Since the proposed dredging fell almost entirely within the zone between low and high water, on lands under water conveyed to the Town of Hempstead by their former owner, the Town of Hempstead considered that Department of the Army approval was not required. The dredging company, relying on this contention, did not apply for Department of the Army approval. Since the dredging could not adversely affect navigation and would have no significant effect on fish and wildlife resources, the District Engineer concluded that if a permit had been requested, it would have unquestionably been issued. Consequently, he did not stop the dredging, although the developer was requested to file plans of the work. The District Engineer advised that the dredge completed its work on 3 February 1967 and has since been removed from the site. The developer, Lawrence Country Estates, Inc., by letter dated 10 February 1967 filed plans with the District Engineer showing the extent of the dredging and the proposed bulkhead. Preparations are being made by the District Engineer to issue a public notice to all known interested parties inviting their comments concerning the application. Pursuant to the laws enacted by the Congress for the protection and preservation of navigable waters of the United States, Department of the Army approval is required for all work or structures offshore of the high water line of such navigable waters. These laws are regulatory in character and were enacted to assure that no work would be undertaken nor structures erected which would be detrimental to the regimen of the waterway or be unreasonable obstructions to the navigation of the waterway. In their broadest interpretation these laws are intended to assure that the best public interests are served. The punitive sections of the law usually have not been invoked merely when there has been an infraction by a lack of compliance. If the work or structures are found to be detrimental, action is taken to have the conditions corrected voluntarily. Failing in this, the matter is referred to the Department of Justice for such action as may be necessary, either by punishing the violator or by obtaining correction of the condition or removal of the obstruction by injunction of the courts. Returning to the present instance, it appears that there has been no damage as a result of the dredging but rather that there will be an overall benefit realized in the final analysis. It is believed that the lack of formal Department of the Army approval of the dredging stems from a misunderstanding as to the extent of jurisdiction exercised by the Department of the Army over the tidal waterways in Long Island. The District Engineer has advised that he is taking steps to establish a closer liaison between his office and the Town of Hempstead so that there will be a mutual exchange of information between the two offices whenever work is proposed to be undertaken in navigable waters within the limits of the Town. In this way, it is believed that the necessity of securing Department of the Army approval for work or structures in navigable waterways under its jurisdiction can be promptly brought to the attention of those proposing to undertake the work. Additionally, it is understood that the Town Board in approving work in Town waterways will take steps to verify that the approval of all government agencies concerned has been obtained before the Town's permit is issued. The District Engineer will issue notices to all marine contractors, engineers and State, county, town and village authorities advising them of the requirement of obtaining Department of the Army approval of work and structures in navigable waters before work is commenced. They will also be requested to inform their clients or interested parties concerning Department requirements. Sincerely yours, ALFRED B. FITT Special Assistant (Civil Functions). JANUARY 30, 1967. Mr. ALFRED B. FITT, Special Assistant (Civil Functions), Washington, D.C. DEAR MR. FITT: Again it becomes necessary to appeal to a higher authority regarding a local Corps of Engineers situation, as it appears that again the Corps has been put in the awkward position of becoming at least an apologist for the violation of federal dredging regulations. The enclosed newspaper clips and correspondence will indicate the issues to date and an apparent attempt to cloud these issues on the part of local and district authorities. In this instance I am not writing to protest the destruction of natural values, nor am I writing to protest the dredging of local waterways for a local builder, I am simply attempting to establish clearly the position of the Corps of Engineers and other authorities regarding the violation of federal regulations. Whether by coincidence or design, it is obvious that everyone involved is quite eager to sweep this matter under the rug, or at least to create an aura of confusion while the dredger completes his work. The facts are simple. Several weeks ago the dredge was taking fill or removing navigational hazards from the