The Department has proposed new Chapter 62S-8, F.A.C., pursuant to Section 380.093, F.S., to establish project scoring criteria that shall be used in the Department’s evaluation and ranking of implementation project grant ....

 

DEPARTMENT OF ENVIRONMENTAL PROTECTION

Office of the Secretary

RULE NOS.:RULE TITLES:

62S-8.001Purpose

62S-8.002Definitions

62S-8.003Project Scoring Criteria

PURPOSE AND EFFECT: The Department has proposed new Chapter 62S-8, F.A.C., pursuant to Section 380.093, F.S., to establish project scoring criteria that shall be used in the Department’s evaluation and ranking of implementation project grant proposals submitted for inclusion in the Resilient Florida Grant Program’s Statewide Flooding and Sea Level Rise Resilience Plan, which the Department must submit to the Legislature annually for specific funding determinations.

SUMMARY: This proposed rule chapter implements Section 380.093, F.S., as required by paragraph 380.093(5)(j), F.S. The Department has met this statutory rulemaking mandate by establishing certain criteria it will use to score and rank eligible resiliency projects proposed for inclusion in the Statewide Flooding and Sea Level Risk Resilience Plan. The proposed rule chapter also establishes its purpose and defines certain terms used within.

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: No SERC is required because information known to the Agency regarding the voluntary nature and zero regulatory costs of the project scoring criteria established in the rule chapter, which is based on the expertise and experience of agency staff.

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: 380.093, F.S.

LAW IMPLEMENTED: 380.093, 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: July 19, 2022, 1:00 p.m. until no later than 2:30 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. The public may attend via webinar here: floridadep.gov/RuleHearing62S-8. 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: Krista Shipley, Planning Consultant, [phone], [e-mail], Florida Department of Environmental Protection, Office of Coastal Resilience and Protection, Resilient Florida Program, 2600 Blair Stone Road, Tallahassee, FL 32399.. 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: Krista Shipley, Planning Consultant, Resilient Florida Program, [phone], [e-mail], Florida Department of Environmental Protection, Office of Coastal Resilience and Protection, 2600 Blair Stone Road, Tallahassee, FL 32399.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

62S-8.001 Purpose.

(1) The purpose of Chapter 62S-8, F.A.C., is to establish project scoring criteria that, pursuant to Section 380.093, F.S., shall be used in the Department’s evaluation and ranking of implementation project grant proposals submitted for inclusion in the Statewide Flooding and Sea Level Rise Resilience Plan.

(2) The Department encourages the electronic submittal of application materials through the application portal available online here: https://fdep.force.com/grants/s/. Alternatively, application materials can be submitted in paper form to the Resilient Florida Grant Program at: 2600 North Blair Stone Road, MS #235, Tallahassee, Florida 32399.

Rulemaking Authority 380.093, FS. Law Implemented 380.093 FS. History- New _-_-2022.

 

62S-8.002 Definitions.

(1) “Adaptation plan” means a plan that develops goals, priorities, strategies, and actions to best minimize impacts of flooding, sea level rise, or other threats and vulnerabilities, as applicable, and establishes a process to implement those actions. 

(2) “Compound flooding” is flooding caused by complex interactions between two or more oceanographic, hydrological, or meteorological processes such as the combination of pluvial (rainfall-induced flooding, such as flash, surface water, drain, and sewer floods), fluvial (riverine floods), coastal (sea level rise, tides, waves, storm surge, and nuisance floods), or groundwater flooding.

(3) “Comprehensive statewide flood vulnerability and sea level rise assessment” is an assessment the Department is required to develop under paragraph 380.093(4)(b), F.S., and which must completed by the same on or before July 1, 2024, and updated every five years, that identifies inland and coastal infrastructure, geographic areas, and communities in Florida that are vulnerable to flooding and sea level rise and the associated risks.

(4) “Comprehensive vulnerability assessment” is an evaluation that identifies risks to a community, including flooding and sea level rise, as applicable; meets all the required statutory elements for vulnerability assessments listed in paragraphs 380.093(3)(c) through               (d), F.S.; and includes, but is not limited to, any supplemental plans, assessments, documents, reports, strategies, maps, or electronic databases that identify or address risks of flooding and sea level rise to critical or regionally significant assets. 

(5) “Critical asset class” means the distinct groupings of critical assets as defined in subparagraphs 380.093(2)(a)1. through 4., F.S.

(6) “Department” means the Florida Department of Environmental Protection.

