The Department of Environmental Protection amends this rule chapter to implement Section 380.0937, F.S., which modifies the Sea Level Impact Projection (SLIP) study requirements for state-financed construction projects located ....

 

DEPARTMENT OF ENVIRONMENTAL PROTECTION

Office of the Secretary

RULE NO.:RULE TITLE:

62S-7.010:Definitions

62S-7.011:Requirements of The State-Financed Constructor

62S-7.012:SLIP Study Standards

62S-7.014:Implementation of SLIP Study findings

62S-7.020:Effective Date

PURPOSE AND EFFECT: The Department of Environmental Protection amends this rule chapter to implement Section 380.0937, F.S., which modifies the Sea Level Impact Projection (SLIP) study requirements for state-financed construction projects located within areas at risk due to sea level rise, expanding both the geographic area and types of structures to which this requirement applies, as required by Section 380.0937(3), F.S. The Department has also defined a threshold for potentially at-risk structures or infrastructure located in areas at risk due to sea level rise for which replacement cost is not an appropriate metric, as required by Section 380.0937(1)(e)2., F.S. Beginning July 1, 2024, a state-financed constructor may not commence construction of a potentially at-risk structure or infrastructure located within an area at risk due to sea level rise without conducting a SLIP study that meets the requirements established by the Department. These rule amendments will apply only to construction not commenced as of July 1, 2024. The rule amendments will not apply retroactively to projects that commenced before the date the amended rules become effective; however, projects initiated prior to July 1, 2024, will remain subject to the SLIP study requirements and standards established by Section 161.551, F.S.

SUMMARY: Provides additional definitions and expands both the geographical area and types of structures that the SLIP study requirement applies to, consistent with new Section 380.0937, F.S. Modifies the standard by which a state-financed constructor must conduct a SLIP study and establishes a “significant flood damage” threshold for potentially at-risk structures or infrastructure for which replacement cost is not an appropriate metric. Adds a requirement that state-financed constructors assess the risk of flooding, inundation, and wave action damage to potentially at-risk structures or infrastructure and provide a list of food mitigation strategies for consideration as part of the structure or infrastructure’s design.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: Based on information known to the Agency regarding the nature and costs of non-mandatory guidelines in the rule, as well as the expertise and experience of agency staff, it was determined that a SERC was not necessary and that the rule will not require legislative ratification. Any person who wishes to provide information regarding a statement of estimated regulatory costs or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 380.0937(3), F.S.

LAW IMPLEMENTED: 380.0937, F.S.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE,TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):

DATE AND TIME: April 19, 2022, 1:30 p.m. EDT

PLACE: Marjory Stoneman Douglas Building, Room 137A, 3900 Commonwealth Blvd., Tallahassee, Florida 32399. The public may attend this hearing, if requested, in person or via webinar. Information on how to attend the hearing via webinar will be available on the Department’s website prior to the hearing date, at: https://floridadep.gov/rcp/resilient-florida-program/content/resilient-florida-program-rulemaking. Due to technical limitations, virtual participation is limited to 500 participants.

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Stephanie Link, Environmental Manager, Resilient Florida Program, [phone], [e-mail], Department of Environmental Protection, 3900 Commonwealth Blvd., MS #230, Tallahassee, Florida 32399. Public participation is solicited without regard to race, color, religion, sex, pregnancy, national origin, age, handicap or marital status. Persons who require special accommodations under the Americans with Disabilities Act (ADA) or persons who require translation services (free of charge) are asked to contact Stacie Taylor at 850-245-2118 or [e-mail] at least ten (10) days before the meeting.. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Stephanie Link, Environmental Manager, Resilient Florida Program, [phone], [e-mail], Department of Environmental Protection, 3900 Commonwealth Blvd., MS #230, Tallahassee, Florida 32399.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

62S-7.010 Definitions.

(1) “Area at risk due to sea level rise” is as defined in Section 380.0937(1)(a), F.S.  “Coastal building zone” means

(a) The land area from the seasonal high-water line landward to a line 1,500 feet landward from the coastal construction control line as established pursuant to Section 161.053, F.S., and, for those coastal areas fronting on the Gulf of Mexico, Atlantic Ocean, Florida Bay, or Straits of Florida and not included under Section 161.053, F.S., the land area seaward of the most landward velocity zone (V-zone) line as established by the Federal Emergency Management Agency (FEMA) and shown on flood insurance rate maps;

(b) On coastal barrier islands, it shall be the land area from the seasonal high-water line to a line 5,000 feet landward from the coastal construction control line established pursuant to Section 161.053, F.S. or the entire island, whichever is less; and

(c) All land area in the Florida Keys located within Monroe County shall be included in the coastal building zone.

