Davis Park FIMI Doc 8— ‘Why easement is perpetual’ ‐16th March 2015 Fire Island Inlet to Moriches Inlet (FIMI) Stabilization Project Topic: Why easement is perpetual In an effort to understand why easements for the FIMI project need to be “perpetual,” (DPA directors) have pursued the County and Army Corps for a better explanation. We were provided with the following written clarification by County Attorney (Gail M. Lolis Deputy County Attorney) (To DPA Directors) There have been numerous inquiries concerning why the Fire Island Inlet to Moriches Inlet Stabilization Project (FIMI) requires that perpetual easements be acquired by the County. This is intended to serve as a general explanation. Easements are required in order to authorize the governmental entities to access and place sand upon private property in the first instance, and thereafter to permit the County and other governmental entities to maintain the constructed dune and berm in the future. The maintenance primarily consists of inspecting, measuring, photographing etc., as well as protecting the project from destructive forces such as people walking on or encroaching upon the easement area. See generally FIMI HSLRR June 2014 pg. 89, a copy of which is attached (SEE APPENDIX ‘1’) In order to understand why the easement must be perpetual for a project which calls for a one-time placement of sand, it is necessary to understand that the life of the project is determined by the duration of its functionality. As long as there remains a functioning dune and berm (which means it is providing some level of protection) and the County is performing the required maintenance, pursuant to the Local Project Partnership Agreement with the State and pursuant to the Operations and Maintenance plan prepared by the United States Army Corps of Engineers (USACE), under 33 U.S.C. 701n, as amended (also commonly referred to as PL 84-99), the USACE will come in and make repairs if the functionality of the project is lost due to an extraordinary storm event (“wind, wave or water action of other than an ordinary nature”). As it is impossible to predict natural processes which will occur over time, a perpetual functioning dune, even without any further repairs or restoration, remains a possibility. In such instance, the County’s obligation for maintenance would continue in perpetuity as would the USACE authority to conduct repairs and restoration under PL 84-99. If the easements were to terminate on a date certain, even if the project was still “functional” i.e. providing some level of protection, the County’s authority to maintain the project would cease as would the USACE authority to repair or restore pursuant to PL 84-99. Not only is it impossible to predict the duration of functionality of the project (due to inability to predict natural processes such as weather) it is also impossible to predict if, when, or how often the project may be restored or repaired by the USACE after severe weather events in the future. Unquestionably, PL 84-99 repairs would further extend the duration of functionality and protection provided. 1 | Page Davis Park FIMI Doc 8— ‘Why easement is perpetual’ ‐16th March 2015 For your reference, also attached are the following legal authorities relative to this inquiry: Public Law 84-99 codified at 33 USC 701n and the 2014 amendment to that law. We hope this answers your inquiry. Please note this is only a general reply and not intended to be all inclusive or encompassing. Gail M. Lolis Deputy County Attorney 2 | Page Davis Park FIMI Doc 8— ‘Why easement is perpetual’ ‐16th March 2015 APPENDIX APPENDIX ‘1’ - FIMI_HSLRR_June2014_MainReport … Pages 1 ~ 111 APPENDIX ‘2’ - Public Law 84-99 codified at 33 USC 701n … Pages 112 & 113 Emergency response to natural disasters APPENDIX ‘3’ - 2014 amendment to that law … Pages 114 ~ 297 3 | Page APPENDIX ‘1’ - FIMI_HSLRR_June2014_MainReport FIRE ISLAND INLET TO MORICHES INLET FIRE ISLAND STABILIZATION PROJECT HURRICANE SANDY LIMITED REEVALUATION REPORT DRAFT Evaluation of a Stabilization Plan for Coastal Storm Risk Management In Response to Hurricane Sandy & Public Law 113-2 MAIN REPORT U.S. Army Corps of Engineers New York District June 2014 Page 1 of 297 APPENDIX ‘1’ - FIMI_HSLRR_June2014_MainReport This page left intentionally blank Page 2 of 297 APPENDIX ‘1’ - FIMI_HSLRR_June2014_MainReport I. EXECUTIVE SUMMARY This project is designed to provide coastal storm risk management from coastal erosion and tidal inundation through construction of a beach berm and dune, at Fire Island Inlet to Moriches Inlet, New York. The project area stretches from Robert Moses State Park in the west to Smith Point County Park in the east for a total of 19 miles. The purpose of the project is to provide a level of storm damage protection to mainland development protected by the barrier island. As a consequence of the severe