THE FIRE ISLAND
INTERIM PROJECT
WILL NOT CAUSE BUILDING ON DUNES
Summary
and Conclusion
Several environment
organizations recently have publicly opposed a beach nourishment project
on Fire Island because of fears that the project will lead to new
residential building in dune areas. The following discussion reveals other more likely reasons for
opposition to the project, while demonstrating that there is no basis
for the professed "fears." In summary:
·
Building on the dunes is not the cause of Fire Island's
erosion problem. Opponents
to the proposed project grossly distort the facts while ignoring
evidence that erosion is a result of historic manipulation of the Long
Island shoreline that has blocked the littoral flow of sand.
·
The Corps of Engineers is the world's premier coastal
engineering organization; it's views on shore protection matters are
entitled to great weight.
·
Building restrictions imposed by state law ensure that no
new development can take place in the project area; the claim that lots
"partially or wholly submerged at least part of the year" can
be developed if the project goes forward is a fabrication used for shock
value
·
The interim project will, in fact, decrease the number of potentially buildable lots, because no
building can be built on or seaward of any location where the project
places fill material.
·
Existing "in-fill lots" in the CEHA area, but
landward of the project area, will require a variance from the CEHA
administrator to build, or to rebuild following storm damage.
·
Critics demand there be no building in the 35
"in-fill lots" landward of the project, in areas that are
already developed. But they
studiously ignore the fact that building in this area may proceed
without regard to the project, and that any building activity after the
project is in place is likely to be consistent with the present rate of
construction.
·
A moratorium on building on these lots would raise serious
questions under the Fifth Amendment, and is wholly unnecessary to
protect the Fire Island ecosystem.
·
The "retreat doctrine" has been repudiated as a
coastal management technique in New York.
Discussion
The Fire Island Interim Project (FIIP) is a recommendation of the
Corps of Engineers made in response to a request made six years ago by
New York State. The Corps
spent more than $5 million on studies that resulted in a plan to protect
the south shore of the mainland by improving the barrier island's
ability to stand up to Atlantic Ocean storm waves without breaching.
The project calls for beach nourishment, a process routinely
performed by coastal engineers using well understood and generally
effective techniques. (See
National Research Council, Beach
Nourishment and Protection, National Academy Press, Washington,
1995). In the proposed Fire
Island Interim Project (FIIP), sand will be dredged from the offshore
sea bottom and pumped onto the eroding Fire Island barrier, where it
will be configured into a design that widens and raises the beach
surface, where necessary. In
the FIIP, the sand also is formed into a 15-foot high dune (which may be
only seven or eight feet higher than the beach itself). The seaward toe of the designed dune is to be at least 90 feet
from the water at high tide. Not exactly rocket science, but far from "dumping
sand," as some critics of the Corps of Engineers condescendingly
describe it.
Environmental
Arguments Weak, Opponents Focus on "Non-Structural
Alternatives"
Opponents point to the fact that "non-structural alternatives"
to the Fire Island Interim Plan were not sufficiently considered by the
Corps of Engineers. This
implies that a project might not be needed and could be dispensed with,
were it not for the fact that it incidentally provides protection for
private homes on Fire Island. Although
some opponents declare the protection of Fire Island homes to be the
prime motivation for the protection, the Corps has provided exhaustive
analyses supporting its contention that the project is justified because
it protects property and infrastructure on the mainland. It sees, for
example, a 20 percent chance of a breach in Fire Island in any given
year (Draft Decision Document (DDD) Vol. I, ¶ 123), with resulting
damage to mainland property and infrastructure expected to reach $41
million over the six-year life of the project if nothing is done. (Id.,
¶ 154) That the project
would also protect private property on the barrier is considered by the
Corps as essentially incidental to its main objective. And, inasmuch as Fire Islanders propose to pay half the local
cost of the project, they would be paying for the incidental benefit
they received.
To the critics, however, this isn't enough. From their perspective, it is the interest of the incidental
beneficiaries, not that of the thousands of property owners on the
mainland, that is the motivation for the project. Merely setting forth this proposition should be enough to refute
it.
Building
on the Dunes Is Not the Cause of Fire Island’s erosion problems
Opponents
try hard to blame Fire island’s erosion problems on residential
construction that allegedly has destabilized the Island’s primary dune
system. This deliberate
distortion of the current situation is designed to set up development as
the villain: thoughtless rebuilding made possible by the project will
simply exacerbate the historic problem. Project opponents choose to ignore the fact that any building
along the first row pales when compared to other substantial causes of
the current erosion and the threats posed to the mainland by a breach.
