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New Draft Guidance Issued On Marine District Permits

January 27, 2017

One of the most cherished and an important environmental feature of New York is its shoreline. Not only do people live near, swim and fish in the marine and coastal waters of New York, from the Hudson River near the Tappan Zee Bridge to the tip of Long Island (the “Marine District”), but there is considerable commerce associated with the shore.

In late December, the New York State Department of Environmental Conservation (the “NYSDEC”) released draft guidance on the issuance of permits for “living shorelines techniques” in the Marine District. See, NYSDEC, Tidal Wetlands Guidance Document (Dec. 27, 2016), available at http://www.dec.ny.gov/docs/fish_marine_pdf/dmrlivingshoreguide.pdf.

The draft guidance encourages the use of green or natural infrastructure rather than engineered erosion protections such as bulkheads and seawalls. The draft guidance expresses NYSDEC’s preference for ecologically sustainable techniques rather than the more commonly-used “hardening” techniques for erosion control in the Marine District.

Given its scope, property owners, design professionals, local municipalities, and their counsel should take particular note of the draft guidance.

Living Shoreline Technique

Living shoreline techniques incorporate natural living features to control erosion. These techniques can be used by themselves or in combination with structural components and are aimed at:

  • Ameliorating erosion while maintaining the natural shoreline;
  • Minimizing structural components;
  • Enhancing the connection between upland and water habitats; and
  • Incorporating natural elements, including native re-vegetation or new vegetation.

Living shoreline techniques include beach nourishment, sand replenishment, vegetated slopes or banks, vegetated slopes with additional structural protections and edging or toe protection.

Permitting Requirements

A property owner in the Marine District that wants to prevent erosion of its waterfront generally must obtain a permit from the NYSDEC under New York Environmental Conservation Law (the “ECL”) Article 25 and 6 NYCRR Part 661 (Tidal Wetland Land Use Regulations). The property owner also may need permits from the NYSDEC under Title 5 of ECL Article 15 and 6 NYCRR Part 608 (Use and Protection of Waters). In addition, permits may be needed from federal, local and other state agencies that have overlapping jurisdiction of the property and waterfront. For instance, local building codes or approved local waterfront revitalization programs may come into play.

Shoreline activities seaward of the mean high water line, such as excavating, dredging or filling, require a permit from the U.S. Army Corps of Engineers (the “Army Corps”) as well as a coastal consistency concurrence from the New York State Department of State Office of Planning and Development, pursuant to New York’s Coastal Management Program. If a permit is required from the Army Corps, a water quality certification from the NYSDEC pursuant to Section 401 of the Clean Water Act also may be required. New York State Office of General Services authorization also may be needed.

The draft guidance focuses in particular on the standards the NYSDEC will use to grant permits for a living shoreline project.

Permit Issuance

The heart of the draft guidance is its discussion of the seven key factors that the NYSDEC will evaluate when deciding whether to grant permits under 6 NYCRR Part 608 and 6 NYCRR Part 661 for a living shoreline project.

First, to determine if a project will have an “undue adverse impact on the present or potential value of the affected” tidal wetlands, adjacent areas or other state resources, an applicant must provide an evaluation of resources that might be affected by the proposed project. That evaluation should (1) indicate how much upland or wetland area will be affected and its location, (2) identify the impacts to these areas, (3) explain how these impacts will be avoided or minimized, (4) evaluate possible impacts to wildlife and (5) evaluate how sediment processes may be impacted.

Second, the NYSDEC will evaluate whether a proposal has negative impacts on the public health or welfare. In this regard, the applicant must explain how the project may affect adjacent landowners.

Third, a proposal must comply with the use guidelines in 6 NYCRR § 661.5. If it falls within the “presumptively incompatible” category, the applicant has to show that the project would not have undue adverse impacts on present or potential values of a wetland. For example, the applicant would need to establish that its project improves a degraded shoreline or provides environmental benefits to the wetland and upland area.         

Fourth, the applicant must demonstrate that the proposal is reasonable and necessary. This can be a rather difficult test to meet. The NYSDEC states in the draft guidance that, generally, measures to address erosion and flood protection only will be deemed reasonable and necessary “if there is infrastructure, development, or habitat to protect and no other reasonable option is available.”

The fifth factor relates to sea-level rise and climate change.

In 2010, the NYSDEC enacted CP-49, “Climate Change and DEC Action,” available at http://www.dec.ny.gov/docs/administration_pdf/commisclimchpolicy.pdf, which requires the NYSDEC to consider climate change in all aspects of its activities, including permit approvals. The NYSDEC also has proposed establishing a new 6 NYCRR Part 490, Projected Sea-level Rise, which will establish sea-level rise projections in three specified geographic regions.

The draft Marine District guidance explains that a living shoreline design should consider climate change and sea-level rise. This means that, among other things, the design needs to account for higher mean tide levels, higher storm surges, larger areas of inundation, extreme precipitation rates, greater stormwater runoff, greater frequency and intensity of storms, wetland migration inland and permanent inundation of coastal properties.

The sixth factor requires an applicant to demonstrate that the proposed living shoreline techniques are adequate for the area and appropriately designed to consider wave action and other site characteristics. As part of its analysis of this factor, the NYSDEC will consider erosive forces (such as wave characteristics affecting the site, boat traffic, ice scour and surface water runoff) and the conditions at and adjacent to the site (including erosion rates, habitat, salinity, vertical differences between high tide and low tide, shoreline slope, soil type and even sunlight exposure).

Maintenance and monitoring, which comprise the seventh factor, are noted in the draft guidance as being “crucial to the successful establishment of a living shoreline.” While often site-specific, this may include measuring plant survival, protecting plants from animals, providing temporary wave attenuation until roots or plants are established, removal of invasive species and debris, replacing or removing sediment, measuring shellfish survival, measuring erosion and accretion patterns and assuring that organic and structural materials stay in place.

According to the draft guidance, maintenance and monitoring costs should be factored into living shoreline projects. These costs may well be a major factor as the draft guidance indicates that maintenance and monitoring for living shoreline projects may have to be conducted for five years post-construction or longer.

Other Considerations

The draft guidance contains other important information. It points out that all projects will have to be undertaken so as to minimize impacts from construction activities and use “best management practices.” All fill material used for a project must consist only of clean, uncontaminated earthen materials or untreated vegetative matter.

Importantly, the draft guidance notes, contaminated sites may not be suitable for living shorelines. Permits, if granted, also may impose restrictions on the time allowed for work. For example, work below the apparent high water line may be restricted to the time of low tide when the area is dry.

Conclusion

The deadline to comment on the draft guidance closes on February 8, 2017. It will be interesting to see if the NYSDEC finalizes the guidance as drafted, or modifies it to lessen this additional layer of review for tidal wetland development.

Charlotte A. Biblow, a partner in the environmental, land use and municipal law and litigation departments of Farrell Fritz, can be reached at cbiblow@farrellfritz.com.

Reprinted with permission from New York Law Journal | Vol. 257 – No. 17 | Thursday, January 26, 2017

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