Beach Nourishment - Law and Policy

Beach Nourishment: A Guide for Local Government Officials

Law and Policy

One critical aspect of beach nourishment is the requirement to comply with the many federal and state laws, regulations, and policies that are associated with these complex projects. The material presented in this section of the Web site is designed to provide decision-makers with the basic information needed to understand the environmental compliance requirements for a beach nourishment project.

A detailed treatment of specific legal and regulatory issues is presented under seven main headings:

A quick summary of this information is presented below.

1. History and Evolution of Laws Relating to Beach Nourishment

Beach nourishment is the process of placing sand on an eroding beach to provide a protective buffer against storm and wave damage, and/or to enhance the recreational value of a beach. However, beach nourishment is a controversial shore protection measure because it has the potential to adversely impact a variety of natural resources. Consequently, a relatively complex series of federal, state, and local laws and regulations has evolved over the last 80 years for the management and permitting of beach nourishment projects. Today, beach nourishment projects must comply with a wide range of complex laws and regulations, as well as associated funding constraints. The major laws and regulations that apply to beach nourishment projects and that have developed over the last 80 years are summarized in Table 1. The relevance of each law or regulation to decision-makers involved in these projects is summarized in Table 2. This table is designed to help decision-makers identify many of the regulatory and legal hurdles for beach nourishment projects, and the potential ways these laws and regulations could affect the approval for a given project.

Interest in beach nourishment programs began in New Jersey in the early 1900's due to significant beach erosion resulting from intense coastal development and hurricanes. Federal authority in shore protection programs currently resides primarily with the United States Army Corps of Engineers (USACE), the Federal Emergency Management Agency (FEMA), the National Oceanic and Atmospheric Administration (NOAA), the United States Geological Survey (USGS), and the Minerals Management Service (MMS) of the Department of the Interior. Current congressional appropriations for beach nourishment projects and studies total over $150 million per fiscal year. State and local governments also have developed separate but interrelated laws, regulations, and policies for beach nourishment projects.

2. Adequacy of Federal and State Laws for Addressing Beach Erosion Problems

Numerous federal and state laws dealing with the management of coastal areas and the issue of beach erosion have been established. The primary federal laws that affect management of beach erosion 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. The CZMA provides the primary national framework for improved management of coastal lands and beach erosion control. The CZMA authorizes grants to states that develop and implement federally approved coastal zone management plans.

Section 111 of the River and Harbor Act authorizes the investigation and construction of projects to prevent or mitigate shoreline damages attributable to federal navigation works. Mitigation of adverse impacts under the act is not mandatory; and actions are initiated at the discretion of the U.S. Army Corps of Engineers (USACE). Numerous Section 111 studies have been challenged by private landowners for their technical adequacy, resulting in the organization of several successful class action lawsuits.

Beach nourishment projects can only be authorized in years in which Congress enacts a Water Resources Development Act. To obtain federal funding for a beach nourishment project, a feasibility study must be provided to Congress by the USACE for information purposes or with a recommendation for authorization. The Water Resources Development Act of 1986 recognizes hurricane and storm damage reduction and/or recreational enhancement as the primary purposes of beach erosion control projects. However, administration policy precludes the USACE from recommending a project for federal authorization if the purpose is characterized as being primarily for recreation purposes.

Many argue that in order to effectively address beach erosion, decision-makers must focus on the basic cause of the problem – the lack of supply of sand to the beach – instead of the immediate reach of coastline affected. This argument has 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." This paper explores these and other issues surrounding the reported adequacy of various laws to address beach erosion problems that should be considered by decision-makers.

3. Compliance and Integration of Legal and Regulatory Requirements for Beach Nourishment Programs

A beach nourishment program requires effective planning, coordination, implementation, and maintenance by decision-makers. Nourishment programs typically involve complex environmental issues and must comply with applicable federal, state, and local laws, policies, and regulations. The first step in the planning process is to identify applicable requirements, programs, and stakeholders. Factors such as property ownership, beach access, location of project (state and local jurisdiction), purpose of project, environmental resources present, and beach erosion causes are primary considerations that drive applicable programs, resources, and requirements (such as permitting) for a beach nourishment project.

