too transitional due to their natural
processes to accommodate permanent structural development.” Thus, the
authors’ entire premise is aimed at the existence of processes peculiar
to barrier island beaches. Those processes, however, do not reflect
conditions in the developed portion of Fire Island, a fact that
undermines most if not all of the authors’ argument.

Footnote 3 at the end of the quoted sentence directs us to p. 59 of
Beach Nourishment and Protection, a 1995 report of the National Research
Council’s Marine Board Committee on Beach Nourishment and Protection
(“Beach Nourishment”) for support of the statement. But reference to p.
59 leads to no discussion whatever about barrier islands being “too
transitional … to accommodate … development.” Moreover, a seemingly
relevant sentence that does appear on that page, “… our ability to
predict sediment behavior on beaches and there-fore to design successful
beach fill projects has improved considerably in the past two decades”
is not cited.

In the next sentence of the article’s introduction, the authors state
flatly that: “Barrier islands are not the place for permanent
development and preserving them through structural and other
non-structural solutions is of uncertain value.” Again, no authority for
the conclusion is given and nothing in the balance of the article
supports it. Nevertheless, the authors assert, “A regulatory solution is
available that is both effective and realistic,” and the article will
“attempt to offer a paramount solution, ‘the beach zone’.” Further, the
authors say they will “[use] Fire Island, a critical barrier island off
the coast of Long Island, New York, as a case study” but soon
demonstrate they have done little research into that island’s history or
natural processes, much less the legislative history of the Fire Island
National Seashore. (FINS). (It might be noted here that the article was
prepared by students of Professor John Nolon, of Pace University Law
School, who may have noted in a lecture that he had participated in a
workshop at which potential non-structural flood damage prevention
measures were discussed, with particular reference to Fire Island, NY.)

The authors are optimistic that their concerns for the coastline will
become public concerns (“… the dynamic nature of barrier islands that
often make them unsuitable for permanent development … has resulted in
an increased awareness by the public of the need for proper coastal
management.”) The authors leave little doubt that “proper” management
means ridding beaches of residential development and they warn that
“affluent landowners” will not approve of their proposed solution. Why
the “affluence” of the property owners is relevant to the policy
discussion is not explained.

The section headed “Transitional Environment of the Barrier Islands”
(p.177) de-scribes why “Barrier islands are inhospitable locations for
development due to their transitional nature.” The authors offer a basic
explanation of “barrier island migration,” neglecting to mention that it
is a phenomenon that occurs over millennia, rather than decades. They
seem unaware that on Fire Island, their chosen “case history,” barrier
island migration does not occur at all in the western half of the
island. According to Leatherman and Allen, “The western section [of Fire
Island] is axially stable.” (Leatherman, S. P. and Allen, J. R., Eds.,
Geomorphic Analysis, Fire Island Inlet to Montauk Point, Long Island,
New York Reformulation Study, U.S. Army Corps of Engineers, New York,
1985, p. 259.) This continues to be the accepted wisdom on the matter of
whether barrier island migration is a significant factor on Fire Island.
See, e.g., An Overview and Assessment of the Coastal Processes Data Base
for the South Shore of Long Island, Proceedings of a Workshop, Tanski,
Jay and Bokuniewicz, H. J., convenors, New York Sea Grant Program
Special Report No. 104, 1990:

“The central and western sections of Fire Island have been axially
stable for hundreds of years (Leatherman and Allen, 1985). From a
management standpoint, the relative stability of the barrier island over
long time periods indicates that concerns regarding disruption of
barrier island migration by inlet processes may be of secondary
importance compared to other more immediate impacts associated with the
formation of inlets.” (p. 47)

As “western Fire Island” is where all the development is, the
authors’ concern about development being “inappropriate” would seem
misplaced. The introduction of alarming statistics, such as “barrier
islands along the Atlantic Coast have been moving landward at a rate of
1.5 meters a year,” may or may not have relevance elsewhere; it clearly
does not apply to the developed portion (about 20 percent) of Fire
Island.

