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Lawsuit Filed to Bar Beach Scraping at
Prime Hook National Wildlife Refuge

Plan would destroy refuge wetlands to protect private beach homes

A plan to scrape sand from the Prime Hook National Wildlife Refuge in order to build a dune-line to protect beach homes violates federal environmental laws and cannot go forward, according to a lawsuit filed today in the U.S. District Court for Delaware. The U.S. Fish & Wildlife Service (FWS operates the refuge) contends that bulldozing its wetlands and removing sand poses no significant environmental effect requiring further analysis.

Filed by the Mid-Atlantic Environmental Law Center and the Widener Environmental and Natural Resources Law Clinic on behalf of the Delaware Audubon Society and Public Employees for Environmental Responsibility (PEER), the suit charges that the plan to scrape sand and sediment from Prime Hook Refuge to build up dune-lines on 700 feet of refuge land and 3,200 feet on adjacent private property was approved in violation of the National Environmental Policy Act (NEPA), which requires full environmental review of all significant federal actions, and the Refuge Improvement Act, which requires that projects on refuge lands be compatible with refuge purposes. This project is intended to protect private property and temporarily halt saltwater intrusion into a man-made impoundment whose protective dunes have been breached by a combination of storms and rising sea levels.

"The unique coastal habitats of Prime Hook should not be sacrificed for the benefit of a few private landowners," said Mark Martell, President of Delaware Audubon. "If these fragile environments are not safe within our National Wildlife Refuges, where indeed can they be safe?"

Besides the beach scraping, the refuge also entered into a Memorandum of Agreement with the State of Delaware’s Department of Natural Resources and Environmental Control (DNREC) allowing DNREC to maintain and manage a water control structure on refuge lands for 20 years without any form of NEPA compliance. In addition, the refuge has yet to obtain any of the required federal and state permits.

This project has been immersed in controversy since this spring, when FWS stopped DNREC bulldozers from doing the work it now proposes. The project would strip refuge beaches to the detriment of shorebirds, shellfish and other wildlife to shore up private property at taxpayer expense. Besides the environmental damage, other questions include –

  • Is there enough sand to rebuild the dune-lines? In September, DNREC argued that "sand starved" refuge beaches had insufficient sand to complete the work. The alternative of importing sand has been rejected because neither the state or federal agency wants to pay for it;
  • What happens next year after this sand is washed away? FWS maintains that this project is only a one-time fix and has yet to decide what it will do as nature continues to take its course; and
  • Which private landowners will benefit from this project? FWS has not named the three property owners who will be receiving a free donation of refuge sand and public work.

"This project shows a pattern of negligent refuge management," stated PEER Staff Counsel Christine Erickson. "The Fish & Wildlife Service is contravening the very laws it was created to administer."

On July 27, 2010, the U.S. Fish & Wildlife Service unveiled the Draft Environmental Assessment for the project. Bulldozers would mine sand from the refuge to fill in "breaches" created by recent storms in the dunes north of Prime Hook Beach in Sussex County. The stated reason for the project, however, is to reduce the animosity between "some community members and the Service," as local homeowners have blamed FWS for growing subsidence and flooding.

In fact, as FWS admits, the problem is sea level rise and other climate changes which will inexorably change the contours of the Atlantic Coast. At the same time, Delaware Audubon and PEER argue that the project will -

  • violate a number of laws;
  • contradict the FWS Climate Change Strategy, which prescribes adapting to sea level rise rather than resisting it through engineering efforts; and
  • be counterproductive. As the FWS assessment admits; "A scenario of continual rebuilding of artificial dunes could have long-term and cumulative negative impacts and consequences….Geologists recommend that artificial dunes not be rebuilt after storm damage to allow tidal inlet and overwash formation that reduces the vulnerability of back-barrier marshes to sea level rise…"

In seeking to justify the project, FWS makes the curious claim that it is merely returning the sand to where it came from "by moving some sediments, which have washed off private lands onto the refuge, back onto private lands" but cites no evidence tracing the origin of the sand in question.

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This page was last updated on Nov. 17, 2010.