Contract award expected in dune project previously halted by court order
A surge of water from the Atlantic Ocean washed through portions of the outer beach at Smith Point County Park, seen here, during Superstorm Sandy, forcing water into low-lying areas in Mastic Beach.

ADV/Hoey

Contract award expected in dune project previously halted by court order

Story By: PEGGY SPELLMAN HOEY
10/22/2014


With a clear path carved out by a federal judge’s denial of a preliminary injunction that halted dune replenishment at Smith Point County Park, the U.S. Army Corps of Engineers is expected to award a contract for the project by the end of the business day today, U.S. Rep. Tim Bishop said.

The Army Corps, which was sued along with the U.S. Fish and Wildlife Service by the National Audubon Society last month over concerns about piping plover habitat, was freed up to move forward with plans to restart the project in a decision issued by Judge Sandra Feuerstein last Friday. After the Corps awards the contract, the contractor must complete three steps, including signing the contract and providing proof of insurance and bonding, and once those criteria are met, a notice to proceed will be issued, Bishop said.

“Those are the pieces that have to fall in place,” he said.

Another piece of the puzzle that needs to be in place is the dredge, according to Bishop. When the temporary restraining order was granted last month, the dredge, which was located in New Jersey, was sent down to Alabama, Bishop said. 

“So, basically, the start date of this project is dependent almost entirely on the availability of the dredge,” he said. “And that — right now — at least to me, is an unknown. Still, all and all, this is extremely good news.”

Army Corps spokesman Chris Gardner could not confirm the agency was set to award the bid on Wednesday. The Fire Island to Moriches Inlet project team is discussing the recent ruling with their counsel to determine how best to proceed with the Smith Point County Park contract of the Fire Island to Moriches Inlet project, officials said in a statement released by Gardner. 

“Despite the recent timeline setback associated with the lawsuit, we are still committed to implementing this important coastal storm risk management project as quickly as feasible to reduce risks to vulnerable south shore communities,” the release stated.

Gardner said that for him to comment on the location of the dredge would be purely speculative at this point, because the contract has not been awarded for the project. Officials held off on awarding the contract due to the lawsuit, he said.

In an email, U.S. Fish and Wildlife Service spokeswoman Megan Racey said the agency was still reviewing the judge’s decision and digesting its full meaning.

The Audubon Society’s lawsuit opposes construction on two uninhabitable portions of Fire Island slated for dune replenishment, including the stretch of beach along Smith Point County Park in Shirley and another one further west, near the Fire Island Lighthouse, citing concerns the habitat of piping plovers will be compromised. Smith Point’s dune system was scheduled for reconstruction — to 13 feet in some areas and 15 feet in others, including sloped areas consistent with plovers’ habitat — this month, according to the Army Corps’ plan. The U.S. Fish and Wildlife Service signed off on the plan with a ‘no jeopardy’ opinion back in the spring. Officials fast-tracked the project earlier this year to build up the island, which serves as a protective barrier against the ocean for homes on the mainland. Many homes across the bay from Smith Point were flooded when a surge of water — produced by the combination of high tide at the full moon and a hurricane system — forced its way from the ocean into the bay, and finally, the mainland.

In an 85-page decision, Feuerstein, citing established case law, ruled the Audubon Society’s submitted arguments ultimately did not demonstrate evidence of irreparable harm to the piping plovers. Feuerstein went on to write that the Army Corps’ environmental assessment contained habitat mitigation measures that included a program to monitor and ensure their effectiveness, and were supported by substantial evidence. “The Army Corps properly relied upon those measures in reducing the environmental impacts of the project below the level of significance and issuing a [Finding of No Significant Impact],” Feuerstein wrote. The judge continued, adding that the National Audubon Society, according to established case law, “had not demonstrated that there is a substantial possibility that the project, including the mitigation measures, may have a significant impact on the environment; it has not demonstrated a likelihood of success on the merits” of its claim, which was brought under the Administrative Procedure Act. 

Audubon spokeswoman Claudette Thornton issued the following statement Monday:

“We are very disappointed with the decision. At this time, we’re reviewing our options with our attorneys to determine the next steps.”

Officials from Mastic Beach Village and Suffolk County, who filed separate papers requesting to become defendants — as parties of interest — in the lawsuit several weeks ago, expressed relief over the judge’s decision.

Mastic Beach Village attorney Brian Egan said the decision was “precisely” what his law firm argued in the intervention motion. “The judge basically had the ability to address any concerns through the environmental review for the project and we were extremely grateful that the federal judge agreed with our decision to dismiss their challenge,” he said.

Egan went on to say that the fact that the temporary restraining order was lost means there is “not much left of the case.”

Suffolk County Executive Steve Bellone had this to say in a prepared statement issued by his press office: “We have been working hard with all the stakeholders to ensure that this crucial project moves forward. This ruling will allow us to strengthen Fire Island and our barrier islands in order to protect hundreds of thousands of South Shore residents and billions in property and infrastructure.”

Legis. Kate Browning, whose district includes Smith Point County Park, said she was shocked to learn the news on Friday night.

“I think that we are all very excited and very happy that the Army Corps can move on and start this year,” she said.

Brookhaven Town Councilman Dan Panico, who grew up in Mastic Beach and has supported the replenishment project, said that if the sand is not replenished at the beach, the remainder of Fire Island National Seashore will be washed away, causing a threat to the homes of the people living in Mastic Beach. “So this is work that needs to be done,” he said. “I hope that the nearly two-month delay has not taken the project off-track for this year and I’d like to see it begin.”

Attorneys for both sides are due back in court on Dec. 16.