Albany Turf Battle Stymies Fire Island Project
State Opposition Grows
A Different Kind of Task Force
Fate of Breach Contingency Plan
State Planners Rescued
A Different Kind of Coastal Agency Needed
ALBANY TURF BATTLE STYMIES FIRE ISLAND PROJECT
The beach nourishment project proposed for Fire Island in 1994 remains in limbo, amid increasing signs that what is really at stake is which agency will control New York State coastal policy.
Since the Conservation Law was enacted in 1945, New York’s Department of Environmental Conservation has been the principal non-federal partner for Long Island coastal projects, working with the New York District of the U.S. Army Corps of Engineers. In a November 30, 1999 letter, DEC advised the Corps that the January 2000 public hearing on the Fire Island project should pave the way for final approval:
“Assuming that all of the issues raised by New York State are satisfactorily resolved, and further comments received during the public comment period do not raise new concerns on the part of the State, our Region 1 office would be in a position to issue a
Water Quality Certificate for the proposed project. The Department of State would similarly be in a position to concur with a Corps of Engineers’ Determination of Consistency with New York State’s Coastal Management Program.”
This would leave only the special use permit needed from the U.S. National Park Service for the project to be cleared for construction. For its part, the Park Service has no compunctions about withholding that permit so long as the state decision is in abeyance. be that as it may, the November 30 letter could turn out to be DEC’s last ministerial act as the state agency in charge of projects to protect Long Island’s coastline.
Readers of this newsletter will recall that just prior to the 1994 election, in which Governor Pataki unseated Mario Cuomo, the latter’s Coastal Erosion Task Force issued its final report and recommendations on the severe storms of 1992-93. In July 1995, Governor Pataki told the Fire Island Association that, if the Corps of Engineers were able to start the Fire Island beach nourishment project (one of the Task Force recommendations), New York “would find a way to fund the State’s share and not delay these much needed shore protection projects.” But that was before the Department of State concluded that it, not DEC, is the best repository of policy decisions affecting New York’s coastline.
The U.S. Department of the Interior (DOI) also found problems with the Fire Island Interim Project (FIIP). These were seemingly resolved when strong letters of intent to see the project through came from New York Senators and Members of Congress. The lawmakers’ determination was restated in statutory form in Section 342 of the 1999 Water Resources Development Act, which admonished the Departments of the Army and Interior to come to an agreement on implementing the project. And environmental concerns more or less evaporated when the Environmental Protection Agency told the Corps it had no reason for opposing the project. EPA gave the project an LO-1 rating, the lowest for environmental impact. This ruling would give great strength to a Corps of Engineers decision to simply note and respond to the DOI comments and move forward with the project.
State Opposition Grows
If agency resistance to the project was being addressed at the federal level, it was intensifying in New York State, despite the fact that it was the state that requested the Corps to examine the situation and make recommendations for storm damage reduction and flood control on Long Island.
The Albany opposition is traceable, in the opinion of this newsletter, to the reversal by the Coastal Erosion Task Force report of 1994 of a policy goal Albany planners have long cherished: dealing with coastal erosion by removing human development from the shoreline, the “retreat doctrine.” As soon as Governor Pataki settled in, bureaucrats in DOS began to work to reverse the Cuomo task force findings and reinstate retreat as the policy of choice.
When DOS reports of 1984, 1989 and 1991 (the first two authored by Lee Koppelman and DeWitt Davies under the auspices of the Long Island Regional Planning Board) called for retreat as a solution to south shore erosion problems, not many paid attention. Indeed, at the very first LICA Conference in 1990, Dr. Koppelman said he no longer considered property buyouts a viable option for the south shore ocean beaches: the property had simply become too valuable, and the tax revenues too important to county and coastal municipalities. As for the reports, he noted, “That’s one of the problems: we write this stuff and nobody gives a damn.”
