February 2001 "Non-Structural Solutions" Are Neither

General

The following comments reflect the views of the Fire Island Association and relate, except where noted, to the Fire Island National Seashore, within whose boundaries there are some 3,850 properties and businesses. FIA, with over 1,600 paid members, represents the interests of these owners. As the comments note, it is the declared intention of some government agencies and environment groups to remove existing homes from communities that were protected by the Fire Island National Seashore Act, and this was a frequent subject of discussion during the workshop­. The Fire Island Association believes this is unnecessary, as well as violative of the statute, since well-established methods of beach nourishment can protect existing structures, while newly applicable state law provides adequate assurance that the approved density levels will not be exceeded. Accordingly, FIA intends to use all measures at its disposal to resist any effort to gain control of Fire Island property other than from a willing conveyor.


Opening Remarks by Col. William H. Pearce, NY District Engineer, USACE

1. Col. Pearce (p. 8) states that “non-structural solutions … provide direct protection to vulnerable buildings.” Structural measures, by contrast, “alter underlying physical processes, such as wave impacts and erosion, in order to prevent damage to buildings vulnerable to storm damage.” He should have stressed that, in the barrier island context, structural solutions (beach nourishment, e.g.) protects more than buildings. It protects the back bay shoreline, the bay itself and buildings and infrastructure miles away on the mainland. Non-structural methods may “save” a few buildings along the ocean shore (e.g., by removing them) but, in the absence of beach nourishment, that simply defers the problem until the “underlying physical processes” reach the next row of houses on the barrier. So far as they may apply to Fire Island, virtually all non-structural approaches to erosion, including zoning and land use regulations, have either been employed or found impractical.
Remarks by Ray Cowen, Region I Administrator, NYDEC

1. Mr. Cowen (p. 9) expects the Reformulation Study to “vastly increase our knowledge of the inter-relationships between the barrier islands and the bays they protect, the effects of overwash and breaches on the health of critical habitats, and the effects of rising sea level on wetlands, beaches and other recreational areas, as well as public infrastructure.” Mr. Cowen should acknowledge that the expenditure of $22 million of public funds on a Reformulation Study to “increase our knowledge” is an outrageous waste. The answers are, and have been for some time, largely known; the studies continue because some do not like them. For example, ­answers from those who believe beach nourishment is economic, practical, environmentally benign and cost effective are disputed by those whose primary goal is to roll back unwanted development in coastal areas. Each side hires its preferred scientist to dispute findings of the other’s. The Nature Conservancy and Environmental Defense lead this effort on Long Island. Any solution that does not roll back development from present levels will not be acceptable to them, or to those environ­ment groups who look to them for leadership.

2. Mr. Cowen (p. 11) says “the most critical need is restoration of the natural, along-shore, sediment transport system – the littoral drift – by implementing effective bypassing at all the south shore inlets, as well as removing or modifying other littoral interruptions.” Mr. Cowen’s agency, the New York State Department of Environmental Conservation, has known this, but not acted on it, for decades. In September 1994 the Governor’s Coastal Erosion Task Force, co-chaired by the DEC Commissioner, called for inlet bypassing and modification of the Westhampton groinfield (as well as for a breach contingency plan, sand stockpiling and beach nourishment where needed on Fire Island and elsewhere). The groin modification was effected as a result of a court order, not by a state agency decision, but bypassing and beach nourishment have been resisted by state and federal agency employe­es. The latter appear to have been convinced by environment groups that bird colonies might be adversely affected if the beach is raised and widened. There is no scientific evidence that supports this postulation and empirical studies at West Hampton Dunes have refuted it.

3. Mr. Cowen (p. 11) also notes “the most effective means of reducing structural damage to houses and other buildings is to locate them out of the reach of the hazard – the non-structural solution.” On Fire Island, at least, it follows that if there is no place to which houses may be easily relocated, the next “most effective means” would be to buy the houses and demolish them. That is why the Nature Conservancy would spend $163 million of tax dollars to acquire private properties on Fire Island. This money need not be spent if a reasonable program of beach nourishment is established, as it has been in most other coastal states.

