Coastal Services Center

---

History and Evolution of Laws Relating to Beach Nourishment

---

Introduction / Background

The objectives of this paper are to provide an historical accounting of which beach nourishment actions have been successful, and to provide an indication of how to proceed in the future . Where appropriate, cross references to other papers in this series and terms in the glossary are provided with hyperlinked text.

The first shore protection measures to reduce erosion were hard structures (bulkheads, seawalls, jetties, groins) that were intended to be long lasting when appropriately maintained. Today, beach nourishment with periodic renourishment is the primary method employed. Beach nourishment, or beach replenishment, is the process of placing sand on an eroding beach to provide a protective buffer against storm and wave damage or to enhance the recreational value of the beach. Figure 1 is an example of sand placement on an eroding beach as part of a beach nourishment project.

Discussion

Beach nourishment projects must comply with a wide range of federal, state, and local laws and regulations, along with any associated funding constraints. Interest in shore protection began in New Jersey in the latter part of the 19th century and in the early decades of the 20th century due to significant beach erosion resulting from both intense coastal development and storm and hurricane activity. The State of New Jersey spent millions of dollars on uncoordinated and often inappropriate erosion control structures that often produced results that were ineffective or even counterproductive (USACE 1996).

In 1922, in response to the increasing problems of coastal erosion, the New Jersey legislature appropriated money to form an engineering advisory board to study changes taking place on their Atlantic Ocean coastline. During this time, a Committee on Shoreline Studies was formed under the Division of Geology and Geography of the National Research Council. An outcome of the groups' activities resulted in the formation of the American Shore and Beach Preservation Association (ASBPA) (USACE 1996). An early objective of this association was to persuade states to take initiative concerning beach erosion within their jurisdiction. By 1926, however, ASBPA was lobbying for the federal government to unify and coordinate the efforts of states concerning shoreline erosion (USACE 1996).

As a result of more severe hurricane activity and the lobbying efforts of ASBPA, Congress enacted P.L. 71-520 in 1930. This law authorized the US Army Corps of Engineers (USACE, the Corps) to conduct shoreline erosion control studies, but not construction, in cooperation with state governments. Cost sharing at this point was established at the discretion of the Corps, not legislated. The Beach Erosion Board (BEB) was also established to act as a central agency to assemble data and provide technical expertise regarding coastal protection. This was the first federal government involvement in shoreline protection activities (USACE 1996).

The period of 1940 to 1945 experienced five more major hurricanes. In response to these disasters, Congress enacted P.L. 79-727 in 1946, expanding the use of federal funds to now include 33% of construction costs in addition to the studies for projects along publicly owned shores. After more hurricanes in 1954 and 1955, Congress enacted P.L. 84-826 in 1956, expanding the authority for shore protection to include privately owned shores where substantial public benefits would result. This law also defined periodic renourishment as construction for the protection of shores for a period of usually ten years (USACE 1996).

Following four more major hurricanes along the Atlantic and Gulf Coasts from 1956 to 1961, major legislation affecting the beach erosion control program was enacted. The River and Harbor Act of 1962 increased federal aid from 33% to 100% for shore protection study costs leading to authorization. It also increased federal participation in the cost of beach erosion and shore protection to 50% of the construction cost when the beaches were publicly owned or used, and 70% for seashore parks and conservation areas when certain conditions of ownership and use of the beaches were met (USACE 1996).

A large number of studies and subsequent authorizations occurred during the 1950s and 1960s. Recognizing the increased need for additional engineering and study in the area of beach erosion, along with increased beach development and more demand for erosion relief from the federal government, Congress established the Coastal Engineering Research Board (CERB) and the Coastal Engineering Research Center (CERC) in 1963 (P.L. 88-172), replacing the Beach Erosion Board (BEB) (USACE 1996). Both the CERB and CERC continue today, with CERB research initiatives carried out by the CERC (NRC 1995).