(7) “Eligible entity” means those entities specifically identified in paragraph 380.093(5)(d), F.S., as eligible to submit proposed projects for inclusion in the Statewide Flooding and Sea Level Rise Resilience Plan.

(8) “Financially disadvantaged small community” is as defined in paragraph 380.093(5)(e), F.S.

(9) “Flooding” means a condition of partial or complete inundation caused by a naturally occurring event.

(10) “Natural system restoration” is a process that creates, improves, or restores ecological functions in the environment.

(11) “Nature-based solutions” are actions that rely upon natural processes to protect, restore, and sustainably manage ecosystems, as well as solutions that address socio-environmental challenges using natural resources and processes.

(12) “Partial design” means a preliminary design that is more than 30 percent complete but not yet final and prepared by a qualified professional in the relevant field, which provides enough information and design criteria for the qualified professional to make informed decisions, such as identifying impacts, benefits, costs, and other challenges with project implementation.

(13) “Project impact area” means the discrete area the project encompasses as well as the delineated area that will be directly benefitted by a mitigation project (such as a watershed or hydrologic basin for flooding mitigation projects, a service or sub-service area for a utility, a neighborhood, a natural area, or a shoreline).

Rulemaking Authority 380.093, FS. Law Implemented 380.093 FS. History- New _-_-2022.

 

62S-8.003 Project Scoring Criteria.

(1) All projects eligible for inclusion in the Statewide Flooding and Sea Level Rise Resilience Plan by meeting the requirements in subsection 380.093(3), F.S., will be reviewed by the Department. Each eligible project will be allocated points based on the tiered structure outlined in this rule and consistent with paragraph 380.093(5)(h), F.S. Total points awarded will determine the project rank. If an applicant fails to demonstrate it meets a specific scoring criteria by failing to satisfy all relevant requirements for that criteria set forth in this rule, that criteria will receive a score of zero.

(2) The maximum number of points that may be awarded for Tier 1 criteria is 40 points. 

(a) Up to 10 points will be awarded for the degree to which the project addresses the risks posed by flooding and sea level rise. These points will be allocated in the following manner:

1. Five points will be awarded if the project addresses risks posed by flooding or sea level rise either specifically identified in an existing comprehensive vulnerability assessment that shall be submitted to the Department with the proposal, or in the comprehensive statewide flood vulnerability and sea level rise assessment, once available. Prior to December 1, 2023, applicants without a comprehensive vulnerability assessment shall receive points based on risks posed by flooding or sea level rise identified in an assessment, report, evaluation, or other documentation of risk that analyzes the impacts of existing or future flooding or sea level rise; and 

2. Five points will be awarded if the project addresses risks posed by compound flooding either specifically identified in an existing comprehensive vulnerability assessment that shall be submitted to the Department with the proposal, or in the comprehensive statewide flood vulnerability and sea level rise assessment, once available. Prior to December 1, 2023, applicants without a comprehensive vulnerability assessment shall receive points based on risks posed by flooding or sea level rise identified in an assessment, report, evaluation, or other documentation of risk that analyzes the impacts of existing or future flooding or sea level rise.

(b) Ten points will be awarded if the project reduces one or more risks to a regionally significant asset, as defined in paragraph 380.093(2)(d), F.S., or if the project adapts a regionally significant asset to help avoid such risk. For the purpose of this paragraph, adaptation of a regionally significant asset to avoid risk may include relocation of the asset outside the area(s) of flooding risk.

(c) Up to 10 points will be awarded for reducing risk located in areas with a higher percentage of vulnerable critical assets. For the purpose of this paragraph, a vulnerable critical asset is a critical asset identified in a comprehensive vulnerability assessment as having one or more risks due to flooding or sea level rise. Higher frequency storm events analyzed that are beyond the requirements of paragraph 380.093(3)(d), F.S., shall not be used to establish the percentages in these criteria. Prior to December 1, 2023, for applicants without a comprehensive vulnerability assessment, a vulnerable critical asset is a critical asset identified as having one or more risks due to flooding or sea level rise in an assessment, report, evaluation, or other documentation of risk that analyzes the impacts of existing or future flooding or sea level rise. The proposal must include the percentage of vulnerable critical assets in the project impact area. Points will be allocated in the following manner:  

1. Zero points will be awarded if no vulnerable critical assets are within the project impact area; 

2. Two points will be awarded if at least one critical asset but less than twenty percent (20%) of total critical assets within the project impact area are vulnerable critical assets;

3. Four points will be awarded if twenty percent (20%) or more, but less than forty percent (40%), of total critical assets within the project impact area are vulnerable critical assets; 

4. Six points will be awarded if forty percent (40%) or more, but less than sixty percent (60%), of total critical assets within the project impact area are vulnerable critical assets;

5. Eight points will be awarded if sixty percent (60%) or more, but less than eighty percent (80%), of total critical assets within the project impact area are vulnerable critical assets; or

6. Ten points will be awarded if more than eighty percent (80%) of total critical assets within the project impact area are vulnerable critical assets.

