Coastal Services Center

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Adequacy of Federal and State Laws for Addressing Beach Erosion Problems

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Abstract

Numerous federal and state laws dealing with the management of coastal areas and the issue of beach erosion have been established. The adequacy of these federal and state laws to address beach erosion problems using beach nourishment is addressed in this paper. By its very nature, this is a highly controversial issue, since it is debatable whether or not erosion control measures should be used to protect structures placed in areas known to be prone to erosion in the first place. This paper discusses two opposing sides of this issue, which we have called the "Conservation Viewpoint" and the "Engineered Solution Viewpoint."

The primary federal laws that affect management of beach erosion discussed in this paper are the Coastal Zone Management Act (CZMA) (Public Law 92-583), Section 111 of the River and Harbor Act of 1968 (Public Law 90-483), and sections of numerous Water Resources Development Acts. In addition, a brief discussion of the National Flood Insurance Program (NFIP) is also included, since this program is part of the ongoing controversy. This program is regulated under several different laws. As a result, a broad overview of the adequacy of the NFIP is provided.

Beach erosion is a very complex issue facing coastal decision-makers throughout the United States. Many factors must be considered, including causes, responsible parties, and the best methods for addressing the problem. Different laws and programs provide different solutions and possibilities to address beach erosion. Each beach erosion project is unique, and decision-makers in coastal communities must explore the available options. Whether a law is defined as being "adequate" to prevent beach erosion or not is a relative question, and the answer depends on which viewpoint is taken. This difference of opinion is embedded in the matrix of our society and will continue to exist for the foreseeable future. As such, it is largely a political problem and will ultimately require a political resolution.

Introduction

Numerous federal laws dealing with the management of beach erosion and the control of beach erosion through beach nourishment have been established. The primary laws are as follows:

• Coastal Zone Management Act (CZMA) (Public Law 92-583),
• Section 111 of the River and Harbor Act of 1968 (Public Law 90-483), and
• Sections of numerous Water Resources Development Acts.
• The National Flood Insurance Program, which is regulated under the following separate laws:
  • Coastal Barrier Improvement Act of 1990 (CBIA)
  • Coastal Barrier Resources Act (CBRA)
  • National Flood Insurance Act of 1968 & Flood Disaster Protection Act of 1973
  • National Flood Insurance Reform Act of 1994
  • Standard Flood Insurance Policy Forms
  • Title 44, code of Federal Regulations (CFR)
  • U.S. Code, title 42 - National Flood Insurance Program

The objectives of this paper are to: (1) describe these major federal laws designed to manage beach erosion issues in coastal environments, using beach nourishment as a specific example of an erosion control measure; and (2) make conclusions regarding whether these laws are adequate, from two defined different points of view. These two points of view are named as the "conservation viewpoint" and the "engineered solution viewpoint," as follows:

• "Conservation Viewpoint": According to this viewpoint, if man places structures in coastal areas where erosion is already occurring, the structures are likely to be impacted. In other words, there is no "problem" with erosion until man places structures in naturally eroding areas. According to this view, the law should be changed so that development is not allowed to occur in these areas. Under this viewpoint, costs of beach nourishment erosional control projects are thought to be too great for the benefits derived, the benefits are largely short-term, and the environmental impacts are too great (Pilkey 2001). From this perspective, the problem is caused by man's placement of structures in these areas, and it is not really a problem unless we make it so by developing in these areas.
• "Engineered Solution Viewpoint": According to this viewpoint, beach nourishment projects should be implemented to protect coastal areas from erosion because these areas provide important economic, social, commercial, and recreational values. According to this viewpoint, beach nourishment programs can be proposed as an effective means of solving the erosion problems in coastal areas. Beach nourishment allows these areas to continue to provide the valuable economic and recreational benefits that are so valued, according to this viewpoint. A corollary to this viewpoint is that erosion control programs will cause only short-term adverse environmental impacts if the project is planned correctly and according to the pertinent laws and regulations.