4. Mr. Cowen (p. 11) states that local government must cooperate in the use of non-structural approaches, especially through adoption of appropriate zoning and land use regulations. He ignores the considerable economic contribution of Long Island’s second-home industry that should also be weighed by county and town governments before they consent to a program aimed at their removal. Local villages and towns may want to appraise the impact of the loss of real estate tax revenue, for one thing.

Remarks by Susan Antenen, Director of Coastal Programs, Nature Conservancy

1. Ms. Antenen (p. 13) states that the meeting TNC convened with Environmental Defense Fund in April1999 recommended that the Reformulation Study be used “as an opportunity to advance long-term solutions.” She did not mention what to project opponents was the essential preliminary step: stop the Fire Island Interim Project. Because once it has been demonstrated that beach nourishment is a cost effective and environmentally safe basis for coastal policy, the public will demand its continuation. Shoreline protection, however, is a secondary objective, if it is an objective at all, in the eyes of the organized environment lobby. Instead, the Reformulation Study is a means of effecting a desired social policy objective. While carefully framed in terms of preservation and conservation, TNC’s coastal conservation effort is based first and foremost on rolling back private devel­opment in Long Island’s coastal communities. That should be a public decision, not within the prerogative of non-government environment groups. Moreover, its aggressive posture on Long island could well undermine TNC’s good works in other areas, where it has helped broker solutions satisfactory to landowners as well as to conservationists.

2. Ms. Antenen (p. 13) invokes “a predicted 12″ to 18″ sea level rise in the coming century.” She might have noted that the non-structural solution TNC prefers (removal of private property) will not be affected by sea level rise, even if the “predictions” are correct. If anything can slow sea level rise impacts on barrier islands it is beach nourishment, systematically applied. But Ms. Antenen stresses TNC’s preferred approach — “land acquisition” – even though this in no way counters the effect of a rising sea level.

Remarks by William Daley, Chief Erosion Control Section, NYSDEC

1. On p. 17, answer 3, Dr. Kraus’ name is misspelled.

2. Mr. Vietri (p.17, answer 3) notes “The state and federal governments are concentrating efforts on the Reformulation Study, which holds out promise of a more long-term solution for Fire Island.” The Corps has often referred to the Fire Island Interim Project (FIIP) as “a bridge to reformulation.” By dynamiting the bridge, anti-project forces hope that Reformulation will only come, if ever, after many more Fire Island houses are lost to erosion. Some refer to this as the “destructural solution.”

3. Relative to the Breach Contingency Plan, (p. 17, answer 6) the audience was assured that “the two higher levels of government were committed to responding to breaches,” even in the absence of pre-filed permits for the necessary construction activity. Skeptics might as confidently predict that project opponents will file injunction proceedings to keep a “natur­al” breach open, citing in support the fact that the “higher levels” must not care, as they had not bothered to seek renewal of the permits.

4. Answering a question (p.18), Mr. Daley notes that studies are underway to determine “the role, both positive and negative, of breaches in the barrier system.” He should have noted that any “benefit” of a breach or major washover of the barrier can be artificially created. That breaches/washovers are “necessary” is called into serious question by the fact that the bayside marshes on the north side of Jones Island are thriving even though there has been no significant washover (much less a breach) of that island in many decades, as a result of an ongoing program of beach nourishment.

5. Mr. Daley’s answer (p. 18) to the question on movement of the Coastal Erosion Hazard Area (CEHA) line is incomplete. He should have mentioned that Article 34 of the Environmental Conservation Law is clear that once the primary protective feature is permanently relocated (i.e., where there is a commitment to maintain it in its new location for 30 years, as at Westhampton beach) the Commissioner of DEC is obliged to move the line. An interim project, one to be maintained for less than 30 years, would not result in movement of the line.

Remarks by Professor John Nolon, Pace University

1. The cases cited by Professor Nolon (p. 19) involve newly adopted regulations that reduced the economic value of private land. The land use regulations in place on Fire Island were adopted almost 40 years ago when questions such as those addressed in the Workshop were resolved in the Congressional debate over the creation of the Fire Island National Seashore (FINS). The issues now termed “non-structural” were carefully analyzed and resolved with the result that fully 80 percent of the island’s upland area and 100 percent of the beaches has been preserved for public use. Environment groups now would have it all.

