Laws of Florida Chapter 2007-99 amended Chapter 161.085 of the Florida Statutes relating to rigid coastal armoring structures in order to provide criteria to permit sand-filled geotextile containers used as the core of reconstructed dune. This led ...

DEPARTMENT OF ENVIRONMENTAL PROTECTION
Division of Beaches and Shores

RULE NO: RULE TITLE
62B-56.010: Scope
62B-56.020: Definitions
62B-56.030: Permit Criteria for Construction
62B-56.040: Consultations
62B-56.050: Permit Application Requirements and Procedures
62B-56.060: Electronic Submittal
62B-56.070: Public Comment and Noticing Requirements
62B-56.080: Survey Requirements
62B-56.090: Financial Assurances
62B-56.100: Duration of Permits
62B-56.110: Permit Modifications
62B-56.120: Permit Transfers
62B-56.130: Permit and Maintenance Fees
62B-56.140: Conversion and Maintenance
62B-56.150: General Permit Conditions
62B-56.160: Revocations, Suspensions and Removal
62B-56.900: Forms
PURPOSE AND EFFECT: Laws of Florida Chapter 2007-99 amended Chapter 161.085 of the Florida Statutes relating to rigid coastal armoring structures in order to provide criteria to permit sand-filled geotextile containers used as the core of reconstructed dune. This led to the development of Chapter 62B-56, F.A.C., entitled “Rules and Procedures for Using Sand-Filled Geotextile Dune Cores (Permits for Construction and Maintenance)”. This new chapter will provide the criteria for constructing and maintaining sand-filled geotextile containers used as dune core structures for coastal armoring and establish rules to reflect the recent legislative changes. In addition, conforming changes will simultaneously be made to Chapter 62B-33, F.A.C. to clarify that all geotextile containers as the core of a reconstructed dune shall be governed by the new Chapter 62B-56, F.A.C.
SUMMARY: The new chapter covers all sand-filled geotextile containers used to protect upland structures. It includes requirements and procedures for issuance, denial, transfer, modification, suspension, and revocation of Contruction and Maintenance Permits for sand-filled geotextile containers used as the core of a reconstructed dune. It also includes criteria and financial assurance requirements for the removal of such structures.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
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.
SPECIFIC AUTHORITY: 161.053, 161.0535, 161.085 FS.
LAW IMPLEMENTED: 161.021, 161.053, 161.0535, 161.054, 161.085 FS.
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: May 30, 2008, 9:00 a.m. – 12:00 Noon
PLACE: Bureau of Beaches and Coastal Systems, Building B, Room 309 (Training Room), 5050 West Tennessee Street, Tallahassee, FL
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 48 hours before the workshop/meeting by contacting: Rosaline Beckham, Environmental Specialist III, Department of Environmental Protection, Bureau of Beaches and Coastal Systems, Mail Station #300, 3900 Commonwealth Boulevard, Tallahassee, FL 32399-3000, call [phone] or e-mail: [e-mail]. 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: Rosaline Beckham as cited above.

THE FULL TEXT OF THE PROPOSED RULE IS:

BUREAU OF BEACHES AND COASTAL SYSTEMS – RULES AND PROCEDURES FOR USING SAND-FILLED GEOTEXTILE DUNE CORES (PERMITS FOR CONSTRUCTION AND MAINTENANCE)

62B-56.010 Scope.

This chapter covers all sand-filled geotextile containers used to protect upland structures. It includes requirements and procedures for issuance, denial, transfer, modification, revocation, and suspension of Construction and Maintenance Permits for sand-filled geotextile containers as the core of a reconstructed dune feature. It also includes criteria and financial assurance requirements for the removal of such structures. Only the Department may authorize a reconstructed dune using sand-filled geotextile containers as the core of a reconstructed dune feature. Sand-filled geotextile containers that are not used as the core of a reconstructed dune shall not be permitted under this chapter.

Specific Authority 161.053, 161.085 FS. Law Implemented 161.053, 161.085 FS. History–New________.

 

62B-56.020 Definitions.

(1) “Access” or “public access” as used in Section 161.053, F.S., means the public’s right to laterally traverse the sandy beaches of this state where such access exists on or after July 1, 1987, or where the public has established a shore normal accessway through private lands to lands seaward of the mean high tide or water line by prescription, prescriptive easement, or any other legal means.

(2) “Adjacent properties” are properties next to the property where the construction activity is to take place, including those properties separated by a road, right-of-way, or access way, in all directions.

(3) “Agent” is any person with the written power or authority to act on behalf of the responsible entity for purposes of an application submitted under Chapter 161, F.S.

(4) “Applicant” is any person, firm, corporation, county, municipality, township, special district, homeowners association, or public agency, requesting a permit to reconstruct a dune system seaward of the CCCL. The applicant must be a responsible entity and the owner of record, leaseholder, or holder of any legal instrument which gives the holder legal authority to undertake the construction for which a permit is sought.

(5) “Beach” is the zone of unconsolidated material that extends landward from the mean low water line to the place where there is marked change in material or physiographic form, or to the line of permanent vegetation.

(6) “Beach-dune System” is that portion of the coastal system where there has been or there is expected to be, over time and as a matter of natural occurrence, cyclical and dynamic emergence, destruction, and reemergence of beaches and dunes.

(7) “Beach quality sand,” means sand that maintains the general appearance, and the engineering and ecological functions of the native sand occurring on the beach and in the adjacent dune and coastal system. Such sand shall be predominately of carbonate, quartz or similar material with a particle size distribution ranging between 0.062mm (4.0phi) and 4.76mm (-2.25phi) (classified as sand by either the Unified Soils or the Wentworth classification), shall be similar in color and grain size distribution (sand grain frequency, mean and median grain size and sorting coefficient) to the material present on the beach berm seaward of the project site and shall not contain:

(a) Greater than five percent by weight of silt, clay or colloids passing the #230-sieve (4.0phi);

(b) Greater than five percent by weight of fine gravel retained on the #4-sieve (-2.25phi);

(c) Coarse gravel, cobbles or material retained on the three-quarter inch sieve in a percentage or size greater than found on the native beach; or,

(d) Construction debris, toxic material or other foreign matter; and shall not result in cementation of the beach.

(8) “Beach scraping” is the process of excavating or relocating sand from the foreshore or below mean high water and placing it on the beach berm to facilitate dune recovery.

(9) “Bureau” is the Bureau of Beaches and Coastal Systems of the Department of Environmental Protection.

(10) “Coastal Construction Control Line” (CCCL) is the line established pursuant to the provisions of Section 161.053, F.S., and recorded in the official records of the county, which defines that portion of the beach-dune system subject to severe fluctuations based on a One-hundred-year storm surge, storm waves, or other predictable weather conditions.

(11) “Coastal system” includes: the beach and adjacent upland dune system and vegetation seaward of the CCCL; swash zone; surf zone; breaker zone; offshore and longshore shoals; reefs and bars; tidal, wind, and wave driven currents; longshore and onshore/offshore drift of sediment materials; inlets and their ebb and flood tide shoals and zones of primary tidal influence; and all other associated natural and manmade topographic features and coastal construction.

(12) “Construction” is any work or activity, including those activities specified in Section 161.085(9), F.S., that may have an impact as defined in this rule.

(13) “Construction debris” is discarded material resulting from the installation of a reconstructed dune or demolition of a structure.

(14) “Core of a reconstructed dune” is a sand-filled geotextile container used as the base structural component of a reconstructed dune project.

(15) “Department” is the Florida Department of Environmental Protection.

(16) “Dune” is a mound, bluff or ridge of unconsolidated sediment, usually sand-sized sediment, lying upland of the beach and deposited by any natural or artificial mechanism, which may be bare or covered with vegetation and is subject to fluctuations in configuration and location. Types of dunes include:

(a) “Primary dune” is a significant dune which has sufficient alongshore continuity to offer protective value to upland property. The primary dune may be separated from the frontal dune by an interdunal trough; however, the primary dune may be considered the frontal dune if located immediately landward of the beach.

(b) “Reconstructed dune” is a man-made dune feature that has a sand-filled geotextile container as its core that is continuously covered with a minimum of three feet of sand, meets the specific design and siting criteria of this chapter, is contoured to minimize erosive effects, and is vegetated with native beach-dune plants.

(c) “Significant dune” is a dune that has sufficient height and configuration or vegetation to offer a level of protection to the beach-dune system.

(17) “Erosion” is the wearing away of land or the removal of consolidated or unconsolidated material from the beach-dune system by wind, water, or wave action. Erosion includes:

(a) Landward horizontal movement of the line of mean high water or beach-dune system profile; and,

(b) Vertical lowering or volumetric loss of sediment from the beach-dune system or the offshore profile.

(18) “Excavation” is any mechanical or manual removal or alteration of consolidated or unconsolidated soil or rock material from or within the beach-dune system.

