Sand Litigation Stalled

AVALON – At a May 26 meeting, Avalon officials provided Borough Council with an update on the litigation overthe use of Herford Inlet sand for federal beach nourishment projects. 
In 2016, a hydraulic beach replenishment project, by the U.S. Army Corps of Engineers, was unable to use sand from the inlet due to controversial interpretation of the Coastal Barrier Resources Act (CBRA) by U.S. Fish and Wildlife. 
A last-minute adjustment, in 2016, caused Stone Harbor and the state Department of Environmental Protection to extend unanticipated funds to allow the borough to replenish its beaches. 
In addition, the Army Corps, which disagreed with the Fish and Wildlife ruling, covered parts of the borough’s northern beaches by running a long pipeline down the length of Avalon to use sand from Townsend’s Inlet. It was a one-time, ad hoc projectthat was too expensive to incorporate in any later replenishment projects.
In 2019, Stone Harbor was not included in the next federal replenishment effort, again because of the CBRA interpretation. The next replenishment project is likely to occur in fall 2022. With the litigation at a standstill, it is unclear what the impact might be on the 2022 project.
In reaction to the ban on using federal dollars to borrow sand from Hereford Inlet, Avalon, Stone Harbor, and North Wildwood partnered in legal challenges to Fish and Wildlife’s interpretation of the CBRA. 
The three communities, with the aid of U.S. Rep. Jeff Van Drew (R-2nd), acquireda reversal of the ruling, in a letter from then-Secretary of the Interior David Bernhardt. The National Audubon Society July 2, 2020, challenged the action by the secretary, again putting the matter before the courts.
The change in the administration in Washington led the government to request time for a “review” of the action by the previous secretary. The court issued a stay in the legal proceedings. 
The first 60-day stay was subsequently extended for a second 60 days and is scheduled to expire June 25. At this point, all litigation is stalled.
If the government reverses the action by Secretary Bernhardt, the litigation brought by the Audubon Society would end, but it would not be a win for the three Cape May County municipalities that are depending on the action by Bernhardt as the basis for reestablishing Hereford Inlet as a permitted borrow area for sand.
Avalon officials hinted at a possible “different route” to get the result they want, but no details of what that route might be were shared with the public. 
Recently, all three municipalities added $30,000 each to the legal services budget that supports their intervention in the litigation brought by the Audubon Society.  
To contact Vince Conti, email vconti@cmcherald.com.