A Reply to FINS
In the Fall 1999 newsletter of Save Our Seashore, Inc., the Superintendent of the Fire Island National Seashore set forth his position on the proposed Fire Island Interim Project, a transitional shore protection effort designed to protect Fire Island beaches until a longer term solution known as the Reformulation Study can be implemented.
In the course of doing so he demonstrated a bias against the project. The Fire Island Association believes the Superintendent’s position would place properties and government infrastructure, both on Fire Island and on the south shore of Long Island, at needless risk in order to effectuate a policy designed to facilitate removal of private development from the barrier island. Supt. Dillon’s statement is attached. His major points are encapsulated below in boldface type, followed by comments from the Fire Island Association.
1. The park’s policies and practices are derived from its General Management Plan, the enabling legislation (Fire Island National Seashore Act), and the Wilderness Management plan for FINS. Because the Fire Island Interim Project is complex and other Interior Department agencies are involved, decisions will not be made by the Park but by the Department. But the park will provide input.
When the Fire Island National Seashore was created, it was with full knowledge that shore protection measures would at times be both appropriate and necessary; indeed, the 1979 General Management Plan (GMP) contemplated the necessity of having to nourish Fire Island’s beaches. The first of the “premises” upon which the management plan is based is that the island “will be managed to preserve the nationally significant natural resources while providing for environmentally compatible recreation.” (GMP p. 30) The island itself is the chief “natural resource.” A policy that would make much of it inaccessible to the public, by not dealing with preventable, human-caused erosion and possible breaching of the barrier island, cannot be said to be “preserving the resource.”
Further, the GMP makes clear that the drafters had shore protection in mind when it states: “Attempts will be made to restore and maintain the beach and dune system by environmentally compatible methods that acknowledge the inevitable erosional transformation of the island, a result of rising sea level, great hurricanes and severe nor’easters” (GMP p. 30, emphasis added). That the immediate cause of the erosion is largely human-induced is acknowledged in the GMP: “Attempts will be made to repair human disturbances of natural geomorphic conditions within certain segments of the island with the idea of then allowing natural processes to maintain these conditions.” (GMP p. 30) In addition, the GMP states flatly, “Ocean-facing dunes will be repaired or restored as needed.” (GMP p. 33) The GMP, a document prepared almost 25 years ago, fails to acknowledge that a barrier island system with stabilized inlets is not, and cannot be, a system maintained by “natural processes.”
Further, since the GMP is admittedly outmoded, it is inappropriate to use it to justify a course of action that could lead to the destruction of the resource the Superintendent is charged with protecting. It is a well-established principle that an administrator has discretion in carrying out ministerial duties. The outmoded character of the GMP should mandate a pro-protection stance for Fire Island’s beaches, as opposed to one that seemingly allows for their erosion on the basis that preventing erosion is “non-natural.”
The enabling legislation also provides ample discretion for an administrator to take a pro-protection stance. The Act clearly states:
“The authority [of the Corps of Engineers] to undertake or contribute to shore erosion control or beach protection measures [in the Seashore] shall be exercised in accordance with a plan that is mutually acceptable to the Secretary of the Interior and the Secretary of the Army and that is consistent with the purposes of the [Fire Island National Seashore] Act.” Pub. L. No. 88-586, 78 Stat. 932; 16 U.S.C. § 459e-7(a) (1964).
During the debate, Congress made it clear that “[p]rovisions for erosion control are included in order to protect the seashore.” 110 Cong. Rec. at 20,637 (statement of Rep. Halpern). Another representative favoring passage of the bill stated, “[i]nsofar as possible, [Fire Island] should be preserved from natural erosion and conserved for public use” (statement of Rep. Lindsay). Secretary of the Interior Udall agreed, stating in a letter to the Chairman of the Senate Interior Committee interpreting the section quoted above as meaning that, “the national seashore will not interfere with shore-erosion control and beach protection measures by the U.S. Corps of Engineers and/or the state of New York.” 1964 U.S.C.C.A.N. at 3714. The foregoing and numerous other direct references to shore protection and beach replenishment measures in the Legislative History of the Seashore enabling act makes clear that Congress intended such methods would be used in preserving Fire Island. The National Park Service now deliberately ignores these admonitions and thus flouts the will of Congress.
