New York State, with its extensive and diverse coastline along the Atlantic Ocean, Long Island Sound, Great Lakes, and numerous rivers and bays, presents a complex regulatory environment for any proposed waterfront construction. For property owners and developers contemplating structures like docks, piers, seawalls, or even entire marinas, understanding the intricate permitting process is paramount. Failure to do so can lead to significant delays, costly legal battles, and ultimately, project abandonment.

The Multi-Jurisdictional Gauntlet: Docks, Piers, and Seawalls

The construction of seemingly simple structures like docks, piers, and seawalls often requires navigating a multi-layered permitting system involving federal, state, and local agencies.

Federal Oversight: The U.S. Army Corps of Engineers (USACE) holds primary jurisdiction over activities in “waters of the United States,” including navigable waters and wetlands. Section 10 of the Rivers and Harbors Act of 1899 requires a permit from the USACE for any obstruction to navigable waters, which includes docks and piers. Additionally, Section 404 of the Clean Water Act mandates a USACE permit for the discharge of dredged or fill material into waters of the United States, a common occurrence during seawall construction or dredging for dock access. The USACE evaluates projects based on their impact on navigation, flood control, environmental quality, and other public interest factors.

New York State Regulations: At the state level, the New York State Department of Environmental Conservation (NYSDEC) is a critical agency. The NYSDEC’s Uniform Procedures Act (UPA) governs the review of various permits, including those for projects impacting tidal wetlands, freshwater wetlands, and navigable waters.

• Tidal Wetlands Permits: For projects in or adjacent to tidal wetlands (found predominantly along the Atlantic coast and Long Island Sound), a NYSDEC Tidal Wetlands Permit is required. The NYSDEC assesses impacts on wetland functions, including storm attenuation, wildlife habitat, and water quality.
• Protection of Waters Permits: The NYSDEC also issues Protection of Waters Permits for activities that disturb the bed or banks of protected streams, rivers, and lakes, or for projects involving dredging or filling in navigable waters not exclusively covered by the USACE.
• Coastal Management Program: New York’s Coastal Management Program, implemented through the NYSDEC and local governments, ensures that development in the coastal zone is consistent with state policies designed to protect coastal resources. Projects must undergo a consistency review to demonstrate adherence to these policies.
• State Environmental Quality Review Act (SEQRA): Almost any governmental action in New York, including the issuance of permits for waterfront construction, is subject to SEQRA. This process requires agencies to consider the environmental impacts of proposed projects and, for significant projects, to prepare an Environmental Impact Statement (EIS). This can be a lengthy and contentious part of the permitting process, particularly for larger or more impactful structures.

Local Zoning and Ordinances: Beyond federal and state regulations, local municipalities often have their own zoning ordinances, building codes, and waterfront development regulations. These can dictate setbacks, maximum structure sizes, materials, and even aesthetic requirements for docks, piers, and seawalls. Obtaining local approval, often through planning boards or zoning boards of appeals, is a necessary step.

Marina Construction and Expansion: A Recipe for Dispute

While individual docks and seawalls can face regulatory hurdles, the construction or expansion of marinas frequently escalates into significant legal battles. These disputes often revolve around three key areas: zoning, environmental impacts, and public access.

Zoning Battles: Marinas are often intensive uses that require specific zoning designations. Many coastal areas are zoned for residential or less impactful commercial uses, leading to conflicts when a developer proposes a new or expanded marina. Legal challenges often arise concerning:

• Spot Zoning: Opponents may argue that a change in zoning for a specific parcel to allow a marina constitutes “spot zoning,” an illegal practice where a small parcel is singled out for a use classification different from and inconsistent with the surrounding area, to the benefit of the owner and to the detriment of the community.
• Non-Conforming Uses: Existing marinas may face challenges if they expand in ways that violate current zoning, potentially losing their “non-conforming use” status and being forced to comply with new, more restrictive regulations.
• Variances and Special Permits: Developers often seek variances or special permits to accommodate marina projects in zones where they are not explicitly permitted. These processes can be highly contentious, involving extensive public hearings and appeals.

Environmental Impact Concerns: Marinas, by their nature, have the potential for significant environmental impacts, leading to fierce opposition and legal challenges during the SEQRA process and permit reviews. Common concerns include:

• Water Quality Degradation: Increased boat traffic, potential fuel spills, discharges of sewage (even if regulated), and propeller wash can all degrade water quality, impacting aquatic ecosystems and recreational users.
• Habitat Destruction: Dredging for navigation channels or basin creation can destroy benthic habitats, shellfish beds, and disrupt fish spawning grounds. Construction of docks and bulkheads can eliminate shallow water habitat and alter natural shorelines.
• Stormwater Runoff: Large impervious surfaces associated with marinas (parking lots, boat storage areas) can increase stormwater runoff, carrying pollutants into coastal waters.
• Cumulative Impacts: Opponents often argue that the cumulative impact of multiple marinas or waterfront developments exacerbates environmental damage, even if individual projects seem minor.

Public Access Disputes: The concept of public trust doctrine, which holds that certain natural resources (like navigable waters and their submerged lands) are held in trust by the state for the benefit of the public, frequently comes into play with marina projects. Legal battles often center on:

• Access to Navigable Waters: Opponents may argue that a proposed marina unduly restricts public access to navigable waters, either directly through physical barriers or indirectly by increasing congestion.
• Littoral Rights vs. Public Rights: Property owners with “littoral rights” (rights associated with property bordering a body of water) have certain privileges, but these are balanced against the public’s right to use navigable waters. Disputes can arise when marina development is perceived to infringe on these public rights, for example, by claiming public areas for private use.
• Impact on Recreational Uses: Marinas can displace other recreational activities such as kayaking, fishing, or swimming, leading to public outcry and legal challenges based on the loss of these public amenities.

Legal Avenues and Recourse

Disputes over coastal permitting and marina projects often play out in administrative hearings before agencies like the NYSDEC and USACE, as well as in state and federal courts. Opponents may bring Article 78 proceedings in New York State Supreme Court to challenge agency decisions, arguing that they were arbitrary and capricious, lacked a rational basis, or violated statutory requirements. Environmental groups often leverage provisions of the Clean Water Act or the Coastal Zone Management Act to challenge federal permits.

Navigating coastal permitting in New York State requires a thorough understanding of an intricate web of federal, state, and local regulations. For individual waterfront structures, diligent adherence to these processes is crucial. For larger projects like marinas, the potential for protracted legal battles over zoning, environmental impacts, and public access is significant. Proactive engagement with regulatory agencies, comprehensive environmental assessments, and robust public outreach are not merely good practices but essential strategies for successful project development in New York’s dynamic coastal zone.

John Caravella Esq., is a construction attorney and formerly practicing project architect at The Law Office of John Caravella, P.C., representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration across New York and Florida. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached by email: John@LIConstructionLaw.com or (631) 608-1346.

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Resources:

• New York State Department of Environmental Conservation (NYSDEC): https://www.dec.ny.gov/ (Look for “Permits, Licenses, and Registrations” and “Coastal Management”)
• S. Army Corps of Engineers (USACE) New York District: https://www.nan.usace.army.mil/ (Navigate to “Missions” then “Regulatory”)
• New York State Environmental Quality Review Act (SEQRA): Information available on the NYSDEC website.
• New York State Department of State – Coastal Management Program: https://dos.ny.gov/coastal-management-program