To amend the existing rules that establish criteria for coastal construction authorization below the mean high water line.

DEPARTMENT OF ENVIRONMENTAL PROTECTION
Beaches and Coastal Systems

Rule No.: RULE TITLE
62B-41.002: Definitions
62B-41.003: General Prohibitions
62B-41.005: Policy and Eligibility Criteria for Coastal Construction Permits
PURPOSE AND EFFECT: To amend the existing rules that establish criteria for coastal construction authorization below the mean high water line.
SUMMARY: The Bureau proposes amendments to the rule in order address comments from the Joint Administrative Procedures Committee. The rule amendments will refine criteria for coastal construction permits for coastal armoring below the mean high water line, inlet construction and maintenance, and beach restoration and nourishment.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared because the rule amendments will not impact small businesses.
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: 161.041, 161.055, 161.085 FS.
LAW IMPLEMENTED: 161.021, 161.041, 161.042, 161.051, 161.055, 161.061, 161.063, 161.085, 161.088, 161.091, 161.142, 161.143, 161.144, 161.151, 161.161, 161.163, 379.2431 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: October 5, 2010, 1:00 p.m.
PLACE: Bureau of Beaches and Coastal Systems, 5050 W. Tennessee St., Rm #309, Tallahassee, Florida
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: Rosaline Beckham, [phone] or by e-mail at [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: West Gregory, [phone] or by e-mail at [e-mail]

THE FULL TEXT OF THE PROPOSED RULE IS:

62B-41.002 Definitions.

(1) through (16) No change.

(17) “Feasible” describes an act which is technically possible to accomplish with current technology, or is economically viable when compared to alternative strategies to protect a structure. Economically viable, as it relates to dune enhancement, or modification or relocation of a structure threatened by erosion, means that the cost of dune enhancement, or modification or relocation of a structure to be protected is no more than twice the cost of the proposed protection structure or other alternatives. In determining economic feasibility, the cost estimates submitted to the Department shall not include costs related to ineligible structures, or costs associated with overhead, contingencies, remodeling or landscaping. The cost of a proposed protection structure shall include the costs associated with use of any related state owned property.

(17)(18) No change.

(18)(19) “Impacts” are defined as follows:

(a) “Adverse Impacts” are those impacts to the active portion of the coastal system resulting from coastal construction. Such impacts are caused by coastal construction that have which has a reasonable potential of causing a measurable interference with the natural functioning of the coastal system, damage to existing structures or properties, or denial or restriction of lateral beach access. The active portion of the coastal system extends offshore to the seaward limit of sediment transport and includes ebb tidal shoals and offshore bars.

(b) No change.

(c) “De Minimis Minimus Impacts” are impacts that are have been determined by the Department to be insignificant and do not have a measurable adverse impact not of a substantial nature either individually or cumulatively.

(d) “Significant Adverse Impacts” are adverse impacts of such magnitude that they are expected to alter the coastal system in a manner that results result in either:

1. An increase in the rate of erosion;

2. Rendering the coastal system unstable or vulnerable to the effects of coastal storms or interfere with its ability to recover from the effects of a coastal storm; or,

3. A take, as defined in subsection 62B-41.002(46) 62B-41.002(48), F.A.C., unless, as provided for by the provisions of paragraph 379.2431(1)(f), F.S.; or

4. An inconsistency with the provisions of paragraph 379.2431(1)(c)1., F.S.

(e) “Minor Impacts” are those impacts associated with coastal construction which are not considered by the Department to be adverse impacts due to their magnitude or temporary nature.

(f) “Other Impacts” are those impacts associated with coastal construction which may result in damage to existing structures or properties, or denial of lateral beach access.

(20) through (22) renumbered (19) through (21) No change.