Indeed, they ignore the Corps thorough documentation of the history and
causes of erosion in the DEIS and DDD. The DEIS notes that “The FIIP study area is subject to an
increasing cycle of storm damage due to combination of historical and
ongoing human activity, natural coastal processes and storm events.”
(DEIS at 1.07) No scientific study has ever demonstrated that construction
of beachfront homes significantly contributes to erosion or
destabilization. There are
many far more significant causes including, “the stabilization of Fire
Island and Moriches Inlets which has altered the natural characteristics
and coastal dynamics of the barrier island; the loss of a large area of
bayshore wetlands to development in the decades following World War II
which has reduced the flood capacity of the bay shore.” (Id.)
Indeed, the Corps
failure to properly complete the Westhampton groin field and to
institute regular bypassing at Moriches and Shinnecock Inlets, along
with the substantial changes to the inlet and bay system over many
years, has “produced a massive sand trap” that has literally
“starved” Fire Island of necessary sand and lead to the current
erosion problem. (See
Spencer and Terchunian, “The Sand thieves of Long Island’s South
Shore,” Shore and Beach,
July1997, p. 8). Thus, there is compelling evidence that building on the dunes has
not been a major cause of this problem. Opponents failure to recognize these basic facts along with their
disingenuous reference to "massive rebuilding on the dunes"
demonstrates their intention not to let the facts interfere with their
desire to stop this much needed project.
The
Corps of Engineers is Entitled to Respect as the Expert Agency
The Corps of Engineers has been studying shore protection, conceiving
engineering solutions and making cost-benefit determinations, for the
U.S. Government for more than fifty years. It's development as the premier coastal engineering organization
in the world makes it the quintessential "expert agency."
In preparing the Environmental Impact Statement for public
comment, it has scrupulously gathered information from all cooperating
and commenting agencies. In response to comments received, the Corps has greatly modified
the plan from its original approach.
Its conclusion, that beach nourishment is needed on Fire Island in order
to protect the mainland, is entitled to great respect. It certainly is
not contradicted by mere assertions by environmental groups and others
that the possible development of a handful of properties warrants
abandonment of a project called for by New York State and approved by
Congress.
Beach nourishment studies can take a long time to complete. This is to assure that the process does not harm the coastal
ecosystem. Some studies
require full seasons as the life cycles of marine, near shore and beach
species are analyzed. In
the case of Fire Island, however, once satisfied there was no basis for
environmental opposition to the project, opponents turned to other
concerns; namely, unwanted "development" on the beaches.
That there is no valid environmental argument against the project
is shown by the fact that, after reviewing the Corps' Environmental
Impact Statement, the U.S. Environmental Protection Agency found no
reason to oppose the project. (Letter,
January 20, 2000 from R.W. Hargrove, Strategic Planning and Multi-Media
Programs Branch, U.S. Environmental Protection Agency, to Frank
Santomauro, Chief of Planning, New York District, USACE)
Project critics, however, point to the rebuilding of more than a hundred
beach houses at West Hampton Dunes following restoration of that beach.
They say they fear a similar "building boom" might
occur on Fire Island. Such
fears are groundless, as the two situations are completely different.
In West Hampton Dunes, the restoration was done after a breach in
the barrier led to destruction of the homes. A settlement of the property owners' lawsuit against the
government imposed extensive restrictions on some owners, but guaranteed
that all would have the right to rebuild, because the erosion and
eventual breach was exacerbated by government's abandonment of the
uncompleted Westhampton Beach groinfield.
Fire Island property owners were unsuccessful in bringing a
similar suit. Lawsuits aside, the existence of the Fire Island National
Seashore completely distinguishes the situation on that barrier island,
just west of the Westhampton beach segment. For one thing, construction of new homes outside the boundaries
of the Fire Island communities that existed when the park was created in
1964 was halted. That fixed
the number of building sites at about 4,000, with a great majority of
these having long since been developed. But erosion continued unchecked.
About 150 platted lots, of the original 4,000 that once were
building sites on Fire Island, are now well out on the beach, or even
under water in some cases. The
combination of the state Coastal Erosion Hazard Areas law and the Corps
proposed FIIP will make approximately 150 acres of beach front
permanently off limits to construction. (DDD, Vol. II, Appendix G., p.