coastal erosion during Hurricane Sandy in October 2012, the dune and berm system along Fire Island is now depleted and vulnerable to overwash and breaching during future storm events, which increases the potential for storm damage to the shore and particularly back-bay communities along Great South Bay and Moriches Bay. The Fire Island to Moriches to Inlet (FIMI) Plan was developed using background material and existing information and data to expedite the FIMI Hurricane Sandy Limited Reevaluation Report (HSLRR) in accordance with approach approved by HQUSACE in a memorandum dated 8 January 2014 and consistent with the Disaster Relief Appropriations Act of 2013 (Public Law. 113-2; herein P.L. 113-2). This Stabilization Project is a one-time, stand-alone project with its own independent utility. As developed, this project does not limit the options available in the Fire Island to Montauk Point (FIMP) Reformulation Study or pre-suppose the outcome of the Reformulation Study. After the initial placement of 6,992,145 cubic yards (cy) of sand, the project is expected to erode, and diminish in its protective capacity, eventually returning to a pre-project condition. The Project is designed with advance fill to maintain design conditions for a period of 5 years, and it is estimated that the residual effect of the fill placement would last another 5 years. After the residual effect of beachfill has diminished, there is further residual effect of 10 years that is provided by the acquisition and relocation of structures. The total period over which residual effects are expected is 10 years for sand and 20 years for structure acquisition. The project’s annual benefits and annual costs were developed using October 2013 price levels and are $18.8M and $17.5M, respectively. The Benefit to Cost Ratio is 1.1 (at 3.50% FY14 Discount Rate). The project is economically justified and the District recommends that the Stabilization project be constructed at a project cost of $207,100,000 with a total investment cost of $223,324,000. The Draft HSLRR and Environmental Assessment (EA) were released for public review. The report has been revised to account for public comments received on the project, as well as agency input received through coordination and consultation that occurred concurrently with public review of the EA. Based upon consideration of the public and agency review and consultation, including a favorable Biological Opinion, the District intends to sign a Finding of No Significant Impact (FONSI), upon approval of the HSLRR and EA by the North Atlantic Division. Page 3 of 297 APPENDIX ‘1’ - FIMI_HSLRR_June2014_MainReport II. PERTINENT DATA Pertinent project information is summarized below. 1. Project Design and Layout The proposed project is comprised of three (3) design templates identified as “berm only” “small” and “medium”, which are described below. These features are described relative to NGVD throughout the report. The conversion to NAVD is provided below. a. The “berm only” design template includes a berm width of 90 ft at elevation +9.5 NGVD (+8.5 ft NAVD), and no dune behind the berm (no vegetation is proposed for this design template). It includes a foreshore slope of 12 horizontal (H) on 1 vertical (V) from +9.5 to +2 ft NGVD, or mean high water (MHW), equating to an additional 115 ft of beach above MHW. This template is proposed in areas where eroded berm conditions have been observed, but where existing dune elevation and width are sufficient to reduce the risk of overwashing and breaching. Areas that meet these criteria include Robert Moses State Park, western Smith Point County Park and the TWA Memorial Beach. b. The “small” template is intended to reduce the risk of breaching. It is proposed for areas with limited oceanfront structures. The “small” fill template includes a berm width of 90 ft, at elevation +9.5 ft NGVD (+8.5 ft NAVD) and a vegetated dune with a crest width of 25 ft at an elevation of +13 ft NGVD (+12 ft NAVD). It also includes a foreshore slope of 12H:1V from +9.5 to +2 ft NGVD, equating to an additional 115 ft of beach above MHW. It is proposed for areas with limited oceanfront structures, including Smith Point County Park. c. Fire Island Lighthouse Tract (modified “small” design template): The dune and beach design template the NPS Fire Island Lighthouse Beach would include an unvegetated dune. The proposed 3,800 ft length of dune would be constructed at +13 NGVD (+12 ft NAVD) and have side slopes of 1V:10H, and a 25 ft crest width. d. The “medium” design template is proposed for areas that have the greatest potential for damages to oceanfront structures and includes the 17 communities on Fire Island (including Kismet to Lonelyville, Town Beach to Corneille Estates, Ocean Beach to Seaview, Ocean Bay Park to Point O’ Woods, Cherry Grove, Fire Island Pines, Water Island, and Davis Park).