(19) “Financial assurance” is defined as a fully funded trust account for the benefit of the Department, a surety payment bond or performance bond issued to the Department by a licensed bonding company and accompanied by a standby trust agreement, or a letter of credit to the Department issued by a financial institution authorized to do business in the State of Florida and accompanied by a standby trust agreement.

(20) “Fixed coastal cell” is a geomorphological component of the coastal system that is closely linked internally by active physical processes and is bounded by physical features which exercise a major control on refraction patterns or which compartmentalize or severely limit longshore sediment transport such as headlands or inlets.

(21) “Foundation” is the portion of a structure that transmits the associated dead and live loads of the structure to the ground and includes, but is not limited to, spread footings, foundation walls, posts, piers, piles, beams, girders, structural slabs, cross bracing, and all related connectors. For pavements, the foundation includes the subbase and base course layers supporting the pavement layer.

(22) “Frequent coastal storm” is defined as a 25-year return interval storm event.

(23) “Frontal dune” means the first natural or manmade mound or bluff of sand which is located landward of the beach and which has sufficient vegetation, height, continuity, and configuration to offer protective value.

(24) “Geotextile container” is a bag or tube, made of blanket-like synthetic fibers manufactured in a woven or loose nonwoven manner, used as an agent to hold together a large mass of sand forming a rigid tubular structure.

(25) “Impacts” are those effects, whether direct or indirect, short or long term, which are expected to occur as a result of construction and are defined as follows:

(a) “Adverse impacts” are impacts to the coastal system that may cause a measurable interference with the natural functioning of the coastal system.

(b) “Significant adverse impacts” are adverse impacts of such magnitude that they alter the coastal system by:

1. Measurably affecting the existing shoreline change rate.

2. Significantly interfering with its ability to recover from a coastal storm.

3. Disturbing topography or vegetation such that the dune system becomes unstable or suffers catastrophic failure or the protective level of the dune system is significantly lowered, or

4. Causing a take, as defined in Section 370.12(1), F.S., unless the take is incidental pursuant to Section 370.12(1)(h), F.S.

(c) “Minor impacts” are impacts associated with construction that are not considered adverse impacts due to their magnitude or temporary nature.

(d) “Other impacts” are impacts associated with construction that may result in damage to existing structures or property or interference with public beach access.

(26) “Incidental Take Permit” is a permit issued by either the United States Fish and Wildlife Services or the Florida Fish and Wildlife Conservation Commission.

(27) “Irreparable damage” is deterioration, destruction or impairment of the sand-filled geotextile container system that results in the failure of the structure to provide adequate protection to upland properties based on the need for repair costs exceeding 50% of the original construction cost.

(28) “Major Structures” are structures that, as a result of design, location, or size could cause an adverse impact to the beach and dune system. Major structures include:

(a) “Nonhabitable Major Structures” which are designed primarily for uses other than human occupancy. Typically included within this category are roads, bridges, storm water outfalls, bathhouses, cabanas, swimming pools, and garages.

(b) “Habitable major structures” are houses, apartment buildings, condominiums, motels, hotels, restaurants, towers, other types of residential, commercial, or public buildings, or other structures designed primarily for human occupancy.

(29) “Marine turtle” is any turtle, including all life stages from egg to adult, of the species Caretta caretta (loggerhead), Chelonia mydas (green), Dermochelys coriacea (leatherback), Eretmochelys imbricata (hawksbill), and Lepidochelys kempi (Kemp’s ridley).

(30) “Marine turtle nesting season” is the nesting period for marine turtles from May 1 through October 31 of each year for all counties except Brevard, Indian River, St. Lucie, Martin, Palm Beach, and Broward. Nesting season for these counties is the period from March 1 through October 31 of each year.

(31) “Mitigation” is an action or series of actions taken by the responsible entity that will offset impacts caused by a proposed or existing construction project.

(32) “Major modifications” are changes that will affect the engineering performance of the structure or that will increase the potential for adverse or other impacts.

(33) “Minor modifications” are changes that will not affect the engineering performance of the structure and will not increase the potential for adverse and other impacts.

(34) “Nesting state” means animals (including mammals, birds, reptiles and invertebrates) listed by the Florida Fish and Wildlife Conservation Commission as threatened or endangered and that nest, breed, den or otherwise reside for the purposes of inhabiting or raising their offspring within beach-dune, coastal berm, coastal grassland, coastal strand, hammock, or other natural communities located seaward of the CCCL. Nesting refers neither to loafing, migratory, or other casual occurrences in these communities, nor to plants (See Table 1 provided in Rule 62B-56.030, F.A.C).

(35) “Notice to Proceed” is the formal notification from the Department authorizing all or portions of the permitted construction to commence.

(36) “One-hundred-year storm” is a shore-incident hurricane or any other storm with accompanying wind, wave, and storm surge intensity having a one percent chance of being equaled or exceeded in any given year.

(37) “One-time deferred removal cost” refers to the cost of covering a dune with three feet of sand for the duration of the marine turtle nesting season, and commencing removal and restoration after the nesting season, where it has been determined that the geotextile container shall be removed and the dune restored, but such removal and restoration coincides with the marine turtle nesting season.

(38) “Permit” is the authorization issued by the Department to conduct certain specified construction and maintenance in a specified location.

(39) “Permit condition” is a statement or stipulation issued with, and appearing in or referenced in, a permit.

(40) “Protective value” is the measurable protection level afforded by the dune system to upland property and structures from the predictable erosion and storm surge levels associated with coastal storm events.

(41) “Public infrastructure” includes those roads designated as public evacuation routes, public emergency facilities, bridges, power facilities, water or wastewater facilities, other utilities, hospitals, or major structures of local governmental, state or national significance seaward of the CCCL.

(42) “Repair” is the restoration of a portion of an existing structure, including the foundation of the structure, to its original design or an equivalent structural standard. Repair of a structure assumes that a significant portion of the structure and its foundation remains intact.

(43) “Responsible entity” is defined as a single entity with financial and legal authority to perform construction, maintenance, or other activities required by this chapter and is responsible for verifying that information in the application is accurate. These entities are:

(a) The property owner.

(b) Local governmental units including counties, municipalities, and Municipal Service Taxing Units.

(c) State or federal agencies; or,

(d) Profit or non-profit corporations such as homeowners associations, property owners associations, condominium owners associations, or master associations.

(44) “Scour” is erosion caused by the interaction of waves and currents with man-made structures or natural features.

(45) “Shoreline” is the intersection of a specified plane of water with the beach. For example, the mean high water shoreline is the intersection of the plane of mean high water with the beach.

(46) “Shore-normal” is a directional reference meaning approximately perpendicular to the shoreline.

(47) “Significant beach erosion” is major erosion to the beach-dune system causing recession that significantly interferes with its ability to recover. Significant beach erosion may be seen as a significant measurable alteration in the shoreline change rate or a disturbance to topography or vegetation such that the dune system becomes unstable or suffers catastrophic failure.

(48) “Storm surge” is the rise of water above normal water level on the open coast due to a number of factors, including the action of wind stress on the water surface and the rise in water level due to atmospheric pressure reduction.

(49) “Vulnerable structure” is an existing major structure located seaward of the CCCL, that is subject to damage from frequent coastal storm events or is in danger of imminent collapse. Examples of a vulnerable structure include:

(a) Habitable major structures or public infrastructure;

(b) Nonhabitable major structures that are necessary for occupancy of a major habitable structure; and

(c) Nonhabitable major structures whose failure would cause an adjacent upland habitable major structure, public infrastructure or a nonhabitable major structure necessary for occupancy of a habitable major structure, to become subject to damage from frequent coastal storm events or to become in danger of imminent collapse.

Specific Authority 161.053, 161.085 FS. Law Implemented 161.021, 161.053, 161.085 FS. History–New________.

 

62B-56.030 Permit Criteria for Construction.

(1) The Department shall issue a permit for a reconstructed dune under the following conditions:

(a) The proposed reconstructed dune must provide for the protection of an existing vulnerable structure or a structure that is upland of a beach-dune system that has experienced significant beach erosion.

1. Vulnerability shall be certified by a professional engineer licensed in the State of Florida through one of the following methods:

a. Frequent coastal storm vulnerability test using:

(i) The report entitled “Erosion Due to High Frequency Storm Events,” by the University of Florida, dated November 22, 1995, which is incorporated herein by reference; or,

(ii) Application of the SBEACH (Storm-induced BEAch CHange), a numerical simulation model for predicting dune erosion or other similar models recognized by the coastal engineering profession, using the storm surge elevations of a 25-year storm event, as determined by the Department and provided in the above referenced report entitled “Erosion Due to High Frequency Storm Events”.

b. Geotechnical analysis: The applicant may provide the Department an appropriate geotechnical analysis demonstrating that the structure is in danger of imminent collapse. Imminent collapse means the structure’s foundation will fail due to its own weight under normal conditions, resulting in structural damage to the supported structure.

c. Structure vulnerability test: The applicant may demonstrate that major structures in the project vicinity may become vulnerable as a consequence of the reconstructed dune. Where there are multiple structures in close proximity to each other, but not all of the structures are vulnerable to damage from frequent storm events or in danger of imminent collapse, the professional engineer must present the results of numerical modeling and engineering analysis that demonstrate clearly to the Department that the reconstructed dune would cause the adjacent major structures to become vulnerable; or,

d. Where an applicant demonstrates to the Department that another site specific circumstance exists other than listed in subparagraph 62B-56.030(1)(a)1., F.A.C.