4) Most of these lots are
already in government hands, but a few remain in private ownership.
Owners, if required by the state to pass title or give a permanent
easement on their lands, will not be compensated, because the
federal-state project is considered an “off-setting benefit” to the
upland owners.
Instead of celebrating this sign of progress, project opponents train
their sights on a few potential building sites at the edge of the
project.
The
Problem of In-Fill Lots
If the problem of new building is so clearly not in the project
area, it must be in the area adjoining it, just to landward. Most properties in this area were once developed, some of them
many years ago. The storms of 1992-93 knocked down a number of houses that
probably were not built to present-day standards. Zoning regulations require modern beach houses to be on solid
pilings driven dozens of feet down into the sand, with a first floor
well above expected storm water levels. This allows flood waters to go under a house without damaging it,
and normal coastal processes can quickly restore the beach and make the
house usable again. Many
houses built to this standard survived the storms when neighboring
structures did not. The now-vacant "in-fill" lots between the properly
built structures -- some two to three dozen of the remaining 3,850
building sites -- is the crux of the Fire Island rebuilding problem.
In order to keep these few properties from being rebuilt, owners
are being told that if they do rebuild, the project can't go forward
even though the project is not necessary to their being able to rebuild.
This puts those owners who want to rebuild (and many who also own lots
adjacent to in-fill lots have no intention of doing so) in a classic
Catch 22. As stated, most
privately owned shorefront lots on Fire Island have enough property
today to qualify for a permit to build a house and septic system,
whether or not a beach protection project goes forward. But opponents of the project insist that some branch of
government must say: "You may build a house on your property now,
before the project offers any protection, because the law says as an
in-fill lot owner you have the right to do so, even though your house
could well be knocked down or rendered unusable in any major storm that
occurs before the project is built. However, if you logically tell us you want to wait until you are
sure the project will be in place before you build, we won't allow the project to go forward, because that would mean
the project had been an inducement for you to build." This assault on common sense, encouraging building without regard
to whether the beach and dune system is adequate, accomplishes the
opposite of what the opponents say they want.
In a rational society, of course, policy makers would recognize that, as
the project is designed for protection of the mainland, any benefit to a
few dozen property owners on the barrier is incidental. Unfortunately, some environment groups, who oppose the
project for other reasons, have misrepresented the facts of the matter.
That means policy makers do not have the information they need as
a basis for decision making
Interaction
of the FIIP With New York Law
It is useful to look at the connection between the state's Coastal Erosion
Hazard Areas Act and the Corps project. The act was not in force on Fire Island prior to August 1999
because the entire island had been under federal control since the
creation of the Fire Island National Seashore, whose regulations
included a construction control line. Had the act been applied to Fire Island in the early 1980s,
however, the state and federal construction control lines would have
been in different places, because of how each statute defined the
no-build area. (Compare 36
CFR § 28.3(d) and 6 NYCRR Part 505.2) It was known, however, that Fire Island would eventually have to
be renourished, and that the state law would have to be in place if the
federal government was to be involved in the project. While the two lines would have to be conformed at that time,
there was no reason to act before a project was proposed. With the project in place, and the lines conformed, a single
line will exist for federal, state and municipal purposes. This will make enforcement of the regulations easier for
administrators and easier to understand by property owners.
Those regulations define the Coastal Erosion Hazard Area, or CEHA, as all
of the beach and dune between mean high water and a line drawn parallel
with the shoreline 25 feet landward of the landward toe of the primary
dune. (6 NYCRR 505.2) Because of unchecked erosion over the past twenty-five years,
much of the dune has receded to just in front of, or in some cases under
or behind, the row of houses that front on the Fire Island beach. Due to the cost of acquiring the real estate, a dune can't be
built under an existing structure. That means that some houses are now located within the erosion
hazard area, and some 21 houses, according to the Corps, encroach in the
project area buffer. (DDD,
Vol. I, ¶ 216 ) Under
state law, houses in the CEHA are considered “pre-existing,
non-conforming structures,” (Id.,
¶ 128) and are subject to several rules. Most important, if a house in the CEHA is damaged by a coastal
storm in excess of 50 percent of its replacement cost, it cannot be
rebuilt without a variance from the CEHA administrator. That variance is not likely to be granted if more than a very few
houses in the immediate vicinity have been similarly damaged.