Finally, the Superintendent fails to note that, under Park Service regulations, there is a presumption in favor of his issuance of a special use permit, which is required for the project. The regulations provide that the Superintendent “can deny a permit request only upon a finding that the request would … adversely affect the public health, safety, environmental or scenic values, [or] natural or cultural resources … .” (36 CFR 1.6 (d)) There is ample scientific support for the position that sand nourishment is fully consistent with this regulation and that the Superintendent may exercise his discretion to preserve the Seashore through beach nourishment. Instead, he has used his office to foster the delays that have occurred over the past few years for a project that is jointly supported by the state of New York and the Corps.
2. The Corps has said the FIIP will not stop hurricanes or a storm like the 1992-93 nor’easters. Further, the primary purpose of the FIIP is to protect the south shore of Long Island; therefore any benefit to Fire Island is “incidental.” The park has to consider this as it “analyzes” the impact of the FIIP on the national seashore.
The Superintendent here refers specifically to informal remarks by the Deputy Chief of Planning for the Corps’ New York District delivered at the Fire Island Association meeting of July 31, 1999. At that meeting, Joseph R. Vietri made the point that the project is interim in nature and would not provide the level of protection needed and contemplated in the long term solution. He described the project as providing a “44-year level of protection,” which equates to a project capable of protecting against a storm of an intensity that is likely to recur once every 30 years. The Ash Wednesday storm of March 1962 and the December 1992 and March 1993 nor’easters were 30-year storms. The Category II hurricane of 1938 was a 50-year storm event which has not recurred. It is true that the interim project cannot prevent the damage and flooding, either on the barrier or the mainland, that will be produced by a 50-year storm. Corps studies show, however, that the FIIP would significantly reduce such flooding. And the longer term solution would virtually eliminate flood damage in all but cataclysmic storms and save south shore businesses, property owners and government infrastructure tens of millions of dollars.
The interim project is designed to return the island’s beaches and dunes to conditions that existed prior to the 1992 nor’easter, as recommended by the Coastal Erosion Task Force appointed by Governor Cuomo in 1993. Those conditions, while inadequate, were good enough to prevent the additional damage that otherwise would have occurred. Should another storm of the 1962 or 1992 level occur, the unrestored beaches and dunes would be unable to prevent far greater destruction on the barrier island and more flooding on the mainland. It is prevention of mainland flooding that provides the economic justification for the project; in that sense benefit to the barrier island itself is “incidental.” But the Superintendent says that the “incidental benefit” provided to Fire Island, plus the fact that not all damage will be prevented, must be “analyzed” in terms of the environmental damage the project might do to the resource. In this he exaggerates the scope of his responsibility. The comments of the Seashore should relate solely to the subject of how adding sand to a sand-starved beach will adversely affect the beach environment; the question of how and where damage is prevented is for the Corps of Engineers. It was to the Corps that Congress assigned the task of designing environmentally sound shore protection projects, not the National Park Service, even when the project protects NPS lands. Only if the true objective of NPS is to cause the loss of more houses on the barrier (at the risk of severe and dangerous south shore flooding) would the course favored by the Superintendent make sense.
3. The Superintendent notes that the park is guided by the GMP, the development of which was influenced by environmental analysis and public comment. He adds that the park can’t deviate from the GMP unless similar information is considered.
While the Superintendent insists that programs that “deviate” from the GMP must be examined by the same process (including public input) that created the GMP in the first place, in other forums the he has noted that preparing a new GMP would cost half a million dollars (which the park does not have) and take three years. Whether or not he is correct in saying that there was a lot of public participation in preparation of the existing GMP, the document is almost 25 years old. Not only have recreational and residential uses of the park changed, but there have been tremendous changes in the physical condition of the beach. This is because the partial (and improper) construction of the Westhampton groinfield (that was abandoned, recklessly, in 1975), along with stabilization and inconsistent bypassing policies at Shinnecock and Moriches Inlets combined to block completely the natural along shore flow of sand to the Fire Island segment of the barrier island system. With no sand reaching Fire Island, save for an undetermined amount from offshore, the forces that would have simply moved sand along the shore instead eroded the beaches and upland area. Yet the Superintendent considers this entirely abnormal condition to be “natural” and therefore to be protected. The GMP is premised in part on its being modified “continually [to] reflect new information, changing conditions, and experience gained from management of other similar resources.” (GMP p. 30) As no such modification has been made since the GMP was adopted, it cannot be relied upon now to justify a questionable course of action. Nor should the south shore of Long Island be held hostage to the park’s failure to modernize its operating plan to reflect changed conditions.