The authority for the USACE to conduct beach erosion control work without specific congressional authorization is included in several different authorities, referred to collectively as the Continuing Authorities Program. Under one of these authorities, Section 103 of the River and Harbor Act of 1962, the Corps is authorized to participate in the cost of protecting from storm damage the shores of publicly owned property and private property where public benefits result. Under Section 111 of the River and Harbor Act of 1968, a navigation authority mitigation can be conducted for shoreline erosion that results from federal navigation works (USACE 1996). For example, the 1993 beach nourishment project at Folly Beach, South Carolina was conducted under this authority. A Section 111 study was done to determine the impacts of navigation facilities, and the overall cost sharing for the Folly Beach project was adjusted during the feasibility study to reflect the percentage of the problem associated with the navigation impacts. The cost of the Folly Beach project, however, exceeded the funding limits of the Section 111 authority. Other beach nourishment projects are site-specific projects that are the product of congressional authorization and involve lengthy planning, design, and construction elements (NRC 1995).

Section 933 of the Water Resources Development Act (WRDA) of 1986 (Public Law 99-662) specifies that it is Corps policy to participate in the additional costs for placing clean sand or other suitable material, dredged by the Corps during construction or maintenance of Federal navigation projects, onto adjacent beaches or nearshore waters if the following requirements are met from USACE Policy Guidance Letter No. 22, Civil Works Divisions Planning And Policy Branches Guidance Policy Guidance Letter 22, Last Updated: 19 May 1999, CECW-PA/CECW-PE, 22 November 1991:

• "The added cost of such placement must be justified by the benefits associated with protection of such beach or beaches. Recreation benefits produced as a consequence of the basic project may exceed 50 percent of total project benefits, but economic justification must be demonstrated on the basis of recreation benefits limited to 50 percent of total benefits."
• "The beaches involved must be open to the public."
• "Once the above requirements are met, the section 933 project is considered to be in the Federal interest and the cost sharing for the complete recommended plan is 50 percent Federal and 50 percent non-Federal. Cost allocation for different benefit categories is not necessary."

Today, federal authority in protecting the shore and coastal development from erosion and flooding is primarily with the USACE, the Federal Emergency Management Agency (FEMA), the National Oceanic and Atmospheric Administration (NOAA), the United States Geological Survey (USGS), and the Minerals Management Service (MMS) of the Department of the Interior (DOI). Responsibilities include:

• The Coastal Engineering Research Center (CERC) of the USACE, NOAA, the USGS, and the MMS conduct management and research aspects of beach nourishment.
• The USACE, designated by Congress to protect the nation's shores from the chronic effects of erosion and coastal flooding, administers the federal shore protection program.
• FEMA is tasked with the protection of coastal property subject to storm-related flooding. FEMA's role includes coordinating disaster planning and response activities, including disaster mitigation and managing the National Flood Insurance Program (NFIP).
• NOAA supports and subsidizes state coastal zone management activities and is responsible for the protection of marine life resources. NOAA's role includes minimizing loss of life and property caused by improper development practices in coastal zones.
• Research is conducted by the USACE, USGS, and MMS.

The MMS also has the responsibility for managing the sand and gravel of the outer continental shelf (OCS) for use in projects such as beach nourishment. Authority to manage OCS minerals is found in the Outer Continental Shelf Lands Act of 1953. DOI's jurisdiction for regulating OCS minerals extends to all submerged lands seaward of state-owned waters to the limits of the OCS. Section 8(k) authorizes the Secretary of the Interior to convey resource development rights to any mineral on the OCS other than oil, gas, and sulphur. State and local governments and other federal agencies can negotiate directly with the MMS when OCS sand is needed for publicly beneficial projects such as beach nourishment. States have authority over the resources of submerged lands from the shore out to three miles seaward, as established in the Submerged Lands Act of 1953.

Federal interest in a beach nourishment program is conditioned by:

• the public ownership of land or facilities adjacent to the beach (or private ownership as long as public access and use is provided along with adequate parking);
• public access to a recreational source;
• the economic return (measured by the increase in national economic development benefits); and
• the disaster outlays and insurance payouts associated with federal disaster assistance and flood insurance programs.

The only case where the federal government is excluded from participation in shore protection projects is when coastal property is privately owned with no public access, public use, and public parking (NRC 1995). The federal government also does not participate in the cost of projects that protect private undeveloped lands, even if they meet these three requirements.