A Different Kind of Task Force
Then the storms of 1992-93 destroyed or damaged nearly a hundred homes on Fire Island, and caused extensive flooding damage on the mainland. Governor Cuomo named yet another task force, but to this one he added representatives of municipal governments, building and marine trades, property owners and business groups to the usual mix of academics and environmental groups. And this group, instead of accepting the usual staff recommendations in favor of “retreat,” demanded real action.
The Cuomo Task Force called for, among other things, prompt repair, modification and completion of the Westhampton groinfield, regular sand bypassing of south shore inlets, a breach contingency plan premised on quick closure of breaches, and beach nourishment where needed, including Fire Island. As Rutherford Platt, professor of law and geography at the University of Massachusetts (Amherst), put it in his 1999 book Disasters and Democracy, the task force report “abandoned retreat and returned to a ‘hold the line’ philosophy, focusing on sand bypassing and beach replenishment.” Retreat proponents were reeling, especially when these revolutionary proposals were followed closely by the defeat of the Democratic Governor.
Instead of carrying through the recommendations of the task force, however, those in the agencies who favored retreat have seen to it that they were largely ignored. While the Westhampton groinfield was completed, that was largely in consequence of a judicial direction that a twenty- year lawsuit be finally settled in favor of property owners. No sustained effort has been made to provide sand bypassing at inlets.
As for the Breach Contingency Plan, it was quietly allowed to expire in June.
While some in the Corps insist it will move promptly to close breaches even in the absence of the inter-agency
agreement, one wonders how a judge will react when a pro-breach advocate points out that the
agencies allowed a breach control plan to expire. With just weeks of delay, of course, a breach in
the barrier can widen from a trickle to a torrent.
Meanwhile, the state, with cavalier disregard of its obligations under the National Environmental Policy Act process, simply refuses to comment on the Corps’ Draft Decision Document and Environmental Impact Statement. Some in DOS have suggested that the Corps should regard its failure to comment as a message of disapproval and simply go away. It doesn’t work that way. It was the state that formally requested the Corps to spend years and millions of dollars to plot a course of action to prevent storm damage on Long Island’s south shore. The state agency involved cannot now simply ignore the plan the Corps came up with and not raise eyebrows in Congress and the state Legislature.
According to press reports, a letter sending the Corps back, once again, to the drawing board, was prepared but not sent by state authorities. When queried by Newsday, a DOS official, in a thinly veiled jibe at his superiors’ lack of conviction, said, “if our letter goes out unedited, the Corps will have a lot of work to do.” The cool arrogance of the use of the term “unedited” makes it clear that top agency officials, much less the Legislature, should butt out and let the subordinates determine coastal policy for Long Island.
There should be no doubt that underlying this effort is a power grab by DOS to gain control of coastal engineering as well as coastal planning responsibilities at the Albany level. DOS has been moving in this direction since it gained control of federal money made available under the 1972 Coastal Zone Management Act. (Interestingly, this statute was drafted on Long Island by, among others, our own Dr. Koppelman, at the request of Senator Fritz Hollings of South Carolina.) The timing couldn’t have been better for some in New York. It coincided with a “reorganization” (abolition to some) of the Office of Planning Services, which had never been a favorite agency of Governor Rockefeller and which had a bleak future at best under Governor Wilson.
State Planners Rescued
When Governor Carey took over, his energetic young Secretary of State and well-known “anti-cabana” activist, Mario M Cuomo, found a place for the CZMA funds, and many of the planners, in a new Division of State Planning. A key first assignment was to articulate statewide interests in the coastal zone, an area previously arcane to DOS
Until 1984 or so, DOS’ Coastal Management Program, as it came to be called, was paid for entirely by CZMA funds. That act required the establishment of a separately identified state-local planning and management apparatus for the coastal zone. The CZMA funds were supplemented by planning grants from the National Oceanographic and Atmospheric Agency. By the time Secretary Cuomo moved to the Governor’s mansion, the DOS activities consisted mostly of “consensus building” meetings, followed by the above-noted reports that attempted to explain to people why they should abandon some of the most expensive real estate in the world rather than insist that government correct the man-induced erosion that threatened it.
