Commentary by the Fire Island Association

RE: New York Coastal Partnership’s “Case” Against Agency's Failures to Deal With Beach Erosion 

The document that follows is based on the “Plaintiff’s Memorandum of Law” that was filed in “New York Coastal Partnership, Inc. vs. United States Department of Interior, et al,” a case now pending in United States District Court for the Eastern District of New York. Many of the necessary legal references have been omitted and editorial changes have been made to make the document useful to a non-legal audience. 

The Memorandum of Law was filed in opposition to the Federal and State Defendants’ motion to dismiss the action. It also requests partial summary judgment with respect to the defendants’ failure to comply with Sec. 342 of the Water Resources Development Act of 1999, which called on the agencies to move promptly on the Fire Island Interim Project.

A complete copy of the documents, albeit without the numerous Exhibits, is available on request to the web site.  

Introduction and Summary 

The case is about the failure of government agencies, in the face of a direct order by Congress, to take action to protect the lives, property and resources of the Fire Island barrier and the Long Island mainland from Atlantic storms.  It concerns the failure to put in place the Fire Island Interim Storm Damage Protection Project (FIIP) -‑ a carefully designed remedy to a recognized problem.  The remedy was -- and is -- needed to mitigate the damage caused by the Defendant agencies' ill‑designed and poorly maintained projects to the east of Fire Island that has inflicted significant damage to property over many years. The clear instruction by Congress to the Departments of the Interior and the Army to submit a "mutually acceptable" plan for implement­ing Fire Island beach replenishment to ­Congress by December 31, 1999 was in Section 342 of the Water Resources Development Act of 1999 (WRDA 99). WRDA 99 is only the most recent in a long series of Congressional actions dating to 1960, directing that the Fire Island barrier be protected.  More than two years have passed since the WRDA 99 deadline, but no end is in sight to this bureaucratic paralysis.

The stop signal did not come at the beginning of the process.  Until early 2000, the agencies were making slow but steady progress towards meeting the Congressional directive.  In June 1999, the Corps and Interior agreed on a process to develop a mutually acceptable erosion control plan.  When the Corps of Engineers completed its Draft Environmental Impact Statement (DEIS) in 1999, the New York State Departments of State (DOS) and Environmental Conserva­tion (DEC) stated, on November 30, 1999, that they would issue the necessary certifications and approvals if no new issues came up at the public hearing. The hearing was held in January 2000 and extensive and largely favorable comments were received.  The US Environmental Protection Agency (EPA), the agency charged with responsibility to assess whether it complied with the National Environmental Protection Act (NEPA), gave the DEIS its most favorable rating. 

Despite all this, the process has come to a grinding halt.  The Corps and DEC were met with determined resistance from the US Department of Interior (DOI), whose strong philosophi­cal opposition to any shore protection project that would protect private property has led to what is known as “paralysis by analysis.” A project is halted by repeated demands for more and more “studies” and “reviews.” 

This willful bureaucratic stubbornness continues today, despite the continuing injury to private property and the risk to Long Islanders’ lives. On any day, a major Atlantic storm could hit seriously eroded beaches, cause a breach in the Fire Island barrier, inflict millions of dollars of damage to public and private resources, destroy tens of thousands of structures, cause untold causalities and devastate a resource that generations of Fire Islanders have worked hard to protect since the inception of the Fire Island National Seashore in 1964.  Given these risks and in the face of implacable agency opposition, the Plaintiffs had no choice but to seek judicial intervention. 

Nature of the Action 

It is important to note that the action is not one to compel funding of the FIIP (even though such a project was requested by the Governor of New York following severe coastal storms ­of 1992/93.) Nor are any money damages sought. Instead, the plaintiffs are asking the Court: 

First ‑ To compel the defendant agencies to submit the "mutually acceptable" erosion control plan that Congress mandated - a mandate that has been blatantly ignored.  The language of section 342 of WRDA 99 is so clear that the plaintiffs believe that Summary Judgment is appropriate with regard to this aspect of the case. 

Second  To enjoin the agencies from pursuing policies that allow physical invasions and deprivation of the plaintiffs' property rights. In other words, stop blocking the sand that otherwise would move onto Fire Island from the east. 