The authors’ concern about the “unpleasant surprises” coastal
property owners may be faced with extends to sea level rise “due to what
is known as global warming.” They may be unaware that beach building is
an eminently logical response to a rising sea level. According to
Newsday, a “key finding” of a recent United Nations Report on global
warming was that remedies for the Atlantic Coast include “build barrier
islands” and “raise beaches.” (“An Un-easy Climate / Report forecasts
effects, mostly bad, of global warming,” Newsday, February 20, 2002)

The solution favored by the authors is to depopulate shorelines
developed with single family residences. The principal tool for
accomplishing this would be local zoning codes. Thus the authors state
(p. 178) in footnote 28: “Coastal zone planning and development have
been largely based on the concept that beaches and barrier islands are
stable or that they can be engineered to remain stable.” In fact,
western Fire Island is relatively stable, as noted. In addition,
improved construction techniques have led to many successful beach
nourishment projects, as noted in the National Research Council study
referred to above.

In a discussion (p. 178-179) of whether the “funding burden” of shore
protection projects is “appropriate” or not, the authors note that
“local governments are not likely to seek out less costly alternatives,
such as non-structural solutions.” (Why more “costly alternatives” are
preferred is not explained.) In addition, the authors quote Beach
Nourishment on the question of whether “the direct beneficiaries
(coastal landowners) of a project contribute a fair and appropriate
share of the costs.” A footnote directs the reader to p. 43 where the
quotation, minus the parenthetical phrase, appears. The authors ignore,
however, the following sentences:

“[T]he perception by some [is] that beach nourishment is a government
“gift” to a wealthy segment of the population. This issue may be the
primary underlying factor that stimulates criticism of many projects.”
The report then proceeds to examine the question, concluding, “Just as
each nourishment project has physical conditions that are unique, each
project has economic and social conditions that are unique. … The is-sue
to be examined is whether the total distribution of benefits realized …
should be the basis for determining the cost-sharing partnership ratio.”
(p. 45)

This kind of selective referencing appears often in the article.

The next paragraph (p. 179) contains another example. “… after 70
years of involvement in coastal management, the USACE has been
ineffective in curtailing erosion.” Again, a footnote promises support
for the statement but in this case it directs the reader to “See infra
Sec. III, A-C.” This turns out to be a short paragraph each on “Groins
and Jetties,” “Seawalls and Bulkheads,” and “Beach Nourishment.” In none
of these paragraphs, however, and in none of the footnotes to them, is
there any reference to the Corps of Engineers being “ineffec-tive at
curtailing erosion.”

In general, the authors’ research seems to have been confined to
documents that sup-port their point of view, or portions of documents
that seem to do so when taken out of con-text. They rely often on Living
With Long Island’s South Shore, one of a series of monographs edited by
Orrin Pilkey, a critic of beach nourishment of wide renown, and
published by Duke University, where Prof. Pilkey is employed. Directed
towards a lay audience, as opposed to planners or engineers, the
monograph in question was published in 1984. It does have the ad-vantage
of being easy to understand, especially if the reader starts with a
strong antipathy to-ward shore protection projects.

We are told (p. 179) “… structural solutions have proved to be of
dubious value be-cause they alter the natural processes of the dynamic
barrier islands… .” Again, to the extent that the “natural process” is
“barrier island migration,” there should be no problem on Fire Island
because that process has been shown to not to occur there in a
meaningful way. If the natural process referred to is erosion, well,
curbing erosion is the purpose of the intervention. A process is not
beneficial simply because it is “natural.” The balance of the authors’
sentence is confusing: “[Structural solutions … alter the natural
processes of the dynamic barrier is-lands] which through time,
paradoxically, destroy the structures that were built to protect them.”
Are the authors alleging that groins, seawalls, etc., will be destroyed
by altered natural processes? If so, considerable rethinking by
generations of coastal engineers is in order.

The authors go on to state, without reference to scientific or
technical support, “Most structural solutions fail to allow the
shoreline to migrate naturally and therefore cause accelerated erosion.”
They continue, “Most structural solutions on or near the shoreline
change the natural balance and reduce the natural flexibility of the
beach. The result is often change that often threatens the structures
that people have erected.” The subject has been changed from erosion
control structures to residential structures.

The authors introduce (p. 179) the “Shoreowners Protection Act,”
citing it as “evi-dence that governmental interest in structural
solutions is abating.” A later footnote (no. 47) seems to associate the
Act with “New York Environmental Conservation Law § 34-0101(4).” The
statute codified under this heading is titled “Coastal Erosion Hazard
Areas.” It does not include reference to “shoreowner protection” nor
does the cited section “recognize[d] the in-effectiveness of such
structural solutions.”

