Sand Mining Case on Hold - For Now

Many beach renourishment projects rely on sand mined from other beaches and inland dunes. The practice of sand mining, however, is controversial, as it can lead to erosion and other negative habitat impacts at the mined beaches. In February, a federal district court stayed a case challenging a Trump-era rule that would allow sand mining within the Coastal Barrier Resource System (System). The case is on hold for 60 days while the Department of Interior (DOI) reviews the rule.

In 1982, Congress passed the Coastal Barrier Resources Act (CBRA), designating more than 450,000 acres as part of the System. Since then, the System has grown to include more than 1.3 million acres of land. The CRBA prohibits federally subsidized development within the System, specifically prescribing expenditures or assistance for any projects undertaken to “stabilize[] any inlet, shoreline, or inshore area.” 16 U.S.C. § 3504(a)(3). The CBRA allows exceptions for certain activities that support the CBRA and the System, such as shoreline projects that “mimic, enhance, or restore a natural stabilization system.” Id. § 3505 (a)(6)(G). A 1994 Fish and Wildlife Service (FWS) Assistant Solicitor memorandum found that the exception applies only to projects within the System.

In November 2019, the DOI announced that it would begin allowing federally funded dredging projects in the System to supply sand to beach renourishment projects outside of the System. This “Excavation Rule” was not published in the Federal Register nor did it go through a public notice-and-comment period. The DOI acknowledged the 1994 FWS memo when issuing the rule but disagreed with its conclusion that the CBRA exception was limited to projects “within the System.” Following the issuance of the Excavation Rule, FWS began advising federal agencies that the CBRA allows for the removal of sand from the System to replenish beaches elsewhere.

The National Audubon Society filed suit in the U.S. District Court for the Southern District of New York in July 2020. According to the complaint, “The Excavation Rule is not only shortsighted and environmentally destructive, but also contrary to the letter and the spirit of the CBRA, which prohibits the actions endorsed by the Excavation Rule.” The complaint claims that the Excavation Rule violates the Administrative Procedure Act for incorrectly interpreting the CBRA and for not undergoing a proper public notice-and-comment period. The complaint also alleges a violation of the National Environmental Policy Act because the DOI did not prepare an Environmental Impact Statement or Environmental Assessment upon issuing the rule.

On January 20, 2021, President Biden issued Executive Order 13,990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The order directs all federal agencies to review all federal regulations and actions taken over the last four years related to public health and the environment, specifically identifying rules to review in the order. The order identified DOI’s interpretation of the CBRA as one of the actions for review.

In light of the Executive Order, the federal district court stayed this case for 60 days from the entry of the order. The parties may request to extend the stay at the end of the 60 days. If not, or if the DOI chooses not to revise its 2019 interpretation of the CBRA, the stay will expire and the case may proceed.