By its nature, the issue of whether the laws are adequate is highly controversial because of these widely varying differences in public and professional opinion regarding whether beach nourishment projects should even be done in the first place. This paper addresses the adequacy of each of the above-referenced existing laws to prevent erosion from these two opposing viewpoints.

Discussion

Beach erosion affects the majority of the nation's shorelines. Beach erosion occurs naturally as a net result of the various physical forces and factors acting on coastal areas. These forces and factors primarily include tidal action, littoral drift, sea level rise, winds, waves, and sediment characteristics, among others. Coastal erosion will occur, however, regardless of man's activities because it is a natural phenomenon.

The crux of this debate is whether to place structures in these areas and then have to implement erosion control programs such as beach nourishment, or to leave these areas alone completely and not allow any development. The focus of this paper is to define the adequacy of current laws from each of the above two perspectives, in order to show both sides of the argument. The objective is not to pick one side or the other, but instead simply to discuss both sides of the issue. The focus of this paper is not on whether the laws are adequate to protect natural or cultural resources, although this is touched on briefly as a corollary to each of the two viewpoints, and is really an integral part of each viewpoint. Environmental issues are covered under the papers in this series concerned with the National Environmental Policy Act (NEPA) and Section 404 permitting.

The discussion in the present paper is organized according to each of the major laws regulating beach nourishment projects and beach erosion issues, and each of the two opposing perspectives. For the sake of discussion, the two opposing viewpoints are defined as the "conservation viewpoint" and the "engineered solution viewpoint" as defined above.

Coastal Zone Management Act

In an effort to encourage states to better manage coastal areas, Congress enacted the Coastal Zone Management Act (CZMA) in 1972. The CZMA provides the primary national framework for improved management of coastal lands and beach erosion control. The CZMA provides and authorizes grants to states that develop and implement federally approved coastal zone management plans. The major features of the act are still in effect. States have the lead in developing plans; the program is voluntary, with no sanctions imposed on states choosing not to participate. Federal grants assist the states in the implementation of the coastal zone management process (Merrell 2001).

The Coastal Zone Management Program has been effective in providing coastal zone management practices to all the participating coastal states and territories. After 30 years, 33 of 35 eligible coastal states, commonwealths, and territories participate in the voluntary program. More than 97 percent of the U.S. shoreline is now subject to coastal zone management programs, and no state has dropped out of the program since it began (Merrell 2001). The following is a summary of the adequacy of the CZMA as viewed by the two opposing viewpoints.

• Conservation Viewpoint: The conservation viewpoint is that the Coastal Zone Management Program has not adequately protected barrier islands and coastal islands because the law has essentially allowed too much development to occur. When the inevitable erosion problem develops, the law allows massive beach renourishment projects to move forward, all under the approval of the Coastal Zone Management Program. These projects are approved as part of the consistency determination made by the CZM Office in each state. According to the conservation viewpoint, the law should be strengthened to avoid placing structures in areas known to be eroding or subject to flooding and erosion. This would constitute a large part of the coastal areas of the United States and as such would have major consequences for property owners. It would, however, solve the problem of damage to structures placed in areas prone to erosion. Proponents of this viewpoint note that this approach avoids all environmental impacts associated with procuring quality beach sand and placing it on beaches.
• Engineered Solution Viewpoint: The opposing viewpoint is that the CZMA is overprotective and that development should be allowed in coastal areas. From this perspective, the law is viewed as being inadequate, since it does have some restrictions, and it also contributes to a lengthy project review in order to make the CZM consistency determination. The determination is made as part of the NEPA process, in which the CZM Office participates in scoping of the project, and also reviews the draft EIS for a project and makes comments.

The opposing viewpoint further states that beach nourishment projects are a viable option that can be employed to protect erosion-prone areas for the use and benefit of society at large. Under this viewpoint, erosion is seen to be a controllable problem through beach nourishment or similar means. It also allows development to occur in areas that are flooded and experience physical damage by large storms, including hurricanes. This viewpoint argues that the relatively high costs of beach nourishment are valid, however, in view of the economic benefits provided by coastal development.