(2) “Department” means the Department of Environmental Protection.

(3)(2) “Expected life” means the time when an element is supposed to function within its specified parameters; in other words, the life expectancy of the potentially at-risk structure or infrastructure structure or project.

(4)(3) “Flood depth” is the water level measured in feet above the ground at the project location.

(4) “Horizontal construction” means new construction of surface parking lots, highways, roads, streets, bridges, utilities, water supply projects, water plants, wastewater plants, water and wastewater distribution or conveyance facilities, wharves, docks, airport runways and taxiways, drainage projects, or related types of projects associated with civil engineering construction.

(5) “New coastal structure” means a major or nonhabitable major structure for which construction has not yet commenced beginning July 1, 2022 (one year after effective date of this rule). Projects that are rehabilitation or maintenance of existing structures, including related minor improvements shall not be considered new.

(a) “Major Structures” are defined in Section 161.54(6)(a), F.S.

(b) “Nonhabitable Major Structures” are defined in Section 161.54(6)(c), F.S.

(5) “Inundation” is defined as the complete submergence of the ground, a structure, or infrastructure, to water.

(6) “Level of service” means an indicator of the extent or degree of service provided by, or proposed to be provided by, a potentially at-risk structure or infrastructure based on and related to the operational characteristics of the asset such as the functional capacity per unit of demand.

(7) “Potentially at-risk structure or infrastructure” is as defined in Section 380.0937(1)(c), F.S.

(8) “Public entity” is as defined in Section 380.0937(1)(d), F.S.

(9) “Significant flood damage” is as defined in Section 380.0937(1)(e), F.S. For potentially at-risk structures or infrastructure for which replacement cost is not an appropriate metric, this term includes:

(a) Damage that affects functionality of the potentially at-risk structure or infrastructure due to a flood event or successive flooding events resulting in perpetual inundation occurring over a two-month period. For the purposes of determining an estimated probability of significant flood damage, this means inundation of two feet above the lowest point of a perpendicular transect of the potentially at-risk structure or infrastructure; or

(b) Damage that causes a reduction in the level of service below the minimum level of service identified in a local government’s concurrency standards required by Section 163.3180(1), F.S.

(10) “SLIP study” is as defined in Section 380.0937(1)(f), F.S.

(11) “State-financed constructor” is as defined in Section 380.0937(1)(g), F.S.

(12)(6) “Vertical construction” means the new construction of any building, structure or other improvement that is predominantly vertical, including, without limitation, a building, structure or improvement for the support, shelter and enclosure of persons, animals, chattels or movable property of any kind, and any improvement appurtenant thereto.

PROPOSED EFFECTIVE DATE: July 1, 2024

Rulemaking Authority 380.0937(6) 161.551(6) FS. Law Implemented 380.0937, 161.3180(1) 161.551 FS. History‒ New 7-1-21, Amended ______.

 

62S-7.011 Requirements of The State-Financed Constructor.

(1) Beginning July 1, 2022 (one year after effective date of this rule) Aa state-financed constructor, as defined in Section 161.551, F.S., must conduct a SLIP study that meets the standards and criteria in Rule 62S-7.012, F.A.C., prior to construction of a potentially at-risk structure or infrastructure new coastal structure. A state-financed constructor may comply with this requirement by using the Department’s web-based tool, which was designed to meet the criteria in Rule 62S-7.012, F.A.C., for performing and submitting a SLIP study or conduct and submit a SLIP study by their own method that otherwise meets the standards and criteria established in Rule 62S-7.012, F.A.C.

(2) The state-financed constructor may not commence construction of a potentially at-risk structure or infrastructure new coastal structure until a SLIP study meeting the criteria in Rule 62S-7.012, F.A.C., has been submitted to the Department and has received notification from the Department via the web-based tool or email that the SLIP study has been published on the Department’s website for 30 days. The Ddepartment encourages submission of the SLIP study during planning and design phases of the project.

(3) All SLIP studies will be maintained on the Department’s website for a minimum of 10 years.