Coastal states also have authority over shore protection and beach nourishment. The Coastal Zone Management Act (CZMA) was signed into law in 1972. It established a national program to assist the states in comprehensively managing the nation's coastal resources through wise management practices (NRC 1995). The act requires all federal agencies with activities directly affecting the coastal zone, or with development projects within the zone, to assure that those activities or projects are consistent with the approved state program (USACE 1996). NOAA's Office of Ocean and Coastal Resource Management (OCRM) administers the CZMA through a partnership with coastal states that elect to participate. Currently, thirty-three coastal states and island territories have developed federally approved coastal zone management programs (eighteen of which are along the Atlantic and Gulf Coasts) (NOAA 2000). The federal role in coastal management involves OCRM working closely with the states to solve their coastal hazard problems (NRC 1995).

OCRM's policy on beach nourishment is that all available alternatives to the problem of beach erosion, particularly the use of land use controls, should be considered within the study phase and long-term analysis of costs and benefits. OCRM's policy concerning the use of funds available to states under Section 306A of the CZMA of 1972 does not generally support the funding of beach nourishment projects, given the limited amount of funds available under Section 306A. However, OCRM does allow states to spend Section 306A funds for planning beach nourishment projects in certain limited instances (NOAA 2000).

Of the eighteen Atlantic and Gulf Coast states with approved coastal zone management programs (see Figure 2), sixteen have beach nourishment policies; the other two states, Maine and Maryland, have no formal beach nourishment policies (see Table 2). Nine out of the eighteen states have a continuing funding program for beach nourishment. Six states fund projects on a case-by-case basis, and three have no source of state funding (see Table 2). The types of permits required by states for beach nourishment projects vary. New York and Delaware both have policies that regulate beach nourishment projects as shore protection structures that require a permit. New Jersey, however, regulates nourishment as a nonstructural shore protection measure. All other states that allow beach nourishment review it under their general permit requirements, treating it as an alteration to shoreline features, dredged material disposal, or construction below the mean high tide line. Connecticut's Coastal Zone Management Program, for example, regulates beach nourishment under "General Permits for Dredging, Erection of Structures, and Placement of Fill" (NOAA 2000). Specific information on individual state regulatory authorities concerning beach nourishment is summarized in OCRM's State, Territory, and Commonwealth Beach Nourishment Program, A National Overview (2000).

In an attempt to reduce federal expenditures and subsidies that encourage increased development of coastal barrier islands, Congress passed the Coastal Barrier Resources Act (CBRA) of 1982, and established the Coastal Barrier Resources System (CBRS). In 1982, the Department of the Interior began to identify undeveloped coastal barriers for inclusion in the CBRS. Areas included in the CBRS may no longer receive federal financial assistance for new construction or improvements. The intent of these regulations is to discourage development. The law applies only to areas within the defined CBRS. The CBRS was greatly expanded with the passage of the Coastal Barrier Improvement Act (CBIA) of 1990. The CBRS currently includes approximately 600 units, an area of almost 1.3 million acres (including 1,200 shoreline miles, from Florida to Texas along the Gulf Coast; in Puerto Rico and the Virgin Islands; and in Ohio, Michigan, Wisconsin, and Minnesota on the Great Lakes) (NRC 1995).

In 1976, the Water Resources Development Act of 1976 authorized the placement of sand from dredging of navigational projects on adjacent beaches if requested by the interested state government and in the public interest, with the cost paid by non-federal interests. The law also extended federal aid for periodic beach nourishment from 10 to 15 years (USACE 1996).

The Water Resources Development Act of 1986 is of major legislative significance. This act ended political gridlock that existed between Congress and several previous administrations on water resources development programs and authorized numerous shore protection projects for study and construction. Central to this legislation were the beneficiary-pay reforms, cost sharing that makes local sponsors active participants in the development of projects (planning and financing). Section 103 of the act recognizes hurricane and storm reduction (HSDR) as the primary purpose of beach erosion control projects and establishes the federal cost sharing formula for a HSDR project as 65% federal and 35% non-federal (cost sharing is 100% federal for the protection of federal property and 100% non-federal for the protection of private undeveloped lands or areas without public access and use; if the primary purpose of a project is recreational, the cost sharing percentage is 50/50). Section 933 (discussed earlier) authorizes 50 percent federal cost sharing of the extra costs for using dredged sand from federal navigation improvements and maintenance efforts for beach nourishment. Section 934 of the act extends as necessary federal aid for periodic beach nourishment at existing projects without further Congressional authorization for a period not to exceed 50 years from the date of start of project construction (USACE 1996).