In the last sentence on p. 179 the authors assert: “All structural
solutions negatively affect the environment.” But the U.S. Environmental
Protection Agency rated a proposed beach fill project for Fire Island at
LO-1, its lowest rating for environmental impact. (Letter, R. W.
Hargrove, Chief, Strategic Planning and Multi-Media Programs Branch, EPA
Region 2, to Frank Santomauro, Chief, Planning Division, U.S. Army Corps
of Engineers, New York District, January 28, 2000) The authors do not
refer to the Corps of Engineers’ $8.5 million, 7-year “Biological
Monitoring Program for Beach Nourishment Operations in Northern New
Jersey,” that concludes, “[A]ll forms of animal and plant life
essentially recover fully from the effects of beach nourishment in a
relatively short time” (“Sea Life Rebounds After beach Nourishment,” (www.usace.army.mil/inet/functions/cw/hot_topics/beach
nourishment.htm.)

On p. 180, the authors characterize groins and jetties as more
environmentally damaging than seawalls and bulkheads, without explaining
why this is so. Nor do they distinguish between types and sizes of
groins, or admit that some have been found effective. Similarly, the
authors say, “Sand pumping can rebuild dunes to their previous height,
but these artificial dunes are likely to wash away in a few years or in
a major storm” (emphasis added). They again cite the 1984 Pilkey/McCormick
document to reach the conclusion that “beach nourishment is an eternal
project.” A dune made of sand is not “artificial.” No doubt the authors
have reference to the fact that a replacement dune cannot immediately
become vegetated with the beach grass whose rhizome structure tends to
hold dunes together. But all beach fill projects call for planting,
fertilizing and watering beach grass in recognition of the importance
vegetation has to a rebuilt dune. Given mild enough winters immediately
after the dune is re-built, it soon becomes indistinguishable from a
“natural” dune.

The authors’ quote the offhand reference in the Pilkey/McCormick
monograph to the effect that “beach replenishment is being advocated by
the same factions that gave us [Cape May, Sea Bright and] Westhampton
Beach.” It is ironic that, almost twenty years later, the projects named
are among the most successful beach replenishment efforts. Research
would also have revealed that West Hampton Dunes showed a very large
increase in production of Piping Plovers as a direct result of the
replenished beach in that location.

The final paragraph of Section III (p. 180) tells us that “Structural
solutions are speeding erosion, narrowing the shoreline’s width and
slowly destroying the quality of the beach.” The authors quite clearly
include beach nourishment in their list of ineffective “structural
solutions,” but do not refer the reader to the following statement from
the Executive Summary to the National Research Council’s report on the
matter:

“Beach nourishment is a viable engineering alternative for shore
protection and is the principal technique for beach restoration; its
application is suitable for some, but not all, locations where erosion
is occurring.” (Beach Nourishment, p. 3.)

The authors’ statement that “Structural solutions are speeding
erosion, narrowing the shoreline’s width [beach width?] and slowly
destroying the quality of the beach” is demonstrably false, even if it
appears in the outdated monograph referred to above. And, contrary to
another baseless assertion by the authors, studies have shown that
shoreline development is not encouraged by the existence of beach
replenishment projects in the area. (See, e.g., Shoreline Protection and
Beach Erosion Control Study, Final Report: An Analysis of the U.S. Army
Corps of Engineers Shore Protection Program, June 1996, IWR Report 96 –
PS –1.)

Turning to “Non-Structural Solutions” (p. 180), the authors deal
first with “Construc-tion Standards.” They have not researched the
National Flood Insurance Program (NFIP) to learn the extent to which
coastal structures must conform to rigorous standards for their owners
to qualify for flood insurance. The authors suggest this is unimportant
because construction codes “are merely a temporary measure [that] cannot
protect the structures completely” and “no building measure can save a
structure from the natural process of barrier island migration.” Whether
true or not, the statement is, as noted, not relevant to Fire Island.

In a section headed “Building Retrofit Measures” (p. 181), the
authors refer to “constraints,” such as “increased susceptibility to
wind damage during storms.” In fact, the New York Property Insurance
Underwriters Association requires wind insurance on houses located near
open water. It has imposed many special requirements on coastal
structures if they are to qualify for insurance against wind damage.
These standards were worked out cooperatively with homeowner
representatives. (See, Eserner, M., “The Role of the Insurance Industry
in Coastal Zone Management,” Proceedings, LICA Conference, March 1990,
p.20.)