PROPOSED EFFECTIVE DATE: July 1, 2024

Rulemaking Authority 380.0937(6) 161.551(6) FS. Law Implemented 380.0937 161.551 FS. History‒ New 7-1-21, Amended ______.

 

62S-7.012 SLIP Study Standards.

A SLIP study required under Section 380.0937 161.551, F.S., shall meet the following standards and criteria, and the Department’s web-based tool has been designed to meet these standards and criteria:

(1) Show the amount of sea level rise expected over 50 years or the expected life of the potentially at-risk structure or infrastructure structure, whichever is less. When there are multiple project features that function as one combined project, as contemplated by Section 380.0937(3) 161.551(3), F.S., one SLIP study may be submitted, but the expected life shall be that of the highest Risk Category for all project features contemplated. The amount of sea level rise expected must be calculated using the following criteria:

(a) The sea level rise scenarios used for analysis must, at a minimum, include the highest of the sea level rise projections required by Section 380.093(3)(d)3.b., F.S NOAA Intermediate-High sea level rise scenario from the National Oceanic and Atmospheric Administration (NOAA) report, “2017 NOAA Technical Report National Ocean Service Center for Operational Oceanographic Products and Services (NOS CO-OPS) 083, Global and Regional Sea Level Rise Scenarios for the United States,” hereby incorporated by reference http://www.flrules.org/Gateway/reference.asp?No=Ref-13153. Copies of these documents may be obtained by writing to the National Oceanic and Atmospheric Administration, National Ocean Service, Center for Operational Oceanographic Products and Services, Silver Spring, Maryland 20910.

(b) The local sea level rise at the project’s location must be interpolated (using the project’s distance away from the gauges as the independent variable) between the two closest coastal tide gauges that do not have data warnings associated with them with NOAA sea level rise projections listed below.

1. 8670870 Fort Pulaski, Georgia GA

2. 8720030 Fernandina Beach, Florida

3. 8720218 Mayport, Florida

4. 8721604 Trident Pier, Florida

5. 8722670 Lake Worth Pier, Florida

6. 5. 8723214 Virginia Key, Florida

7. 6. 8723970 Vaca Key, Florida

8. 7. 8724580 Key West, Florida

9. 8. 8725110 Naples, Florida

10. 9. 8725520 Fort Myers, Florida

11. 8726384 Port Manatee, Florida

12. 8726674 East Bay, Florida

13. 10. 8726520 St. Petersburg, Florida

14. 11. 8726724 Clearwater Beach, Florida

15. 12. 8727520 Cedar Key, Florida

16. 13. 8728690 Apalachicola, Florida

17. 14. 8729108 Panama City, Florida

18. 8729210 Panama City Beach, Florida

19. 15. 8729840 Pensacola, Florida

20. 16. 8735180 Dauphin Island, Alabama AL

(c) Flood depth must be calculated in North American Vertical Datum of 1988 (NAVD88) over the entirety of the project location out 50 years or the potentially at-risk structure or infrastructure’s structure’s expected life, whichever is less, for the highest of the sea level rise projections required by Section 380.093(3)(d)3.b., F.S NOAA Intermediate high sea level rise scenario, at a minimum.

(d) The contribution of land subsidence to relative local sea level rise must be included. The land subsidence contribution is calculated by NOAA for each local tide gauge and is included in each of the NOAA sea level projections. This data (labeled VLM for Vertical Land Movement) is presented in the U.S. Army Corps of Engineers (USACE) sea level change calculator (Version 2022.72 2019.21) found at https://cwbi-app.sec.usace.army.mil/rccslc/slcc_calc.html, hereby incorporated by reference https://www.flrules.org/Gateway/reference.asp?No=Ref-16441 http://www.flrules.org/Gateway/reference.asp?No=Ref-13154.

(2) Show the estimated probability amount of significant flood damage flooding, inundation, and wave action damage risk expected over 50 years or the expected life of the potentially at-risk structure or infrastructure structure, whichever is less. Use the following metrics to calculate the amount of flooding and wave damage for use in determining the probability of significant flood damage The amount of flooding and wave damage expected must be calculated using the following criteria:

(a) FEMA storm surge water surface elevation for the 1% annual chance (100 year) flood event must be approximated in NAVD88 for the entire project location. Location-specific water surface elevations can be found within the SLIP tool or at the FEMA Flood Map Service Center https://msc.fema.gov/portal/home, hereby incorporated by reference http://www.flrules.org/Gateway/reference.asp?No=Ref-13156. Copies of these documents may be obtained by writing to the Office of Resilience and Coastal Protection, Mail Station 235, Department of Environmental Protection, Douglas Building, 3900 Commonwealth Blvd., Tallahassee, Florida 32399-3000.

