Beach Nourishment - Law and Policy

Beach Nourishment: A Guide for Local Government Officials

Regulatory Requirements Addressing Beach Nourishment Materials

Abstract

Large volumes of quality sand are needed for beach nourishment projects. A common source of sand is the nearby seabed, but these sources are becoming depleted or otherwise unavailable. Sand resources are known to exist beyond state-owned waters in the federally managed outer continental shelf (OCS). The regulatory requirements associated with obtaining these resources are addressed in this paper.

The Mineral Management Service (MMS) has the primary responsibility for administering the Department of Interior’s role in activities associated with mineral resource development of the nation’s OCS. The OCS Lands Act (OCSLA, 43 USC 1331 et. seq.) provides the authority to manage OCS minerals. State and local governments and other Federal agencies negotiate directly with the MMS when OCS sand is needed for projects that benefit the public such as beach nourishment. The OCSLA is described and other authorizing legislation and the influence these laws have on the availability of offshore sand for beach nourishment projects are summarized in this paper. In addition, the states’ legal ownership of underwater sands, involvement of other agencies, including the U.S. Army Corp of Engineers, the U.S. Geological Survey and state geological authorities are described.

Introduction

Large volumes of suitable sand are needed for beach nourishment projects. Identification of suitable sand resources is a complex issue. Sand for nourishment projects comes from a variety of environments, including terrestrial (coastal dunes, coastal plains, and inland sand dunes) and offshore sources (dredge spoils from harbor maintenance, sand fields, sand channels, and sand banks). The regulatory framework addressing beach nourishment materials is summarized in this paper.

Discussion

For projects requiring greater than 50,000 cubic yards of sand, use of inland (terrestrial) sources may not be economically or logistically practical. Nearshore dredging operations are often the most economical sources of sand for beach nourishment (Dobkowski, 1998). Another common source location for sand is the nearby seabed, but these sources are becoming depleted or otherwise unavailable. For example, it is estimated that sand sources within the State of Maryland's water boundaries could be depleted within fifteen years (MGS, 2002). Sand resources are known to exist beyond state-owned waters in the federally managed outer continental shelf (OCS). This paper focuses primarily on regulations and limitations associated with various sources for sand, including those located in the OCS. An overview of the applicable regulatory authority for sand sources depending on location of the resource is provided in Figure 1.

Regulation of sand sources varies according to location. Various agencies must be consulted before a potential sand source is deemed suitable. In addition, beach nourishment projects require that sand sources meet specific physical, economic, and environmental criteria. The grain size of sand material should be equal to or coarser than the native sand being replenished, as well as contaminant-free (NRC, 1995). The proximity of a sand source to the target beach and potential fees associated with removal of the sand source are important economic factors to consider. In general, regulatory requirements ensure that sand sources are obtained in the least destructive fashion possible with the least environmental impact.

State geological surveys work in conjunction with other state and local government agencies to characterize geology and mineral resources of a particular state (NOAA, 2001). The information is used to support state and local projects and for updating reports and maps. State jurisdiction for these efforts extends seaward to the state/federal boundary, at which point the U.S. Geological Survey (USGS), Department of the Interior's Minerals Management Service (MMS), and other Federal agencies assume responsibility (NOAA, 2001).

As a result of the increasing demand for suitable sand and diminishing nearshore resources, the MMS has initiated several ongoing cooperative projects with states along the Atlantic and Gulf Coasts to identify and assess OCS resources for coastal restoration (Table 1) (NRC, 1995; NOAA, 2001). Identification of OCS resources is a complex process that requires extensive study to determine sand source suitability as well as potential impacts to the environment from sand source removal (MMS, 2000). The USGS Coastal and Marine Geology Program, in collaboration with several academic institutions, provides much of the scientific data necessary to better understand the geological processes behind coastal and nearshore erosion.

The Coastal and Marine Geology Program supports a variety of research and mapping activities that support better understanding of marine and coastal geological systems (NOAA, 2001; NRC, 1995). The USGS is creating a national geospatial data clearinghouse to provide centralized access to data that can support coastal change analysis forecasts and act as a decision support tool for policy makers (NOAA, 2001). This information is critical for decision-makers to evaluate suitable sand sources as well as the nature of OCS resources.