The 25-foot CEHA “buffer area” takes account of the need for dunes to
be able to respond to wind and waves and, in some cases, set up in a
location more landward than previous to the storm. The Corps of Engineers project also requires a 25-foot buffer
area landward of the dune to be constructed. But the project buffer is not so much to give the dune room to
move as to allow maintenance of the dune in its present location.
In the absence of an overriding engineering consideration, the Corps
recommendation for the location of the dune and beach restoration
project is based on economics. Simply
put, if a new beach, dune and buffer zone are located close to the
shoreline in order to avoid private property, the amount of fill
material needed to expand the beach into the ocean would be prodigious,
and maintenance costs of such a project would be unaffordable. By the same token, if the project is built too far landward,
existing real estate would have to be acquired, which would also make
the project uneconomic. The
usual trade-off is to place the dune and beach fill in an alignment as
far landward as possible, and to tie the dune fill to the existing dune
or dune-remnant. This means
that many potential building sites (but not structures) still in private
hands would be fully or partially in the project area. In these cases, the Corps requires the state either to acquire
title to or a permanent easement on these properties to allow the
placement of the fill material and subsequent maintenance of the
project.
The landward limit of the CEHA was delineated by DEC in 1998. This was followed by public hearings and adjustments for
individual properties where requested by owners and found appropriate by
the administrator. The CEHA
boundaries were based on (1) location of mean high water (2) location of
the crest of the primary dune, or identifiable remnant and (3) adding 25
feet for a buffer area. The coastal environment is dynamic. The shoreline and even the dunes move in response to natural
forces, mainly storms. For
this reason the Coastal Erosion Hazard Areas Act allows for movement of
the construction control line (which is based on the location of the
primary dune) and calls for periodic adjustment of its mapped location.
The re-mapping is not discretionary:
"The commissioner shall review the boundaries of each erosion
hazard area … every ten years … . The commissioner may revise
erosion hazard area maps not sooner than
twelve months after the
occurrence of a major man-made or natural
event … . Following such
review, the commissioner shall
adjust the boundaries of such hazard
area to reflect any changes due to erosion,
accretion or other natural or
man-made changes. (34 Environmental Conservation Law § 34-104(4);
emphasis added)
Even if the FIIP resulted in a new location for the primary
protective feature, the CEHA line will not move as a result of the Fire
Island Interim Project, however, because the project's life is not
guaranteed beyond six years. Further,
the principal non-federal partner, New York State Department of
Environmental Conservation, notified the Corps and U.S. Department of
the Interior that "No lots that are currently undevelopable will
become developable as a result of the
implementation of the FIIP." (Letter
from W.W. Daley, Chief, Coastal Erosion Management, NYS DEC to Charles
R. Smith, Office of the Assistant Secretary of the Army - Civil Works
and Willie R. Taylor, Director, Office of Environmental Policy
Compliance, Department of the Interior, May 11, 1999.)
Locating the project where the Corps did means that only one
presently-functioning structure will have to be removed. That one house is just too far seaward of the other houses in the
area and it wouldn't make sense to try to jog the dune around it. The fact that buying this house will consume some $500,000 in
project funds shows how expensive the project would become if other
existing homes had also to be acquired.
All the fuss boils down to a few landowners who receive variances to
rebuild their "in-fill lots," landward of the project area.
There are probably not more than 15 to 25 of these, well under 1
percent of the total number of building lots on Fire Island. If a variance is granted, any new structure would become
"non-conforming" when built, and that means the rules about
subsequent rebuilding will be applied should both the project and the
houses behind it be lost to erosion or storms. To repeat, no properties
in
the project area (the primary dune and seaward, including the
adjacent beach) can be built upon.
As if to show the weakness of the environmental claims relevant to the
"35 in-fill lots," the Corps compares the number of houses
that could be built on these lots to the number likely to be built if
the "no action" alternative is decided on. The DEIS even notes that, assuming a worst case of
a 50 percent increase in new beach front construction by the end
of the FIIP's temporary (six-year) life, only 22 lots would have been
developed. That is less
than eight more that would be developed under the no action alternative,
and amounts to about 0.2 percent of the total lots on Fire Island. (DEIS,
Vol. I at p. 4.155)
A
Moratorium is not the Answer
Some feel the agencies should simply place a moratorium on development of
“in-fill” lots. That
may have a surface appeal, but a moratorium raises the specter of
potential claims for uncompensated “takings” of property. The consequences of this are shown in the Supreme Court decision
in Lucas v. South Carolina Coastal
Council, decided in 1992. In
that case, a developer applied for a permit to construct houses on each
of two parcels he owned. His
lots were separated by a developed lot, and each had a developed lot on
the other side. The
Council's construction control line was behind all five houses.