(b) The FEMA 1% annual chance water surface elevation must be added to the highest of the sea level rise projections required by Section 380.093(3)(d)3.b., F.S. NOAA 2017 Intermediate-High and any other chosen sea level rise scenario, and then compared to the project’s critical elevations to assess flood risk. Critical elevations must be Finished First Floor Elevation (FFE), the Lowest Adjacent Grade (LAG) of the potentially at-risk structure or infrastructure structure, or another critical design element which may be substantially damaged if flooded. Refer to the 2023 2020 Florida Building Code, Section 1603.1.7, Flood Design Data, for assistance in defining the critical elevation at https://codes.iccsafe.org/content/FLBC2023P1/chapter-16-structural-design#FLBC2023P1_Ch16_Sec1603.1.7 https://codes.iccsafe.org/content/FLBC2020P1/chapter-16-structural-design#FLBC2020P1_Ch16_Sec1603.1.7, hereby incorporated by reference https://www.flrules.org/Gateway/reference.asp?No=Ref-16442 http://www.flrules.org/Gateway/reference.asp?No=Ref-13157. Copies of these documents may be obtained by writing to the Office of Resilience and Coastal Protection, Mail Station 235, Department of Environmental Protection, Douglas Building, 3900 Commonwealth Blvd., Tallahassee, Florida 32399-3000.

(c) Depth-Damage Curves from the 2015 North Atlantic Coast Comprehensive Study, titled “Resilient Adaptation to Increasing Risk: Physical Depth Damage Function Summary Report”, hereby incorporated by reference http://www.flrules.org/Gateway/reference.asp?No=Ref-13158. Copies of these documents may be obtained by writing to the Office of Resilience and Coastal Protection, Mail Station 235, Department of Environmental Protection, Douglas Building, 3900 Commonwealth Blvd., Tallahassee, Florida 32399-3000, must be used to estimate the cost of future flood damage, for vertical construction only, by assessing the approximate flood depth within the structure, using the comparison of the critical elevations to the previously calculated 1% annual chance water surface elevation added to the highest of the sea level rise projections required by Section 380.093(3)(d)3.b., F.S. The estimated damage cost based on flood depth relative to critical elevations varies based on building characteristics and can be found in the 2015 North Atlantic Coast Comprehensive Study, titled “Resilient Adaptation to Increased Risk: Physical Depth Damage Function Summary Report,” hereby incorporated by reference https://www.flrules.org/Gateway/reference.asp?No=Ref-16443. Tallahassee, Florida 32399-3000, must be used to estimate the cost of future flood damage, for vertical construction only, by assessing the approximate flood depth within the structure, using the comparison of the critical elevations to the previously calculated 1% annual chance water surface elevation added to the highest of the sea level rise projections required by Section 380.093(3)(d)3.b., F.S. The estimated damage cost based on flood depth relative to critical elevations varies based on building characteristics and can be found in the U.S. Army Corps of Engineers 2015 North Atlantic Coast Comprehensive Study, titled “Resilient Adaptation to Increased Risk: Physical Depth Damage Function Summary Report,” hereby incorporated by reference https://www.flrules.org/Gateway/reference.asp?No=Ref-16443. Copies of these documents may be obtained by writing to the Office of Resilience and Coastal Protection, Mail Station 235, Department of Environmental Protection, Douglas Building, 3900 Commonwealth Blvd., Tallahassee, Florida 32399-3000 NOAA 2017 Intermediate-High and any other chosen local sea level rise scenarios.

(3) The state-financed constructor must show the risk to public safety and environmental impacts expected over 50 years or the expected life of the potentially at-risk structure or infrastructure structure, whichever is less using the following criteria.