Under Section 206 of the Water Resources Development Act of 1992, non-federal interests are authorized to conduct shoreline protection projects, subject to obtaining any permits required by federal and state laws in advance of construction, and subject to prior approval of the Secretary of the Army (USACE 1996).

One of the greatest obstacles that states must overcome with respect to shore protection is the location of funding. Most projects are cost shared (65% of the costs covered by federal funding and 35% paid for by non-federal interests), although the Water Resources Development Acts of 1996 and 1999 have established a general trend to reduce the federal cost share and place more of the financial responsibility with the states. Section 215 of the WRDA of 1999 changes the split from the federal government's portion being 65 percent and the non-federal share being 35 percent to a 50-50 cost-share becoming effective on the program for periodic renourishment projects (not initial construction) carried out after Jan. 1, 2003 (USACE 2000). To obtain federal funding for a beach nourishment project, the project must be recommended for authorization to Congress by the USACE. This recommendation to the Office of Management and Budget (OMB) is usually via a report from the Chief of Engineers. Federal funding is recommended after a positive finding in a Project Reconnaissance and subsequent Feasibility Study of the project. Federal funding is not always secured, as beach nourishment projects are not high-priority budget items. Local sponsors often form special districts through which to secure federal funding for beach nourishment.

The Clinton Administration announced in 1995 that it would not support the authorization or funding of any new beach nourishment projects. However, Section 227 of the Water Resources Development Act of 1996, known as the Shore Protection Act of 1996, was enacted, and recommended funding for shore protection project studies and construction. Today, with the enactment of the Water Resources Development Act of 2000, congressional appropriations for beach nourishment projects and studies total over $150 million per fiscal year.

Laws and regulations governing the protection of the environment, water quality, endangered species, and historic properties also have significant impacts on beach nourishment projects. In addition to previously discussed laws, beach nourishment projects must also comply with, among others, the National Environmental Policy Act (paper, table), the Clean Water Act (paper, table), the Endangered Species Act (figure, table), the National Historic Preservation Act (figure, table), and comparable state laws. Regulations require that actions are the least environmentally damaging practicable alternative. The following website contains a summary of all laws concerning the protection of resources: http://laws.fws.gov/lawsdigest/reslaws.html.

Conclusion

Disagreements over the suitability of beach nourishment as a shore protection measure have polarized the debate with respect to both policy and technical issues (NRC 1995). Beach nourishment is an expensive and controversial shore protection measure. Critics feel that beach nourishment is an unreliable coastal management option because of its uncertain longevity and long-term maintenance costs (NOAA 2000). Many, however, feel that beach nourishment is an effective way to revive and maintain coastal tourist and recreational economies, and that the high costs are returned in tourist revenues and increased property values and taxes. Regardless of the method of protection, policy makers can all recognize the need to manage and protect the nation's valuable shorelines.

References

Balsillie, James H. 1996. "Florida's History of Beach and Coast Preservation: The Early Years, 1910-1974." The Future of Beach Nourishment, Proceedings of the 9th National Conference on Beach Preservation Technology. January 1996.

National Oceanic and Atmospheric Administration (NOAA). 2000. State, Territory, and Commonwealth Beach Nourishment Programs, A National Overview. US Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, Office of Ocean and Coastal Resource Management. Technical Document No. 00-01, OCRM Program Policy Series, March 2000.

National Research Council (NRC). 1995. Beach Nourishment and Protection. Committee on Beach Nourishment and Protection, Marine Board, Commission on Engineering and Technical Systems, National Research Council. National Academy Press, Washington, D.C. 1995.

US Army Corps of Engineers (USACE). 1996. Shoreline Protection and Beach Erosion Control Study. Final Report: An Analysis of the US Army Corps of Engineers Shore Protection Program. IWR Report 96-PS-1. Prepared by Thomas M. Hillyer, Project Manager, Shoreline Protection and Beach Erosion Control Task Force, US Army Corps of Engineers. Prepared for the Office of Management and Budget. June 1996.

US Army Corps of Engineers (USACE). 2000. Corps Facts, The Water Resources Development Act, 1999. Office of the Chief of Engineers, February 1, 2000.