In 1953, Congress enacted two laws that continue to affect the availability of offshore sand for beach nourishment: the Submerged Lands Act (43 U.S.C. 1301) and the Outer Continental Shelf Lands Act (OCSLA) (43 U.S.C. 1331). The Submerged Lands Act essentially transfers authority over the resources of submerged lands from a defined baseline to 3 nautical miles seaward to coastal states. In the cases of Texas and the Gulf of Mexico coast of Florida (for reasons related to the conditions under which Texas and Florida entered the Union), control is 3 marine leagues (9 nautical miles or approximately 10.2 statute miles) seaward. In other words, most of the nation’s coastal states own the underwater sand from the beaches out to 3 nautical miles in the ocean. Each state may manage, conserve, and use the resource within its jurisdiction as it determines.

The OCSLA authorizes the Federal government to manage the nonliving resources of the OCS (oil, gas, sulfur, and other mineral resources including sand and gravel) on or under the seabed that extend seaward from state waters to the edge of the shelf, or roughly 200 nautical miles out into the sea. The OCSLA delegates responsibility and jurisdiction of Federal offshore resources to the Department of the Interior, specifically to the Secretary of the Interior. Since 1982, most of the responsibility has been delegated to the MMS (Figure 1).

OCSLA was originally maintained and implemented as an oil and gas statute (Kitsos, 1996). The law is based on a number of different concepts, including competition for the rights to develop offshore resources and that fair market value is to be obtained for the resources. These concepts work well for private sector interest in obtaining rights to produce oil and gas, but not for other minerals that may be needed for public works projects (Kitsos, 1996). The procedures for the conveyance of rights to non-oil and gas minerals are contained in Section 8(k) of the OCSLA.

Congress passed an amendment to Section 8(k) (P.L. 103-426) in 1994. P.L. 103-426 keeps the original Section 8(k) language, that competitive sales are generally required for federal minerals other than oil, gas, and sulfur, but it also provides an exception for sand resources. Specifically, for sand, gravel, and shell resources with specific end uses, the Secretary of the Interior may negotiate an agreement for the use of these resources in a program for shore protection, beach restoration, or coastal wetlands restoration undertaken by a Federal, state, or local government. Federal agencies are directed to enter into a Memorandum of Agreement (MOA) with the Department of the Interior for use of sand and gravel under the management of Federal agencies.

As a result, state and local governments and other Federal agencies negotiate directly with the MMS when OCS sand is needed for projects that provide public benefit, such as beach nourishment. No fee may be assessed, however, against another federal agency (NRC 1995). In addition, the OCSLA was amended in 1999 by the Water Resources Development Act, prohibiting the fee charged to state and local governments for the use of OCS sand and gravel. Communities and private companies may negotiate directly with the MMS for use of sand and gravel from Federal waters if they are going to be used for public projects that serve the citizens of a coastal area (Kitsos, 1996).

MMS guidelines for obtaining sand sources in the OCS are described in Guidelines for Obtaining Minerals other than Oil, Gas and Sulphur on the Outer Continental Shelf, OCS Report MMS 99-0070 (1999). The MMS International Activities and Marine Minerals Division (INTERMAR) has implemented regulations regarding prospecting, leasing, and operations for OCS minerals other than oil, gas, and sulphur (MMS, 1999). A copy of these regulations can be obtained in the Internet at www.mms.gov/intermar/marineac.htm. Conveyance of OCS mineral rights must be initiated by formal request and can be completed by either a negotiated, noncompetitive agreement or a competitive lease sale. INTERMAR utilizes both geologic and environmental information developed through partnerships with States and contracted studies to identify OCS sand deposits. Current areas under study through MMS and state partnership are summarized in Table 1. Economically sound uses of OCS sand resources depend upon the quality (beach compatibility) of sand, quantity or volume of sand, location (distance from shore) of sand, and environmental impact considerations (MMS, 1999).