2. If vulnerability cannot be established then the proposed reconstructed dune shall protect an existing major structure or public infrastructure located seaward of the Coastal Construction Control Line (CCCL) that is upland of a beach-dune system that has experienced significant beach erosion. Significant beach erosion is determined by the Department staff following a detailed assessment of the impact of a storm event along Florida’s beaches. The type of quantitative data and analyses considered includes, but is not limited to, beach and offshore profiles, upland topography, nearshore and offshore bathymetry, historical shoreline position changes, storm tide frequency, beach and dune erosion, and recent storm impacts to beach and dune systems, or

3. If the existing major structure or public infrastructure to be protected is not located seaward of the CCCL, the applicant may provide engineering data that shows the existing major structure or public infrastructure to be vulnerable to the storm surge with dynamic wave setup of a one-hundred-year storm or the anticipated erosion of the one-hundred-year storm.

(b) Siting and design requirements:

1. The reconstructed dune shall be sited as far landward as practicable.

2. The reconstructed dune shall be sited in a sustainable location no farther seaward than the frontal dune that existed prior to recent storm events or that would naturally develop under similar shoreline locations and conditions, whichever is farther landward.

3. The reconstructed dune core shall be designed, sited, and placed at an elevation so that the dune core is continuously covered with a minimum of three feet of native or beach-quality sand and shall be stabilized with native beach-dune vegetation.

4. The reconstructed dune core shall be designed, sited and elevated to minimize interference with movement of sediment along the beach.

5. The reconstructed dune shall be designed to facilitate easy removal of the geotextile containers.

6. The reconstructed dune shall be designed as a frontal dune having similar crest elevations, side slopes, configuration and continuity to the frontal dune that existed prior to recent storm events or that would occur under similar shoreline locations and conditions.

7. The proposed reconstructed dune shall not result in removal or disturbance of sandy soils of the beach-dune system to such a degree that a significant adverse impact to the beach-dune system would result from either reducing the existing ability of the system to resist erosion during a storm or lowering existing levels of storm protection to upland properties and structures.

8. The proposed reconstructed dune shall minimize impacts to adjacent properties.

9. The proposed reconstructed dune shall not cause an increase in structure-induced scour of such magnitude during a storm that the structure-induced scour would result in a significant adverse impact.

10. The proposed reconstructed dune shall not result in removal or destruction of native vegetation that will either destabilize a frontal, primary, or significant dune or cause a significant adverse impact to the beach-dune system.

11. The proposed reconstructed dune shall not direct discharges of fluids that would result in significant adverse impact.

12. The proposed reconstructed dune shall not cause a significant adverse impact to nesting state or federally threatened or endangered species, and nesting marine turtles; and,

13. The proposed reconstructed dune shall not interfere with public access as defined in Section 161.021, F.S.

(c) All fill shall be beach quality sand. Use of native sand seaward of the CCCL shall be limited to that which must be excavated as the minimum required to fill the core of the reconstructed dune. In the event there is any excavated sand remaining after the core of the reconstructed dune has been filled, the remaining sand must be returned to the site of the excavation. The sand shall be obtained from the footprint of the core of the reconstructed dune, not from beach scraping. All other sand necessary to construct the project shall come from upland of the CCCL. Organic or peat material shall not be considered beach compatible material suitable for placement atop the reconstructed dune.

(d) Sandy material excavated seaward of the CCCL shall be maintained on-site seaward of the CCCL and be placed in the immediate area of construction unless otherwise specifically authorized by the Department based upon sediment suitability, site constraints, and construction practices.

(e) In considering project impacts to native beach-dune vegetation, the Department shall evaluate the following:

1. Type and extent of native beach-dune vegetation.

2. The degree and extent of disturbance by invasive nuisance species.

3. The degree and extent of disturbance by other construction activities; and,

4. The protection afforded by natural plant communities.

(f) In considering project impacts, the Department shall evaluate the impacts to nesting state or federally threatened or endangered species, including nesting marine turtles and hatchlings. A list of the nesting state species that may be affected by activities regulated under the CCCL Program in the State of Florida are provided in Table 1, below. For a list of federally threatened or endangered species visit the U.S. Fish and Wildlife Service web site at: http://www.fws.gov/endangered/policy/index.html.

 

Nesting State Species Endangered - E, Threatened - T, Critical - C
Scientific Name	Common Name	Classification	Nesting Dates
Reptiles
Drymarchon corais	Eastern Indigo Snake	T	Resident Population
Gopherus polyphemus	Gopher tortoise	T	Resident Population
Caretta caretta	Loggerhead Turtle	T	Mar. 1, thru. Oct 31 (Brevard thru. Broward) May 1 thru. Oct 31 (All Other Counties)
Chelonia mydas	Green Turtle	E
Dermochelys coriaca	Leatherback Turtle	E
Eretmochelys imbricata	Hawksbill Turtle	E
Lepidochelys kempii	Kemp’s Ridley Turtle	E
Birds
Aphelecoma coerulescens	Florida Scrub Jay	T	Resident
Charadrius alexandrinus	Snowy Plover	T	Feb 1 - Sept 1
Haliaeetus leucocephalus	Bald Eagle	T	Sept 1 - May 1
Sterna antillarum	Least Tern	T	Apr 1 - Sept 1
Sterna dougallii	Roseate Tern	T	Apr 1 - Sept 1
Mammals
Peromyscus polionotus allophrys	Choctawhatchee Beach Mouse	E	Resident Populations
Peromyscus polionotus niveiventris	Southeastern Beach Mouse	T
Peromyscus polionotus peninsularis	St. Andrews Beach Mouse	E
Peromyscus polionotus phasma	Anastasia Beach Mouse	E
Peromyscus polionotus trissyllepsis	Perdido Key Beach Mouse	E
Insects
Cyclargus [=Hermiargus] thomasi bethunebakeri	Miami blue butterfly	C/E	Resident Population

 

TABLE 1

(g) The Department shall restrict activities that lower the protective value of natural and intact beach-dune, coastal strand, and maritime hammock plant communities. Activities that result in the removal of protective root systems or reduce the vegetation’s sand trapping and stabilizing properties of native beach-dune vegetation are considered to lower its protective value. Construction activities shall be located, where practicable, in previously disturbed areas or areas with nonnative vegetation in lieu of areas of native plant communities when the placement does not increase adverse impacts to the beach-dune system; and,

(h) Special conditions relative to the nature, timing, and sequence of construction shall be placed on permitted activities when necessary to protect nesting state or federally threatened or endangered species and marine turtles, their nests and nesting habitat. Sand placement during marine turtle nesting season must be undertaken in conformity with a federal incidental take authorization, if an Incidental Take Permit is required.

(2) After reviewing all information required pursuant to this chapter, the Department shall:

(a) Evaluate each application on its own merits. A decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell.

(b) Deny any application for an activity that either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell; or,

(c) Deny any application for an activity where the project has not met the requirements of this chapter.

(3) No permit shall be issued under this rule where all permit criteria have been met, but a publicly funded beach nourishment, beach restoration, sand transfer, or other project which would provide protection to the vulnerable structure is scheduled for construction within nine months, and all permits and funding for the project are available.

(4) No permit shall be issued under this rule where proposed activities result in the take of nesting state or federally threatened or endangered species where such take has not been authorized by the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service.

(5) The requirements set forth in Chapter 62B-56, F.A.C., and the permit shall be controlling, unless a more stringent requirement is contained in an associated Incidental Take Permit, in which case the more stringent requirements shall be controlling.

Specific Authority 161.053, 161.085 FS. Law Implemented 120.60, 161.053, 161.085 FS. History–New________.

 

62B-56.040 Consultations.

(1) The applicant, or the applicant’s engineer, is encouraged to consult Department personnel before submitting an application or at any other time during the application process or subsequent to permit issuance. However, any representation by the Department shall not relieve any person from any requirement of Florida law. Upon receipt of a consultation request, the Department shall notify the applicant and agent of all the statutory provisions of Section 161.085(9), F.S., and the procedural requirements of this chapter.

(2) Consultations under this chapter are provided by the Department as time is available and limited to the evaluation of data provided by the interested party, in addition to information that is generally available to the staff. Consultations will address the specific criteria applicable to the proposed activity that are of special significance to the permitting requirements. Failure to address a specific process or criterion during the consultation process shall not preclude the issue being raised during review of the application.