Third  To force the Defendants to stop those acts that breach their duties as public trustees and contribute to the destruction of the resources of the Fire Island National Seashore, including the endangered Piping Plover.

  

Background

 

 The Fire Island Barrier

The barrier island known as Fire Island is of critical importance to Long Island as a recreation and economic resource, and also for its role in protecting the mainland from Atlantic storms.  About 31 miles long and varying between one quarter to three quarters of a mile in width, Fire Island trends southwest to northeast beginning at the Fire Island Inlet, some ­50 miles east of New York City.  It is bounded by Moriches Inlet to the east, the Atlantic Ocean to the south and the Great South Bay and Moriches Bay to the north, and contains a mix of parks and residential communities.  The parks include Robert Moses State Park, Fire Island National Seashore, Smith Point County Park, the Islip Town Beach at Atlantiqu­e, and the Brookhaven Town Beach at Davis Park, all created at taxpayer expense. 

While the parks make up approximately 80 percent of the Island's area, all of Fire Island's ocean beaches are open to the public.  The 17 communities comprise approximately 3,850 residences and businesses that are used and patronized primarily in summer.  The summer weekend population of Fire Island can reach as high as 25,000 while the island is home only to some 400 year‑round residents.  Visitors to Fire Island number in the millions each year.  Robert Moses State Park, which extends from the western tip of the Island 5.3 miles to the Lighthouse Tract, registered 3.2 million visitors in 1995.  Smith Point County Park, at the eastern end of the island, extends 6.1 miles from Moriches Inlet to the eastern boundary of the Otis G. Pike High Dunes National Wilderness Area.  Smith Point received 1.5 million visitors in 1995.  Both parks contain parking fields, recreational facilities and administrative buildings.  In 1995, approximately 1.2 million people visited the Fire Island communities, mostly by ferry. The National Park Service (NPS) estimates some 500,000 visit National Seashore facilities each year. It is likely there is  significant double counting in the latter figure as ferry records indicate that relatively few visit park facilities as a primary destination. 

Most of the land on Fire Island is within the bounds of the Fire Island National Seashore (the "Seashore" or "FINS"), which extends from the eastern boundary of Robert Moses State Park to Moriches Inlet.  All of the communities and other Fire Island parks, including Smith Point County Park, are maintained as private or municipal facilities within the boundaries of the Seashore.  The Seashore contains tracts owned by the federal government, including the Lighthouse Tract, Sunken Forest/Sailors Haven, Barrett Beach/Talisman, Blue Point Beach, Watch Hill, and the Wilderness Area.  Other small federal holdings are within and between the communities.  Fire Island's communities are located between the Lighthouse Tract and Watch Hill, which marks the beginning of the Wilderness Area, a distance of approximately 12 miles.  The communities in the western half of the developed area are: Kismet, Saltaire, Fair Harbor, Dunewood, Lonelyville, Atlantique, Robbins Rest, Summer Club Condominium, Corneille Estates, Ocean Beach, Seaview, Ocean Bay Park and Point O'Woods.  The eastern communities are Cherry Grove, Fire Island Pines, Water Island and Davis Park. 

In contrast to the rest of the Long Island's southern shoreline, Fire Island remained substantially undeveloped until bridges connected it to the mainland in the 1950s, whereupon the pace of development accelerated.  The FINS, established by Public Law 88‑587 on September 11, 1964, was created partly in reaction to a proposed plan to build a road connecting the Robert Moses and Smith Point bridges.  That plan was rejected and Fire Island is the only developed barrier island without a formal road system.

Congress was moved to create the Seashore primarily by the strong support of residents and visitors to the barrier island.  Substantial grants of property were made to preserve the undeveloped character of the Island, and to make open land available for the Seashore. But it was always understood that the pre-existing communities would remain and could be fully developed within their respective boundaries, but only with single-family, residential properties. As these properties have grown larger and more lavish in some areas, the concern of some has intensified. In any event, Congress repeatedly acknowledged the strong support of the communities in debates on the Seashore's creation; it specified that the park model to be followed at Fire Island was that of the Cape Cod National Seashore, which also contains significant private communities. 

