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selectively from relevant materials, but relying for the most part on like-minded theorists speaking in a seriously out of date tract that is aimed at a non-technical audience, the article contributes little to an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 increase 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 issue 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 “ineffective 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 advantage 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 islands] 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 Corpsof 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 dealfirst 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 cost 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