Responsibility for protection from shoreline erosion and flooding lies with the following federal agencies: U.S. Army Corps of Engineers (USACE), the Federal Emergency Management Agency (FEMA), and the U.S. Department of Interior (USDOI), including the National Oceanic and Atmospheric Administration (NOAA), the U.S. Geological Survey (USGS), and the Minerals Management Service (MMS). The primary federal laws affecting beach nourishment projects are Section 404 of the Clean Water Act and the National Environmental Policy Act (NEPA), which are integrated into a 6-step planning process recommended by the USACE. Section 404 permits are coordinated through the USACE district offices (Table 3) and permit authority is granted to the USACE under Section 10 of the River and Harbor Act of 1899 and Section 404 of the Clean Water Act (CWA) of 1977, as amended (Figure 1). State and local authorities also play an important role concerning beach nourishment projects. In addition to federal requirements and resources, several states have specific beach nourishment program requirements. Positive public benefit and review of these projects is crucial, and coordination of regulatory authorities and stakeholders is key to implementing a beach nourishment program.

4. Regulatory Requirements Addressing Beach Nourishment Materials

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 Minerals Management Service (MMS) has the primary responsibility for administering the Department of the Interior's role in activities associated with mineral resource development of the nation's OCS. 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 4) (NRC 1995; NOAA 2001).

The OCS Lands Act (OCSLA, 43 USC 1331 and following) 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 and other authorizing legislation influence the availability of offshore sand for beach nourishment projects. 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 also involved.

5. The Coastal Barrier Improvement Act of 1990

There are numerous established limits and issues associated with the Coastal Barrier Improvement Act (CBIA) of 1990 (P.L. 101-591) that should be considered by decision-makers when reviewing beach nourishment projects. The CBIA was enacted on November 16, 1990 to reauthorize the Coastal Barrier Resources Act (CBRA) of 1982. The CBRA establishes the Coastal Barrier Resources System (CBRS), which includes areas such as undeveloped coastal barrier islands. Specific examples of prohibited federal expenditures within the CBRS include, but are not limited to, those listed in Table 5.

The CBIA expanded the CBRS to include "otherwise protected areas" (private or public lands that are held for conservation purposes). Areas within the CBRS that may support development are designated as ineligible for federal financial assistance. Some specific limitations to federal expenditures within the CBRS include construction (or purchase of) structures or roads, availability of flood insurance for new or substantially improved structures, and erosion prevention or stabilization projects. This act does not restrict activities carried out with private or other non-federal funds. Federal expenditures are authorized for activities associated with energy resources; navigation channels; public roads; national security; Coast Guard facilities; wildlife enhancement, protection, and management; public health and safety; and restoration of natural shoreline stabilization systems. Some issues associated with the act that are addressed in this paper include interpretation of the exemptions, influence on development, inclusion of certain coast barrier units, and boundaries associated with "otherwise protected areas" included in the CBRS.

6. National Environmental Policy Act (NEPA) Compliance Requirements for Beach Nourishment Programs

The National Environmental Policy Act (NEPA) of 1969, as amended (Pub. L. 91-190, 42 U.S.C. 4321-4347, January 1, 1970, as amended by Pub. L. 94-52, July 3, 1975, Pub. L. 94-83, August 9, 1975, and Pub. L. 97-258, § 4(b), Sept. 13, 1982) is the primary law in the United States that governs environmental review of major construction projects by the federal government, including beach nourishment projects. Diagrams of the generalized sequence of events in NEPA, as well as a more detailed summary of the NEPA process, are provided in Figures 2 and 3. Provisions for complying with the NEPA are identified in the Council of Environmental Quality guidelines (40 CFR Parts 1500-1508) and are supplemented by Army Regulation ER 200-2-2 (USACE 2000). In addition, the USACE has its own six-step Water Resource Planning process (WRP) developed under the Water Resources Planning Act, as amended (WRPA)(42 U.S.C. 1962a-2)(as described in Engineering Regulation ER 1105-2-100). The WRP process is integrated with NEPA and Section 404 permitting of beach nourishment projects (Table 6).

