Push On to Change Sand Rule Interpretation

TOPSAIL BEACH – Rules on where sand within federally restricted coastal areas can be placed and funding sources to pay the cost to use the sand for beach renourishment are too limited and waste money, according to proponents pushing for a law that would lift current regulations.

Sand within areas designated Coastal Barrier Resources Act, or CBRA, zones cannot be spread along beaches outside of those zones.

This map depicts the area of Banks Channel that lies within the Coastal Barrier Resources Act zone. Topsail Beach leaders have asked the U.S. Army Corps of Engineers to request an exception to be allowed to designate a sand borrow site within the zone for future federal funded beach renourishment projects.

Furthermore, federal dollars cannot be spent to move sand being dredged from a channel within a CBRA zone onto a nearby beach.

For the U.S. Army Corps of Engineers these restrictions mean tapping offshore beach-compatible sand sources for shoreline stabilization and beach renourishment projects.

Such sand sources can be miles offshore, “significantly increasing the cost to the taxpayer,” according to several congressmen who questioned the U.S. Fish and Wildlife Service’s interpretation of CBRA.

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.

The U.S. Fish and Wildlife Service is responsible for identifying and mapping CBRA units.

Beach towns, including Topsail Beach in Pender County, have been permitted to dredge channels within CBRA zones and relocate the pumped sand onto their ocean shorelines as long as no federal money is used to pay for the project.

The town in 2010 initiated a project aligning dredging New Topsail Inlet with beach renourishment to cut costs.

Since then, millions of dollars in federal, state and town funds have been spent on three major projects to clear heavily shoaled areas of the inlet and place sand removed from the channel onto the beach.

“No funds allocated to the U.S. Army Corps of Engineers can be used to take sand from our CBRA zone and put it on our beaches,” explained Steve Smith, chair of the Topsail Island Shoreline Protection Commission. “The Corps has not done any beach nourishment for Topsail Beach. All of it has been through our 30-year plan.”

Banks Channel, a portion of which is in a CBRA zone, has been the go-to sand source for beach renourishment projects in Topsail Beach, the southernmost town on Topsail Island.

More than half of the nearly 2 million cubic yards of sand dredged from Banks Channel and pumped onto the town’s beach within the past several years has come from the CBRA zone.

In 2014 Congress authorized Topsail Beach’s federal beach project. The following year, town asked the Corps to request the Fish and Wildlife Service to authorize a sand-borrow site within the CBRA zone. The Corps declined that request.

Fish and Wildlife may exempt federally funded projects within a CBRA zone if those projects meet a specific set of criteria.

The Corps can’t operate in a CBRA zone without proving it’s for the purpose of maintaining a channel or conducting jetty maintenance and this work may be done in channels and on related structures that were authorized before they were included in a Coastal Barrier Resources System, or CBRS.

In a letter last year to the head of the service, those congressmen, including the late Rep. Walter B. Jones, R-N.C., and Rep. David Rouzer, R-N.C., said they were troubled by what they called an “unreasonably narrow interpretation” of the section of CBRA that pertains to congressionally authorized beach stabilization and renourishment projects.

The June 20, 2018, letter, also signed by congressional representatives from Louisiana, Florida, Texas, New Jersey and Colorado, asks then-acting Fish and Wildlife director Greg Sheehan several questions about the 1994 solicitor’s opinion of CBRA.

“In many circumstances, beach renourishment projects that extract sand from a (CBRS) unit for use outside of the unit provide environmental and Federal economic benefits, help preserve life and property, stabilize critical fish and wildlife habitat in the area or otherwise provide benefits to the unit,” the congressmen wrote.

“This interpretation of the statutory language has been the basis for the Service’s interpretation and advice to other federal agencies for over 20 years.”

– Margaret Everson, U.S. Fish and Wildlife Service

Fish and Wildlife Service Principal Deputy Director Margaret Everson, who replaced Sheehan after he left the position last August, reaffirmed in a response to the congressmen the 1994 interpretation of the act.

“This interpretation of the statutory language has been the basis for the Service’s interpretation and advice to other federal agencies for over 20 years,” Everson wrote in a Dec. 21 letter. “Congress subsequently reauthorized the CBRA twice without regard to this interpretation of the law.”

Coastal engineer Chris Gibson and president of TI Coastal, which represents Topsail Beach, said the implications of that interpretation are far-reaching.

“It impacts nearly all of the federal projects in south Jersey,” he said. “Every one of those are mined from the ebb shoal on the adjacent inlets. The ones in Jersey have been used my entire career and now they’re at risk.”

The basic tenet of CBRA was that federal funds would not be spent on any new development after the act was created, he said.

“With that tenet that has been used and spread to mean multiple different things by various agencies and watchdog groups,” Gibson said. “They have decided that using the sand out of the CBRA zone is somehow spending money for development.”

Everson said in the letter that Fish and Wildlife currently has no plan to revisit the interpretation.

“It’s going to take legislative action by Congress to change the ruling of Fish and Wildlife. That’s the way we’re going to proceed to see if that’s possible.”

– Steve Smith, Topsail Island Shoreline Protection Commission

“It’s going to take legislative action by Congress to change the ruling of Fish and Wildlife,” Smith said. “That’s the way we’re going to proceed to see if that’s possible. This a long-term issue for Topsail Beach. We want to make sure all avenues are open to the town, that we’re not limited by certain regulations.”

The town has the backing of U.S. Sen. Thom Tillis, R-N.C., according to his press secretary Adam Webb.

“He believes USFWS’ current interpretation is unreasonably narrow and results in additional, unnecessary costs for shoreline protection and beach renourishment projects, which our coastal towns desperately need to mitigate storm surge and erosion from future storms,” Webb said in an email. “Senators Tillis and (Richard) Burr (R-N.C.) will continue to work on possible legislative fixes.”

In a telephone interview days before Jones’ Feb. 10 death, his chief of staff Joshua Brown said the congressman “does not see how allowing this sort of practice would undermine the integrity of CBRA and the purpose for which it was established.”

“Taking sand from an underwater portion of the CBRA and putting it on the beach on a location that’s outside the system that existed in a developed form prior to the system’s establishment makes sense,” Brown said. “I know that members are interested in addressing this issue via legislation or otherwise.”

About the Author

Trista Talton

Trista Talton is a native North Carolinian who, shortly after graduating from Appalachian State University in 1996, took her first newspaper job as a reporter for the Hickory Daily Record. She has since migrated to the coast, covering everything from education and local governments to law enforcement, the environment and the military, including an embed with Marines in Kuwait for the start of the Iraq war in 2003. She has been a Coastal Review Online contributing writer since 2011 focusing on coastal-related issues from Onslow to Brunswick counties. She lives with her husband and two sons in Jacksonville.