Latest Update July 16, 2021


The Department released a new legal memorandum that withdrew the 2019 rule and declared that protected coastal barriers were once again off-limits for federally-funded sand mining projects to replenish developed beaches.

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In 2019, Interior Secretary Bernhardt announced a new ‘Excavation Rule that guts the coastline habitat protections of the Coastal Barrier Resources Act (CBRA). The Rule – announced in a one-and-a-half page letter to three members of Congress only six days after they asked Bernhardt to “correct” the CBRA – unlawfully expands the practice of mining sand from delicate, federally protected coastal areas.

The Coastal Barrier Resources Act, signed into law in 1982, prohibits federally subsidized spending and projects in a system of hurricane- and storm-prone coastal areas, covering 3.5 million acres along the Atlantic Coast, Gulf of Mexico, Great Lakes, Puerto Rico, and the U.S. Virgin Islands. In particular, the Act explicitly bars almost all taxpayer-funded development on coastal environments such as barrier islands, wetlands, beaches, and gulfs. The Excavation Rule would gut these protections by allowing heavily-developed coastal areas to dredge sand from these protected lands to bolster their beaches.

The areas protected by the CBRA preserve undeveloped coastlines that serve as a buffer for inland communities against storms and sea-level rise, as well as critical habitats for wildlife and fisheries. Without these “living shorelines,” coastal communities could be particularly exposed during hurricane season or prompted to spend millions to man-made coastal barriers like seawalls, groins, or jetties. Coastal wetlands help protect communities from catastrophic storm damages: more than $625 million in property damages were prevented by the coastal wetlands in New York and New Jersey that buffered Hurricane Sandy’s waves and storm damage. Nationwide, coastal wetlands provide more than $23 billion per year in storm protection.

Additionally, coastal barriers give lake- and sea-side communities significant economic benefits by improving water quality, supporting fisheries, and encouraging outdoor recreation and tourism. In fact, natural methods of storm control reduce erosion and flood impacts, have lower replacement costs than traditional infrastructure, and can even grow and keep pace with sea-level rise.

Bernhardt’s Excavation Rule also threatens CBRA-protected habitats critical for birds and other wildlife. Coastal birds like terns and plovers rely on healthy beaches to nest and raise their young. Shorebird populations in North America have declined by 70 percent since 1973, due to climate change, coastal development, overfishing, and pollution. This Excavation Rule puts these vulnerable birds at even greater risk by facilitating federally funded disturbances to their fragile habitats.

“Secretary Bernhardt continues to put vulnerable communities and irreplaceable wildlife and natural resources in danger in order to keep powerful interests happy. Turning undeveloped islands and beaches into sand mines is horrendously shortsighted, and illegal, and we will continue to fight against the Trump administration’s lawlessness.”

– Democracy Forward Legal Policy Director, Aman George

We filed suit on behalf of the National Audubon Society against Secretary Bernhardt, the Department of the Interior, and the U.S. Fish and Wildlife Service for implementing this unlawfully created rule. The Excavation Rule runs afoul of the CBRA’s explicit prohibition against using federal funds for projects that would destabilize or erode America’s coastal barriers, was issued without granting the public notice or an opportunity to comment on the benefits of the CBRA protections, and was finalized without an Environmental Impact Statement or an Environmental Assessment as required by the National Environmental Policy Act.

Our suit was filed on July 1 in the U.S. District Court for the Southern District of New York.