April 2000 - Opponents Fear More Dune Houses

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