The adequacy of the law to protect areas from beach erosion is therefore relative to which of these basic viewpoints is taken. Both viewpoints see the law as being basically inadequate, but for different reasons. However, quantitative evaluation of the success of the Coastal Zone Management Program is difficult, and little information of the kind exists.

To effectively and efficiently protect and improve the management of coastal resources and address the problem of beach erosion, coastal managers and decision-makers must be able to assess the performance of their programs. To meet this need, the National Oceanic and Atmospheric Administration (NOAA) is collaborating with the Heinz Center for Science, Economics and the Environment to develop a common framework and a consistent set of measures, or performance indicators, to evaluate the effectiveness of state coastal zone management programs. Such a framework will provide a mechanism for coastal decision-makers to assess program effectiveness in achieving desired goals, making policy adjustments, and allocating or reallocating resources in addressing beach erosion. The framework will enhance the effective partnership between the states and the federal government that exists through the CZMA (Merrell 2001).

Section 111 of the River and Harbor Act of 1968

Section 111 of the River and Harbor Act of 1968 authorizes the investigation and construction of projects to prevent or mitigate shoreline damage directly attributable to federal navigation works (USACE 2001). The following is a summary of the two viewpoints on the adequacy of this law:

• Conservation Viewpoint: Some experts theorize that the primary cause of coastal erosion is shoreline development such as buildings and parking lots. Other coastal professionals (scientists, engineers, geologists), however, reject this view and believe that dredged and jettied navigation channels cause most of the erosion problems on modern shorelines. Nature will not take its course until navigational cuts are either sealed or effectively neutralized by technology designed for the purpose. At many coastal inlets, federal improvements have been blamed for adjacent down drift beach erosion that occurred subsequent to construction of those improvements. According to this viewpoint, Section 111 of the River and Harbor Act of 1968 is not adequate because it leads to perpetuation of erosion problems created by man-made structures, and numerous Section 111 studies have been challenged by private landowners for their technical adequacy, resulting in the organization of several successful class action lawsuits. A community generally needs to mount a major lobby effort, then wait a number of years, to have perhaps only one percent of the actual USACE-induced erosion finally mitigated (Holmberg 1999). Since the Fifth Amendment guarantees that owners of land "taken" as a result of public works projects must be fairly compensated, coastal land owners in New York, Florida, Texas, and along the Great Lakes have all filed class action suits (Holmberg 1999). From this viewpoint, the law is inadequate.
• Engineered Solution Viewpoint: Within this viewpoint, engineered solutions are determined to be an acceptable means of solving coastal erosion problems, and Section 111 of the River and Harbor Act of 1968 is deemed adequate for this purpose. For example, USACE formulas for calculating the damage caused by channel dredging suggest these activities cause only a small "shadow zone" of erosion, typically less than one mile. Additionally, mitigation of damage is not mandatory, but discretionary. According to this viewpoint, erosion is a natural phenomenon that can be addressed with structural controls; Section 111 of the River and Harbor Act of 1968 is therefore seen as being adequate for its purpose.

Symptoms of beach erosion are repeatedly being treated through major programs, but the underlying problems remain. Traditional beach maintenance programs, such as beach nourishment, are usually adopted. A great deal of federal money has been available for these programs in the past. Recently, however, many beach communities have come to realize that the federal government has begun curtailing funds for maintenance, viewing maintenance as more of a local responsibility (Holmberg 1999). Thus, for some communities, the difference of opinion as to the adequacy of Section 111 of the River and Harbor Act of 1968 will continue.

Water Resources Development Act (WRDA)

Section 933 of WRDA of 1986, as amended by Section 35 of WRDA of 1988, and Section 207 of WRDA of 1992 provide authority for the Secretary of the Army, if requested by a state, to place beach quality sand dredged in constructing or maintaining navigation improvements on adjacent beaches if the work is deemed to be in the public interest and upon payment by such state of fifty percent of the increased cost (US Army Corps of Engineers 1996). New versions of this law have been created in subsequent years, and beach nourishment projects to address beach erosion can only be authorized in years in which Congress enacts a Water Resources Development Act.