By the mid-1980s, a decent interval having passed since the planners had been rescued from oblivion, DOS began requesting and receiving funds from the Legislature to do shoreline and waterfront planning. As this newsletter has recorded, lately DOS staff has intervened in engineering matters at Shinnecock Inlet, hired engineering consultants to design “improvements” to Corps of Engineers projects, designed “problem-free” bypassing projects and generally jostled aside DEC as the state’s coastal engineering agency. With inadequate staff and funding in the coastal resources area, and a complaisant Commissioner, DEC professionals seem to take the position that they don’t care who does coastal planning for the state so long as someone does it and good decisions are made.
Needed: A Coastal Management Agency Near the Coast
It is hard to understand how a rational coastal policy for Long Island can be administered from Albany. This newsletter has suggested that coastal planning matters should be consolidated in one agency or the other and transferred to Long Island. That is not likely to happen. No administrator of a sizeable program can expect it to flourish far from the seat of executive power. Thus, Long Island coastal policy becomes simply a pawn in a power struggle far from where the policy directives have their effect.
The Fire Island Interim Project bodes well to become collateral damage in this struggle. Pressure to make it a part of the study to reformulate the Corps of Engineers original 1960 plan mounts with each month’s delay, even as reformulation itself is pushed off into the future. While the June 2003 data for completion of the Corps’ Reformulation EIS is nearer, that date has already been delayed a year as agency opponents request more, longer and more detailed studies of things that have already been amply studied.
In a parallel situation to the FIIP, the New York Times recently editorialized on the delays imposed on creating the Hudson River Park on Manhattan’s west side:
“… Opponents urged the corps to undertake a full environmental impact statement, a process that could have delayed the project for two more years. The corps chose not to do so for several reasons. First, New York state had already done a massive impact statement. The corps also decided that the park would have “no significant impact” on the marine environment and that a full-scale federal assessment was therefore not required under the national Environmental Policy Act.
“This page has long argued that environmental impact statements are an essential tool for protecting the nation’s natural resources. But in this case such an assessment would have been largely redundant.
“Moreover, environmental law requires a full-scale federal assessment only when preliminary investigation suggests that a project might have ‘significant impact.’ The corps was right to conclude that this project would not.”
The FIIP has proceeded differently, however. When it became clear that environmental reasons could not be used to block the plan indefinitely, anti-project officials switched tactics and focused on land-use issues as a reason for not going forward. Department of the Interior officials, for example, told the Corps in comments dated February 29, that they “demand” that a building moratorium be a part of the project. DOS seems to agree this would be a good idea, despite an apparent preponderance of legal arguments that a moratorium would be an unlawful curb of property rights. The two agencies have targeted some 380 homes in Fire Island’s dune area for acquisition, in blithe disregard of the impact removal of these structures would have on municipal and county tax revenues, let alone the contributions they make to the Long Island economy.
The agencies want to prevent any project whose effect might be to extend the lives of structures damaged or destroyed by storms so that special “emergency” funds can be requested to buy the properties at bargain prices. Of course, the effect of this policy would be to place the rest of the barrier island in danger of serious flood damage.
The anti-project officials ignore, too, the fact that the Corps justifies the project economically not in the protection it affords to Fire Island homes, but to homes, businesses and infrastructure on the mainland. When queried about this, the reply is, “Oh, we don’t accept the Corps numbers on that.” Leaving aside the fact that the Corps is the Congressionally-designated expert agency in this area, the idea that state and federal agencies would deliberately place large numbers of Long Islanders, their homes, businesses and communities in harm’s way in order to accomplish a philosophical objective is shocking, to put it mildly.
Long Island deserves better.
This
article appeared in the Summer 2000 issue of Coastal
Reports, the newsletter of the Long Island Coastal Alliance.
The newsletter has reported on coastal policy issues on
Long Island since 1990.
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