EROSION: Surfrider Speaks Out Against Jetties; Attorney says they steal sand from public beaches and leave towns liable

Forget about jetties and bulkheads and other such devices to protect ocean beaches, says a 50-page memo presented last month to East Hampton Town by the local chapter of the Surfrider Foundation. Hard erosion-control structures will result in the theft of public land, it says, and those who permit them to be built will be liable for that loss.

"Case law sticks up for the beaches," said Carolyn Zenk, a lawyer, environmental advocate, and former Southampton Councilwoman who wrote the memo, a legal treatise as well as a list of recommendations. She donated half the time it took her to research and write the document "because I'm a surfer, and it's important."

Learning the sport at Babylon's Gilgo Beach, and then traveling widely to surf spots over the years, she had come

upon places where jetties and bulk-heads had entirely removed the beaches, she said. This made her sympathetic when she was approached by the Surf-

rider Foundation, a national organization formed to protect beaches and surf spots from destruction and privatization.

Ms. Zenk served as counsel for the Group for the South Fork, a Bridgehampton-based environmental group, and helped write County Executive Steve Levy's recommendation that groins already in place be shortened or removed. The recommendation estimates that the county's ocean beaches generated $173 million in revenues in 2003.

The surfing attorney, who is certified in ocean and coastal law and in natural resources law by the University of Oregon's School of Law, also helped write the coastal legislation that Southampton Town now has in place.

East Hampton Town is still working on its version. For several years it has been trying to tailor the state's broad policies regarding coastal areas to East Hampton's shoreline. Once approved by the state, the town's coastal laws will eliminate state review of projects proposed for places that are particularly vulnerable to the sea, including projects aimed at controlling erosion.

The town's coastal plan would all but prohibit hard structures on the ocean beaches - that is, structures made of stone, wood, or steel such as jetties, bulkheads, and revetments. However, the owners of property prone to erosion and storm flooding, particularly in downtown Montauk and at the Montauk Shores Condominiums trailer park just east of Ditch Plain, want the option to build such structures to protect what they own.

As a result, those two areas were at first exempted from the outright prohibition, and Montauk Shores is still exempted in the latest draft of the proposed coastal law. A zoning variance with strict environmental review would be required before jetties, revetments, or bulkheads could be built on the hamlet's downtown beaches. Theoretically, they could be built, however.

Surfrider is opposed to any wiggle room. "It is time to simply ban shore-hardening structures from East Hampton's ocean beaches. This means they should not be allowed by variance," Ms. Zenk wrote.

Besides narrowing the shore down the beach from them, she said, hard structures interfere with the natural migration of sand, which means they also interfere with public access to publicly owned beaches. Ultimately, she said, hard erosion-control structures thus deny the public's property rights under the Public Trust Doctrine and the 300-year-old Dongan Patent, which created all the town's common lands, including beaches.

Hard erosion control structures, Ms. Zenk said, "open the town to liability for unconstitutional takings, trespass, negligence, waste, and theft of the public's right to walk along the foreshore."

She is of the opinion that leaving the door open, by virtue of a variance procedure, would put the town in a much more vulnerable position than if hard structures were banned outright. Further, she challenges the State Department of Environmental Conservation to assume liability for the structures if the agency, in its final review of the town's plan, refuses to permit an outright ban of shore-hardening structures.

Surfrider's position paper also urges the elimination of a loophole in state law that enables hamlets to incorporate to avoid environmental legislation, as seems to be the case with the proposed community of Beach Hampton, in what is now the Bridgehampton-Sagaponack area.

The Surfrider Foundation argues in the paper that the erosion-control issue should not pit environmentalists against business interests. "The science is in," it says: Hard structures steal beaches, and beaches are the foundation of East Hampton's tourist industry.

Ms. Zenk recommends that business owners and governments try to create "storm recovery plans, legislation that would determine how people would be reimbursed - with state and federal involvement - should their property be destroyed. In other words, an insurance plan."

Assuming such a plan were in place, owners of destroyed buildings should be required to rebuild them away from the sea, she said. Specifically, she suggested that the town explore the possibility of buying the row of mobile homes closest to the ocean at Montauk Shores in order to rebuild the beach.

The expense of such a plan, which, Ms. Zenk said, could include offshore mining of sand to renourish beaches on a regular basis, compared favorably to losing the town's beaches and remaining vulnerable to lawsuits.

There is precedent.

When a community in Westhampton was destroyed by massive erosion and flooding caused by ocean storms, as well as the scouring effect of a field of jetties, residents sued the federal government. The government settled by paying $4 million in damages, and an additional $23 million to restore the beach. Because the jetties are a government project, the settlement also allowed damaged structures to be rebuilt in the future.

In another instance, a Sagaponack property owner sued the federal and county governments for permitting the construction of groins at Georgica Beach in East Hampton, which are believed to be responsible for eating away the beach in front of her house.

"If government destroys property, the property owner should be able to rebuild" and the government should replace the beach, said Gary Ireland, a lawyer and the Sagaponack plaintiff's son. "You wouldn't treat a road like this. If there are potholes, they would repair it. They take from beaches, but never give back. Two of the four public beaches in Sagaponack are closed," Mr. Ireland said.

Ms. Zenk agreed that governments causing the problems were liable for fixing them, but said that property owners should not be allowed to rebuild forever. Instead, she recommends that a post-storm recovery plan provide for a "one-time buyout."

East Hampton should not put itself in the position of causing public or private property to vanish by permitting hard structures to protect buildings, she said.

"When beaches narrow, billions of dollars worth of public property are lost. You don't protect one person and hurt another. You don't borrow from Peter to pay Paul. Make no mistake, at the end of the day, officials must choose either buildings or the public beach. They must take a position."

The town board has not yet discussed the foundation's recommendations.