To obtain federal funding for a beach nourishment project under the WRDA, a feasibility study must be provided to Congress by the USACE for information purposes or with a recommendation for authorization. Appropriations for these projects are issued under separate bills. The WRDA of 1986 recognizes hurricane and storm damage reduction and/or recreational enhancement as the primary purposes of beach erosion control projects. However, recent federal policy precludes the USACE from recommending a project for federal authorization if the purpose is characterized as being primarily for recreation. The underlying federal law which forms the foundation of the USACE role in beach erosion control projects (33 USC 426) states that the basis of federal financial assistance should be "preventing damage to the shores and beaches of the United States, its Territories and possessions and promoting and encouraging the healthful recreation of the people." However, because budgetary funding priority decisions must be made, some beaches remain eroded (American Coastal Coalition 2000).

The following is a summary of the two viewpoints on the adequacy of this act to control erosion:

• Conservation Viewpoint: From this viewpoint, the law is inadequate because it is seen to promote development in areas subject to erosion. The erosion "problem" would not exist if this development were not allowed to occur, according to this viewpoint. In addition, the environmental costs and costs of implementing a beach nourishment project to control erosion would not be incurred. For example, some projects have been delayed due to potential impacts on endangered species such as Johnson's seagrass. Project construction schedules have also been modified to avoid impacts on spawning or nesting of animal species. Impacts of sand removal on sensitive hard bottom communities has been an issue in beach nourishment projects as well, and has led to the delay of at several projects in Florida. According to the conservation viewpoint, the law is working in these instances because these types of issues are being incorporated into the planning and design of the project. However, the law is also seen as being inadequate in an overall sense because it allows for these types of projects to be constructed in sensitive coastal areas in the first place.
• Engineered Solution Viewpoint: Under this viewpoint, it is argued that to effectively address beach erosion, decision-makers must focus on the most basic cause of the problem – the lack of supply of sand to the beach – and the solution – to replenish this material via a beach nourishment project. This argument has also been the basis for identifying the need for "sand rights" legislation, which would require decision-makers to consider the effects of navigation works upon public trust beaches and prevent upstream sand "trapping." High demand for sand to maintain beaches will eventually cause offshore sand deposits to be managed as public resources. A doctrine of sand rights could ultimately be analogous to water rights, that is, it will be illegal to "trap" sand upstream and prevent it from being used downstream. Many argue that a body of laws and regulations is needed that will protect natural sand movement, migrating along the coast, so that long-term coastal shoreline solutions will be assured (Stone and Kaufman 1988).

The proponents of the engineered solution viewpoint would argue that the present WRDA legislation is adequate in that it allows for beach nourishment projects to move forward. However, these same proponents also argue that the law is inadequate because it requires several years to approve a project due both to the planning process and to the environmental permit approval process. Consequently, as pointed out previously, many beaches are left to erode and there are problems with erosion affecting certain areas. These proponents would like to see the whole process streamlined, but they are opposed by environmental groups and other organizations who wish to see a thorough assessment of the potential adverse impacts of these projects on wetlands, hard bottom communities, seagrasses, and endangered species, as well as other natural resources. According to this viewpoint, this legislation is viewed as the cause for unnecessary delay in the implementation of a beach nourishment project.

National Flood Insurance Program

The following is a summary of the FEMA National Flood Insurance Program (NFIP) in the coastal zone and associated issues as quoted from FEMA (undated):

• "The Federal Emergency Management Agency (FEMA) administers the Federal Flood Insurance Program that produces rate insurance maps and insures properties within the 100-year flood zone for local communities participating in the program."
• "Insured coastal structures, when damaged or destroyed, receive insurance claim payments to repair or rebuild."
• "Critics have argued that, despite local code requirements, the NFIP promotes subsidized inappropriate development in coastal high hazard areas, impeding state management efforts to restrict new development and redevelopment in these areas."
• "In 1994, Congress required FEMA to conduct an evaluation of the economic impact of mapping coastal erosion areas and then denying flood insurance for existing and new structures in such areas, establishing actuarial rates, and changes in the tax base of communities."
• "As of 1992, there were over 66,000 NFIP policies in effect covering structures in the hazard zone (V-Zone). Under the Upton/Jones Program 1988-1995, FEMA allowed for payment of flood insurance claims to demolish or relocate buildings imminently threatened by erosion. A total of 434 claims have been approved under this program, 73 percent for demolition. FEMA is currently conducting an evaluation of economic impact of mapping erosion hazard areas for Congress."