(3) To facilitate an effective consultation the applicant is encouraged to provide a detailed description of the proposed activity, including the following items:

(a) The location (street address and coordinates) of the proposed activity.

(b) Current topographic, vegetation and boundary survey.

(c) A plan view of the proposed activity.

(d) Typical cross-sectional views of any proposed structure(s).

(e) A biological assessment including maps or aerial photographs showing the current extent of natural communities, nesting state or federally threatened or endangered species, and habitat near the proposed activity; and,

(f) Geotechnical data on any borrow source and fill site.

(4) Contingent on the nature and quality of the information submitted the Department will provide the following information to the applicant and the agent through the consultation:

(a) Procedures to obtain an Incidental Take Permit or other wildlife protection determination from the Florida Fish and Wildlife Conservation Commission and the U.S. Fish and Wildlife Service.

(b) Preliminary assessment of the application of the permit criteria in Section 161.085(9), F.S.

(5) Any assistance given or representation made by the Department during consultation shall not constitute the approval of the Department, shall not bind the Department and shall not relieve the applicant of the requirements of the Florida Statutes, this chapter, or other applicable provisions of state or federal law or local ordinances. If a conflict exists between any staff representation and any applicable act, law, rule, code, or ordinance, such act, law, rule, code, or ordinance shall prevail.

Specific Authority 161.053, 161.085 FS. Law Implemented 161.053, 161.085 FS. History–New________.

 

62B-56.050 Permit Application Requirements and Procedures.

(1) To apply for a construction and maintenance permit under this chapter, the applicant shall submit one signed original and two paper copies of the application form and supporting documents, plus one electronic copy of the same, to the Department of Environmental Protection, Bureau of Beaches and Coastal Systems, 3900 Commonwealth Boulevard, Mail Station 300, Tallahassee, Florida 32399-3000, using Form 62B-56.900(1), entitled “Permit Application for Construction and Maintenance of a Reconstructed Dune” (effective _________).

(2) Upon receipt of an application the Department shall notify the applicant or agent of all the statutory provisions of Section 161.085(9), F.S.

(3) The applicant shall provide the specific information set forth below:

(a) Name, mailing address, and telephone number of the property owner and of any duly authorized agent making the application on behalf of the owner, and the signature of the applicant.

(b) A statement describing the proposed project and providing the street address.

(c) The name and mailing address of the owners of the adjacent properties, exclusive of street-ends or easements.

(d) A Construction and Maintenance Permit application fee as set forth in Rule 62B-56.130, F.A.C.

(e) Sufficient evidence of ownership including the legal description of the property for which the permit is requested. Examples of evidence of ownership may include a copy of an executed warranty deed bearing evidence of appropriate recordation; a copy of a long term lease-purchase agreement, or contract for deed; a copy of a property tax receipt bearing the name and address of the current owner; articles of condominium bearing evidence of appropriate recordation (for condominiums); or, the cooperative documents defined in Section 719.103(13)(a), F.S. (for residential cooperatives). Other documents submitted as evidence of ownership shall be reviewed by the staff and shall be rejected if found not to be sufficient. A copy of a quitclaim deed, a purchase contract, an affidavit from the owner, or a tax record obtained from an Internet website (unless obtained from an authenticated official county record) is not sufficient evidence of ownership. Ownership information shall include a copy of the recorded property deed, using business or person’s name, the year that it was recorded, document number, and the official record book, page and parcel number.

(f) Written evidence provided by the appropriate local governmental entity, political subdivision, or municipality having jurisdiction over the activity, that the proposed activity as submitted to the Bureau does not contravene local setback requirements or zoning codes.

(g) Information concerning impacts to natural plant communities and nesting state or federally threatened or endangered species, including:

1. Two copies of a biological assessment of habitat quality of natural plant communities and potential nesting state or federally threatened or endangered species whose range includes the subject property, using Form 62B-56.900(4), entitled “Biological Assessment” (effective _________).

2. One copy of any existing Incidental Take Permits from the Florida Fish and Wildlife Conservation Commission and the U. S. Fish and Wildlife Service.

(h) Written commitment from financial institution or insurance company demonstrating that financial assurance can be obtained, and a completed copy of Form 62B-56.900(2), Financial Assurance Worksheet, pursuant to Rule 62B-56.090, F.A.C.

(i) Two original copies of a signed and sealed survey of the subject property. The information depicted on the drawing shall be from a field survey conducted not more than six months prior to the date of the application. The survey shall comply with the requirements given in Rule 62B-56.080, F.A.C.

(j) Two copies of a dimensioned site plan. The drawings shall be signed and sealed by a professional engineer licensed in the State of Florida. The site plan shall include:

1. The locations and exterior dimensions of the reconstructed dune, including the location of the dune core and all activities, and the perpendicular distances from the Coastal Construction Control Line (CCCL) to the seaward limits of the dune core, the dune toes and the reconstructed dune.

2. Dimensions and locations of the foundation outlines of any existing structures on adjacent properties and distances from the CCCL to the seaward corners of the foundations of any existing structures and the seaward limit of any coastal or shore-protection structure.

3. Dimensions and locations of the foundation outlines of any existing structures on the subject property and distances from the CCCL to the seaward corners of the foundations of any habitable major structures, public infrastructure and the seaward limit of any coastal or shore-protection structure.

4. The horizontal location of the erosion control line (if one exists), any contour lines corresponding to elevation 0.00, the approximate contour of mean high water and seasonal high water, and horizontal location of the seaward line of vegetation and outlines of existing native beach-dune vegetation.

5. The horizontal location of the CCCL for the full width of the subject property, including the location and full stamping of the two nearest Department or published second order or higher horizontal control points.

6. The location of the two nearest Department Range Monuments (DNR R-Monument).

7. The location and dimensions of the property boundary, rights of way, and easements, if any.

8. The property owner and project name, street address, scale, north arrow, sheet number, and date of drawings; and

9. The location of work limits, construction fences, and dune features and vegetation to be protected during construction.

(k) Two copies of a dimensioned grading plan including any dune and vegetation protection, clearing, demolition, grading, excavation, and fill activities. The drawings shall be signed and sealed by a professional engineer licensed in the State of Florida. The grading plan shall include the location and distances of all proposed structures on the subject and adjacent properties, and the following:

1. Existing and proposed elevations, contours and spot elevations, including the mean high water line, seasonal high water line, vegetation, seaward toe of dune, dune crest, and landward toe of dune.

2. Volumes (in cubic yards), locations and dimensions and distances (in feet) seaward of the CCCL for all permanent and temporary excavation, storage or fill and other site use or disturbance including construction limits and access.

3. A table of all permanent, temporary, and net excavation and fill volumes seaward of the CCCL.

4. Soil and geotechnical data for beach compatible imported or excavated sand proposed for placement on the project site.

5. Proposed drainage plans and dewatering activities.

6. Two copies of Form 62B-56.900(3), F.A.C., entitled “Sand Quality Assurance/Quality Control (QA/QC) Plan” (effective _________). The QA/QC plan shall detail measures for testing, screening, handling, monitoring and remediation of all excavated or filled material and shall include mechanisms to ensure that only beach compatible sand is placed on the project site; and,

7. Surface area measurements (in square feet) of existing native beach-dune vegetation within the project limits, native beach-dune vegetation to be disturbed, and native beach-dune vegetation to be preserved or planted.

(l) Two copies of dimensioned cross-sections. The drawings shall be signed and sealed by a professional engineer licensed in the State of Florida. The cross-sections shall include a typical view from the mean high water line to the CCCL depicting all structures and elevations, proposed and existing grades, subgrade construction, excavation, and fill.

(m) Two copies of detailed final construction plans and specifications for the reconstructed dune and fill material. These documents shall be signed and sealed by a professional engineer licensed in the State of Florida.

(n) An anticipated construction schedule.

(o) Two copies of detailed dune planting and maintenance plans, including the plant species and locations of existing native beach-dune vegetation, plants to be removed and proposed plants. Plans shall include a plant list with both scientific and common names. Plans shall include any structures to be constructed within the dune area, including sand fences, irrigation systems and beach access.

(p) Two copies of a dimensioned site plan drawn to an appropriate scale, on 8 1/2 by 11 inch size paper showing property boundaries, the location of the proposed structure(s), the proposed construction limits, the location and volume of any proposed excavation or fill, and the locations of roads, adjacent dwellings, the vegetation line, and the approximate mean high water line; and,

(q) Two copies of dimensioned cross-sections drawn to an appropriate scale, on 8 1/2 by 11 inch paper, showing:

1. All subgrade construction or excavation with elevations referenced to NAVD 88 (U.S. survey foot).

2. Typical cross-sections of the reconstructed dune depicting geotextile core and elevations.

3. Location of the CCCL or, if not established, the mean high water line.

4. Typical profile of existing and proposed grade at the site; and,

5. The location of the contour line corresponding to elevation 0.0 NAVD 88 (U.S. survey foot).

(4) The applicant shall provide other site-specific information or calculations as determined necessary by staff to ensure that the criteria of this chapter are met. The dimensions for the plans referenced in this section shall be submitted in U.S. Customary System units. Structures shall be located with distances measured perpendicular to the CCCL, or the mean high water line, as appropriate. All elevations in this rule shall be referenced to NAVD 88 (U.S. survey foot). Site, grading, drainage, and landscape plans as well as cross-sections shall be drawn to an appropriate engineering scale in the horizontal dimension.

