Also by: Heewon Kim

New York State: Proposed Guidance Emphasizes Development of Living Shorelines

On December 28, 2016, the New York State Department of Environmental Conservation (“DEC”) released a draft guidance document highlighting the use of natural and nature-based features in shoreline stabilization, also known as “living shorelines.”  The guidance promotes a consistent approach to the evaluation of living shorelines in permitting under New York’sTidal Wetlands Act and its Use and Protection of Waters laws, but is not applicable to New York’s Coastal Erosion Hazard Areas.

Living shoreline techniques address erosion by incorporating natural living features alone or in combination with structural components such as rocks, fiber rolls, bagged shells, and concrete shellfish substrate. Examples of such techniques include sand replenishment on beaches and plantings to create vegetated slopes. Compared to traditional man-made approaches for erosion control, such as bulkheading, living shorelines can offer greater ecological value, including the provision of habitat.

Standards for permit issuance are set forth in the Tidal Wetlands and Use and Protection of Waters regulations. While the guidance expresses a preference for living shorelines over traditional approaches, it does not create specific incentives to promote that outcome. The decision to grant a permit for a living shoreline project will consider site-specific conditions such as substrate types, erosion potential, and adjacent shoreline conditions. Projects should avoid impacts to ecological functions, critical area resources, processes such as currents and sediment processes, and recreational use of the area.

The draft guidance provides certain requirements for permits to implement a living shoreline project:

• The applicant must provide an evaluation of whether the project will have an undue adverse impact on tidal wetlands, adjacent areas, and/or other state resources.
• The applicant must not have negative impacts on health and/or welfare, and must consider impacts on adjacent landowners.
• The applicant should demonstrate wetlands benefits, for example, enhanced habitat for native species, energy dissipation, fostering natural sediment, connection between water and upland, water quality protection, and wetland migration.
• The applicant must demonstrate that the proposal is reasonable and necessary to address erosion and to protect infrastructure, development, or habitat, and that no other reasonable alternative is available.

The guidance document also requires applicants to demonstrate that the proposed living shoreline techniques are designed to consider wave action and other erosive forces, affected habitat, existing shoreline stabilization, tidal range, shoreline slope, soil type, and sea-level rise projections that predict an increase of 18 to 50 inches by the year 2100 along New York’s coastlines. DEC also requires maintenance and monitoring reports.

The guidance document states that is is intended to advance the goals of the 2014 Community Risk and Resiliency Act, accelerating New York’s adaptation to climate change and creating opportunities to use living shorelines and natural buffers.

Comments on DEC’s draft guidance document can be submitted to DEC by February 8, 2017.

New York City Local Waterfront Revitalization Program

In New York City, DEC’s Guidance will be implemented against the backdrop of New York City’s Waterfront Revitalization Program (“WRP”), which is part of New York State’s Coastal Management Program. Discretionary actions by the City within the designated coastal zone, including permit approvals, are subject to review by the City Planning Commission and the Department of City Planning for consistency with the WRP; State and federal actions are also subject to consistency review. The WRP, last updated in 2016, encourages the development of living shorelines to minimize erosion and flooding from human activity and storms such as Irene and Sandy. Policy Six of the WRP encourages preservation, restoration and enhancement of natural shorelines like beaches, wetlands and dunes. It also emphasizes that natural shoreline features that provide ecological functions are preferable to hardened shoreline treatments like concrete or steel.

USACE: New Nationwide Permits for Living Shorelines and Ecological Restoration

On January 6, 2017, The U.S. Army Corps of Engineers (“USACE”) announced the issuance of two new Nationwide Permits (“NWPs”) that cover projects that help restore the ecology of streams and shorelines. Along with issuing the new NWPs, USACE reissued fifty existing permits, some with minor modifications. The NWPs were proposed in draft form in June 2016 and were subject to public comment. USACE develops and authorizes NWPs every five years.

One of the new permits, NWP 54, authorizes projects to construct and maintain living shorelines to stabilize banks and shores in coastal waters, including the Great Lakes and certain shores subject to waves. As defined in NWP 54, a living shoreline has a footprint that is made up mostly of native material, and uses native vegetation or other living, natural “soft” elements and/or harder shoreline structures like oyster reefs for added protection and stability. Living shorelines must retain or enhance shoreline ecological processes, and include either wetlands or oyster/mussel reef structures.

The other new permit, NWP 53, allows removal of low-head dams to help restore streams and shoreline area functions. For purposes of this NWP, “low-head dams” are defined according to their function: “a dam built across a stream to pass flows from upstream over all, or nearly all, of the width of the dam crest on a continual and uncontrolled basis.” They are distinct from the generally larger dams that store and release water for power or other needs. Many low-head dams were built in the 19th century or earlier to provide water and power for towns and cities, but most no longer serve this function. Removing these structures would help restore streams that have been altered for human use for centuries by, for example, establishing habitat and allowing fish and other organisms to travel where they previously were blocked by a dam.

The new NWPs take effect on March 19, 2017. Any activities authorized by these permits may still be subject to other federal, state or local permits, approvals or authorizations required by law. More information about the new and renewed NWPs is here.

For more information about the use of living shorelines in New York, please contact Michael Bogin or Mark Chertok.