WASHINGTON - Recently, Biden administration officials at the U.S. Department of the Interior issued a memorandum (https://bit.ly/3kxYV3j) reversing a policy put in place by former Interior Secretary David Bernhardt.
The reversal reestablished the prohibition over the use of federal funds or assistance for the removal of sand from areas protected under the Coastal Barrier Resources Act (CBRA) for the replenishment of beaches outside the CBRA area.
For Cape May County, that means sand can't be borrowed from Hereford Inlet for the benefit of beach restorations and replenishments in communities like Stone Harbor and North Wildwood.
Active litigation by the National Audubon Society against Bernhardt’s decision is ongoing, but may be moot now that the administration has taken the position that the Audubon Society was attempting to get the courts to impose.
Municipalities, like Stone Harbor and North Wildwood, are free to request a special exemption from the Interior Department, but the seven-page memorandum’s wording by the department’s deputy solicitor reads as though that may be an uphill battle.
Communities impacted by the ruling may still replenish their beaches, but a forced move to mining sand from further offshore would greatly increase a replenishment project’s costs.
Further information on the legal interpretation and its means is available in a frequently asked questions format accessed through the CBRA homepage (https://bit.ly/3kzeHLu).
The CBRA was signed into law Oct. 18, 1982, during Ronald Reagan's administration. The act is managed by the U.S. Fish and Wildlife Service. According to the recent memorandum from that agency, CBRA was passed to “restrict federal funds from being used on projects that could result in harmful development of coastal barriers.”
The memorandum further states that “Congress intended the exemption from federal funding prohibitions to apply only to shoreline stabilization projects within the system, and not to projects that export system resources to stabilize shorelines outside the system.”
In the case of Cape May County, borrowing sand from Hereford Inlet to stabilize the shoreline in Stone Harbor or North Wildwood would be exactly that - the use of sand from within the Coastal Barrier Resource System for projects outside the system.
What is confusing to some is that beach replenishment projects financed in large measure by the U.S. Army Corps of Engineers borrowed sand from Hereford Inlet before 2016.
According to a history provided by the Harvard Law School Environmental & Energy Law Program (https://bit.ly/2UYaDcZ), this was due to a series of exceptions granted by the Interior to support the New Jersey Shore Protection Project.
In 2016, U.S. Fish and Wildlife reversed its position regarding the exemptions. In that year, Stone Harbor, with financial assistance from the state Department of Environmental Protection (DEP), funded the replenishment.
The Army Corps participated by moving sand from Townsend's Inlet, which involved running a pipe the length of the shoreline from Townsend's Inlet to the northern section of Stone Harbor. The state made clear at the time that their extra financial assistance could not be an ongoing commitment.
In 2019, Stone Harbor was passed over for the federal replenishment project. The best the Army Corps and the DEP could offer was a plan to shave sand from the borough’s dunes to spread that sand on its beaches. The borough declined to weaken its dune system.
Avalon, Stone Harbor and North Wildwood jointly pursued a legal remedy, but with U.S. Rep. Jeff Van Drew’s (R-2nd) help,the municipalities appeared to get what they wanted by other means.
Then-Secretary Bernhardt Nov. 4, 2019, reversed previous policy at the Interior and said that CBRA did not prohibit sand removal from the CBRA system for purposes of replenishment and stabilization of shoreline near but outside the system. That position was supported by anOctober 2019 legal opinion (https://bit.ly/3zdkSJg) from Interior Department lawyers.
The National Audubon Society filed suit in federal court, arguing that Bernhardt’s position represented an unlawful ruling.
That is where everything stood as the administrations changed in Washington. The Audubon litigation was stayed three times while the Biden administration reviewed the matter and came to its position.
That position was made clear in the July 14 memorandum. The earlier restrictions on the use of CBRA resources, including sand, are back in place.
What Happens Now?
The memorandum from Fish and Wildlife is less than one week old. It is unclear how things will proceed, but the language in the memorandum hints at a potentially high bar for exemptions.
The most immediate problem is the upcoming 2022 beach replenishment project. The planned beach nourishment is part of the DEP’s listing of upcoming federal projects (https://bit.ly/3hORS4F). Timing is going to be of the essence, as the Army Corps and DEP lay out plans and budgets for the effort.
The July 14 memorandum ends with the statement that “in the context of a beach-renourishment project, sand from a system unit may not be used to renourish a beach located outside the system,” even if the other requirements of the exemption section are met.
Local communities that are harmed by this interpretation of CBRA will undoubtedly continue both legal and political opposition. Sand in beach communities, like Stone Harbor and North Wildwood, is an essential element of the county’s nearly $7 billion tourist economy. The reversal in CBRA policy comes just as these towns, and others up and down the coast, are struggling to recover from a once-a-century pandemic.
What is certain is that this stance by Fish and Wildlife is a blow, and one that comes just as a much-needed replenishment is on the drawing boards.
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