Sand Wars: Allocation of Sand for Beach Renourishment

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Shape of the Coast – November 13, 2024

Todd S. Roessler and

Madison Kate Williams (UNC School of Law)

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The Current Response and Growing Demand

Elko et al., “A century of U.S. Beach Renourishment.” Ocean and Coastal Management 199 (2021) 105406.

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North Carolina is no different . . .

Conery, et al., “Marine Geology and Sand Resources of the Southern North Carolina Inner Shelf.” Marine Georesources & Geotechnology (2021), DOI: 10.1080/1064119X.2021.1967531.

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Allocating Sand – Federal

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• Under OCSLA, the Secretary of DOI has the authority to manage minerals on the OCS located in submerged lands lying underneath federal waters. 43 U.S.C. § 1334(a).
• The administration of these resources has been delegated to BOEM, which issues leases for sand, gravel and other non-energy minerals on a case-by-case basis.
• BOEM does not issue long-term leases for the removal of OCS sand for beach nourishment or coastal restoration projects.

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• Begins with a written request to BOEM.
• BOEM reviews request to determine whether qualifies Non-Competitive Negotiated Agreement (NNA).
• BOEM conducts NEPA review and consults regulatory agencies.
• OCSLA prohibits BOEM from charging federal, state and local government agencies a fee for using OCS sand. 43 U.S.C. § 1337(k)(2)(B).
• BOEM drafts NNA; parties negotiate terms; BOEM executes final NNA.

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Allocating Sand – Federal

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Allocating Sand – North Carolina

• Sands lying underneath coastal and sound waters are State property. N.C. Gen. Stat. § 146-64(6).
• The State, acting at the request of NCDEQ, is authorized “to sell, lease or otherwise dispose of any and all mineral deposits belonging to the State which may be found in the bottoms of [the] waters of the State.” N.C. Gen. Stat. § 146-8.
• Sand is a “mineral.” N.C. Gen. Stat. § 74-49(6).
• “[W]aters of the State include the Atlantic Ocean within three miles of the NC coastline. N.C. Gen. Stat. § 146-64(7).

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Allocating Sand – North Carolina

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• Obtaining an enforceable legal right to remove sand from State-owned submerged lands requires an easement from NCDEQ. In addition, any NCDEQ grant of rights to remove sand must be approved by the NCDOA and by the Governor and Council of State.
• NCDOA has not developed a system to grant legal rights to remove sand for beach nourishment projects.

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Allocating Sand – North Carolina

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• When a beach nourishment project is proposed, the applicant must identify a “beach-compatible” sand source sufficient to meet the needs of the proposed project.
• While DOA comments on all proposed beach nourishment activities through the CAMA major permitting process, no easement or license for the removal of the sand is necessary. The issuance of the CAMA permit is sufficient authorization.

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Allocating Sand – Federal and North Carolina

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• Beach-quality sand is available on a “first come, first served” basis under North Carolina and Federal regulatory schemes. Really?
• Neither prioritizes access to sand resources based on an assessment of whether the proposed sand use is the best use of this public resource.
• Both assume a limitless resource.

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Beach quality-sand is not a limitless resource

Conery, et al., “Marine Geology and Sand Resources of the Southern North Carolina Inner Shelf.” Marine Georesources & Geotechnology (2021), DOI: 10.1080/1064119X.2021.1967531.

Bogue Banks – Sand rich

Brunswick County – Sand poor

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Sand Deficits Over the Next 50 Years

South Atlantic Coastal Study: Sand Availability and Needs Determination, SAD 2020.

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Recommendations – Continue to Identify Sand Resources

• Further efforts beyond SACS SAND.
• Focus on areas of need.

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• Bogue Banks, Topsail, New Hanover, Brunswick
• Cape Shoals

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South Atlantic Coastal Study: Sand Availability and Needs Determination, SAD 2020.

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Recommendations – Establish a System of Legal Rights to State-Owned Sand Resources

• Process for granting public entities easements to State-owned sand
• Assure sand necessary for long-term beach renourishment would be available
• Consider sand priorities
• Limit to public entities for beach renourishment
• Easement should allow modification of terms to identify alternative sand resources to account for storms

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BOEM

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New Jersey – Licenses for State-Owned Sand

• “The Tidelands Resource Council, with the approval of the Commissioner of Environmental Protection, may, under such terms and restrictions as to duration, compensation to be paid and such other conditions and restrictions as the interests of the State may require, license by an instrument in writing, executed in the same manner as grants of land under water are required to be executed, any person or corporation to dig, dredge or remove any deposits of sand or other material from lands of the State under tidewaters.” N.J.R.S. 12:3-22.

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Recommendations – Minimize Sand Losses

• Dredged sand re-deposited in federal waters is no longer owned by the State
• The State should work with NOAA’s Office of Ocean and Coastal Resource Management to incorporate N.C. Gen. Stat. §§ 113-229 (h1) and (h2) as a component of the State’s federally-approved CMP, which would prevent dredged material from being removed from the active nearshore zone.

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State Law

• Section 113-229 (h2): Clean, beach-quality material dredged from navigational channels within the active nearshore, beach or inlet shoal systems shall not be removed permanently from the active nearshore, beach or inlet shoal system. This dredged material shall be disposed of on the ocean beach or shallow active nearshore area where it is environmentally acceptable and compatible with other uses of the beach.
• Section 113-229 (h1): Except as provided in subsection (h2) of this section, all construction and maintenance dredgings of beach-quality sand may be placed on the affected downdrift ocean beaches or, if placed elsewhere, an equivalent quality and quantity of sand from another location shall be placed on the downdrift ocean beaches.

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Federally Enforceable?

• CZMA
• All federal activities that have reasonably foreseeable effects on the coastal zone must be conducted in a manner that is “consistent to the maximum extent practicable” with the enforceable policies of the State’s CMP. 16 U.S.C. § 1456; 15 C.F.R. Part 930.
• Federal Standard
• Under the Corps’ own regulations, commonly known as the “Federal Standard,” the Corps is required to “undertake operations and maintenance where appropriate and environmentally acceptable.” The Corps is required to fully consider all “practicable and reasonable alternatives.” With respect to the disposal of dredged material the Corps is required to manage dredged material in the “least costly manner” and “consistent with engineering and environmental requirements.” 33 C.F.R. Part 335.

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Recommendations – Comprehensive Management of Inlet Tidal Delta Sand Sources

• Large quantities of beach compatible sand are located in inlet deltas and are attractive and lower cost sand source for beach nourishment projects
• Inlet tidal deltas are an important component to the health of the barrier-island system.
• Excessive mining of inlet tidal deltas has the potential to destabilize the inlet and impact inlet dynamics, possibly resulting in increased erosion.

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Questions

Kilpatrick Townsend

4208 Six Forks Road, Suite 1400

Raleigh, NC 27609

Todd S. Roessler

(919) 420-1726

TRoessler@ktslaw.com