waters of East Bay. After the first newspaper story regarding this matter ran, the dredge moved from East Bay and Cedar Swamp Creek near Whale Neck Point. Since both East Bay and Cedar Swamp Creek are navigable waters of the U. S., it would appear that a Corps of Engineers' permit was necessary. None was obtained. The dredge has worked at least two and possibly three shifts during some of the 24-hour periods. Although the work has been termed "clean up," the length of time during which the dredge has worked might well cause question of the use of that term except perhaps in a colloquial sense. The work was viewed quite regularly by town dredging authorities and was considered by them, at least in their public avowals, to be acceptable in the face of complaints by local residents. The work was done with at least some awareness on the part of the Engineer Corps' permits officers, and now we are told that after all of these complaints have been filed, the local office of the Corps of Engineers will investigate for approximately two weeks and come to a determination, possibly a licensing after the fact and a letter to the Town of Hempstead and possibly the dredger suggesting proper procedures in the future. In the face of the past history and experience in dredging matters here in the Town of Hempstead. this is certainly less than adequate. In the case of a dredger who certainly knows the practices and processes involved in dredging in local waters, this would appear to be more than casual sloppiness in practice. The violation of Corps' regulations and the after the fact slap on the wrist technique must certainly breed nothing but contempt for federal regulations. The precedent which would be set by the Corps in condoning these practices, or at least in not resisting them, nor stopping the violation during an investigation, can do nothing more than encourage future infractions both here and in other areas under this kind of jurisdiction. I hope it doesn't sound unreasonable, but we would like to know both what can be done and what will be done. Sincerely, ROD VANDIVERT. P.S. By the way, this may be pure coincidence, but at least one of the principals in the dredging firm is also the builder upon whose land the spoil is being deposited. Mr. ROD VANDIVERT, DEPARTMENT OF THE ARMY, NEW YORK DISTRICT, CORPS OF ENGINEERS, The Hempstead Town Land Resources Council, Freeport, N.Y. DEAR SIR: Receipt is acknowledged of your recent letters requesting information concerning the dredging being performed in Cedar Swamp Creek by the Fort Neck Dredging Company. We are looking into the matter and gathering pertinent information. We will be pleased to inform you on the subject soon. Sincerely yours, R. H. WUESTEFELD, Acting Chief, Operations Division. JANUARY 23, 1967. Col. R. T. BATSON, District Engineer, New York District, Corps of Engineers, DEAR COL. BATSON: Those concerned with dredging in the town of Hempstead are faced with a situation which falls somewhere between the level of habit and addiction in regard to the violation of federal law. The enclosed xerox highlights a phenomenon which is neither unique nor surprising. Though dredg ing practices in the town of Hempstead have improved materially, there is still the apparent need to ignore and violate federal law and regulations. It's small wonder, because it is the practice of the Corps to treat this with a rather cavalier attitude. In the past years the violation of dredging regulations and federal law were both flagrant and frequent. Each violation was treated in the same mannera quiet investigation, a slap on the wrist for those responsible officials, a letter explaining future practices, etc., and nothing further. As a consequence, the town, the developer and the dredger were not hampered by the violation of federal law, rules and regulations. We believe that there is a higher purpose in federal regulations, and at this time, we respectfully call on the Corps of Engineers to make public all of the facts leading to the latest illegality on the part of whomever may be guilty of infraction in the matter of the permit to dredge for Lawrence Country Estates issued by the town of Hempstead and carried out by Fort Neck Dredging of Merrick. In addition, we respectfully request of the Corps of Engineers an exact description of the areas dredged, of the amount of dredged material removed and of the specific boundaries in which federal law (Corps of Engineers dredging regulations) should have applied. Also we request a full and complete disclosure of the participation or lack of participation on the part of the Corps in helping to regulate this matter. Sincerely, ROD VANDIVERT, Chairman. [From the Long Island Press, Jan. 21, 1967] DREDGING JOB CALLED ILLEGAL (By Marsha Kranes) A Hempstead Town-ordered dredging project in Cedar Swamp Channel is being carried out illegally, according to the Army Corps of Engineers. The channel, between South Merrick and South Bellmore, is being dredged to provide navigable access to the bulkhead line of a housing development