62B-41.005. Policy and Eligibility Criteria for Coastal Construction Permits

(1) In keeping with the intent of Chapter 161, F.S., it is the Department’s policy to prevent further degradation of, and to promote restoration of existing degraded portions of, the coastal system by means of the regulation of coastal construction.

(2) Coastal construction authorized by the Department pursuant to Chapter 62B-41, F.A.C., shall have a net positive benefit to the coastal system resulting from the project’s impacts, as demonstrated by the applicant, taking into account the considerations and requirements of Section 161.041, F.S., and when proposing inlet construction and maintenance, the considerations and requirements of Section 161.142, F.S.

(3) The Department will determine whether to authorize coastal construction at any coastal location upon receipt of an application, pursuant to subsection 62B-49.005(1), F.A.C., from a property or riparian owner and upon consideration of the facts or circumstances, including:

(a) Adequate engineering data concerning the existing coastal system, including topography, bathymetry; wave and current data; coastal processes, conditions and morphological trends;

(b) Design features of the proposed structures or activities;

(c) Such other specific information or calculations as are necessary for the evaluation of the application.

(4) Flexible coastal structures will be used whenever practicable to achieve coastal protection objectives.

(5) Structures which interfere with the natural longshore and onshore/offshore movement of sediments shall not be allowed unless a net positive benefit to the coastal system can reasonably be expected to occur and mitigation is provided for any adverse impacts which may occur to the coastal system.

(6) The Department shall not issue permits, pursuant to Section 161.041, F.S., for coastal armoring except as a last resort to provide protection to eligible structures. Construction of coastal armoring will only be considered in accordance with the following:

(a) The armoring is for the protection of an eligible structure;

(b) The structure to be protected is vulnerable to erosion from a five (5) year return interval storm event as determined by the Department based on an analysis of general and site specific physiographic features or conditions such as: storm surge hydrograph and duration, bathymetry and topography, sediment and wave characteristics, and manmade and natural structures;

(c) All other alternatives, including dune enhancement, beach restoration, structure relocation, and modification of the structure’s foundation to make it no longer vulnerable to the erosion impacts of at least a five year return interval storm event, are determined not to be economically and physically practicable;

(d) Such armoring does not result in a net reduction or restriction to public access along the beach below the mean high-water line. If interference with public access is unavoidable, the applicant shall provide comparable alternative access; and,

(e) It is demonstrated that after considering any proposed mitigation plan, the proposed project as a whole will not cause a significant adverse impact.

(7) In the review of applications for armoring, Department staff shall consider the following:

(a) The existence, design and condition of armoring on either side of the proposed armoring site;

(b) The location of the structure to be protected relative to the mean high-water line, the vegetation line and the crest of the frontal dune or escarpment;

(c) The geomorphology of the coastline and active coastal processes, including historic erosion rates and sea level rise; and,

(d) Whether a permit for a beach restoration or nourishment project or other erosion prevention project has been applied for, which may reduce the vulnerability of the structure to be protected by the armoring.

(8) Minor reconstruction of existing rigid coastal structures is exempt from the provisions of subsections (6) and (7), above.

(9) An existing rigid structure whose alignment has been determined by the Department to interfere with onshore/offshore or longshore movement of sand, resulting in a significant adverse impact to the coastal system or adjacent properties as described in Section 161.041, F.S., is subject to redesign or relocation landward if in need of reconstruction, or shall be ordered removed if it is determined to be dangerous to human life, health or welfare, in accordance with Section 161.061, F.S.

(10) Where any coastal construction is authorized, any interference with the use by the public of any area of beach seaward of the mean high-water line, other than temporary interference during construction, shall be prohibited unless determined by the Department to be unavoidable to protect the beach or any upland structure. Where such interference is unavoidable, the permittee shall provide alternate access along the shoreline. The width of such alternate access may not be required to exceed the width of the access that will be obstructed as a result of the permit being granted.

