Unlawful Policy Incentivizes Destructive Dredging of Coastal Barriers That Protect Coastal Communities from Storms and Are Indispensable Habitats for Many Shorebirds 

Sec. Bernhardt Issued Ruinous “Excavation Rule” Mere Six Days After Request from Three Members of Congress; New Dredging Projects Are Now Illegally Advancing 

New York, N.Y. — The National Audubon Society, represented by Democracy Forward, pressed forward with its lawsuit against the Trump administration over Interior Secretary David Bernhardt’s “Excavation Rule,” which unlawfully allows taxpayer money to be used to mine sand from protected coastal areas. The plaintiff’s most recent filing — a motion for summary judgment — details how Bernhardt’s unlawful rule is already threatening imminent harm to the Atlantic Coast, putting people and birds on our coasts at immediate risk.

“In issuing his unlawful sand mining policy, Secretary Bernhardt ignored federal law and the harmful impacts on coastal communities and shorebirds in order to indulge private interests,” said Democracy Forward Managing senior Counsel Travis Annatoyn. “We’ll continue to fight Bernhardt’s unlawful and shortsighted policy in court.”

Bernhardt’s Excavation Rule was issued without any advance notice or a public comment period and sidestepped required analysis of the destructive effects of unbridled sand mining — violating the Administrative Procedure Act and the National Environmental Policy Act.

At least as significant, the Rule has already permitted taxpayer subsidization of the kind of wasteful and damaging projects that the 1982 Coastal Barrier Resources Act (CBRA) was designed to limit. The rule — which Bernhardt announced in a short letter to three members of Congress just six days after they asked him for the change — has already unlawfully advanced sand mining projects in fragile, federally protected coastal areas where Audubon members recreate and work to protect vital, irreplaceable habitat for shore wildlife, including in:

  • Monmouth Beach, New Jersey, where the Rule would enable dredging at three sites where the Army Corps of Engineers (Corps) has expressed an interest in using CBRA sand, including nesting areas for the federally endangered Piping Plover and the New Jersey state endangered Least Tern.

  • Charleston, South Carolina, where the Corps has proposed dredging sand from Folly Beach, the breeding ground for an array of species including the American Oystercatcher.

The CBRA prohibits nearly all federal expenditures in a large system of hurricane- and storm-prone coastal areas. The coastal system protected by the law includes undeveloped coastal islands, wetlands, and beaches that act as a buffer for communities against storms and sea-level rise, and that are critical habitat for birds and other wildlife. Bernhardt’s Excavation Rule, however, puts communities and vulnerable birds at even greater risk by facilitating federally funded disturbances to these protected coastal areas.

The lawsuit was filed on July 1 in the U.S. District Court for the Southern District of New York. Read the complaint in full here. The plaintiff’s motion for partial summary judgment and opposition to the government’s motion to dismiss was filed on November 6. Read it in full here.


Democracy Forward is a nonprofit legal organization that scrutinizes Executive Branch activity across policy areas, represents clients in litigation to challenge unlawful actions, and educates the public when the White House or federal agencies break the law.

The National Audubon Society protects birds and the places they need, today and tomorrow. Audubon works throughout the Americas using science, advocacy, education, and on-the-ground conservation. State programs, nature centers, chapters, and partners give Audubon an unparalleled wingspan that reaches millions of people each year to inform, inspire, and unite diverse communities in conservation action. A nonprofit conservation organization since 1905, Audubon believes in a world in which people and wildlife thrive.

Press Contacts:

Charisma Troiano
Democracy Forward
(202) 701-1781

Rachel Guillory
National Audubon Society
(504) 708-5873