The National Audubon Society has filed a lawsuit against the U.S. Department of Interior for its rule reversal that lifts limits on where sand mined from federally protected areas may be placed and funding sources for such projects.
The lawsuit takes to task U.S. Department of Interior Secretary David Bernhardt’s decision late last year to allow federal funds to be used to pay for dredging sand within Coastal Barrier Resources Act units and then placing that sand on beaches outside of CBRA zones for shoreline stabilization projects.
— Karen Hyun, National Audubon Society
— Karen Hyun, National Audubon Society
Routine sand mining within those zones will weaken coastal buffers that are the first-line defense against storms, destroy sensitive habitat crucial to a number of species, and impact water quality, said Karen Hyun, National Audubon Society’s vice president of coastal conservation.
“I think we have good reason to believe that these types of sand mining operations can really destroy habitat and the water quality,” she said.
Bernhardt’s decision overturned a 1994 Interior Department solicitor’s opinion that concluded that in order to qualify for federal funds, sand in a CBRA (pronounced “cobra”) zone had to stay within that CBRA zone.
Proponents of the rule change argue that it makes good economic sense because, in many cases, mining sand from these zones is more cost effective than pumping sand from offshore borrow sites to renourish beaches.
But a half-dozen people, all former committee staff to Republican and Democrat members of Congress who established the act, say the change flies in the face of what the founding members of CBRA intended when they established CBRA and the Coastal Barrier Improvement Act, or CBIA.
Those former staff members, including Robert Hurley, who was chief of staff for the late Sen. John Chafee of Rhode Island, sent a letter July 8 to Bernhardt calling for him to revoke his decision.
“It’s just totally inconsistent with the intent of the law and the reading of the law,” Hurley said. “The intent of the law as the people who wrote is you can’t use a unit in the CBR system as a borrow pit for beach replenishment projects outside the unit. That’s inconsistent with the purposes of the act.”
The three-page letter points out an instance in 1994 where the Army Corps of Engineers requested to dredge nearly one million cubic yards of sand from a CBRA to renourish a nearby beach outside of the system.
The assistant solicitor for Fish and Wildlife at that time declined the request, saying that the act specifies federal funds may be used only for certain activities within CBRA and that sand mined from a CBRA must stay within that zone in order to qualify for federal funds.
“There are a number of very limited exceptions that would allow aids to navigation, things of that nature, projects for studying the management and protection of wildlife resources, but it was never, ever contemplated that these areas could be used as mining areas for beach nourishment projects outside the system,” Hurley said.
Congress passed CBRA in 1982 to discourage building on relatively undeveloped, storm-prone barrier islands by cutting off federal funding and financial assistance, including federal flood insurance, to everyone from developers to property owners in those areas.
CBRA was also established to minimize the loss of human life, wasteful spending of federal funding, and damage to fish, wildlife and other natural resources associated with coastal barriers.
When CBRA was established, more than 450,000 acres were included in the system. Today, about 1.3 million acres are within the system and an additional 2.1 million acres are in conservation zones identified as “otherwise protected areas,” or OPAs.
Limiting federal spending in these areas has saved $9.5 billion in taxpayer dollars over the course of 25 years and will save anywhere from $11-$109 billion over the next 50 years, according to a 2019 study published in the Journal of Coastal Research.
Researchers at the University of North Carolina at Chapel Hill released a study June 30 that indicates the act has successfully discouraged development.
Audubon’s lawsuit, which was filed July 2 in U.S. District Court for the Southern District of New York, argues that the so-called excavation rule “has potentially subjected vast swaths of previously protected coastal areas to federally-financed sand mining and dredging.”
“Indeed, a database maintained at Western Carolina University has identified over 1,770 instances of beach renourishment in states along the Atlantic and Gulf coasts – the precise type of project that may now be federally funded under the Excavation Rule even when sourcing from System units.”
Audubon further argues that “flagship” species, including the endangered piping plover, American oystercatcher and least turns, heavily rely on inlet ecosystems within the CBRA. Flagship species are the bellwethers for more than 300 other species, Hyun said.
“These areas provide really important habitat for a lot of those species,” she said.
And, there is no alternative to the CBRA for many of those species because development and engineering outside of the system boundaries has “left the System itself as the last best habitat,” according to the lawsuit.
Both the authors of the letter and the National Audubon Society also question the time in which Bernhardt made his decision without granting public notice and why the public did not get the chance to comment before he announced that decision.
Bernhardt made his announcement Nov. 4, 2019, six working days after the Associate Solicitor responded to inquiries from congressional leaders.
“In looking at what the interior department decided to do, they did it within six days,” Hurley said. “It’s mindboggling that they came up with this interpretation.”
The decision overturns 25 years of “straightforward adherence to the statute came with no opportunity for public review or comment,” the letter from former congressional staffers states.
Since Bernhardt’s decision last year, Audubon “has been forced” to hire a consultant to monitor, research and comment on development projects that would not have been eligible for federal funding before the rule reversal, according to the lawsuit.
The initial focus on proposed and potential projects has been in states including North Carolina, South Carolina, New Jersey and Florida.
The lawsuit asks the court to declare the excavation rule is in violation of the Administrative Procedure Act and National Environmental Policy Act; prohibit the defendants, which include the U.S. Fish and Wildlife Service, from issuing consultation opinions implementing the excavation rule; cover Audubon’s legal fees associated with the suit; and “grant any other relief” deemed appropriate by the court.