The Superintendent feels the Corps’ plan must either “comply with the GMP” or analyze the environmental impacts of not doing so. If the GMP accurately reflected existing conditions this position would have merit. But it doesn’t. In fact, the change in conditions the FIIP would bring about would be to restore the beaches and dunes to what they were prior to the 1992 storm. No study has ever shown that adding sand to a sandy beach has any significant environmental impact. Shore protection is routinely performed all over the country in projects that show due regard for nesting periods of wildlife, and for protecting endangered plant species and wildlife habitat. To oppose it here, in the face of the success of similar projects nearby, can only be an effort to attain a different objective, one unrelated to valid environmental concerns, such as development issues.
4. The superintendent believes it “important” that the FIIP “prevent further building on the dunes” in compliance with state law.
There are almost 4,000 properties on Fire Island. Of those developable parcels currently without structures, most can be built on today. It’s estimated that less than two dozen will be made buildable by the FIIP, compared to the more than fifty lost to the storms of the 1990s. In fact, constructing the FIIP will reduce the number of structures that can be added in the dune area. This is because Article 34, the state’s Coastal Erosion Hazard Areas Management Program, mandates that the state receive title or a conservation easement for any property in or south of a project area. Until a project is constructed and the restricted areas demarcated, beaches may build up naturally in an amount sufficient to cause some to want to place a house where none exists today. If such a parcel were located in what was to become a project area, its development would not be permitted; by opposing the FIIP, the Seashore encourages the very construction it says it wants to control. There could be no clearer indication that the policy objective is not based on a concern about new development, but a roll-back of existing development.
5. The Superintendent notes that he would like to see the Lighthouse area and the access road into Kismet protected, and to “improve the marshes and bayside wetlands” at places like Barrett Beach.
This inconsistent approach is hard to explain. Evidently, the Lighthouse area is deemed worthy of protection because it is Seashore property in a threatened area. But the same can be said of Barrett Beach/Talisman. In one case, the Seashores favors “shoreline protection” while in the other it would confine its activities to marshes and bayside wetlands, apparently in order to obviate the need to “place sand in federal land holdings.” This is a transparent effort to justify different policies in different locations, an approach completely at odds with both the GMP and the enabling legislation. Nowhere is it stated that sand should not be placed on Fire Island beaches except for the Wilderness Area. While common sense suggests even that exception is mistaken, it certainly should not be expanded without the kind of public comment the Superintendent calls for in a related context. It is important that the Seashore recognize that the entire Fire Island barrier is threatened, that a breach in any location could have significant impact on the entire island (as by causing an existing inlet to close, for example), and that a segment-wide approach is the only sound approach to the problem.
6. The Superintendent quotes selectively from the 1964 FINS Act regarding his charge to protect “natural features” and “natural resources” and adds that he takes the law seriously. He makes it clear that and that visitor use and protection of residential communities “are important” but secondary.
By stressing that resource protection is his primary charge, the Superintendent relegates protection of the communities to secondary status. But Congress made no such differentiation in defining Seashore responsibilities. The Legislative History contains repeated references to the leading role the communities played in the creating the Seashore. The present administration not only ignores this but favors policies that are seemingly aimed at removing property owners who, as the true environmentalists on the scene, are the Seashore’s natural partners in preserving the resource as a whole.
The GMP itself provides that “[t]he needs of the … communities, as well as the economic interests on Long Island that are directly linked to Fire Island, Great South Bay, and adjacent lands and waters, will be considered in the resources management strategy for the national seashore.” (GMP p. 30.) Neither the communities nor the low-lying areas of the mainland can be protected, however, by a shore protection project that has major gaps in it. At present, the Corps of Engineers says that it has reduced the amount of fill to be placed in federal land holdings at FINS’ request, but if it is forced to reduce it further it would threaten the engineering integrity of the project.