2. A decade ago, 36 CFR Part 28 (August 28, 1991) allowed for issuance of Certificates of Suspension of the Secretary of the Interior’s authority to acquire certain Fire Island proper­ty by condemnation. The Secretary may not condemn any structure that is in conformity with a zoning code approved by the Secretary. Term­ed CSAAC­s, about 100 certificates have been issued to Fire Island property owners who may have been concerned that the agreement hammered out with one Park administration would not be honored by a succeeding one.

3. Fire Island zoning codes are enactments of the Towns of Brookhaven and Islip and the Villages of Ocean Beach and Saltaire. One of the features of the local code that is required for approval­ by the Secretary is a separate set of regulations for properties in the primary dune area. In Islip, the Town Council serves as a Zoning Board of Appeals. Where disputes over building permits and variances arise, they are reviewed by the Council, rather than the Zoning Board of Appeals, as in Brookhaven. In the aftermath of the storms of 1992-93, when more than a score of homes in Islip’s primary dune area were destroyed and their owners sought permission to rebuild, variance disputes became burdensome to the Council. An amendment to the code was passed that removed the requirement that special rules be followed with respect to permits to rebuild in the dune area. The removal of the special rules requirement, unfortunately, meant that Islip’s code no longer met the requirements of the Secretary of the Interior, nor has Islip sought such approval. Thus, all homes in the unincorporated parts of Islip on the barrier beach will be subject to condemnation by the Secretary until the Islip code is fixed. While FINS is aware of this, it has yet to formally communicate with Islip about the matter. The conclusion is inescapable that FINS intends to use the condemnation power in a post-storm situation if funds can be found. There was no reason to expect Prof. Nolon to be acquainted with this anomaly, and he is certainly knowledgeable about zoning and land use in general. But his presentation bore little relevance to Fire Island.

2. Here is another example of how Fire Island has already applied unusual and advanced Zoning concepts. The Federal zoning standards provide for temporary acquisition by the Secretary of properties than are not and/or cannot be brought into conformance with the applicable code by the present owner. The unique feature of this “non-structural solution” is that the Secretary is required to re-sell the property to a buyer who is willing to bring the property into conformity. The legislation was fought for by the Fire Island Association in order to address the problem of administrators and owners who were unwilling to abide by the adopted zoning standards. Professor Nolon may not be familiar with this innovative feature, termed the “Turnaround Law” by Fire Islanders. For its part, in recent years FINS has shown no interest in using this law to remove zoning violations. In the absence of leadership from FINS, communities tend to accept the ongoing violation as part of the local scene rather than cause intra-community strife.

In general, Fire Island’s zoning codes and land use regulations reflect considerable community effort and involvement and are adequate to meet any needs likely to evolve, assuming municipal and Seashore participation. There is no reason to seek amendments to these codes, and any efforts by special interest groups to do so will be strongly resisted by those who worked to create the present system. As for the other recommendations by Professor Nolon, they lack relevance to Fire Island, which is already maximally developed.

3. The paragraph beginning “Handout 2″ (p. 21) again supposes that no comprehensive zoning plan has been put in place for Fire Island. The references to the National Park Service and “summer cottages” makes it clear that Professor Nolon is attempting to fit Fire Island into an upstate New York template. There is no reference in the Fire Island codes, for example, to a 50-year period of “allowable use.” Such trade-offs, where deemed necessary, were agreed to by Congress when FINS was created. The agreement that priva­te properties in the settled communities west of Watch Hill would be protected, under strict zoning rules that specified single-family residential use and agreed on densities, was balanced by the fact that ma­ny structures in the areas between communities and east of Watch Hill were to be acquired after a 25-year allowable use period. In addition, certain non-conforming structures within settled communities were acquired and demol­ished (sometimes at community expense) to assure that the planning scheme was carried out. It may be of some satisfaction to Professor Nolon to know that this achievement did involve “extensive cooperation with a range of agencies.”