planned for Whaleneck Peninsula, Merrick. Hempstead Town ordered the dredging and issued a dredging permit to the developer, Lawrence Country Estates, Dec. 5. "The town went to conservation agencies for their comment, before ordering the dredging but not to us. Our permission was required,” a corps spokesman told The Press. He made his statement after a corps inspector visited the dredging site and found "dredging going on in navigable waters." All navigable waters are under the jurisdiction of the Army Engineers. "We will take action," the corps spokesman said. He added "most of the dredging has been done. There's not much we can do to stop it at this point." He said the town "will be advised of what action should be taken in the future." Although the dredging firm, Fort Neck Dredging of Merrick, is at fault for not getting Army Engineer approval, he said, "the town did order the project." Asked if the dredging would have been approved by the engineers, the spokesman said "probably. I can see nothing objectionable. But they should have asked us and we would have investigated." Before the Army Engineers inspector reported that the dredging operation was illegal, a Hempstead Town spokesman said "no Army Engineer permit is required. They're consulted only when the dredging will affect an existing navigable waterway. We are creating a navigable waterway. Once we do, then the corps will have jurisdiction over it." Harry Firester, owner of Fort Neck Dredging Co., denied that the dredging violates federal law. "A permit was issued a few years ago to Nagean Builders. It's still good," he claimed. Anyhow, he added, "no permit is required to dredge private property. We deeded the property now being dredged to the town as a gift in 1963 and took on the obligation of widening the waterway and providing access. We're not violating any law, we're just cleaning up." Long Island conservationist Rod Vandivert of Freeport, who brought the dredging operation to the Army Engineers' attention, disagreed strongly with Firester. "It's an obvious violation of corps regulations on dredging-a violation of federal law," he charged. He further claimed the town's issuance of a dredging permit without Corps approval was an illegal act and a breach of faith as far as conservation policy goes. As for Firester's claim that the dredge is "cleaning up," Vandivert said, "it's reasonably apparent that the work being done is much in excess of that. In addition to removing the sand bar, they're taking clams beds. Local fishermen and clammers are complaining bitterly about this." He added that "careful inspection will show that unless a great deal more work is done, navigation obstructions will not be removed." According to Firester, the dredging operation should be completed next week. Vandivert and several South Bellmore residents claimed the project also violates the town's moratorium on dredging. "Town officials even testified before Congress that there would be no more dredging of bay bottom for fill," Vandivert charged. Firester, however, claimed he reserved the right to the bay bottom when he dredged the land to the town. A town spokesman said the moratorium does not affect "removing a navigation hazard." The dredging project was criticized earlier this week by Bellmore homeowners who thought the channel was being made narrower. The same homeowners later became indignant when they learned the housing development planned for the Merrick side of the creek would increase their water pollution problems. Mr. DINGELL. The Chair is going to recognize Mr. Tenzer. STATEMENT OF HON. HERBERT TENZER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK Mr. TENZER. I would just like to express my appreciation to you, Mr. Chairman, for having invited me to participate in these proceedings. In closing I would like to thank you personally for your dedication and devotion to the work of your committee. I don't think there is another committee chairman in the entire Congress that is a dedicated and work as hard as you do. I congratulate you and I would like to continue working with you until the final passage of this bill. Mr. DINGELL. Thank you very much. We are going to try very hard for the passage of the legislation. Thank you again, Mr. Vandivert. Mr. VANDIVERT. Thank you. Mr. DINGELL. If there is no further business before the committee, the committee will stand adjourned until the call of the chair. (The following material was supplied for inclusion in the printed record :) STATEMENT BY CLYDE H. SLEASE, DRAVO CORP., PITTSBURGH, PA., SPEAKING FOR THE NATIONAL Sand and GRAVEL ASSOCIATION, MARCH 24, 1967 Mr. Chairman and gentlemen of the committee, my name is Clyde Slease. I am Counsel and Assistant to the President with the Dravo Corporation, Pittsburgh, Pennsylvania. This statement is submitted in behalf of the National Sand and Gravel Association of which my company is a member. The National Sand and Gravel Association, which represents the sand and gravel industry in the United States, finds the Bill to which my statement is