11/21/2019 - Regulatory Rollback

Coastal Barrier Resources Sand Policy

by EELP Staff

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it matters

The Coastal Barrier Resources Act was passed to limit development of coastal beaches, barrier islands, and marshlands. Areas protected by the Act provide important benefits, such as reducing storm surge during hurricanes, and serving as essential habitat for birds and other species. Removing sand from these vulnerable areas may reduce the natural protection and habitat these areas provide and making that sand available for replenishment projects may encourage development in coastal areas increasingly threatened by sea level rise.

Current Status

Nov. 4, 2019 The Office of the Solicitor reverses its 1994 position and now finds that the Coastal Barrier Resources Act does not prohibit the use of sand from a protected area for beach replenishment outside of the area. The Army Corps can now move forward with replenishment projects like the New Jersey Shore Protection project that removes sand from protected areas.

July 2, 2020 The National Audubon Society files a lawsuit against the Department of Interior alleging that the Nov. 4 letter is being implemented by the U.S. Fish & Wildlife Service as an unlawful rule (“the Excavation Rule”) in violation of the National Environmental Policy Act and the Administrative Procedure Act. Nat’l Audubon Soc’y v. Bernhardt, No. 1:20-cv-05065 (S.D.N.Y.).

History

Oct. 18, 1982 The Coastal Barrier Resources Act (CBRA) is signed into law, establishing the John H. Chafee Coastal Barrier Resource System. The Act, which is managed by the US Fish and Wildlife Service, prohibits the use of federal funds or other financial assistance within designated areas of the CBRS with limited exceptions. The purpose of the Act is to “minimize the loss of human life, wasteful expenditure of Federal revenues, and the damage to fish, wildlife, and other natural resources associated with the coastal barriers.”

Nov. 16, 1990 The Coastal Barrier Improvement Act is signed into law, expanding the coastal areas that can be designated under the law to include federal, state, and local protected areas, known as Otherwise Protected Areas.

1994 The Department of the Interior’s Office of the Solicitor puts out a legal memorandum interpreting Section 6(G) of the CBRA as prohibiting federal funding or assistance from dredging sand within a protected area for beach replenishment projects outside of the area. Sand may still be used for replenishment projects within the same area.

1996 The Fish and Wildlife Service grants the US Army Corps of Engineers an exemption allowing the Corps to take sand from a protected area in New Jersey to replenish other beaches in the state as part of its New Jersey Shore Protection project. After this exemption is granted, the site is used by the Corps three times to replenish beaches in New Jersey.

2016 The Fish and Wildlife Service reverses this exemption, requiring the Army Corp to seek sand for a subsequent project from an unprotected area, which proponents of the project say increases its cost by $6.5 million.

Trump Era

Oct. 25, 2019 Representative Jeff Van Drew (D-NJ) writes a letter to Secretary of the Interior David Bernhardt asking if the agency’s position remains that federal funds may not be expended to use sand within a protected area for beach replenishment outside of that area.

Nov. 4, 2019 Secretary Bernhardt responds to Representative Van Drew’s letter, explaining that after reviewing the issue, the Office of the Solicitor has reversed its 1994 position. Now, the Office of the Solicitor finds that Section 6(G) of the CBRA does not prohibit the use of sand from a protected area for beach replenishment outside of the area. The Army Corps can move forward with replenishment projects like the New Jersey Shore Protection project that removes sand from protected areas.

July 2, 2020 The National Audubon Society files a lawsuit against the Department of Interior alleging that the Nov. 4 letter is being implemented by the U.S. Fish & Wildlife Service as an unlawful rule (“the Excavation Rule”) in violation of the National Environmental Policy Act and the Administrative Procedure Act. Nat’l Audubon Soc’y v. Bernhardt, No. 1:20-cv-05065 (S.D.N.Y.).