4. It is important to note that, by and large, the plan to preserve and protect Fire Island was fully carried out. Public lands today comprise over 25 miles of Fire island’s 32-mile length and the “community development district” under 7 miles. Instead of celebrating this remarkable achievement, accomplished before the birth dates of many of those who would now improve upon it, Fire Islanders face demands that erosion not be addressed even by methods well established and in wide use in other parts of the country, so that more of their homes can be claimed by the sea. As for increasing the role of New York State, the application of the CEHA Management Program and the long-awaited rationalization of it with the Federal dune district regulations is well understood. Upsetting the balance with the introduction of new features would serve little purpose. Finally, if Fire Island is now to be subjected to another round of “improvements,” those who worked on the last round would appreciate it if the legal analysis of the existing situation were conducted by someone with a better working know­ledge of it than Professor Nolon’s remarks have demonstrated.

Remarks by Oval (Gene) Barr, USACE, Huntington WV

1. Mr. Barr (p. 25) notes “The acquisition of properties is an effective damage reduction tool.” (As Orrin Pilkey puts it, “No houses; no problem.”) But Mr. Barr also observes, “In many situations where the flooding hazard is not … severe, residents will not support acquisition.” This is the more true when known techniques that can prevent the need for acquisition are ignored in favor of “non-structural” approaches that not only fail to address the problem but seem to be aimed at accomplishing a different objective; namely, rolling back unwanted coastal development.

2. Mr. Barr’s analysis may apply to low-lying mainland areas. On Fire Island, however, mo­st flood proofing (elevation, wind proof construction techniques) are routinely followed in the most exposed areas. Again, these areas are, for the most part, already maximally developed.

Further Remarks by Professor Nolon

1. Professor Nolon’s second paper, on development rights, (p. 25) also has scant application to Fire Island, whatever it may have for other parts of the study area. While the National Park Service often mentions land swaps, for example, as one of the tools in its bag, it has shown no real interest in applying this technique in the very few relevant cases on Fire Island.

Barrier Island Breakout Group - Tuesday

(Note: It is understood that in a search for “consensus” workshop facilitators ask all participants for candid comments that will serve to demonstrate the wide range of views. While it is not reasonable to expect such comments and observations to illuminate elemental truths, some take on an unmerited stature simply by appearing in print. These require a clear and contemporaneous respon­se. The comments by workshop participants appear in italics. Participant observations that are not commented on should not be assumed to be accurate.)
Attributes

• There has been significant human manipulation of natural processes.

1. The import of this attribute, it need hardly be said, is that in any rational society the effects of the manipulation would be mitigated before an elaborate series of other steps are taken. That this is not the case on Fire Island demonstrat­es that those addressing the problem of erosion in fact care more about something else.

Zoning and Land Use Controls

• Implement new zoning that would result in existing, undesirable structures becoming non-conforming uses … [which] can not be rebuilt.

2. It is important to note in whose opinion the structures are “undesirable.” If the observer is unconnected with the “undesirable” property by virtue of ownership, or as a neighbor or communi­ty member, or as a zoning or public health official, the designation is both offensi­ve and irrelevant.

• The preservation of the small number of undeveloped lots within the already densely developed communities was identified as a benefit.

3. An undeveloped lot is not a “benefit” to an owner who wishes to develop it. His or her decision to use the lot in some other way may be influenced by community opinion but, absent an overriding public purpose, government should not attempt to prevent that use.

• The ultimate goal … would be to avoid new construction within and eventually remove all existing development from the hazard areas.

4. The stateme­nt reflects an anti-property bias and its application would be unlawful. Nevertheless, this is the avowed aim of the Nature Conservancy and some within the U.S. Department of the Interior and the New York Department of State. Hazard areas are made such on Fire Island by failure of government to carry out its responsibilities of protecting the shoreline and “preserving” the island for use of future generations. A reasonable program of beach nourishment would adequately cope with the perceived “hazard.”

• One challenge to zoning controls is that many communities are unincorporated and have no direct zoning authority. Therefore such controls will be met with adversity from residents.

5. To connect the unincorporated status of some communities with a challenge to zoning controls is a non-sequitur reflecting a lack of familiarity with Fire Island. Nothing is built on Fire Island without a permit or a variance granted by the zoning authority. It is true that unreasonab­le zoning measures will be resisted, regardless of who proposes them.

