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Fire Island - Decision, December 6, 2000

Decision, December 6, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Rd
Albany, New York 12233-1550

In the Matter

- of -

Fire Island Pines Property Owners Association and Certain Property Located in the Area
Designated on the Final Coastal Erosion Hazard Area Map Adopted July 27, 1998
Covering Certain Properties in the Towns of Brookhaven, Suffolk County

DECISION

December 6, 2000

Decision

On September 10, 1997 a public hearing was held before the Department to receive public comment on the preliminary Coastal Erosion Hazard Area Map for oceanfront property located on Fire Island within the Town of Brookhaven, Suffolk County. See, Environmental Conservation Law ("ECL") §§34-0101, 34-0102, 34-0104; see also, Title 6 of the Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 505, Coastal Erosion Management Regulations. Administrative Law Judge Frank Montecalvo presided at the public statement hearing. The public comment period closed on December 10, 1997. Thereafter, the Department Staff finalized the subject map on July 27, 1998 upon consideration of the public comments. On July 6, 2000 the Fire Island Pines Property Owners Association initiated an Article 78 proceeding in Supreme Court, Suffolk County, New York, index no. 0015614, to review the Department's decision in that matter.

Background

Pursuant to the November 9, 2000 oral instructions of Suffolk County Supreme Court Justice James Catterson, this constitutes my decision of the appeal of the Fire Island Pines Property Owners' Association (hereinafter the "Pines") dated December 3, 1998 concerning the Coastal Erosion Hazard Area designation as it applies to ocean front properties within the Pines' community. Upon review of the relevant information contained within the files of this Department, including the recommendations of Mr. William Daley, Chief of the Coastal Erosion Management Section within the Division of Water, his staff, and staff from the Department's Regional Office on Long Island, I find that the Coastal Erosion Hazard Area designation for Fire Island was proper.

Issues on Appeal

The Pines' appeal is based on the following two assertions. First, that "DEC did not correctly identify the long term average annual recession thereby resulting in a methodology that erroneously identified a natural protective feature" and second, that "DEC erroneously utilized and identified the pre-existing dune as a natural protective feature within the Pines Community in the formation of the Coastal Erosion Hazard Line. The appropriate natural protective feature is the new dune constructed by the Pines via the renourishment project, and is seaward of the erroneous line adopted by the DEC." See, Like Letter dated December 3, 1998, Paragraph 4.

Discussion

As for the first assertion, ECL §34-0103(3) defines coastal erosion hazard areas as areas of the coastline identified as either, (a) likely to be subject to erosion within a forty-year period as determined by shoreline recession analyses, or (b) which constitute natural protective features. Natural protective features are further defined at §34-0103(8) as, "beaches, dunes, shoals, bars, spits, barrier islands, bluffs and wetlands... ." The statute clearly indicates that either means of identification is equally valid.

In the development of implementing regulations pursuant to ECL Article 34, the Department followed this same dual identification system, further defining the two types of coastal erosion hazard area as "structural hazard areas" ([a] above) and "natural protective feature areas" ([b] above). Those regulations were originally adopted and subsequently amended after statewide public hearing and comment as 6 NYCRR Part 505, Coastal Erosion Management Regulations.

Following accepted scientific practice, the Department utilized the natural protective feature area designation to identify erosion hazard areas fronted by sandy beaches having significant along-shore sediment transport. This methodology was used exclusively in identifying erosion hazard areas along Long Island's south shore, including the Pines' Atlantic Ocean shoreline.

As the method of designation is specifically allowed by the implementing statute and its use is appropriate along the subject shoreline, I find that Department Staff did not incorrectly "... identify the long-term average annual recession" of the subject shoreline as asserted, nor did it "... erroneously identify a natural protective feature" as similarly alleged.

Regarding the second assertion in the appeal, we again turn to the Coastal Erosion Management Regulations for further guidance as to the definition of "dunes" as that term is used within the Article 34 definition of "natural protective features". While 6 NYCRR §505.2(l) defines a "dune" as "a ridge or hill of loose, windblown, or artificially placed earth the principal component of which is sand", the term "dune" is also more comprehensively defined to include "primary dune" and "secondary dune." See, 6 NYCRR §505.2(dd), §505.2(kk). It is these more expansive descriptions that were utilized in the process of identifying the natural protective feature area in the Pines' community. See, Daley Letter dated December 21, 1998, Paragraph 3. These inclusive definitions must be similarly considered in determining the validity of the instant appeal.

The definition of "primary dune" specifically recognizes that less significant dune forms can exist seaward of the primary dune. 6 NYCRR §505.2(dd). Such dunes are considered to be part of the primary dune. It is the opinion of the Department Staff who have observed the Pines' dune nourishment project that the placed material does not constitute a primary dune. In fact, neither in height, width, or volume of material above the barrier platform does the Pines' project do more than help restore and strengthen the existing primary dune. The beach profile plan sheets included in the Pines' permit application indicate that the fill material was to be placed on the seaward face of the existing primary dune and, in some cases, on the crest of the dune in addition to the beachfill portion. See, Fire Island Pines Beach Nourishment Project, Sheet 5 of 8 dated December 12, 1996; Sheet 6 of 8 dated October 13, 1997. The plan view sheets clearly show that, almost universally along the length of the Pines community, the existing primary dune rises significantly higher than the fill material. See, id., Sheet 2 of 8 dated December 12, 1996; Sheets 3 and 4 of 8 dated October 13, 1997. More importantly, the primary dune extends inland considerably farther than the extent of the Pines nourishment project. The large volume of the primary dune is what makes it an effective natural protective feature.

The Permit granted by the Department for the Pines' project correctly states the project's purpose in the description, namely to "[n]ourish and restore beach/dune areas... ." This description is taken almost verbatim from the project description provided by the Pines, which began "[n]ourish and restore the 7,050 linear feet of beach/dune area damaged during the 1995/1996 storms... ." Clearly, the intent of the Pines was to help restore the protective capacity of the existing primary dune system. Certainly, that was the Department's understanding when the permit was issued. Nowhere in the permit application did the Pines indicate that its goal was to establish a new primary dune seaward of the existing primary dune. See, Daley Letter dated September 14, 1998, Paragraph 2. Department Regional Permit staff have indicated that the State Environmental Quality Review Act (SEQRA) requirements would have necessitated a far more extensive environmental impact study (EIS) had the proposed nourishment project been of such a scope. Similarly, Mr. Daley and coastal engineering staff have commented that such a project would have required far more extensive nourishment, particularly in the sub-aqueous portion of the profile, and would require a long-term maintenance commitment as well. All of these factors were missing in the Pines' proposed nourishment project.

For the above-stated reasons, I find that the Department did not "... erroneously utilize and identify the pre-existing dune as a natural protective feature within the Pines Community." To have done as Pines asserts would be contrary to the plain intent of the Coastal Erosion Hazard Areas Law and the Coastal Erosion Management Regulations. I further find that the Department Staff determination that the Pines' nourishment project simply added to the protective capacity of the existing primary dune was correct, and the Coastal Erosion Hazard Area designation within the Pines' community is not erroneous as argued. Accordingly, the appeal of the Coastal Erosion Hazard Area designation brought by the Fire Island Pines Property Owners' Association is hereby denied.

_____________/s/_____________
John P. Cahill, Commissioner

Dated: Albany, New York
December 6, 2000

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