To guide its activities in managing the Seashore, the National Park Service adopted a General Management Plan (GMP) in March 1978.  The enabling legislation language describing the Fire Island's close proximity to urban areas, clearly implies that access by that population to the resource is beneficial to society. Also, the GMP notes that "Fire Island is a culturally manipulated barrier island system, and it cannot be managed as if natural geomorphic processes had been totally unimpeded."  As the GMP points out: 

Interference with the littoral drift at inlets along the south shore of Long Island has resulted in a pirating of sediments from the littoral drift into the inlets . . . . Interruption of the drift has played a major role in the acceleration of erosion of Fire Island's beaches.  The natural geomorphic processes need to be restored in order for the offshore bar, beach, and island system to reestablish to some degree of equilibrium. 

But the NPS never acted on this clear admonition. Instead, the erosion was allowed to worsen over the four decades of the Seashore’s existence. 

Congressional Authorization  

Congress has long professed concern about protecting Long Island's south shore from erosion. In 1960 it authorized the Fire Island Inlet to Montauk Point New York Combined Beach Erosion Control and Hurricane Protection Project, pursuant to that year’s River and Harbor Act. In subsequent years, the project was modified by various Water Resources Development Acts (including WRDA 99), but Congress has never wavered in its support for action to protect the barrier from erosion. Once the Seashore was created, primary responsibility for protecting it was placed with NPS. Congress authorized the Corps of Engineers to undertake erosion control and beach protection measures, provided they were coordinated with the Department of Interior. 

Congress reaffirmed its commitment to preserve Fire Island when it approved the 1980 Fire Island Wilderness Act (FIWA), but was careful not to prevent reasonable measures protect the shoreline from erosion.  The FIWA specifically states that "wilderness designation shall not preclude the repair of breaches that occur in the Wilderness Area, in order to prevent the loss of life, flooding and other severe economic and physical damage to the Great South Bay and surrounding areas." 16 U.S.C. § 1132.  The FIWA also specifies that "the southern boundary of the wilderness shall be the toe of the primary dune.” This reflects an intention both to maintain the beach and allow its use as a thoroughfare as it had been for generations. Clearly, Congress intended that beaches be nourished, as needed, along the entire length of Fire Island.

New York State Coastal Legislation 

The State of New York has actively managed the coastline of Long Island for more than half a century.  Over that period, it has enacted numerous pieces of related legislation which, among other things, has imposed upon the State Defendants' the duties of public trustees.  Coast‑related statutes include the Flood Control Act of 1936, Articles 25 (Tidal Wetlands) and 34 (Coastal Erosion Hazard Area) of the Environmental Conservation Law, and the Waterfront Revitalization and Coastal Resources Act of 1981 (WRCRA), which was enacted pursuant to the federal Coastal Zone Management of 1972. The goal of WRCRA is to establish a management framework for coordinating State laws and rationalizing decisions of the Federal, State and local governments in the coastal area through administrative adoption of 44 policy statements intended to protect the State's environment and coastal areas. 

Storms and Erosion 

The history of Fire Island is one of severe coastal storms that have caused major damage to property, lives and natural resources.  The March 1962 nor'easter (the Ash Wednesday Storm) destroyed 47 houses and severely damaged 75 other properties on Fire Island with damages estimated in the millions of dollars.  In that simpler time, the Corps of Engineers, with the cooperation of the State of New York, responded immediately with a project known as Operation Five High (so named for the five high tides of the storm's duration).  On Fire Island, 1.1 million cubic yards of sand was placed along 8.5 miles of shoreline, raising beaches to an elevation of 12 feet above mean low water.  Some 9,500 feet of dune and 37,000 feet of eroded beach were quickly restored. Alas, prompt and sensible action is no longer possible, given the complex array of regulation and inter-agency squabbling. 