• Current zoning has created the unique development pattern on the barrier island. All development is concentrated on 20% of the land area with the remainder of the barrier island left as open space. This is beneficial in that new zoning can be focused on existing, scattered development that is outside of these core development areas.

6. This comment reveals a lack of knowledge of zoning in general and Fire Island zoning in particular. First, the important fact that zoning has already been implemented that leaves 80% of the island as open space seems completely to have escaped the attention of the commentator. He or she completely ignores the arrangements already made and implies that the job has not been started, let alone completed decades ago. Second, there are no “scattered developments” that have not been specifically addressed in the Seashore’s General Management Plan. Any threat to apply new zoning measures to what critics see as “existing, scattered development” will be met with vigorous opposition from the FIA.

• Some felt that zoning and land use controls would be more desirable and / or acceptable to property owners if used in conjunction with beach nourishment or other structural methods.

7. There is a definite connection between implementing beach nourishment and the extent to which communities will entertain suggestions for zoning code changes. One might even suggest it is a sine qua non.
Landform/Habitat Controls

• The existing regulations are written in such a way that they will hold up in takings cases, however, local governments have not taken the cases far enough to test the strength of the regulations.

8. This may misread the objectives of the local government involved. Usually, local government wants issues resolved in a way that is fair to the parties and not inconsistent with the code. The objectives of administra­tors from distant government offices may be different. That does not make them right and the former wrong.

• [The] original NFIP required the implementation of flood plain management programs, now that these programs are in place, the NFIP should move on to the “next step” such as implemen­tation of actuarial rates.

9. The attempted perversion of the National Flood Insurance program by environment groups and bureaucrats in unrelated agencies is a continuing scandal. The only reason the observer mentions “actuarial rates” is the hope that higher premiums will make Flood Insurance unaffordable for many beach house owners. But the value of a growing number of beach houses already exceeds the maximum coverage ($250,000 plus $100,000 contents). Raising the rates will not accomplish the goal of removing insured structures. NFIP’s supporters will not permit the program to be used to roll back coastal development as some would like.
Insurance Program Modifications

• If flood insurance policies require that premiums increase after the first claim, this would eliminate the problem of repetitive losses and would create powerful incentives for property owners to reexamine the location and expense of placing structures in flood hazard areas.

10. The NFIP has been under review since the modifications of 1994 (see, e.g., the recommendations in the 2000 Heinz study). The changes in this program, one of the most successful of all government programs since World War II, are expected to be evolutionary and minor. Repetitive loss structures are a special problem, rare along the coast, that is being dealt with by program administrators. The NFIP is an insurance program; not an environmentally-oriented land use scheme.

• The CEHA line should never be moved seaward as a result of a beach nourishment project. In hopes that the line could be moved seaward, some property owners build and / or maintain structures within the current CEHA zone. If the line were to be moved seaward, these structures would no longer be in the CEHA, and thus not subject to restrictions on rebuilding.

11. The reference to moving the CEHA line is addressed above. The speculation as to the motivation of “some” property owners to one side, if the alternative is to simply abandon shorefront property (as some have) it is not surprising that those who can afford to will maintain and try to use it. Implementation of a beach nourishment project would result in the CEHA line and the federal dune district lines becoming coterminous. At that time, all questions about property south of that line being buildable ­are settled in the negative.
Relocation of Structures

• Very few undeveloped, buildable parcels exist on the island. There are not enough parcels available to relocate all of the structures in the hazard areas.

12. The implication is that “we must buy them to get rid of them.” Some prefer reducing the risk to reducing the number of structures, which do have a value to society as other states recognize. Why should Fire Island be treated differently from New Jersey, Delaware, North Carolina and Florida? Why spend millions each year to protect Jones Island and zero on Fire Island?

•It may be possible to use some of the Fire Island National Seashore property as relocation properties.

13. There is virtually no room on Fire Island for relocation of structures and the Seashore has shown no interest in using its land for that purpose.

Wednesday Session
Land Acquisition Measures

• FINS is authorized to purchase properties within hazard areas, especially those that fail to meet FIIS zoning regulations, but there is no money available to implement a program.