(5) The Department recognizes that certain requirements specified in subparagraph 62B-56.050(3)(k)3. through 7., paragraphs (o), (p) and (q), F.A.C., may not, due to the project specific circumstances, be applicable or necessary to ensure protection to the beach-dune system. In such cases, the applicant shall, as part of the application, identify those requirements and state the reason why they are inapplicable.

(6) The applicant shall have 180 days from the date the Department mails a timely request for additional information to submit that information to the Department. If the applicant requires additional time and provides good cause in which to respond to a request for additional information, the applicant may notify the Department in writing of the circumstances, at which time the application shall be held in active status for a period of up to 90 days. Failure of the applicant to provide the timely requested information by the applicable deadline shall result in denial of the application.

(7) If a substantial revision or major modification is made to a pending application, the application shall be deemed amended and shall be treated in all respects as a new application; and the time limits for processing applications shall be restarted, as set out in Section 120.60, F.S., following payment by the applicant of an additional processing fee, pursuant to this chapter.

(8) If site conditions change during the processing of an application to such an extent that the data already provided can no longer be used to determine consistency as provided in this chapter, then the application shall be denied unless the applicant agrees to waive the 90 day time requirements of Section 120.60, F.S., and provides the additional information required to reanalyze the application.

(9) All permit application requirements must be met and the application approved by the Department prior to the Department granting the Notice to Proceed.

Specific Authority 161.053, 161.0535, 161.085 FS. Law Implemented 120.60, 161.053, 161.085 FS. History–New________.

 

62B-56.060 Electronic Submittals.

(1) Complete permit applications are to be submitted on writeable CD media, clearly labeled and protected within a case or sleeve.

(2) Digital files are to be submitted in Adobe Acrobat Portable Document Format (PDF), Version 7.0 or higher.

(3) No single electronic document is to exceed five megabytes in file size.

(4) The CD must include an index of file contents, referenced to the items on the permit application and given a distinct, identifiable name.

(5) E-mails must not exceed 10 megabytes. E-mailed documents will not be considered as formal submittals for engineering evaluation and assessment purposes.

Specific Authority 120.60, 161.053, 161.085 FS. Law Implemented 161.085 FS. History–New________.

 

62B-56.070 Public Comment and Noticing Requirements and Procedures.

(1) Within ten working days of the Department receiving an application for a reconstructed dune permit, the applicant shall publish a notice requesting public comment in  a newspaper of general circulation in the area affected by the proposed reconstructed dune. The public comment request shall include the file number, the name of the applicant, the address where the proposed project is located, a description of the project, and a statement directing comments to the Florida Department of Environmental Protection, Bureau of Beaches and Coastal Systems, 3900 Commonwealth Boulevard, Mail Station 300, Tallahassee, Florida 32399. A copy of an example notice can be obtained by contacting the Bureau at the above address.

(2) Within ten working days of the Department taking action to issue or deny the permit, the applicant shall publish a notice of the agency’s action in a newspaper of general circulation in the area affected by the proposed reconstructed dune. The public notice shall include the permit number, the name of the applicant, the address where the proposed project is located, and shall include rights under Section 120.57, F.S.

(3) Proof of all publications must be provided to the Bureau in the form of a “tear sheet” (not a photocopy), i.e., the entire page must be torn from the newspaper showing the masthead of the newspaper along with the notice.

(4) Failure to publish any notice of application, or agency action required by the Department shall be an independent basis for the denial of the permit or other pertinent approval or authorization. The applicant shall submit proof of notice of agency action to the Department prior to issuance of the Notice to Proceed with construction authorized under the permit.

(5) Following issuance of the approved permit, the applicant shall record the permit and all conditions in the public record of the county where the permitted activity is located. The permit shall cross reference the recorded property deed, using business or person’s name, the year that it was recorded, document number, and the official record book, page and parcel number.

(6) The applicant shall submit proof of recording of the permit and permit conditions to the Department prior to issuance of the Notice to Proceed with construction authorized under the permit.

Specific Authority 161.053, 161.085 FS. Law Implemented 120.60, 161.053, 161.085 FS. History–New________.

 

62B-56.080 Survey Requirements.

(1) The certified survey of the subject property, which is required by paragraph 62B-56.050(3)(i), F.A.C., shall include the following information:

(a) The property owner’s name.

(b) All vertical data specified on the survey shall be referenced to NAVD 88 (U.S. survey foot). A note clearly identifying the control monument, the setting agency, stamping, and NAVD 88 elevation shall be provided on the survey or in the surveyors report.

(c) The location of the property in relation to bordering roads and streets.

(d) The location of the two nearest Department Range Monuments (DNR R-Monument). Refer to the Department’s Bureau of Beaches and Coastal Systems web page to view maps that provide the Range Monuments at: http://www.dep.state.fl.us/beaches/data/coastmon.htm.

(e) Property boundaries and right-of-ways.

(f) Legal description of the property.

(g) All horizontal coordinates, bearings, and distances referenced to the control provided upon the most recently recorded Map of Record for the Coastal Construction Control Line (CCCL) in the county where the subject property is located. Data should include a minimum of one benchmark as a source of horizontal measurement or any published second order or higher horizontal control point.

(h) The recording date, book, and page of the Map of Record of the CCCL as recorded in the county public records where the subject property resides.

(i) The horizontal location of the CCCL for the full width of the subject property, including the location and full stamping of the two nearest Department or published second order or higher horizontal control points.

(j) The horizontal location of the erosion control line, if one exists.

(k) The horizontal locations of the contour lines corresponding to elevation 0.00, the approximate contour of the mean high water line, and the contour of the seasonal high water line.

(l) The horizontal location of the seaward line of vegetation and outlines of existing native beach-dune vegetation. Each contiguous stand shall be circumscribed at the outermost edge of the vegetation or the drip line of a tree canopy and shall be identified as being one of the following categories:

1. Beach-dune (grasses and groundcovers).

2. Coastal strand (saw palmetto and salt pruned shrubs).

3. Hammock (overhead forest canopy).

4. Wetland (mangrove, marsh, or swamp).

5. Exotics (greater than fifty percent Australian pine, Brazilian pepper, Australian scaevola, or other invasive nuisance species).

(m) When the topographic contours of the subject property are uniform in nature in the shore-normal direction throughout the project area show; a minimum of three transects; one transect per lot line; and one transect per 100-feet of shore-normal direction, with data points at 25-foot intervals and at one-foot or greater changes in elevation on each transect. In project areas that are irregular or not uniform in nature or where abnormal topographic entities exist in a beach-dune system, provide sufficient transect data points and elevations to establish a two-foot contour interval throughout the beach-dune system.

(n) Dimensions and locations of the foundation outlines of any existing structures on the subject property and the bearings and distances perpendicular from the CCCL to the seaward corners of the foundations of any habitable major structures and public infrastructure or the seaward limit of the crest or cap at the extremities of any coastal or shore protection structure; and,

(o) Dimensions and locations of the foundation outlines of any existing structures on adjacent properties and distances from the CCCL to the seaward corners of the foundations of any existing structures or the seaward limit of any coastal or shore-protection structure.

(2) When conventional route surveying is used to locate the CCCL the following information shall be shown, reported, and become a part of the drawing:

(a) The location traverse showing all adjusted angles, distances, and directions.

(b) At least two CCCL Map of Record control points or any two published second order or higher horizontal control points shall be used in the location traverse. The bearing and distance from the nearest control monuments to the points of intersection on the CCCL; and,

(c) The survey shall provide the Florida State Plane Coordinates referenced to NAD 83/90 (U.S. survey foot) for two consecutive property corners on the subject property and the perpendicular bearings and distances to the most recently recorded CCCL, including the down-line bearing and distance from the nearest point of intersection of the CCCL and the established perpendicular intersection.

(3) When Global Positioning Systems (GPS) are used, the following must be shown, reported, and become a part of the drawing:

(a) A tabular listing of all Geodetic Control Stations occupied and checked into, along with their latitude, longitude, State Plane Coordinate, zone, and specifications of units (U.S. survey foot).

(b) The software brand and version number used for the baseline or real-time processing and or adjustment.

(c) Identification of the Geodetic Control that was held fixed or used as Base Station installation. The Geodetic Control that was checked or allowed to take adjustment. When using real-time kinematic carrier phase processing, at least one additional control monument shall be occupied and a statistical comparison to the published values.

(d) A general statement of accuracy for each newly established coordinate.