After a period of relatively mild winters that began after 1978, between 1991 and 1996 normal as well as extra-normal coastal storms pounded a beach deprived of its natural littoral budget, or complement, of sand. Individual properties were destroyed and whole communities on the island were threatened.  Storms in the 1990s destroyed approximately 90 properties and caused over $1 billion dollars in damage to FINS, State, County and Municipal properties.  In contrast to 1962, the Defendants did nothing on Fire Island in response to the 1991‑96 storms. Only legal action compelled the State to participate in closing the breach that had opened downdrift of the uncompleted groin field at Westhampt­on Beach.  As for the rest of the coast, the State called on the Corps to study the situation, but then did nothing in response to their recommendations -‑ a condition that continues to this day. 

Causes of Erosion

Erosion on Fire Island is largely the result of improperly installed, uncompleted and ill-maintained coastal management structures east of Fire Island. It is worsened by the failure to mitigate the impact of those structures on downdrift beaches through application of well‑establish­ed engineering principles.  In particular, the groin field for the Westhampt­on Beach was started in the middle of the Moriches to Shinneco­ck reach, at the Village of Westhampt­on Beach, instead of at the westerly end.  Far worse, no fill was placed on the beach between the groins, also contrary to sound engineering. The Defendants' Westhampton Beach groin field has been primarily responsible for the total blockage of sand from Fire Island. 

The movement of sand along the shore provides natural beach replenishment, by which the shoreline replenishes and fortifies itself. Lack of sand greatly reduces Fire Island's ability to serve as a flood protection barrier for the south shore of Long Island. The Defendants' mismanagement has caused more physical invasion of the beach than necessary under the impact of repeated storms.  These storms caused numerous washovers that have not only severely impaired the Island's ability to endure future storm events, but have put at risk of degrada­tion extremely rare fresh water ecology systems on Fire Island. 

The Fire Island Interim Project and Reformulation 

Following the storms of 1992 / 1993, New York State requested the Corps to survey the State's Atlantic coastline, which it did in cooperation with the New York Department of Environ­mental Conservation.  The purpose of the survey was to recommend actions that the State, in cooperation with the Corps, could undertake to maintain the geologic integrity of the Fire Island barrier and its capacity to protect the low‑lying areas of Long Island's south shore.\ 

The Corps/DEC recommendations included the following: prompt modification of the Westhampton Beach groin field; implementation of a Breach Contingency Plan; sand bypassing at south shore inlets; and sand nourishment projects where needed, including Fire Island.  These recommendations were consistent with those of the Coastal Erosion Task Force that was created by Governor Cuomo in the aftermath of the December 1992 storm. 

At the request of the State, in 1994, the Corps formulated the FIIP to serve as a "bridge" to what was expected to be a more comprehensive solution, the Fire Island Inlet to Montauk Point Reformulation Study.  That study arose from action by the President's Council on Environmental Quality (CEQ) in 1978.  CEQ found that the original EIS on the project authorized in 1960 did not comply with NEPA. It called for a new Environmental Impact Statement (EIS) for a "reformu­lated" project that would consider the entire 83‑mile reach as a single system. It also called for  consideration of a wider range of methods for erosion control along that stretch of the coastal region (the "Reformulation Study").  The purpose of the FIIP is to "alleviate conditions conducive to storm damage . . . by providing temporary storm damage protection," based on sound engineer­ing principles, to protect the Fire Island reach until the long‑term Reformulation Study can be approved.  

The Reformulation Study outlines a comprehensive, long‑term project, consisting of beach replenishment, dune restorati­on and breach management for the 83‑mile stretch from Fire Island Inlet to Montauk Point.  It will require the approval of the agencies involved, including the Defendants.  While the Corps currently estimates that the DEIS for the Reformulation Study will be released in 2004, the sheer size and scope of the studies involved (more than $20 million has been expended to date), along with the history of delay, make it highly unlikely that the NEPA process will be completed for many more years. Actual construction of any Reformulation Study project probably would not occur for over a decade.  In other words, the Reformulation Study will not provide the beach and dune protection needed now. That can only be achieved through prompt approval and implementation of the FIIP.  This recognition led to Congress approving section 342 of WRDA 99. 