The "heart" of the NEPA process is the early scoping of issues and the development of acceptable and clearly defined alternatives. Scoping is completed to identify issues that are of concern to the public and/or the agencies. The impacts of each alternative (including no action) on the existing environment are then determined, and measures to mitigate potentially adverse impacts are developed. A successful NEPA project reports valid scientific information on the existing environment, thereby providing a basis for assessing the impacts of the alternatives.

The purpose of the alternatives analysis under NEPA is to lead to the selection of the "least environmentally damaging practicable alternative," wording which carries over directly into the Section 404 permitting process. The alternatives are important because they provide a way to select a project design that will result in avoidance of adverse impacts on the environment to the extent that this is practicable. Once impacts have been avoided through the alternative analysis, detailed design changes can then be made that will minimize any potentially adverse effects of the project. Thus, the avoidance-minimization sequence must be followed to comply with NEPA, and is also incorporated directly into the previously mentioned Section 404 process. Once impacts have been avoided and minimized, any remaining adverse effects can be compensated, for example, by constructing similar habitat elsewhere according to standard operating procedures established by the USACE. The sequence of avoidance minimization and compensation is required under the Section 404(b)(1) Guidelines, the rules by which federal agencies review each permit application. A discussion of these guidelines is provided in Appendix X of this series.

The majority of problems that arise during the NEPA review process are related to inadequate public involvement and issue identification in the early phase of a project (scoping), inadequate development of project alternatives, use of poor quality data in defining baseline conditions, and inadequate assessment of cumulative impacts. The key components of a successful NEPA project are therefore early planning, effective coordination, use of quality baseline data, and identification of all agency and public issues and concerns early on in the process. Typical NEPA compliance issues that have arisen on various beach nourishment projects along the Atlantic seaboard and the coast of the Gulf of Mexico are summarized in Table 7.

7. Assessment of Section 404 Clean Water Act Regulatory Issues

Section 404 of the Clean Water Act of 1972 (hereafter referred to as Section 404), as amended (33 U.S.C. sections 1251 and following) (1977) is the primary law that governs disposal of dredged or fill material in waters of the United States. Waters of the United States include ocean areas, estuaries, streams, ponds, rivers, lakes, and wetlands. For beach nourishment project decision-makers, a variety of important issues can arise during the 404 permit review process. There are numerous measures that can be taken to create an efficient permitting process. However, the key is to identify agency concerns and issues as early on in the process as possible.

Section 404 permits are highly complex because they are integrated with the National Environmental Policy Act (NEPA), which in turn triggers over 60 so-called "cross cutting" environmental laws and regulations. The permitting process involves public scoping, development of alternatives, impact analysis and mitigation. The U.S. Army Corps of Engineers (USACE) is the chief decision-making agency for beach nourishment projects. A permit is needed in conjunction with placement of fill in nearshore coastal waters, below the mean high tide line.

The primary requirement in order for the project to be approved is that the applicants must be able to prove that they have selected the "least environmentally damaging practicable alternative." This means that the applicant must document that a sequence of avoidance, minimization and compensation has been followed, in that order. This sequence is required under the Section 404(b)(1) Guidelines (40 CFR Part 230). The Section 404(b)(1) Guidelines are the rules by which federal agencies review each permit application. The guidelines are provided at the following USACE web page: http://www.usace.army.mil/inet/functions/cw/cecwo/reg/40cfr230.htm. The Guidelines are also published at the following EPA website: http://www.epa.gov/owow/wetlands/40cfr/part230.html.

The Section 404 permitting process includes requirements for the submittal of either an Environmental Assessment (EA) or an Environmental Impact Statement (EIS) (or EIS equivalent document) for beach nourishment projects. Obtaining approval for a Section 404 permit for a beach nourishment project of any size is a complex and lengthy process. As a result, the USACE has suggested applicants combine the NEPA and Section 404 documentation efforts with the USACE 6-step planning process. The steps required to complete Section 404 permit for a beach nourishment project are shown in Figure 4. Table 8 summarizes steps that a permit applicant can take to comply with a Section 404 permit requirements for a beach nourishment project.

Coastal Services Center

National Oceanic and Atmospheric Administration