7. Superintendent Dillon believes the “best system” to protect Fire Island homes and the south shore of the mainland is “a natural healthy dune system.” He favors a plan that would protect both natural resources and homes at the same time. He does not favor a plan that would place sand “unnecessarily on NPS lands already in good condition,” but notes that the Wilderness Act “prohibits manipulation of the natural area.” Replenishment “that affects the Wilderness would be excluded from all parts of this project,” even though “a permanent breach in the Wilderness would be repaired.”
As stated, further reductions in the amount of sand to be placed on federal land holdings would not only jeopardize the engineering integrity of the project, it is also inconsistent with the GMP. The only area identified in the GMP as precluded from beach nourishment is “the large federal tract east of Watch Hill.” (GMP p. 33). That tract is the Wilderness Area that has been excluded from the FIIP. FIA’s view is that this exclusion is a mistake that should be corrected in a revised GMP. The Legislative History to Public Law 96-585 (Congressional Record - House, December 10, 1980, pp 33210-33213) seems clear that the main purpose of establishing the toe of the primary dune as the southern boundary of the Wilderness Area was to allow for continued vehicular access to that area (see remarks by Congressmen Carney and Downey, pp. 33211-12), but there is no mention that placing beach fill in the area to retard erosion was to be prohibited. Indeed, the Act itself states, “Wilderness designation shall not preclude the repair of breaches that occur in the wilderness area, in order to prevent loss of life, flooding and other severe economic and physical damage to the Great South Bay and surrounding areas.” (P.L. 96-585, Sec. (d)) The prohibition “If sand nourishment is begun, the large federal tract east of Watch Hill would not be included” appears only in the GMP (at p. 30). Moreover, the only reason submitted in defense of the prohibition is the possibility that wind-blown sand from a filled beach might invade the Wilderness uplands and thus impact plant and animal life. No study is cited to support this theory while an NPS study to the contrary exists and is cited in New York Sea Grant Special Report No. 104, 1989, p. 22. That study strongly suggests that eolian transport of sand on Fire Island over the dune crest to upland areas is not sufficient to make a significant impact on the upland area. At the same time, failure to place fill in this area will greatly increase the likelihood of a breach at Old Inlet, in the center of the 8-mile wilderness tract.
Even if the Corps is willing to defer to NPS with respect to the wilderness tract, as to sand placement on other FINS-owned lands it is imperative that the Superintendent defer to the engineering judgment of the Corps as to which tracts of federal land must be nourished in order to assure a project that meets the storm damage protection objectives.
As to breaches generally, it should be noted that the Breach Contingency Plan called for by Governor Cuomo’s Coastal Erosion Task Force in 1994 was adopted at the urging and strong leadership of the previous park administration. It has become moribund, FIA believes, because similar leadership is now lacking. Meanwhile, opponents to development see an opportunity to use ill-defined and outmoded Park Service policies to effect removal of more coastal properties with each storm. Protection of both the island resource and the communities has taken second place to a program designed to remove unwanted development. If such an objective were socially desirable, declaring it would be the task of Congress; it should not be implemented by administrative subterfuge. Moreover, had any suggestions been made in 1964 that this would become the policy of the Park Service, the Fire Island National Seashore would never have been created.
8. As the FIIP won’t provide long-term protection, it is essential that the reformulation study be completed to provide long-term solutions.
This statement by the Superintendent is followed by a reiteration of his belief that, since the FIIP will not stop the largest storms, it should not be undertaken. Instead, the engineers should move directly to the long-term solution (Reformulation). But the reformulated project is identical with the proposed FIIP, only larger. Under the long-term project, beaches would somewhat wider and higher, and dunes would be higher by one to three feet as compared to conditions to be created by the FIIP. Thus, assuming the long term project is approved, it could probably be constructed simply by increasing the amount of fill used in a renourishment of the transitional project (the FIIP). In other words, all the Superintendent is recommending is further delay. This strategy can only be explained by a hope that before the long term solution has a chance to be implemented, storms will remove large numbers of private homes from Fire Island thus rendering any arguments as to them moot.
Fire Island Association October, 1999