Modifications and New Agreements 

The Corps and DEC have repeatedly modified the FIIP over the past five years to address the demands of the resources agency, particularly those in the Department of the Interior (DOI). Units within this agency ­sent hundreds of pages of "comments" to the Corps in a little over two years of correspondence.  Virtually everything DOI requested, it got, as the Corps struggled for approval of any plan that would add desperately needed sand to the littoral system.  Thus, (1) the project definition evolved from a 30‑year project with 6 renourishment cycles to a 6‑year project with one renourishment cycle; (2) the relationship between the FIIP and the Reformulation Study was redefined, to clarify that the FIIP will truly be an interim project; and (3) the extent and location of sand placement was altered in response to the demands of DOI's National Park Service, that placement of sand be kept to a minimum in areas of major federal land holdings..

The Corps and Interior entered into a six‑point agreement in June 1999, on aprocess to develop a "mutually acceptable" erosion control plan.  Joseph Westphal, then Assistant Secretary of the Army (Civil Works) and Donald Barry, then Assistant Secretary for Fish, Wildlife and Parks, transmitted the Partnership Agreement to Senator Moynih­an and his colleagues, setting forth principles of cooperation to "facilitate the completion, on schedule, of the important studies and analyses required prior to decisions on both of the Interim Projects."  This agreement, which was "actively facilitated" by Congressman Rick Lazio, has subsequently been disregarded by the Federal Defendants. 

Water Resources and Development Act of 1999 

Despite the “agreement,” Congress felt the need to intervene.  Here is the full text of Sec. 342 of WRDA 99, signed by President Clinton in August of that year: 

The project for a combined beach erosion control and hurricane protection, Fire Island Inlet to Montauk Point, Long Island, New York, authorized by section 101(a) of the River and Harbor Act of 1960 (74 Stat. 483) and modified by the River and Harbor Act of 1962, the Water Resources Development Act of 1974, and the Water Resources Development Act of 1986, is further modified to direct the Secretary, in coordination with the heads of other Federal departments and agencies, to complete all procedures and reviews expedi­tiously and to adopt and submit to Congress, not later than 120 days after the date of enactment of this Act, a mutually acceptable shore erosion plan for the Fire Island Inlet to Moriches Inlet reach of the project (emphasis added).Congress clearly did not want to wait for completion of the Reformulation Study.  It wanted the Corps and Interior to act immediately to protect Fire Island and the Long Island coast until the Reformulation Study could be completed. As noted, the Corps and DOI did not meet the December 31, 1999 deadline. 

Who Is At Fault?

The primary federal responsibility for this failure to comply lies not with the Corps, who have continued to be ready, willing and able to fulfill the duty to proceed with all steps necessary to implement the FIIP, but with the DOI, who have failed and refused to cooperate in good faith with the Corps.  Although the Corps wrote letters on December 17, 1999 to Congress promising that they would complete the final documents by the Spring of 2000 and issue a record of decision under NEPA by July, 2000, this has not occurred, because the DOI has ignored Congress's explicit instructions.  Indeed, the DOI and State Defendants have continued to withhold the responses contemplated in the NEPA process. The DOI claims its reticence is based on “the absence of a non-federal sponsor;” i.e., the State. The State has said nothing at all. 

The DOI has introduced various land-use related arguments for its refusal to endorse the project. For example, although no known scientific study supports its theory, the DOI asserts that the presence of improved properties within the dune area, not the Atlantic Ocean or the blockage of the littoral drift, is the major cause of the accelerated erosion rate on Fire Island. Until the houses are moved, or a moratorium on new construction is imposed, the DOI insists, it cannot approve the FIIP. The DOI makes no mention whatever of the newly imposed State regulation, ECL Article 34, which effectively will control building in the dune area. 

Far more important to the DOI is its own "long‑te­rm plan" to acquire over 300 properties located in or near the dune area. It intends to do this despite the status of these houses as being exempt from condemnation as improved properties, pursuant to the FINS Act, and despite the DEIS statement that removing houses will in no way serve to "meet the objective” of the FIIP. Thus, the Corps's inability to finalize the EIS process and implement the vitally needed FIIP is traceable to DOI’s desire to force acquisition and removal of oceanfront homes, no matter what the cost in lives and property on Fire Island. 

Emergency Conditions