In a section titled “Economic Solutions” (p. 181), the authors refer
to a four-year old newsletter from the Coast Alliance, a
Washington-based federation of environmental groups opposed to coastal
property ownership (and therefore to the NFIP, which it believes encour-ages
such ownership). The Alliance newsletter asserts that “2% of properties
in the NFIP account for 40% of the damage claims.” The Alliance does not
claim that the “2%’ are coastal structures, however. In fact, most NFIP
claims are from inland, riverine areas. And it is well known that
properties in the most vulnerable coastal regions, known as V-zones, are
not a drain on the program. Despite the authors’ reference to another
report from the National Re-search Council’s Marine Board, Managing
Coastal Erosion (1990), they managed to miss the sentence on p. 77 that
reads, “To date, V-zone policies have paid their own way and have not
generated excessive or unacceptable numbers of losses or repetitive
losses.” Since this sentence was written, the numbers have improved; not
worsened.

In the second part of the article, beginning on p. 197, the authors’
lack of knowledge of the relevant statutes that deal with coastal policy
on Fire Island becomes apparent. New York’s Coastal Erosion Hazard Area
Act (CEHAA), 34 ECL Ch. 34, is mentioned only in passing, despite the
fact that the CEHA rules promise to be the controlling land use
mechanism the article seeks. CEHA, adopted in 1981 elsewhere in the
state, did not become effective on Fire Island until 1999, something the
authors do not mention. It is also of interest that property owner
groups asked that the act apply to Fire Island because, as the state’s
primary coastal erosion control statute, it must be in place before the
state can join with the Corps of Engineers in an erosion control
project. This would seem relevant in an article about coastal policy.

Interestingly, the Fire Island National Seashore Act also escapes
mention, as does the extensive Congressional debate in connection
therewith. That debate, and subsequent zoning regulations (36 CFR Part
28) make crystal clear the Congressional intent to allow and protect
from condemnation the very development the authors would see abolished.

According to the authors (p. 202), “… the municipality should
institute programs promoting active public participation and take steps
to ensure that those who use the beaches, those that suffer the ill
effects of erosion, and those that pay the costs of rebuilding
understand the goal of the ordinance and seek their involvement and
support.” It is not irrelevant, how-ever, that the Towns of Brookhaven
and Islip collect millions of dollars of property taxes and enjoy the
benefits of many hundreds of jobs and large amounts of economic activity
as a result of the millions who visit the Fire Island communities each
year. Any effort to “fully involve and educate the public” might well
start with the Town Board members who as yet have shown little interest
in how the economic benefits of the barrier beach can be eliminated from
the towns’ revenue streams.

The authors have their own ideas about what uses of land should be
permitted on Fire Island. Unfortunately, the recital of their preferred
uses reveals a stark lack of familiarity with the island itself. They
suggest (p. 198), for example, that with the elimination of houses there
will be room for “public beaches; catwalks[?]; camp sites; non-motorized
boating; picnic areas; outdoor recreation operated by a governmental
division or agency; conservation uses; wildlife sanctuaries and
facilities; hunting and fishing preserves; hiking trails and bridle
paths [?]; and preservation of scenic and scientific areas.” Other
“compatible uses” the authors envision include “bait and tackle shops,
lockers, docks, piers, boat houses, parking lots and public rest rooms
[that] will be allowed subject to the issuance of a special permit.”

The authors seem unaware that zoning and land use on Fire Island are
regulated by the National Park Service in that local zoning (by the
towns of Brookhaven and Islip and the incorporated Islip villages of
Saltaire and Ocean Beach) must be consistent with regulations
established by the Secretary of the Interior (see 36 Code of Federal
Regulations, Part 28, August 29, 1991). Further, as automobile travel to
Fire Island is now restricted, virtually all visitors to the island
between Smith Point County Park and Robert Moses State Park travel there
by commercial ferry services. The ferries exist primarily to serve the
communities; remove the communities, as seems to be the objective here,
and the ferry services will disappear as well.

In a section headed “Compatibility with Federal and State Law (p.
200), the authors refer to the “Shoreowner’s Protection Act” and also to
the federal Coastal Barriers Resources Act. As to the latter, after a
lengthy description of its terms, the authors note it does not apply to
developed barriers such as Fire Island. And the “Shoreowner’s Protection
Act,” seems here confused with the New York’s Coastal Management
Program. The 44 coastal policies referred to were adopted as a condition
of the state receiving funds available under the federal Coastal Zone
Management Act. While it may be granted that New York’s coastal zone
management policies are convoluted and at times contradictory, at least
a rudimentary knowledge of the existing statutes would seem prerequisite
to authoring an article on the subject.

