September 24, 2018

Living Shoreline Guidance: New York’s Foray

Jennifer M. Ukeritis

In November 2017, the New York State Department of Environmental Conservation (Department) jumped into the waters with other coastal states by publishing the final version of the Department’s guidance document, Living Shorelines Techniques in the Marine District of New York State. See New York State Dep’t of Envtl. Conservation, Tidal Wetlands Guidance Document: Living Shoreline Techniques in the Marine District of New York State (2017), available at http://www.dec.ny.gov/docs/fish_marine_pdf/dmrlivingshoreguide.pdf (hereinafter LS Guidance). Three years of staff time culminated in New York’s soft answer to coastal flooding in today’s era of superstorms, sea level rise, and crowded coastal development.

Prior to the LS Guidance, New York focused a vast majority of its efforts into hardening its shorelines. This proved foolish after Hurricane Irene and especially after Superstorm Sandy, as severe damage was caused when the waters easily overcame sea walls, bulkheads, and other armaments. Subway tracks, train tunnels, hospitals, and streets flooded during Superstorm Sandy and it was weeks to months before most infrastructure returned to normal. In Superstorm Sandy’s wake, ideas related to armoring shorelines began to shift. New York decided it was time to define terms like “living shorelines” now that it was facing more and more storms. New York chose to define living shorelines as “[s]horeline techniques that incorporate natural living features alone or in combination with structural components, such as rock, wood, fiber rolls, bagged shell, and concrete shellfish substrate. This combination is also called hybrid. To be considered a living shoreline the techniques must

  • Control or reduce shoreline erosion while maintaining benefits comparable to the natural shoreline such as, but not limited to, allowing for natural sediment movement;
  • Use the minimum amount of structural components necessary for hybrid techniques to obtain project goals;
  • Improve, restore, or maintain the connection between the upland and water habitats; and
  • Incorporate habitat enhancement and natural elements, frequently includes native re-vegetation or establishment of new vegetation that is consistent with a natural shoreline typical of the site location.” See LS Guidance at 7—8.

Because of the storms and how severely armament failed, it was time to create guidance that would be applicable to many interested parties: landowners, consultants, and environmental permit analysts. The guidance could be used to take a more proactive and beneficial approach to flood management and erosion control for landowners and consultants who want a better option to control erosion and benefit the environment, and permit analysts and other Department staff who would like to steer landowners to a more forgiving option for the environment.

Policy Shift

The LS Guidance is an expression of policy shift of the Department and New York toward a preference for the use of more ecological sustainable management techniques of coastal areas to combat erosion and flooding, away from hard structures and bulkheads. See id. at 6–7. The LS Guidance does not require an actual shift from bulkheads to living shorelines with enforceable deadlines or even require an applicant to look at living shorelines in place of bulkheads; instead, it offers the applicant a pathway for a voluntary shift. The LS Guidance is meant to help staff, consultants, and applicants begin to navigate the permit process with a focus more on living shorelines, should they so choose. See id. at 4–5. New York’s LS Guidance defines living shorelines for New York, discusses and evaluates the regulatory permit standards when looking at a living shoreline in relation to proper siting of the project, begins to incorporate sea level rise and climate change, and gives multiple examples of different living shore techniques.

While the LS Guidance is limited in scope to low energy areas of the New York Marine District that are not governed by the Coastal Erosion Hazard Act (CEHA) (see id. at 5), the LS Guidance is meant to start the dialogue and move thoughts regarding approaches to erosion control from hardened shorelines of bulkheads to softer, more beneficial nature and nature-based features. CEHA is governed by Environmental Conservation Law Article 34 and 6 NYCRR Part 505, which govern large coastal erosion projects. The LS Guidance isn’t applicable to many coastal areas in New York as the guidance specifically states, but its basic premise and analysis of regulations can be used to consider living shorelines in other areas. Living shorelines allow for better habitat, adaptability to changing conditions, and improved water quality compared to bulkheads. See id. at 7.

Definitions and Examples: Living Shorelines

New York’s definition of living shorelines includes a range from traditional, using only living features, to hybrid, using natural features mixed with some structure. See id. at 7–8. The definition then continues on to be more inclusive, requiring quantitative effects rather than trying to define only materials used or what it looks like—such as allowing for natural sediment movement while controlling erosion; improving, restoring, or maintaining the connection between upland and water habitats; and incorporating habitat enhancement typical of the site. See LS Guidance at 7–8.

The LS Guidance details numerous types of living shorelines. See id. at 8 and App. D. While the LS Guidance lists a few types of techniques, the list is not meant to be exhaustive or exclusive; rather, it is meant to highlight techniques thought to be best suited for low-to-moderate wave energy environments the guidance focuses on, including vegetated slopes/bank restoration; edging or toe protection; and low profile sill. See id.

Appendix D expands on the list found in the LS Guidance with photographs, diagrams, and detailed explanations of each technique. Appendix E goes further and lists links to demonstrative projects that can be visited virtually or in real life, such as the Hudson River Sustainable Shoreline Project Demonstration site network, New York State Department of State Office of Planning and Development story map, and National Oceanic and Atmospheric Administration Habitat Conservation Restoration Center.

Impacts

The LS Guidance is too new to have any real impact yet on applications, but during its development numerous comments were received from individuals, other state agencies, and environmental groups. Responses were broken into major topics of LS Guidance applicability: Regulatory Considerations, Evaluation of Standards, Appendices, Monitoring, Site Considerations, and Miscellaneous. See New York State Dep’t of Envtl. Conservation, LS Guidance Summary of Public Comment, available at http://www.dec.ny.gov/docs/fish_marine_pdf/livingshorepubliccomment.pdf. Many comments resulted in clarification of the document: the types of living shoreline techniques listed were not meant to be exclusive; more explicit statements regarding preference for living shorelines and restoring natural features were added; and additional potential impacts of climate change were added. See id. Responses to comments also made clear that tidal wetlands regulations and tidal wetland maps were not being revised and likely would not be in the near future. See LS Guidance Summary of Public Comment—Regulatory Considerations. The permit application checklist was also not open for revision. See LS Guidance Summary of Public Comment—Appendices.

Interaction with CRRA

Another piece to the puzzle is the interaction of the LS Guidance and the guidance and regulations related to the Community Risk and Resiliency Act of 2014 (CRRA). See 2013 NY A.B. 6558 (NS) version: Amended/Substituted June 16, 2014. Work groups are still in the drafting phase of the CRRA guidance, which is much broader than living shorelines. The LS Guidance is a small piece of the overarching CRRA guidance that will be issued. Given that the LS Guidance work group began its three-year journey about the time that CRRA was passed by the New York Legislature, it did not make sense to wait, rather to forge ahead and encompass CRRA as living shorelines went forward. Some members of the LS Guidance work group are significantly involved in the CRRA work groups and therefore efforts were made to keep terms common to both and overarching ideas the same.

As the author wrote this article, another major nor’easter was headed toward the northeast during a full moon, increasing high tide flooding with the severe storm. One can only hope as flooding increases on the shorelines of tidal New York that the shift to let systems that Mother Nature created to handle erosion and sea level rise begins to take hold. The LS Guidance document is a blueprint to help applicants and consultants bring about this change.

Jennifer Ukeritis

Published: September 24, 2018

Jennifer Ukeritis is an Assistant Regional Attorney for the Department, a position she has held for eight years. She holds a JD from Pace Law School with certificates in Environmental and International Law and an LLM in Environmental Law from Vermont Law School. She was a member of the work group that created the LS Guidance document.