(e) A graphic representation of the final fixed position data depicting the three-dimensional vector baseline established between the control station and the newly established stations, including three-dimensional loop closure statistics on the checked monumentation.

(f) A tabular listing of all newly established positions obtained from the final fixed vectors which includes their latitude, longitude, State Plane Coordinate, zone, grid Azimuth (convergence angle), scale factor, and specification of units (U.S. survey foot). Newly established stations shall be identified as such. The number of decimal places displayed shall reflect the level of precision of the work performed; and,

(g) The survey drawings shall include the following notes or equivalent:

1. The procedures and or network design meet the Geodetic Accuracy Standards and Specifications for using GPS Related Positioning as set forth by the Federal Geodetic Control Subcommittee in their most current publication for 3rd order class 1 horizontal control survey or provide the horizontal accuracy for all new positions established as a positional tolerance.

2. The vertical accuracy for all new positions established as a positional tolerance.

3. The survey shall provide the Florida State Plane Coordinates referenced to NAD 83/90 (U.S. survey foot) for two consecutive property corners on the subject property and the perpendicular bearings and distances to the most recently recorded CCCL, including the down line bearing and distance from the nearest point of intersection of the CCCL and the established perpendicular intersection; and,

4. For general location purposes, the survey shall provide a bearing and distance from the State Plane Coordinated property corners to the nearest Department range baseline monitoring location.

Specific Authority 161.053, 161.085 FS. Law Implemented 161.053, 161.085 FS. History–New________.

 

62B-56.090 Financial Assurances.

(1) Prior to issuance of a Notice to Proceed, the responsible entity shall provide the Department with financial assurance, as defined in Rule 62B-56.020, F.A.C., in an amount sufficient to cover the cost of dune core removal and restoration of the project site, including topography and native beach dune vegetation, and a one-time deferred removal cost, as defined in Rule 62B-56.020, F.A.C. In the event the responsible entity fails to remove and restore pursuant to Rule 62B-56.160, F.A.C., the financial assurance shall be used to conduct such removal and restoration.

(2) Proof of financial assurance shall be submitted on Forms 62B-56.900(10) “Trust Fund Agreement”; 62B-56.900(11), “Payment Bond”; 62B-56.900(12), “Performance Bond”; 62B-56.900(13), “Letter of Credit”; or, 62B-56.900(14) “Standby Trust Agreement” (effective date __________), as appropriate. A standby trust agreement must accompany any surety payment bond or performance bond or letter of credit.

(3) The amount of the financial assurance shall be based on a cost estimate provided by a professional engineer licensed in the State of Florida, who is not the applicant or an employee of the applicant, or associated with the sale, installation, or contract for removal, of the geotextile container to be permitted under this chapter. The estimate shall include the costs associated with removal of the geotextile container and restoration of the project site, including topography and native beach dune vegetation, and the cost of a one-time deferred removal, consistent with subsection 62B-56.160(6), F.A.C. The costs shall be estimated on a per unit basis, with the description of the estimates indicated, and shall be submitted on Form 62B-56.900(2), “Financial Assurance Worksheet”, as part of the permit application.

(4) As part of the permit application, the applicant must also submit a written commitment from the financial institution or insurance company providing or acting as Trustee of the financial assurance that such funds or instruments in the amount estimated on Form 62B-56.900(2), “Financial Assurance Worksheet”, will be made available to the responsible entity prior to the issuance of the Notice to Proceed.

(5) The responsible entity shall revise and resubmit the cost estimate, Form 62B-56.900(2), “Financial Assurance Worksheet”, every five years from the date of permit issuance to adjust for inflation or other changes in costs, and shall provide the revised financial assurance to the Department.

(6) Prior to any transfer of the permit, the new responsible entity (transferee) must provide the Department with proof of financial assurance to cover the cost of dune core removal and restoration of the project site, including topography and native beach dune vegetation, and the one-time deferred removal cost. The new responsible entity’s (transferee’s) financial assurance may be satisfied by proof of the continuation of the existing financial assurance.

Specific Authority 161.053, 161.085 FS. Law Implemented 161.053, 161.085 FS. History–New________.

 

62B-56.100 Duration of Permits.

(1) Unless revoked or otherwise modified, the duration of a permit under this chapter is as follows:

(a) Construction shall be completed no more than two years after issuance of permit.

(b) Perpetual for the maintenance phase of a coastal construction permit for a reconstructed dune structure. Unless otherwise specified in the permit, the maintenance phase of a permit shall not become effective until:

1. The responsible entity, within 30 days after completion of the permitted activity, has filed a written statement of completion and certification by a professional engineer licensed in the State of Florida; and,

2. The Department has inspected and determined that the permitted system meets all the provisions of the permit.

(2) If a permit expires without construction activity having been completed, all construction activity must cease and the site must be restored, including topography and native beach-dune vegetation. Failure to restore the site shall result in an order by the Department. Failure to comply with the terms of the order will provide grounds for the Department to use the financial assurance.

Specific Authority 161.053, 161.085 FS. Law Implemented 120.60, 161.053, 161.085 FS. History–New________.

 

62B-56.110 Permit Modifications

(1) Requests for major permit modifications, including additions, revisions, or structural modifications of the permitted project or activities, shall be reviewed and processed in the same manner as the initial application.

(2) Minor changes or modifications shall be made upon request of the applicant. They do not require the same review as major modifications because they do not increase the risk of adverse impacts. Minor modifications are not required to adhere to the noticing requirements contained in Rule 62B-56.070, F.A.C.

(3) Modifications shall be charged a fee pursuant to Rule 62B-56.130, F.A.C., and subject to Rule 62B-56.090, F.A.C.

Specific Authority 161.053, 161.085 FS. Law Implemented 120.60, 161.053, 161.085 FS. History–New________.

 

62B-56.120 Permit Transfers.

(1) Permits issued to the applicant are not valid for any other person unless formally transferred.

(2) At least 30 days prior to any transfer of ownership or control of the land on which the reconstructed dune is located or where any permitted activity is located, the responsible entity shall submit an executed Form 62B-56.900(5), entitled “Permit Transfer Agreement” (effective date __________). This form must contain original signatures of both the current and the proposed responsible entity. The submittal must include the permit transfer fee specified in Rule 62B-56.130, F.A.C.

(3) The proposed responsible entity must meet the definition of a responsible entity, as provided in Rules 62B-56.020 and 62B-56.050, F.A.C.

(4) The Department shall approve a request for transfer of a permit if the proposed responsible entity provides reasonable assurance that it can construct and maintain the permitted structure in conformance with the terms and conditions of the permit, including the financial assurances required under Rule 62B-56.090, F.A.C. If the Department proposes to deny the transfer, it shall provide both the current and proposed responsible entities a written notice of denial of such transfer, which will include the reasons for the denial.

(5) Until a transfer is approved by the Department, the permitee is the responsible entity and shall be liable for compliance with the terms and conditions of the permit, and may be liable for any corrective actions required because of any violations of the permit prior to the approval of the transfer by the Department.

(6) Once the request to transfer the permit has been approved by the Department, the new responsible entity shall be liable for compliance with all the terms and conditions of the permit for the life of the reconstructed dune.

(7) A copy of the transfer notification shall be displayed on the construction site along with the permit where construction has not been completed. An expired construction permit shall not be transferred.

Specific Authority 161.053, 161.085 FS. Law Implemented 120.60, 161.053, 161.085 FS. History–New________.

 

62B-56.130 Construction and Maintenance Permit Fees.

(1) Each application for a new permit, major modification, or transfer to be considered by the Department pursuant to Section 161.085(9), F.S., and this chapter, shall be accompanied by a processing fee. Monies from fees assessed pursuant to this chapter shall be deposited into the Florida Permit Fee Trust Fund.

(2) The appropriate fee is to be submitted to the Department at the time of application. No permit application shall be considered complete until the required fee has been received by the Department. The fee schedule is as follows:

(a) Reconstructed dune: $3,500 each for structures up to 100 feet in length, plus $500 for each additional 50 feet of length or portion thereof. For fee payment purposes, the length of the structure shall include returns.

(b) Major Modifications of Approved Permits: The fee for a major modification to a permit, which does not affect the length of a reconstructed dune feature, is $500.

(c) Major modifications to a permit, which affect the length of a reconstructed dune, are $500 for each additional 50 feet of length or portion thereof.

(d) Minor Modifications of Approved Permits: The fee for a minor modification to a permit is $250.

(e) Conversion to Maintenance Permit: The fee for processing the conversion of a permit from the construction to the maintenance and for post-construction monitoring of a reconstructed dune is $1,500 or ten percent of the original permit fee, whichever is greater.

(f) Permit Transfer Fee: $500.

Specific Authority 161.053, 161.0535, 161.085 FS. Law Implemented 161.053, 161.0535, 161.085 FS. History–New________.

 

62B-56.140 Conversion and Maintenance.

(1) Upon completion of a reconstructed dune authorized under this chapter, the permit must be converted from a construction permit to a maintenance permit.