1. It should be kept in mind that the Secretary of the Interior is required to sell structures so acquired to someone willing to bring them into conformity.

• USACE has limited authority, and would require new legislation, to acquire lands for storm damage reduction purposes.

2. USACE can and does acquire properties where doing so lowers the cost or increases the efficacy of a project. The Corps does not discuss such matters in advance, especially in the face of stiff resistance to the very idea of a project from environment groups and anti-project agency bureaucrats. Announcing its intention to acquire properties would encourage speculators to attempt to increase value by new or expanded construction. The Corps would seem entitled to some respect for its long experience in these matters rather than being second-guessed by those lately arrived on the scene.

• Suffolk County is about to implement a program that provides money for open space, water quality, farmland preservation and habitat preservation programs. This money could be available for land acquisition programs on the barrier island.

3. If Suffolk County is interested in acquiring property on Fire Island, it might first want to determine what is there. FIA­’s previous efforts with the Corps and the Town of Islip for a definitive idea of how much undeveloped but developab­le property there is on the dune have been given short shrift. The County might also want to examine whether it is a good use of County funds to make such purchases if a beach nourishment program might make it unnecessary. The cost to the County taxpayers of a $60 million federal-state-local program of beach nourishment has been estimated to be about $2.5 million (with a like amount being generated by Fire Island property owners through an erosion control taxing district).

• It may be necessary to implement legislation that would prohibit government agencies from reselling properties obtained through land acquisition / protection programs.

4. The comment seems intended to disparage the existing Turn­around rule on Fire Island. Not only is this most innovative aspect of Fire Island zoning ignored by the Park administrators, some feel it should be eliminated altogether.

• If conservation funds were available in conjunction with the Reformulation Study, no new legislation would have to be implemented in order to implement these programs.

5. Fire Islanders will work hard to assure that funds, from whatever source, are not used to effect basic changes in the agreement made at the time FINS was created. FIA believes the surrounding community is well served by the economic and recreational activity that Fire Island generates as it is presently constituted. FIA will continue to urge that the island be maintained in that form.

General Discussion of Reformulation Study Objectives

• It is necessary to recognize an overall, common, vision for the barrier island. However, this vision can not be reached through the Reformulation Study alone. It is necessary to recognize an interim vision that fits within the scope and schedule or the Reformulation Study.

1. To any logical observer, it is not an “interim vision” that is needed but an interim project. Delay in implementing an interim project will cause destruction of property on Fire Island and increased risk of flood losses on the mainland. This is the intention of project opponents and it is the antithesis of good public policy.

• Existing regulations reflect a sort of government vision. Such visions do not change as the administrators of the legislation change. They are inherent in the FIIS, Tidal Wetlands and Article 34 programs.

2. Much as we may wish they did not, Government “visions” most decidedly do change. The “vision” of the current FINS administration of how to implement the FINSA is much chang­ed from the agreements reached between communities, Congress and New York State in the early 1960s. The “vision” of Fire Island held by Jacob Javits, Stewart Udall and others is a far cry from a vision that would contemplate deliberately allowing it to erode as a means of ridding it of now “unwant­ed” development. (And the Tidal Wetlands Law, ECL Article 25, only applies to Fire Island first row properties because the state and the municipalities have yet to agree to implement (and who shall administer) Article 34.)

•In order for the Reformulation Study to be taken seriously, three elements must be considered concurrently: 1) Eventual relocation of all structures outside the CEHA …

3. It would be more logical, fairer and less expensive if the objective were a shore protection program that located the CEHA south of the present building line.

• FIIS believes there should be no long-term presence of homes on the primary dunes.

4. If FIIS really believed that it would have urged periodic beach nourishment that would have had the effect of preventing the dunes from receding to the location of the homes. So long as houses conform to approved zoning codes, FIIS has no business making such a statement. It has no legal basis, is inflammatory, and should be withdrawn. FIIS should worry about maintaining the physical integrity of the barrier as a recreational resource for millions, as Congress instructed.
Conclusion

• Easements, land swaps and TDR are viable options, but funds are not available.

I. The real question is not availability of funds but whether a small number of environmental extremists will succeed in gradually converting a great urban national park into a retreat for environmental elitists.