addressed of much concern to our industry. The National Sand and Gravel Association has represented the sand and gravel industry in the United States for over fifty years. Our industry, in terms of mine units produced, is the largest member of the mining family. Without sand and gravel, the construction program of the United States and every community in it would be impossible. Sand and gravel are basic construction materials, and are the major ingredient of portland cement concrete. In an address at the 50th Annual Convention of the Association, the Honorable John A. Carver, Jr., Under Secretary of the Interior, stated that the growth of the sand and gravel industry since World War II from 200 million short tons of annual production with a value of about $120 million, to 870 million tons and nearly $900 million, respectively, in 1965, has been, in his words, truly phenomenal. He said that when this record is matched against the trend line of the gross national product, it is clear that the sand and gravel industry has been a major contributor to the nation's developing prosperity, "for you have outperformed the general economy by something like a third.” Our Association has been in the forefront of the forces which are dedicated to preserving the natural beauty of our country. Through graduate programs at the University of Illinois and in many other ways, the sand and gravel industry has made a substantial contribution to this movement. Edward K. Davison, President of the Davison Sand & Gravel Company of Pittsburgh, and a member of our Board of Directors, was invited to appear on the program of the White House Conference on Natural Beauty. Mr. Carver referred to his contribution to that program. He congratulated the Association and our member companies for their sustained contribution to the conservation of the country's land resources by the restoration of worked-out sand and gravel deposits. This restoration provides for a residual use of the land which makes a substantial contribution to the economy and avoids blight. The Under Secretary put it this way in his talk: "Let me say, here and now, that the work you have done in encouraging your members to follow the excellent example of those who have been most successful in site rehabilitation is entitled to the highest commendation. I take great pleasure in extending that recognition-unstintingly." At the present rate of sand and gravel production in the United States, and assuming that production does not increase in response to growing demand, our industry will have to produce well over 25 billion tons of sand and gravel in the 30-year period from 1962 to 1992. I use this span of years because the American Society of Planning Officials estimates that in those 30 years, increased demand will mean that we shall actually have to produce 42 billion tons in order to provide the basic facilities for the expected population growth by 1992. By the year 2000, it is expected that our country's population will total 350 million persons. Great construction programs of all classifications will have to be undertaken and carried out. Every conceivable form of building must be increased if the country is going to provide all of the facilities which a population of these staggering dimensions is going to need for basic accommodations. As a part of its preview of the future, A.S.P.O. said that by 1992 our annual sand and gravel production will have to total more than 2 billion tons. Our Association has made several surveys of land use by the sand and gravel industry, in order to ascertain the extent of existing sand and gravel reserves. Based on current demand, and not allowing for the expected increase, presently held reserves for sand and gravel production will be exhausted in not more than 20 years, taking the country as a whole. There is an ill-founded assumption that sand and gravel is an inexhaustible natural resource, but what I have already said to you in this statement shows this to be a dangerous assumption. Approximately 10 percent of commercial sand and gravel produced in the United States is dredged from our navigable waterways. A significant number of these operations are in estuarine waters. All of these companies must obtain operating permits from the United States Army, Corps of Engineers. The effects of this dredging in the waterways is negligible, disturbance being limited in area, in estuary operations, and are of short duration. The public benefits of these operations, however, are many. They improve navigation by deepening and clearing channels, add sand to beach areas which are so valuable for recreational purposes, make new harbor channels for pleasure boating, and most important, provide a source of valuable construction aggregates close to the metropolitan centers where they are so desperately needed. Our Association views with great concern any action by the Federal Government which could potentially deny to our industry and the public the deposits of sand and gravel located in estuaries in various parts of the United States. |