Village throws hat into legal arena in beach replenishment fight
An aerial image of Smith Point County park after Superstorm Sandy in 2012.

Suffolk County police Aviation Unit

Village throws hat into legal arena in beach replenishment fight

Story By: PEGGY SPELLMAN HOEY
9/30/2014


Mastic Beach Village has requested to become a defendant in a lawsuit blocking the planned beach replenishment at storm-damaged Smith Point County Park — as an interested party, citing concerns that a delay puts residents at risk.

In a legal brief presented at the federal courthouse in Central Islip Tuesday morning, village attorney Brian Egan argued any delay of the estimated $47.9 million project, which was fast-tracked earlier this year to protect homes across the bay on the mainland, would have a “devastating and incredible negative impact on residents’ homes and the infrastructure of the village." Village officials and residents, who live across the bay from the stretch of beach and often experience flooding, have lobbied for the U.S. Army Corps of Engineers to get sand out on the beach for nearly two years since Superstorm Sandy ravaged the shoreline and many homes were left under water. The project was on track up until about three weeks ago, and contractors were expected to mobilize by the middle of October, until the National Audubon Society entered a legal challenge against the Army Corps and U.S. Fish and Wildlife Service on the basis the endangered piping plover bird species habitat would be compromised.

“Every day the project is delayed only intensifies the risk to our residents,” Egan said. “There can be no real argument that the protection of a handful of migratory birds can justify the potential destruction of hundreds of peoples’ homes.”

Egan said the village sees itself as an interested party because their fight is for residents’ homes.

“The village supports the construction of the dunes and has faith in the Army Corps of Engineers and their plan for the beach replenishment project,” he said. “However, the village felt that its active inclusion was important so we can present to the court the real risk that the homes in Mastic Beach are exposed to without the protection of the dunes.”

A spokeswoman for the Audubon Society said a representative would not be available for comment by deadline.

Army Corps of Engineers spokesman Chris Gardner referred all questions about the lawsuit and the village’s request to the U.S. Attorney’s office. A spokeswoman for the U.S. Attorney’s office could not immediately comment on deadline.

In an email, Fish and Wildlife spokeswoman Meagan Racey stated she could not specifically comment about the lawsuit, but the agency is “committed to working with the communities, federal and state partners, and conservation organizations to conserve the piping plover.”

A temporary restraining order barring the Corps from proceeding with the project has been in effect since last month. The Audubon Society lawsuit opposes construction on two uninhabitable portions of Fire Island slated for dune replenishment, including the stretch of beach along Smith Point and another one near the Fire Island Lighthouse.

Suffolk County Executive Bellone’s office announced Tuesday night the county will also be seeking the Federal Court’s permission to become a party to the case in opposition to the Audubon’s lawsuit.

“The temporary restraining order and preliminary injunction against the Army Corps of Engineers to delay Phase I and Phase II of the Fire Island dune restoration project should be overturned,” Bellone stated in a press release. Bellone’s office said the project includes numerous conservation measures in its design to minimize any impact on plover habitat, such as the creation of almost 40 hectares or 98 acres of new habitat. The County has just received approval of contracts by the state Comptroller’s office to commence the survey work needed for Phase III of the project, according to Bellone’s office. Surveyors will soon begin accessing oceanfront parcels in order to precisely identify and map the project’s footprint and to conduct environmental assessments, Bellone's office said. 

Bellone’s office said he will be joined by Islip Town Supervisor Tom Croci, along with town and village officials and community supporters at a press conference today in Bay Shore. It was not immediately clear if Islip and Brookhaven officials could also seek to be included in the lawsuit.

Listed on the endangered species list, the piping plover is a tiny, migratory shorebird that nest in pairs in different areas along Fire Island National Seashore. Wildlife activists have aired concerns in recent years about the species’ dwindling numbers in the northeast. The U.S. Fish and Wildlife Service issued a ‘no jeopardy’ biological opinion of the Army Corps project, which included sloped grading of the dunes to make it easier for the birds to travel and outlined a habitat management plan, back in June.

The opinion recommended the Corps fund up to $10.5 million over the projected 10-year life of the project for predator and vegetation management, effectiveness monitoring, the maintenance of buffers around construction sites, breeding plovers and other activities like off-road vehicles, as well as the maintenance of nesting and foraging habitat through vegetation management on the three overwash areas and the two restored areas. The creation of ephemeral pools where plovers can forage on Great Gunn Beach, another foraging and nesting area on a nearby dredge disposal site, and the creation of an interagency team to develop a coordinated effectiveness-monitoring program to document performance were also suggested in the plan.

The dunes along Smith Point County Park would have be raised to 13 feet with graduated sloping in some spots, a design consistent with the plovers’ habitat, and the roadway to Moriches Inlet, known as Burma Road, which is used by recreational beach drivers and county workers to maintain the jetty, would have remained in place as part of the overall beach stabilization project.

Judge Sandra Feuerstein accepted the village’s application and scheduled Egan's request to be briefed by the parties, he said. Opposing papers – if any — to Egan’s application are due back in Feuerstein’s court at the end of October.