(2) Completion of construction shall be certified as follows:

(a) Within 30 days after completion of construction in conformance with an individual permit issued under this chapter, the responsible entity shall submit two copies of a signed and sealed as-built survey of the reconstructed dune. The information depicted on the drawing shall be from a field survey conducted not more than fourteen days following completion of construction. The survey shall comply with the requirements given in Rule 62B-56.080, F.A.C.; and,

(b) Within 30 days after completion of construction, the responsible entity shall submit a completed Form 62B-56.900(6), entitled Final Construction Certification of Reconstructed Dune” (effective date_________).

(3) Within 30 days after completion of construction, the responsible entity shall also submit Form 62B-56.900(7), entitled “Conversion of Permit for a Reconstructed Dune from Construction Phase to Maintenance Phase” (effective date_________). Such submittal shall include confirmation of financial assurances, and plans for annual maintenance and monitoring. Upon receipt and review of the information, the Department shall determine compliance with the terms and conditions of the permit and this chapter and notify the responsible entity whether the conversion to the maintenance phase will become effective. The submittal of the permit conversion and maintenance documentation requires a fee as specified in paragraph 62B-56.130(2)(e), F.A.C., but does not require processing as a permit modification.

(4) The maintenance phase of an individual permit shall not become effective if the Department determines that the activity authorized by the permit is not in substantial compliance with all the plans, specifications, terms, and conditions of the permit. In such case, the responsible entity shall be responsible for any necessary modifications, alterations, maintenance or repairs to bring the system into such compliance.

(5) Once the maintenance phase of the project has been initiated, the responsible entity shall provide an annual inspection report to the Department. This report shall be filed with the Department within 30 days after the inspection. The inspection shall be conducted as specified in the permit and include the following:

(a) The depth of sand cover over the geotextile core of the reconstructed dune shall be surveyed no earlier than 30 days before the start of the marine turtle nesting season and in consideration of other protected species. The sand depth shall be measured at 50-foot intervals along the seaward edge of the reconstructed dune and at 10-foot intervals along each profile line at 50-foot intervals from the seaward edge of the reconstructed dune to its landward limit. If there is less than three feet of sand cover over the core structure, the responsible entity shall place beach compatible sand over the core structure to reestablish the three feet of sand cover prior to the start of the marine turtle nesting season. The sand placement shall be in accordance with the terms and conditions of the approved permit; and,

(b) A vegetation survey including the species, coverage and condition of native beach-dune vegetation and the degree and extent of disturbance of the vegetation. The responsible entity shall replant damaged or lost vegetation in accordance with the terms and conditions of the permit.

(6) If the permit holder demonstrates that the core of the reconstructed dune does not require continued maintenance in order to maintain a minimum of three feet of continuous sand coverage, and established beach-dune vegetation, then the Department shall release the permittee from this annual inspection requirement.

(7) If a coastal storm, an act of vandalism, or other event, damages or uncovers the geotextile container, the responsible entity shall submit a report within 14 days of the occurrence. The report shall identify all corrective actions that are needed to bring the system back into compliance, including a proposed construction schedule. No corrective actions shall be taken by the responsible entity until the Department provides them with written authorization to proceed with the required maintenance.

(8) The reporting activities described above shall be filed with the Department using Form 62B-56.900(7), entitled “Maintenance Inspection Report” (effective date_________).

Specific Authority 161.053, 161.085 FS. Law Implemented 161.085 FS. History–New_________.

 

62B-56.150 General Permit Conditions.

(1) The following general permit conditions shall apply, unless superseded by the Department or modified by the permit as a special permit condition:

(a) The responsible entity shall perform all construction activities in accordance with the plans and specifications that were approved by the Department. Any deviations without written approval from the Department shall be grounds for suspension of the work or revocation of the permit pursuant to Section 120.60(5), F.S. and Rule 62B-56.160, F.A.C., and shall result in assessment of administrative fines or issuance of an order to alter or remove the unauthorized work, or both. No other construction or activities shall be conducted. No modifications to project size, location, or structural design are authorized without prior written approval from the Department. A copy of the Notice to Proceed shall be conspicuously displayed at the project site. Approved plans shall be available for inspection by a Department representative.

(b) The responsible entity shall use extreme care during construction to prevent any adverse impacts to the beach-dune system, native coastal vegetation, nesting state or federally threatened or endangered species, and nesting marine turtles and their hatchlings, or adjacent property and structures.

(c) The responsible entity shall allow any duly identified and authorized member of the Department to access the project site to document compliance with the terms of the permit and with the rules of the Department.

(d) The responsible entity shall hold and save the State of Florida, the Department, and its officers and employees harmless from any damages, no matter how occasioned and no matter what the amount, to persons or property that might result from the construction or activity authorized under the permit and from any and all claims and judgments resulting from such damages.

(e) Construction activity authorized by this permit shall not begin until:

1. The time provided in the public notice for the public to exercise any rights, given under Chapter 120, F.S., has expired, or if a hearing is requested, final disposition of the hearing request has been made.

2. A Notice to Proceed placard has been issued by the Department. The issuance of the placard acknowledges that the permit holder has met the permit conditions and rule requirements applicable prior to the pre-construction conference described below. Prior to issuance of a notice to proceed with construction, the permit holder must submit, where applicable, and the Department must accept the following documents: proof of publication of the public notice pursuant to subsection 62B-56.070(3), F.A.C.; proof of the recording of the permit and the permit conditions with the clerk of the county court pursuant to subsection 62B-56.070(6), F.A.C.; executed financial assurance forms pursuant to Rule 62B-56.090, F.A.C.; incidental take permit(s) pursuant to subsection 62B-56.030(5), F.A.C.; and other permits, licenses, agreements or approvals specified in the special permit conditions.

3. A preconstruction conference has been held on site with the contractor, the responsible entity, or agent and a field representative of the Department to establish a mutual understanding of the items specified in the special and general conditions of the permit. The locations of all proposed structures and construction limits shall be staked out prior to the conference; and,

4. Measures have been taken that provide maximum protection to the coastal system, native coastal vegetation, nesting state or federally threatened or endangered species, and nesting marine turtles and their hatchlings, public access, and adjacent properties, including installation of temporary construction fencing, and designation of access and vehicle/equipment storage areas, as required.

(f) All imported sand shall meet the definition of beach quality sand in Rule 62B-56.020, F.A.C., and be obtained from a source landward of the Coastal Construction Control Line (CCCL). Prior to the sand placement authorized by this permit, the permittee shall provide the Department's field representative with three benchmark samples of sand used in completing Form 62B-56.900(2), entitled "Sand Quality Assurance/Quality Control Plan”. One sample shall be retained by the Department's field representative, one by the permittee and one will remain on site, for permit compliance.

(g) Sand excavated seaward of the CCCL shall remain on site seaward of the CCCL and be placed in the immediate area of construction unless otherwise specifically authorized by the Department. Beach scraping is prohibited.

(h) All construction debris shall be removed and disposed at a location landward of the CCCL.

(i) Extreme care is to be exercised to ensure minimal disturbance of existing vegetation during construction. Protection of existing native vegetation, planting of reconstructed dunes and revegetation during maintenance of a reconstructed dune or following the removal of a dune core shall meet the following requirements:

1. Prior to construction, a Department representative shall determine, using best horticultural practices, the feasibility of transplanting disturbed native vegetation to suitable bare areas seaward of the CCCL. All transplanted vegetation shall be maintained, irrigated and/or fertilized to ensure a seventy-five percent survival rate for a minimum of one growing season.

2. Disturbed vegetated areas, seaward of the CCCL are to be stabilized by planting a minimum of eighty percent of the area with native salt-tolerant, sand-stabilizing perennial grasses indigenous to the native plant communities existing on or near the site. Plantings shall include a mix of a minimum of three plant species indigenous to the project shoreline, including; perennial grasses such as sea oats (Uniola paniculata); beach panicum (Panicum amarum); marsh hay cordgrass (Spartina patens); or other sand stabilizing native species approved by the Department and grown from stock indigenous to the region in which the project is located.

3. Soil stabilizing native grasses are to be spaced throughout the project area in staggered rows a maximum distance of 18 inches on center for four inch wide root balls or smaller plugs, or up to 36 inches on center for one-gallon size planting units. Grass planting units are to be planted a minimum of six inches deep with slow-release pelletized fertilizer in the planting holes. All planting units shall be fertilized and watered-in at the time of installation and thereafter irrigated and fertilized as necessary to meet the following survival criteria. Within 180 days, a minimum eighty percent overall survival rate of the planting units must be established, eighty percent of the planted area covered with the grass species and no shore parallel gaps present. Plants shall be considered to be healthy and surviving if they show clearly vigorous rhizomes and white, turgid roots. Survival rates shall be determined by observing a minimum of 24 healthy out of 30 randomly selected, planting units. All deficient areas shall be replanted and the plantings maintained until the above success criterion are met.