(a) Each potentially at-risk structure or infrastructure structure must be assigned a Risk Category using the 2023 2020 Florida Building Code Table 1604.5, Risk Category of Buildings and Other Structures. The table can be found at https://codes.iccsafe.org/content/FLBC2023P1/chapter-16-structural-design#FLBC2023P1_Ch16_Sec1604.5 https://codes.iccsafe.org/content/FLBC2020P1/chapter-16-structural-design#FLBC2020P1_Ch16_Sec1604.5, hereby incorporated by reference https://www.flrules.org/Gateway/reference.asp?No=Ref-16444 http://www.flrules.org/Gateway/reference.asp?No=Ref-13159. Copies of these documents may be obtained by writing to the Office of Resilience and Coastal Protection, Mail Station 235, Department of Environmental Protection, Douglas Building, 3900 Commonwealth Blvd., Tallahassee, Florida 32399-3000.

(b) The ultimate design windspeed for the project location must be provided to define the risk of flying debris. This windspeed varies based on the Risk Category of the building and can be found in Figures 1609.3(1), 1609.3(2), 1609.3(3), and 1609.3(4) in the 2023 2020 Florida Building Code at: https://codes.iccsafe.org/content/FLBC2023P1/chapter-16-structural-design#FLBC2023P1_Ch16_Sec1609.3 https://codes.iccsafe.org/content/FLBC2020P1/chapter-16-structural-design#FLBC2020P1_Ch16_Sec1609.3, hereby incorporated by reference https://www.flrules.org/Gateway/reference.asp?No=Ref-16445 http://www.flrules.org/Gateway/reference.asp?No=Ref-13160. Copies of these documents may be obtained by writing to the Office of Resilience and Coastal Protection, Mail Station 235, Department of Environmental Protection, Douglas Building, 3900 Commonwealth Blvd., Tallahassee, Florida 32399-3000.

(4) Alternatives must be provided for the project’s design and siting, and the SLIP study must state how such alternatives would address public safety and environmental impacts resulting from damage to the potentially at-risk structure or infrastructure, including but not limited to, leakage of pollutants, electrocution and explosion hazards, and hazards resulting from floating or flying structural debris as well as the risks and costs associated with construction, maintenance and repair of the potentially at-risk structure or infrastructure structure.

(5) The state-financed constructor must provide a list of flood mitigation strategies evaluated as part of the design of the potentially at-risk structure or infrastructure and identify appropriate flood mitigation strategies for consideration as part of the potentially at-risk structure or infrastructure design.

(6)(5) If a state-financed constructor chooses to conduct its own SLIP study and not use the Department’s web-based tool, the SLIP study shall be submitted to the Department for publication via secure sign-in on the DEP-provided website. The SLIP study report shall be in an Americans with Disabilities Act (ADA) Section 508 compliant portable document format. The report contents shall include, but not be limited to, a description of the approach used in conducting the study, numbered references to the information used in the study, a narrative with graphic illustrations to demonstrate the application of the study approach to the information used, and a discussion of the assessments and alternatives.

PROPOSED EFFECTIVE DATE: July 1, 2024

Rulemaking Authority 380.0937(6) 161.551(6) FS. Law Implemented 380.0937, 380.093(3) 161.551 FS. History‒ New 7-1-21, Amended ______.

 

62S-7.014 Implementation of SLIP Study findings.

The Department’s intent in this rule is to inform and raise awareness with the state-financed constructor of the potential impacts of sea level rise and increased storm risk on potentially at-risk structures or infrastructure coastal infrastructure. Implementation of the findings of the SLIP studies is at the discretion of the state-financed constructor.

PROPOSED EFFECTIVE DATE: July 1, 2024

Rulemaking Authority 380.0937(6) 161.551(6) FS. Law Implemented 380.0937 161.551 FS. History‒ New 7-1-21, Amended ______.

 

62S-7.020 Effective Date.

This rule chapter applies only to projects that have not yet commenced construction as of July 1, 2024 (i.e., the date the rule takes effect). This rule chapter does not apply retroactively to projects that commenced construction prior to the date the rule is effective Any enforcement shall not proceed until 1 year after the rule takes effect.

PROPOSED EFFECTIVE DATE: July 1, 2024

Rulemaking Authority 380.0937(6) 161.551(6) FS. Law Implemented 380.0937 161.551 FS. History‒ New 7-1-21, Amended ______.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Stephanie Link, Environmental Manager, Resilient Florida Program

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Shawn Hamilton, DEP Secretary

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 7, 2024

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: October 25, 2023