(11) In addition to the other requirements of this chapter, opening of previously existing inlets that have been recently closed due to human activity, alteration or maintenance of natural inlets, intermittent inlets and flushing outlets and stabilization of natural shorelines of existing unstabilized altered inlets will be approved upon a showing that:

(a) All impacts are avoided or minimized to the greatest extent practicable, including consideration of less impactive alternatives; and,

(b) After avoidance and minimization, any adverse impacts that are reasonably likely to occur will be offset by a proposed mitigation plan. When evaluating the mitigation plan, the Department will consider the benefits of the long term sand management plan and the overall public benefit of the inlet activity including:

1. Meeting a recognized public need contained in the approved local comprehensive plan of the local government with jurisdiction over the inlet;

2. Conservation and enhancement of the supply of sand to adjacent beaches;

3. Preservation or enhancement of the natural functioning of the inlet system;

4. Protection and enhancement of the marine and beach habitat; and,

5. Being consistent with the statewide strategic beach management plan, where applicable.

(c) For the purposes of subsection 62B-41.005(11), F.A.C., previously existing inlets that have been recently closed due to human activity are areas of the coastal system that continue to exhibit geomorphic feautres of an inlet such as an ebb or tidal shoal, at the time an application for permit is submitted to the Department.

(12) Creation of new inlets have the potential to significantly impact the surrounding coastal system by interrupting or altering the natural drift of beach compatible sand resources, which often results in these sand resources being deposited in nearshore areas, in the inlet channel, or in the inland waterway adjacent to the inlet, instead of providing natural nourishment to the adjacent beaches. There is also a growing demand for beach compatible sand and a limited supply of such sand resources. Therefore, in addition to the criteria in subsection 62B-41.005(11) F.A.C., for projects proposing the creation of new inlets the applicant must also demonstrate that:

(a) The inlet will be hydraulically stable under normal conditions; and,

(b) The inlet will balance the sediment budget such that beach restoration and nourishment of the adjacent beaches, or other forms of shoreline stabilization, including jetties, are not required.

(13) Maintenance of existing altered inlets and modification of existing unstabilized altered inlets are not subject to the requirements of subsections 62B-41.005(11) and 62B-41.005(12), F.A.C. Except for ports listed in Section 403.021(9)(b), F.S., which must comply with Section 161.142(4), F.S., maintenance of inlets shall require on an average annual basis, placement of a quantity of beach-quality sand on adjacent eroding beaches that is equal to natural net annual longshore sediment transport.

(14) All sandy sediment excavated from the coastal system shall be deposited on the adjacent eroding beach in a location approved by the Department, as established in applicable permit(s).

(15) Any permit application for construction, excavation or maintenance of a coastal inlet and related shoals shall be consistent with the statewide strategic beach management plan for long term management of the inlet pursuant to Sections 161.142 and 161.161, F.S. Any permit issued shall be conditioned on continued bypassing of the sand in sufficient quantity to insure that net long term erosion or accretion rates on both sides of the inlet remain equal except in cases where unequal erosion and accretion rates can be shown to be a result of natural processes and not caused by human activities. In all cases, mitigation shall be provided for any erosion effects to the adjacent coastal system attributable to alteration of the inlet. The mitigation shall include the placement of supplemental beach compatible material as needed.

(16) Monitoring programs shall be required for any coastal construction permitted under this chapter that is determined to have an adverse impact. Such programs shall include preconstruction, construction phase and post construction topographic, hydrographic, biological and other data collection as deemed necessary and appropriate by the Department to monitor the performance of the coastal construction and determine its impacts to the coastal system and marine turtles. Such data shall be analyzed by a qualified professional engineer or coastal geologist registered in the State of Florida and a report provided to the Department on the performance of the project and its impacts on the coastal system. Biological data shall be analyzed by a qualified biologist. Monitoring programs shall include sufficient pre-project data to establish an adequate baseline for project construction and post construction comparison.

(17) If the proposed coastal construction is reasonably likely to have adverse impacts to the coastal system, then the applicant shall revise the project design to avoid or minimize those impacts to the greatest extent practicable. After all practicable revisions have been made to avoid and minimize impacts; any remaining adverse impacts shall be offset by a mitigation plan that has been proposed the applicant.

(18) Projects which may have an impact on marine turtles, nests or their habitat shall also be subject to the provisions of Section 379.2431, F.S., and to section 6(c), of the federal Endangered Species Act.

Rulemaking Authority 161.041(1), 161.055(1), (2), 161.085(5) FS. Law Implemented 161.041, 161.042, 161.051, 161.055(1), (2), 161.061(1), (2), 161.085(1), (2), 161.091, 161.142(1), (2), (4), (5), (6), (7), 161.143(1), 161.144, 161.163, 379.2431(1) FS. History–New 8-23-92, Formerly 16B-41.005, Amended 10-23-01, 11-17-11, 1-11-17, 10-17-19.