Coastal Services Center

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

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Abstract

A beach nourishment program requires effective planning, coordination, and implementation by decision-makers. Nourishment programs involve complex 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 are affected by 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 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). State and local authorities also play an important role concerning beach nourishment projects. In addition to federal requirements, several states have specific beach nourishment regulatory programs. 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. These issues are addressed in this paper.

Introduction

Beach nourishment, or beach replenishment, projects involve placing sand on an eroding beach to provide a protective buffer against storm and wave damage or for the purpose of beach enhancement to increase recreational value. Beach nourishment regulations are intended to provide proponents with a means of effective and consistent regulatory review. A beach nourishment program requires effective planning, coordination, and implementation by decision-makers. Nourishment programs involve complex issues and must comply with applicable federal, state, and local laws, policies, and regulations.

Discussion

Some parts of the country, such as Florida, find that it is in their best interest to collaborate in formulating and implementing beach nourishment programs (NRC 1995). This is because sand moving along a beach does not respect city, county, or state boundaries, and community activities may negatively or positively impact neighboring communities. In addition, a single large shore protection program is less costly than several small projects done separately. There are irreducible costs associated with the preparation of study reports, information dissemination, meetings and activities, equipment mobilization, permitting, and other factors that may benefit from cost-sharing. Also, the combined political power of larger entities has great impact on state and federal agencies and legislative bodies.

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 USACE administers the federal shore protection program and FEMA is authorized to deal with issues surrounding protection of coastal property subject to damage from storm-related flooding (NRC 1995). NOAA supports state coastal zone management activities and is concerned with the protection of marine life resources. Research on shoreline protection is conducted by the USACE (shore protection and beach erosion control research), USGS (geological and coastal processes studies), and MMS (studies sources of sand in federal waters needed for beach nourishment projects). Other federal agencies concerned with beach nourishment projects include the U.S. Fish and Wildlife Service (USFWS) (concerned with sedimentation effects on shores and wetlands) and U.S. Environmental Protection Agency (USEPA) (concerned with impacts on water and sediment quality and on the marine habitat).

Figure 1 provides an overview of the beach nourishment compliance process. The sponsor or applicant for a regional or local beach nourishment project must work with appropriate federal, state, and local agencies to define the project (NRC 1995). Once a project is defined, the first step in the project 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 are affected by applicable programs, resources, and requirements (such as permitting) for a beach nourishment project. Regulations discouraging modifications to U.S. Park Service National Seashores have prevented shore protection measures in some locations (NRC 1995). Clear and defendable knowledge of property ownership should be established early in the planning of a shoreline protection project (USACE 2001) to avoid issues regarding the legal entities involved and the potential effects on coastal lands.

Federal, state, and possibly local permits are required for a beach nourishment project (Figure 1) (USACE 2001). All shore protection projects are required to apply for and receive a Clean Water Act (CWA) Section 404 permit from the USACE prior to construction (USACE 2001). This permit is required for placement of dredged or fill material in waters of the United States, including wetlands. In coastal areas, permits are required for placement of fill in waters of the US below the mean high tide line. The permit process evaluates several factors including effects on conservation, economics, aesthetics, general environmental concern, wetlands, cultural values, fish and wildlife resources, flood hazards, flood plain usage, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, and welfare of people and society. Some states have a Joint Permit Application process for local, state, and federal permitting actions. Processing of applications in some states is addressed via a "clearinghouse" or "one-stop" permitting approach.

Section 404 permits are coordinated through the USACE district offices (Table 1) and permit authority is granted to the USACE under Section 10 of the River and Harbor Act of 1899 and Section 404 of the CWA of 1977, as amended (Figure 1). The USACE must determine if the proposed project will harm the environment or adjacent property owners, if it will interfere with navigation, and if water quality is impaired (USACE 2001). The primary federal laws affecting beach nourishment projects (Section 404 of CWA and the National Environmental Policy Act (NEPA)) are integrated into a 6-step planning process recommended by the USACE. In accordance with NEPA, the project proponent must address over sixty cross-cutting environmental laws and executive orders such as the Endangered Species Act (ESA); CWA; Fish and Wildlife Coordination Act; National Historic Preservation Act; Land and Water Conservation Fund Act; Water Resources Development Act; and Shore Protection Act. A list and description of the primary regulations addressed under NEPA can be found at http://es.epa.gov/oeca/ofa/crosscut.html.

Other federal legislation affecting beach nourishment projects include the Coastal Barrier Improvement Act (CBIA) and Coastal Zone Management Act (CZMA). The CBIA designates specific undeveloped coastal barrier islands that no longer may receive direct or indirect federal financial assistance for new construction (with a few exceptions). The CZMA encourages states to establish Coastal Zone Management Programs (CZMPs) to protect and preserve coastal resources (Table 2). States with an approved CZMP are eligible for financial assistance and may review federal permits and activities within the state's coastal zone.

The USACE 6-step planning process is outlined in ER 1105-2-100, Planning Guidance Notebook (USACE 2000). The major steps in this planning process include the following:

• Step 1: Identifying problems and opportunities;
• Step 2: Inventorying and forecasting conditions;
• Step 3: Formulating alternative plans;
• Step 4: Evaluating alternative plans;
• Step 5: Comparing alternative plans; and
• Step 6: Selecting recommended plan.