Publicly sponsored shore protection and restoration projects are generally authorized by Congress and executed by a Federal agency, usually the USACE. State and local governments have roles as project co-sponsors and cost-sharing partners. The USACE has a very significant role in beach nourishment projects, most often serving as the Federal lead agency. Locating sand resources can be costly and challenging; however, it may not be necessary to identify OCS resources if a dredging project is already occurring in the area.

It is the policy of the USACE to consider possible beneficial uses of the dredged material. Most major ports have established dredging schedules for the maintenance of navigational channels. Prior to the commencement of any dredging project the USACE and U.S. Environmental Protection Agency (USEPA) conduct several tests to characterize the dredged material and evaluate its suitability for possible beneficial use (NOAA, 2001). The Water Resources Development Act of 1999 states that “the secretary of the Army is authorized to carry out projects for the protection, restoration, and creation of aquatic and ecologically related habitats in connection with dredging for construction, operation, or maintenance of an authorized navigation project.” Other legislative authorities relating to USACE dredging activities are the Coastal Zone Management Act (CZMA), Clean Water Act (CWA), Marine Protection Research and Sanctuaries Act, Federal Water Pollution Control Act, National Environmental Policy Act (NEPA), Ocean Dumping Act, and Rivers and Harbors Act (NOAA 2001).

Regardless of the jurisdiction over the sand source, all materials to be dredged for either open water or upland disposal must have appropriate USACE and USEPA approval for removal, transport, and placement. USACE permits under Section 404 of the CWA are required for dredge, transport, and disposal operations (Figure 1). This process often involves NEPA documents for decision-making concerning impacts associated with dredging. Dredging operation schedules are often limited to specific "windows of opportunity" that result in the least adverse environmental impact.

Relevant factors considered when evaluating potential impacts include navigational standards, Federal standards, water quality, coastal zone consistency, wetlands, endangered species, historic resources, scenic and recreational values, fish and wildlife, marine sanctuaries, and other state requirements (33 CFR Part 336). In addition, Section 307 of the CZMA requires that activities conducted or supported by a Federal agency be consistent with the State's coastal management plan (to the extent practicable). A State coastal zone consistency review, if applicable, occurs under the authority of the National Oceanic and Atmospheric Administration (NOAA).

Conclusion

Sand sources for beach nourishment may originate from several sources, including onshore and offshore locations. Locating, obtaining, and transporting suitable sand sources can be a difficult and complex process. Regulatory requirements for obtaining sand sources must consider several factors such as sand location, transport, quality and quantity, as well as the environmental impacts of sand removal, transport, and placement. Obtaining suitable sand sources may require extensive coordination among several agencies including the MMS, USACE, USEPA, NOAA, National Marine Fisheries Service, U.S. Fish and Wildlife Service, as well as applicable State and local agencies. Consideration of environmental impacts requires permit applicants to cooperate with multiple Federal agencies and potentially with one or more State agencies.

References

Dobkowski, A.H., 1998. Dumptrucks Versus Dredges: An Economic Analysis of Sand Sources for Beach Nourishment. Coastal Management, 26:303-314.

Kitsos, Thomas, R., 1996. New Requirements for Obtaining Beach Sand from Federal Waters. The Future of Beach Nourishment, Proceedings of the 9th National Conference on Beach Preservation Technology. January 1996.

MGS, 2002. Maryland Geological Survey. Coastal and Estuarine Geology Program: The Need for Sand in Ocean City, Maryland, www.mgs.md.gov/coastal/osr/ocsand4.html, May 2002.

MMS, 1999. Minerals Management Service. Guidelines for Obtaining Minerals other than Oil, Gas and Sulphur on the Outer Continental Shelf, OCS Report MMS 99-0070.

MMS, 2000. Minerals Management Service. MMS Environmental Studies Program, FY 2001 Prospectus, November 2000.

NOAA, 2001. Sand Resources for Beach Nourishment, NOAA Coastal Services Center, Ocean Planning Information System, www.csc.noaa.gov/opic, December 2001.

NRC 1995. National Research Council. Beach Nourishment and Protection. Committee on Beach Nourishment and Protection, Marine Board, Commission on Engineering and Technical Systems, National Research Council. National Academy Press, Washington, D.C. 1995, 334 p.