4. Irrigation systems are to be designed, installed and maintained to avoid interference with nesting species. Irrigation pipes shall be buried and maintained a minimum of three inches below the surface. Irrigation shall be directed away from nesting species. Irrigation systems and other structures placed during plant installation shall be removed after the plantings are established.

5. The reconstructed dunes are to be protected from foot traffic or other encroachments. Signs, rope and bollard barriers, or sand fencing shall be constructed and maintained in accordance with Department guidelines and shall be constructed and maintained as necessary to prevent trampling of vegetation and erosion of the dune feature.

(j) If not specifically authorized elsewhere in the permit, no construction activities including the installation of construction fences, and no operation, transportation, or storage of equipment or materials are authorized within or seaward of nesting species habitats during the nesting seasons of state and federally threatened or endangered species.

(k) If not specifically authorized in the permit, no temporary lighting of the construction area is authorized at any time during the marine turtle nesting season.

(l) The responsible entity shall immediately inform the Bureau of any change of mailing address of the responsible entity and any authorized agent.

(m) The responsible entity shall submit to the Bureau monthly periodic progress reports beginning at the start of construction and continuing until all construction and restoration work has been completed. Reports shall be certified by a professional engineer licensed in the State of Florida. The engineer shall certify that as of the date of each report all construction has been performed in compliance with the plans and project description approved as a part of the permit and with all conditions of the permit, or shall specify any deviation from the plans, project description, or conditions of the permit. The report shall include photographic documentation of site conditions and state the percent of completion of the project and each major individual component. The reports shall be provided to the Bureau using Form 62B-56.900(9) entitled “Periodic Progress Report” (effective date_________).

(n) Within 30 days of construction completion, the responsible entity shall submit two copies of a signed and sealed as-built survey and a completed Form 62B-56.900(6), entitled “Final Construction Certification of Reconstructed Dune” (effective date_________), both prepared pursuant to Rule 62B-56.140, F.A.C., of this chapter.

(o) Continuous sand coverage of at least three feet of sand shall be maintained over the dune core and stabilized with native beach-dune vegetation unless otherwise specified by state or federal habitat protection requirements.

(p) Following conversion to a maintenance permit, the responsible entity shall submit to the Bureau annual reports, as required by the permit or by Chapter 62B-56, F.A.C. The completed reports shall be provided to the Bureau using Form 62B-56.900(8), entitled “Maintenance Inspection Report” (effective date_________).

(q) Authorization for construction is based on an engineering review and assessment of the design and anticipated performance and impact of the structure as a complete unit. Construction of anything less than the complete structure, as approved by the Department, is not authorized and may result in the issuance of an order to remove the partially constructed structure. Modifications to the project size, location, or structural design will be processed by the Department in accordance with Rule 62B-56.110, F.A.C., and shall require payment of the major modification fee.

(2) The responsible entity shall not commence any excavation, construction, or other physical activity on or encroaching on the sovereignty land of Florida until they have received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use.

(3) The responsible entity shall inform the Bureau of any impending change in its legal status pursuant to subsection 62B-56.050(4), F.A.C., and within 30 days prior to the effect of the change, present documentation of how its legal responsibilities for the permit will be maintained.

(4) The requirements set forth in this chapter, and the permit shall apply, unless a more stringent requirement is contained in any associated Incidental Take Permit.

(5) Any permit issued under this rule does not exempt any party from complying with the applicable requirements of federal, state, county, or municipal law.

(6) This permit does not authorize trespass onto other property.

Specific Authority 161.053, 161.085 FS. Law Implemented 161.053, 161.085 FS. History–New________.

 

62B-56.160 Revocations, Suspensions and Removal.

(1) Subject to the provisions of subsection (3) below and in accordance with Sections 161.085, and 120.60, F.S., the Department shall order the revocation of the permit and removal of the structure and restoration of the project site,in accordance with subsection (6), below, upon its determination that one or more of the following permit conditions have been violated:

(a) Financial assurances are invalid or inadequate.

(b) Responsible entity has failed to maintain continuous cover of at least three feet of sand over the dune core stabilized with native beach-dune vegetation unless precluded by state or federal habitat protection requirements.

(c) Project has suffered irreparable damage or fails to perform as the core of a frontal dune feature.

(d) Project has caused a significant adverse impact to the beach-dune system; or,

(e) The Incidental Take Permit has been revoked.

(2) Subject to the provisions of subsection (3) below, the Department shall order the suspension of the permit upon its determination that the responsible entity failed to meet any of the requirements under Rule 62B-56.030, F.A.C. Upon receipt of an order of suspension, the responsible entity shall immediately cease all construction activities unless otherwise directed by the Department.

(3) The following factors shall be considered in determining whether to suspend or revoke a permit or other authorization:

(a) The severity of the conduct.

(b) The danger to the public created or occasioned by the conduct.

(c) Attempts by the responsible entity to correct or prevent violations, or the refusal or failure of the responsible entity to take reasonable measures to correct or prevent violations; and,

(d) Any other mitigating or aggravating factors.

(4) Responsible entities whose permits have been suspended shall have up to 60 days to submit a written plan to correct the deficiencies that resulted in the suspension. The Department shall review the deficiency plan within 60 days of receipt and advise the responsible entity of whether it is acceptable and take action as follows:

(a) If the Department determines that the plan for corrective action is adequate, the Department will withdraw the suspension and direct the responsible entity to proceed with the construction; or

(b) If the Department determines that the plan for corrective action is inadequate, the Department shall revoke the permit.

(5) Before revoking or suspending a permit, the Department shall give written notice to the responsible entity. The notice shall specify the provision of the law, or rule or permit condition alleged to be violated, and the facts alleged to constitute a violation thereof. Within 21 days of receipt of notification, the responsible entity may petition for an administrative hearing under Sections 120.569 and 120.57, F.S.

(6) Following the Department’s final order upholding revocation, the responsible entity shall remove the structure. All removals, mandated or voluntary, shall be conducted pursuant to the following:

(a) The responsible entity shall remove all debris and structural material, including fabric from geotextile containers, from the site and deposit offsite, as determined by the Department. To the extent possible, removal of failed structures will take place outside the nesting season for nesting state or federally threatened or endangered species, and nesting marine turtles, unless it is determined by the Department to be less harmful to the species to remove the structures and debris during nesting season.

(b) The responsible entity shall restore beach-dune contours to a condition appropriate to the beach-dune system.

(c) The responsible entity shall revegetate the area disturbed by removal of the dune core structure by reestablishing native beach-dune vegetation indigenous to the area as approved by the Department; and,

(d) The responsible entity shall notify the Department within 14 days of the completion of removal, restoration and revegetation activities.

(7) Permits that have been revoked shall be returned to the Department within 30 days after the official notification.

Specific Authority 161.053, 161.085 FS. Law Implemented 120.60, 161.053, 161.054, 161.085 FS. History–New________.

 

62B-56.900 Forms.

The forms used by the Department in the Coastal Construction Control Line program are adopted and incorporated by reference in this rule. Each form is listed by rule number, which is also the form number, and with the subject, title, and effective date. Copies of forms may be obtained by writing to the Department of Environmental Protection, Bureau of Beaches and Coastal Systems, MS 300, 3900 Commonwealth Blvd., Tallahassee, FL 32399-3000; or on our web site at: www.dep.state.fl.us/beaches

(1) Form 62B-56.900(1), Permit Application for Construction and Maintenance of a Reconstructed Dune (effective date_________).

(2) Form 62B-56.900(2), Financial Assurance Worksheet (effective date_________).

(3) Form 62B-56.900(3), Sand Sediment Quality Assurance/Quality Control (QA/QC) Plan (effective date_________).

(4) Form 62B-56.900(4), Biological Assessment (effective _________).

(5) Form 62B-56.900(5), Permit Transfer Agreement (effective date_________).

(6) Form 62B-56.900(6), Final Construction Certification of Reconstructed Dune (effective date_________).

(7) Form 62B-56.900(7), Conversion of Permit for a Reconstructed Dune from Construction Phase to Maintenance Phase (effective date_________).

(8) Form 62B-56.900(8), Maintenance Inspection Report (effective date_________).

(9) Form 62B-56.900(9), Periodic Progress Report (effective date_________).

(10) Form 62B-56.900(10), Trust Fund Agreement (effective date_________).

(11) Form 62B-56.900(11), Payment Bond (effective date_________).

(12) Form 62B-56.900(12), Performance Bond (effective date_________).

(13) Form 62B-56.900(13), Letter of Credit (effective date_________).

(14) Form 62B-56.900(14), Standby Trust Agreement (effective date_________).

Specific Authority 120.60, 161.053, 161.085 FS. Law Implemented

NAME OF PERSON ORIGINATING PROPOSED RULE: Janet G. Llewellyn, Director, Division of Water Resource Management
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Mimi Drew, Deputy Secretary
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 28, 2007
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: October 12, 2007