(d) Up to 10 points will be awarded for contributing to existing flooding mitigation projects that reduce upland flood damage costs in one of the ways identified below. Points will be allocated in the following manner: 

1. Six points will be awarded if the project contributes by incorporating new or enhanced structures that are necessary for the critical asset to perform its intended function; 

2. Six points will be awarded if the project contributes by incorporating natural system restoration and revegetation; or

3. 10 points will be awarded if the project contributes by incorporating both new or enhanced structures that are necessary for the critical asset to perform its intended function and natural system restoration and revegetation.

(3) The maximum number of points that may be awarded for Tier 2 criteria is 30 points.

(a) Up to 7.5 points will be awarded based on the degree to which flooding and erosion currently affect the condition of the project impact area. Justification for methods used to estimate or determine extent and frequency of flooding or erosion must be provided. Points will be allocated in the following manner:

1. Up to 3.75 points will be awarded based on the current frequency of flooding or erosion in the project impact area. Points will be allocated in the following manner:

a. Zero points will be awarded if the proposal does not demonstrate the current frequency of flooding or erosion in the project impact area;

b. Two points will be awarded if the proposal describes how the project impact area has experienced flooding or erosion in the last three years; or

c. A total of 3.75 points will be awarded if the applicant provides documentation to the Department showing the project impact area has been flooded more than three times within the last five years or is experiencing ongoing erosion. Documentation may include reports of flooding or erosion recorded by the jurisdiction(s) in which the project impact area is located, local news reports or source(s), documentation by a local official such as recorded high-water marks or inspection results, or any other similar document or report.

2. Up to 3.75 points will be awarded based on the severity of flooding or erosion in the project impact area. Points will be allocated in the following manner:

a. Zero points will be awarded if the proposal does not demonstrate the current extent of flooding or erosion in the project impact area; 

b. Two points will be awarded if the proposal describes how the project impact area experienced flooding estimated greater than three inches in the last three years or has ever experienced unmitigated erosion; or

c. A total of 3.75 points will be awarded if the applicant provides documentation to the Department showing the project impact area has been flooded to an estimated depth greater than one foot within the last five years, has been estimated to be inundated more than three inches but less than one foot at least one time in the current year and in each of the most recent three calendar years, has had at least one instance of sustained flooding for a duration of seven or more consecutive days, or is experiencing erosion that the applicant demonstrates is critical erosion for the critical asset class. Documentation may include reports of flooding or erosion recorded by the jurisdiction(s) in which the project impact area is located, local news reports or source(s), photographs, documentation by a local official such as recorded high-water marks or inspection results, or any other similar document or report.

(b) Up to 7.5 points will be awarded for readiness of the project to proceed in a timely manner, as defined by subparagraphs 62S-8,003(3)(b)1. through 3., F.A.C., below.

1. Up to 3.75 points will be awarded based on the status of project design. Points will be allocated in the following manner:

a. Zero points will be awarded if no design documentation is provided;

b. One point will be awarded if a partial design or other site-specific environmental or geotechnical report that demonstrates the furtherance of a readiness to proceed is submitted; or

c. 3.75 points will be awarded if final drawings or plans that are properly certified (e.g., engineer’s certification, signed and sealed by registered professional, etc.) by a professional in the relevant field are submitted.

2. Up to 2.75 points will be awarded based on the project’s permitting status and the status of any needed easements. Points will be allocated in the following manner:

a. One point will be awarded for providing a list of all permits and easements necessary for completion of the project, if applicable;

b. A total of 1.5 points will be awarded if proof of application for necessary permits or approval from at least one authority having legal jurisdiction over such permitting is submitted with the proposed project; or

c. A total of 2.75 points will be awarded if all necessary permit(s) and easement(s) have been authorized or obtained or if permitting or easement(s) are not required. 

3. One point will be awarded if local funding sources are committed as cost share or if the community is a financially disadvantaged small community. Available cost share can be demonstrated by relevant documentation, including an approved and adopted capital improvement plan, a signed letter from the Chief Executive Officer (or equivalent) of the eligible entity, a resolution or agenda item to be presented to the governing board committing funding to the project if selected, or any other comparable document showing availability of funds.