Coordination with the USACE and other federal agencies through this process is highly recommended for permit applicants to stay in compliance with regulations concerning beach nourishment projects (Figure 1). USACE decision-making is generally based on the successful planning, completion, and documentation of all of the above steps. This process is also iterative in that some steps might have to be repeated based on obtaining new information as the project moves forward (USACE 2000). The process has been designed this way on purpose to allow for flexibility and effective response to changes. In addition, public involvement plays a critical role in determining issuance of a permit by the USACE. Public involvement begins in the early scoping phase of a project, and is used as the basis for developing alternatives, as required by NEPA. In addition, the public is provided an opportunity to comment on the Draft Environmental Impact Statement (Draft EIS or DEIS) prepared at a later date. All public and agency comments have to be addressed in order for the NEPA document to be approved.

In addition to federal regulations, state and local authorities also play an important role concerning beach nourishment projects (Figure 1). Several states have specific beach nourishment program requirements that must be considered when planning a beach nourishment project (Table 2). Coastal states have authority over beach nourishment projects through CZMA programs. Currently, thirty-three of thirty-five coastal states and island territories have developed federally approved CZMPs (NOAA 2000). The types of permits required by coastal states and local governments vary among project locations and project definition. Specific information concerning state regulatory authorities for beach nourishment projects is located in State, Territory, and Commonwealth Beach Nourishment Program, A National Overview (2000) by NOAA.

Location of suitable sand sources for beach nourishment projects also requires compliance with state and federal regulations, since these areas are disturbed by dredging. Location of quality beach sand is also a problem. A recent controversial issue surrounding location of beach sand is the effects of local shallow water benthic hard bottom communities that are in the vicinity and may be directly impacted by dredging operations. Several states have conducted research to identify offshore sand supplies as well as dredge material as sand sources. Sources other than state waters may also be considered for beach nourishment projects (NRC 1995). Under the Outer Continental Shelf Lands Act (OCSLA) and amendments, the MMS administers mineral resources, including sands and gravel, in federal waters. In addition, sand composition, size, type, and content must meet stringent standards for use in beach nourishment projects. Many otherwise acceptable sand sources may not meet federal or state standards and cannot be used on beaches.

Depending on funding sources and eligibility requirements, additional regulatory requirements may be involved. Factors such as cost:benefit ratios, types of public access provided to beaches by a nourishment project, overall project purpose, and beach erosion patterns in the proposed nourishment area may also require regulatory compliance. For example, some funding requirements include meeting the federal objective for National Economic Development (NED) as well as requirements for protection of the environment (USACE 2001).

In 2002, the USACE initiated a National Shoreline Management Study (NSMS). This study is authorized under Section 215(c) of the Water Resources Development Act of 1999 and will consist of a report to Congress concerning the state of the shores of the U.S. This study has been initiated because there is at present a "lack of understanding of how Federal, state and local responsibilities interrelate," and "there is no framework to resolve cross-programmatic conflicts, promote collaboration or synergy, or to promote regional and system-based planning" (Brumbaugh 2002). "The NSMS is envisioned as a means to update and develop information needed for developing policies and programs, and making decisions related to shore protection and coastal management" (Brumbaugh 2002). The overall objective is to provide a "basis for future Administration and Congressional decisions and actions regarding shoreline management." This will expand and update a similar study completed in 1971. The following is a summary of the major objectives of this study, as quoted from the USACE publication:

• "The study will describe the current Federal, state and local programs' involvement in shore restoration and renourishment and other programs related to coastal management, which have evolved in recent decades."
• "The study will provide analytical information useful in developing recommendations on levels of Federal and non-Federal participation in shore protection, as well as system approaches to sand management and coastal management practices."

Conclusion

In general, the goal of regulations regarding beach nourishment projects is to consider and mitigate negative impacts to the environment (NOAA 2002). A variety of types and degrees of impacts can result from implementation of a beach nourishment project. Impact may result from placing the sand on the beach as well as from removing the sand from a source area. These projects may include ecological and biological impacts on protected species, hardbottom areas, fish and wildlife resources, vegetation, and water quality, local economies, and cultural resources. Federal and state laws and regulations governing the protection of the environment fully apply to beach nourishment projects.

Because beach nourishment programs span two decades and numerous political boundaries, it is difficult to predict how future generations may perceive and value a beach nourishment program (NRC 1995). Positive public benefit of these projects is crucial, and coordination between regulatory authorities and stakeholders is a key to implementing a beach nourishment program. Stakeholders include all parties, including those organizations or individuals who oppose a beach nourishment project. Regulations for beach nourishment projects incorporate aspects of funding, research, and engineering to provide the requisite public benefit and conservation goals. Resources available in these areas can be accessed through public and private organizations such as the Coastal Engineering Research Center (established by Congress), Federal Emergency Management Agency (FEMA), Office of Coastal Resource Management (OCRM), Coastal States Organization, American Coastal Coalition, and American Shore and Beach Preservation Association. Future studies such as the NSMS by the USACE will also address compliance and integration of federal, state, and local regulations with regard to beach nourishment.

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References

National Oceanic and Atmospheric Administration (NOAA). 2000. State, Territory, and Commonwealth Beach Nourishment Programs, A National Overview. US Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, Office of Ocean and Coastal Resource Management. Technical Document No. 00-01, OCRM Program Policy Series. March 2000.

NOAA. 2002. "National Oceanic and Atmospheric Association, Coastal Services Administration. Beach Nourishment in the Southeast, Legal and Political Constraints." www.csc.noaa.gov/opis/html/bchleg.htm. May 2002.

National Research Council (NRC). 1995. 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.

U. S. Army Corps of Engineers (USACE). 2000. U.S. Army Corps of Engineers, Planning Guidance Notebook. ER 1105-2-100, Washington, D.C. April 2000.

USACE. 2001. U.S. Army Corps of Engineers, Coastal Engineering Manual. EM 1110-2-1100 (6 volumes), Washington, D.C.