The authors assert that while Article 34 “limits new development, it
does not address existing structures.” But 6 NYCRR 505, the regulations
implementing the Article, refers specifically to existing structures in
505.8(e). Apparently not clear on the state role, the authors state (p.
201) “it is vital that the municipality take over this [Fire Island]
permitting process.” In fact, the Town of Islip and Suffolk County have
both recently shunned the opportunity to administer Article 34 and
turned that function over to the state DEC, while Brookhaven has opted
to implement its own version. The somewhat breathless description (p.
203) of “a full study of the environmental benefits and economic costs
and benefits of the action” shows no awareness whatever of the way
municipalities implement zoning regulations in practice.

In the section headed “Constitutional Challenges” (p. 203), the
authors remind us of their recommendation (p. 198-199) that all private
structures on Fire Island should be forth-with deemed “non-conforming
uses” and fully eliminated in 50 years. The ordinance implementing this
recommendation, we are told (p. 203), “may be attacked by landowners,”
which might be something of an understatement. But the authors believe
that spreading the impact of a taking over fifty years so that owners
can “recoup their investment” would be sufficient to avoid a takings
claim, a proposition they support by citing an article by Professor
Nolon, whose guidance in preparing the article they effusively
acknowledge.

Other observers might think that, as soon the “fifty years and out”
policy is announced, the property is vastly diminished in value and the
owners would seem entitled to immediate compensation. Whether or not an
owner’s investment is recouped, the reaction of the public to the
explanation that these expenditures are necessary so that certain
barrier is-land processes, which do not even exist in the area under
discussion, shall not be impaired, can be imagined. A politician who
embraced such a scheme might expect a short career.

The authors note, “There is a strong public purpose in protecting our
nation’s shore-line.” This is certainly true and for the past several
decades shore protection has been practiced, primarily through beach
nourishment. The protection proposed by the authors, however, would be
implemented by depopulating coastal areas. As residential use is usually
deemed the highest and best use of property, the authors’ proposal is
obviously an effort to effect the social objective of depriving
“affluent landowners” of their right to own coastal property. The fact
that, populated or not, beaches must be protected from the effects of
storms and past stabilization of inlets, is not addressed in the
article.

In a section entitled “Economic Impact” (p. 205) the authors
demonstrate a similar lack of familiarity with basic economics. As
noted, Professor Nolon, acknowledged as tutor and “mentor” by the
authors, presented the principle themes of their paper in a workshop
presented by the Nature Conservancy and the Corps of Engineers in 1999.
Perceived shortcomings in Professor Nolon’s presentation were noted by
the Fire Island Association in a paper entitled, “Non-Structural
Solutions Workshop: FIA Comments on Draft Proceedings,” February 12,
2001, available on request to FIA.

Minimal acquaintance with coastal regulations would reveal that ECL
Article 34 al-ready addresses many of the points under discussion. The
act and the regulations at 6 NYCRR Part 505 contain much useful
information on questions such as policy for rebuilding after storms, the
variance procedure, the Commissioner’s ability to remap the Coastal
Hazard Area after storms or manmade events, and how the act applies
differently to different coastlines. The absence of this background is
another indication that the principal objective of the article is to
promote a social policy objective that is only loosely based on a theory
of environmental conservation. The authors do not seem aware that their
principal questions have already been posed and policy action taken to
address them. A fuller discussion of of those policies than is provided
in this article would be helpful.

Of course, no discussion of “economic impact” would seem complete
without thorough analysis the cost of the proposal, something notably
lacking in the article. A hint of the dimensions of the problem is seen
in the Nature Conservancy’s plan to use $163 million of taxpayer funds
to purchase homes in the Coastal Erosion Hazard Area on Fire Island.
(See, The Nature Conservancy, “Concept Description: Fire Island Buy-out
Program,” March 13, 2000) Neither the Town councils involved (who are
the underwriters of many millions of dollars of contractual liability
for various taxing districts within the island communities) nor the
individual homeowners are likely to be willing partners in such an
effort, no matter how many “catwalks” and “bridle paths” may be offered.

Fire Island Association December, 2002