(c) Up to 7.5 points will be awarded for environmental habitat enhancement or nature-based solutions for resilience. 

1. A total of 3.75 points will be awarded if the project enhances environmental habitat or includes nature-based solutions; and

2. A total of 3.75 points will be awarded if the project impact area extends into an area that is identified as a state or federal critical habitat for threatened or endangered species at the time the proposal is submitted to the Department.

(d) A total of 7.5 points will be awarded if a statement is provided to the Department with the proposal that demonstrates the project is cost-effective. The basis for cost-effectiveness shall be provided by the applicant within the submitted statement. For the purpose of this paragraph, the statement demonstrating cost-effectiveness must include identification of any adverse impacts to other critical assets within the project impact area and address one or more of the following: 

1. A comparison of contingencies and the estimated total project cost; 

2. Costs of alternative approaches or explanation of why there are no feasible alternative approaches; 

3. Avoided economic loss due to failure or inability to operate due to flooding or sea level rise, the project costs compared to costs to repair damage from flooding or erosion, or other reasonably foreseeable losses using industry standard economic models; 

4. Future costs and benefits calculated using the relevant discount rate, net present value, or other metrics measuring future costs and benefits to support the proposal; or 

5. The direct and indirect economic value of ecosystem services provided by natural or nature-based solutions. 

(4) The maximum number of points that may be awarded for Tier 3 criteria is 20 points.

(a) Up to 6.5 points will be awarded for available local, state, or federal cost share. Points will be allocated in the following manner:

1. Zero points will be awarded if the proposal does not demonstrate that a source for the required 50% cost share has been specifically identified unless the community is a financially disadvantaged small community; or    

2. A total of 3.25 points will be awarded if the project proposal includes specifically identified local, state, or federal cost share, but the funds have not been appropriated or released at the time the proposal is submitted to the Department; or

3. A total of 6.5 points will be awarded if the project proposal provides documentation that 50% cost share is available or if the community is a financially disadvantaged small community. Available cost share can be demonstrated by providing an approved and adopted capital improvement plan, a letter from the Chief Executive Officer (or equivalent) of the eligible entity committing funding, a resolution from the governing board committing funding to the project if selected, or any other similar document showing availability of funds.

(b) A total of 6.5 points will be awarded if verification of state funding previously awarded to the project is provided to the Department with the proposal. Verification must include previously funded phases, amount of prior state funding, and previous partial appropriations, and must be submitted in a format that is verifiable by the agency or agencies having awarded the previous funding. For the purposes of this paragraph, Department grants to a county or municipality to fund the costs of community resilience planning and necessary data collection for such planning will not be considered state funding previously awarded to the project. Points will be allocated in the following manner:

1. One point will be awarded if the applicant provides verification of previous state funding awarded for preconstruction activities, as defined in paragraph 380.093(2)(c), F.S., except for those preconstruction activities involving the design of or permitting for the project; 

2. 1.5 points will be awarded if the applicant provides verification of previous state funding awarded for design of the project; 

3. 1.5 points will be awarded if the applicant provides verification of previous state funding awarded for permitting for the project; and

4. 2.5 points will be awarded if the applicant provides verification of state funding awarded for earlier phases of the project’s total construction.

(c) Seven points will be awarded if the proposal demonstrates exceedance of the flood-resistant requirements in the Florida Building Codes Act, as adopted by the State of Florida pursuant to Part IV, Chapter 553, F.S., and administered by the Florida Department of Business and Professional Regulation as the Florida Building Code, or local floodplain management regulations; or if the proposal states that no Florida Building Code flood-resistant requirements or local floodplain management regulations apply to the project.

(5) The maximum number of points that may be awarded for Tier 4 criteria is 10 points.

(a) Five points will be awarded if the project includes innovative technologies designed to reduce project costs and provide regional collaboration. For the purpose of this paragraph, innovative means an emerging technology or a proven technology that is being used in a unique way to adapt one or more critical assets to the effects of flooding or sea level rise in the project impact area. The proposal must demonstrate which specific technologies will be used and explain why they are innovative as well as how they will reduce cost and provide regional collaboration; and

(b) Five points will be awarded if the proposal demonstrates that the project impact area of the proposed project is wholly or partially located in a financially disadvantaged community.

Rulemaking Authority 380.093, FS. Law Implemented 380.093 FS, Ch. 2022-89, Laws of Florida. History- New _-_-2022.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Adam Blalock

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 15, 2022

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: February 17, 2022