Lucas argued that because the three lots were already developed,
developing his two could not be shown to cause a condition that the
control of beach construction was designed to prevent. He maintained that preventing any practical economic use of his
property deprived him of that property without compensation in violation
of the 5th Amendment. In
ruling in his favor, the Supreme Court noted that the unequal treatment
of similarly situated property owners interferes with reasonable,
investment-backed expectations. It
seems likely that owners of “in-fill” lots on Fire Island who are
prohibited from using their property would also have to be compensated.
This, too, could alter the economics of the project, perhaps
fatally. A detailed legal
analysis of the moratorium issue, prepared by Fire Island Association
environment counsel is available.
The
Retreat Doctrine Longer Reflects Coastal Policy in New York
The real issue in the FIIP is not whether the potential development of a
few in-fill lots should rise to a level of importance as to provide
sufficient grounds for abandoning the project. Clearly, it should not.
The
issue is more fundamental: shall New York State return to the
discredited policy of retreat as a guiding principle of coastal
management. In the coastal
context, a retreat policy means that, instead of taking logical steps to
protect beaches and coastal areas from the effects of man-induced
erosion, houses and other structures that are in its path are moved back
or abandoned. It is a
policy that serves the interest of any who believe that coastal areas
are best preserved as open space, even at the expense of property, and
even human health and safety.
For several years, the retreat doctrine had currency in New York.
Reports prepared under the auspices of the New York State
Department of State were premised on the concept. (See Koppelman and Davies,
Hurricane
Damage Mitigation Plan for the South Shore of Nassau and Suffolk
Counties, New York, 1984; same authors, Proposed
Long Island South Shore Hazard Management Program, 1989; Governor's
Task Force on Coastal Resources, Now
and for the Future: A Vision for New York's Coast, 1991.)
When the storms of 1992-93 ravaged the Long Island coast, however,
Governor Cuomo appointed a new study group, the Governor's Coastal
Erosion Task Force, co-chaired by the Secretary of State and the
Commissioner of DEC. In a
major change, however, this group included business leaders, coastal
scientists and engineers, representatives of the construction and marine
trades, and property owner representatives, as well as the environmental
groups, agency representatives and planners that previously had
dominated such panels. The
diversity of interests assured that something more than
"retreat" would be recommended for the Long Island coastline,
and it was. The Task Force
called for prompt closure of barrier island breaches, inlet bypassing,
modification of the Westhampton Beach groinfield, and a beach
nourishment project for Fire Island. By opposing this aspect of the plan (the others have by and large
been effected) those in favor of retreat as a state policy hope to
restore it as the management technique of choice.
Environment groups tend to be strong advocates of the retreat doctrine as
a solution to erosion problems. Not
only can the doctrine be set up as environmentally sound ("mother
nature should take her course") but opponents of the policy; i.e.,
those from whose property the retreat will be made, provide a good
excuse for not doing anything about coastal erosion. By labeling beach house owners as enemies of the environment,
some environment groups take advantage of class rivalries that sometimes
masquerade as environmental concern.
Conclusion
It is hard to escape the conclusion that concerns about the potential for
the FIIP to foster development in dune areas is unfounded. First, both state and federal restrictions ensure that no new
development will take place in the project area. Second, the net effect of the FIIP, is to
decrease,
not increase, the number of potentially buildable lots.
Third, the owner of any property within the CEHA would require a variance
to rebuild once the property is subject to significant storm damage.
Finally, the
"in-fill" lots are landward of the project, in areas already
developed. A moratorium on
construction in these lots would raise serious Constitutional issues and
is unneeded to protect the Fire Island ecosystem.
Since fewer, not more, Fire Island properties will be buildable if the
FIIP goes forward; since no environmental objections have been made that
are sufficient to forestall the project; since a moratorium likely would
raise more questions than it answers; since a vast majority of those in
the project area have shown they are in favor of the project; then
policy makers have a responsibility to ask opponents to describe the
true nature of their objections to the project. If the answers are not more persuasive than opponents' arguments
have been heretofore, the project should go forward.
Fire Island Association
April 2000
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