The following is a summary of how each of the two viewpoints would address the adequacy of the NFIP, in view of the above:

• Conservation Viewpoint: The conservation viewpoint is that this program is inadequate because it allows people to construct in coastal areas subject to flooding, and to obtain flood insurance if their houses or other structures are damaged. Furthermore, these same landowners may be entitled to subsequent federal disaster relief if they experience damage from a major storm or hurricane. Whereas the flood insurance is paid for by individual property owners in the form of premiums, the federal government pays for disaster relief out of tax dollars.
• Engineered Solution Viewpoint: The law is viewed as adequate under this viewpoint because it compensates land owners for flood damages, and the program is paid for by flood insurance premium holders. The program is supported primarily by flood insurance premiums paid for by the landowners, and is therefore justifiable according to this viewpoint.

The adequacy of the NFIP to solve beach erosion problems is again dependent on which viewpoint is taken. There are both critics and supporters.

Conclusion

Beach erosion is a complex issue facing coastal decision-makers throughout the United States. Many factors must be considered, including the causes, responsible parties, and the best methods for addressing the problem. Different laws and programs provide different solutions and possibilities to address beach erosion. Each beach erosion project is unique and decision-makers in coastal communities must explore the available options. Whether a law is defined as being "adequate" to prevent beach erosion or not is therefore a highly relative question, and the answer depends on which viewpoint is taken. This difference of opinion is embedded in the matrix of our society and will continue to exist for the foreseeable future. As such, it is largely a political problem and will ultimately require a political resolution.

References

American Coastal Coalition. 2000. "Recreation is a Major Benefit of Beach Nourishment Projects and Should Be Accorded a Status Equal to Storm Damage Reduction and Environmental Restoration Benefits." American Coastal Coalition, Coastal Facts, www.coastalcoalition.org.

Bernd-Cohen, T. and M. Gordon. 1998. Final Report, State Coastal Management Effectiveness in Protecting Beaches, Dunes, Bluffs, Rocky Shores: A National Overview as Part of the Sea Grant National CZM Effectiveness Study for the Office of Ocean and Coastal Resource Management, National Ocean Service. NOAA, DOC. March 1998.

Federal Emergency Management Agency (FEMA). Undated. "Section 577 of the National Flood Insurance Reform Act of 1994--'Evaluation of Erosion Hazards': Overview of Study Plan."

Holmberg Technologies. 1999. "Coastal Owners' Rights, the Fifth Amendment and Section 111; Dr. Pilkey vs. The Army Corps of Engineers; Homeowners Sue Army Corps for Causing Beach Erosion; Why Dredged Channels Cause Beach Erosion: Two Views." www.erosion.com, copyright 1999.

Merrell. 2001. "Testimony of Dr. William J. Merrell, President of the H. John Heinz III Center for Science, Economics and the Environment, Before the Subcommittee on Fisheries Conservation, Wildlife and Oceans, Committee on Resources, U.S. House of Representatives." May 24, 2001.

Pilkey, Orrin H. 2001. "Beach Nourishment – Two Sides to Every Story." In Beach Nourishment: The Wave of the Future for Erosion Control (Part A).

Stone, Katherine and Benjamin Kaufman. 1988. "Sand Rights: A Legal System to Protect the 'Shores of the Sea.'" Shore and Beach. Volume 56, Number 3 (July 1988). Pages 7 to 14.

US Army Corps of Engineers. 1996. CECW-OD, Regulation No. 1130-2-520 Project Operations Navigation and Dredging Operations And Maintenance Policies. 29 November 1996

USACE. 2001. Shore Damage Attributable to Federal Navigation Works. USACE, Galveston District. www.swg.usace.army.mil. October 2001.