(22)(23) “Marine Turtle” is any turtle, including all life stages from egg to adult, found in Florida waters or using the beach as nesting habitat, including the following species: loggerhead Caretta caretta (Caretta caretta loggerhead), green Chelonia Mydas (Chelonia Mydas green), leatherback Dermochelys coriacea (Dermochelys coriacea leatherback), hawksbill Eretmochelys imbricata (Eretmochelys imbricata hawksbill), and Kemp’s ridley Lepidochelys kempi (Lepidochelys kempi Kemp’s ridley).

(24) through (26) renumbered (23) through (25) No change.

(26)(27) “Mitigation” is an action or series of actions taken by the applicant that will offset alleviate adverse impacts to the coastal system caused by a proposed or existing coastal construction project.

(32)(33) “Notice to Proceed” is the formal notification from the Department Office authorizing permitted coastal construction to commence.

(34) “Office” is the Office of Beaches and Coastal Systems of the Department of Environmental Protection. The head of the Office is the Director.

(35) through (43) renumbered (33) through (41) No change.

(42)(44) “Staff” is the staff of the Bureau Office of Beaches and Coastal Systems.

(45) through (46) renumbered (43) through (44) No change.

(45)(47) “Structure” is the composite result of putting together or building related components in an ordered scheme. For purposes of this chapter, “structure” includes:

(a) through (c) No change.

(d) “Minor Coastal Structures” are structures designed to be expendable and to minimize resistance to water forces associated with high frequency coastal storms, and to break away when subjected to such forces and are of such size or design that they have a de minimis minor impact on the coastal system.

(e) through (f) No change.

(48) through (49) renumbered (46) through (47) No change.

Rulemaking Specific Authority 161.041(1), 161.055(1),(2), 161.085(5) 379.2431 FS. Law Implemented 161.011, 161.021(1),(6),(7),(9), 161.041(1), 161.042, 161.051, 161.085(1),(2) 161.0535, 161.054, 161.061, 161.071, 161.081, 161.088, 161.091, 161.101, 161.111, 161.141, 161.142(1),(2),(5), 161.143(1), 161.151(3) 161.161(1), 161.163, 379.2431(1) 161.181, 161.191, 161.201, 161.211, 161.212, 379.407 FS. History–New 8-23-92, Formerly 16B-41.002, Amended 10-23-01,_________.

 

62B-41.003 General Prohibitions.

(1) No change.

(2) No coastal construction shall be allowed if, after considering any proposed mitigation plan, the proposed project as a whole it will result in a significant adverse impact.

(3) No coastal construction shall interfere, except during construction, with the use by the public of any area of a beach seaward of the mean high-water line (or an established erosion control line) unless the Department determines such interference is unavoidable for purposes of protecting the beach or any endangered upland structure determined to be eligible pursuant to the criteria listed in subsection 62B-41.005(6), F.A.C. If interference with public access is unavoidable, the applicant shall provide comparable alternative access.

(4) No coastal construction shall be allowed to result in a take of marine turtles, as defined in subsection 62B-41.002(46), F.A.C., unless, as provided for by the provisions of Section 379.2431(1)(h), F.S.

Rulemaking Specific Authority 161.041(1), 161.055(1),(2) 161.051, 161.061, 161.121, 379.2431(1) FS. Law Implemented 161.021(1), 161.041(1),(2), 379.2431(1) 161.042, 161.141, 161.142, 379.407(1) FS. History–New 8-23-92, Formerly 16B-41.003, Amended 10-23-01,________.

 

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

(1) No change.

(2) Coastal construction authorized by the Department pursuant to Chapter 62B-41, F.A.C., shall have a net positive benefit to the coastal system resulting from the project’s impacts, as demonstrated by the applicant, taking into account the considerations and requirements of Section 161.041, F.S., and when proposing inlet construction and maintenance, the considerations and requirements of Section 161.142, F.S. Coastal construction authorized under this chapter shall be limited. The necessity to conduct such coastal construction shall be stated and fully justified by the applicant. Further, the potential benefits or impacts to the coastal system shall be clearly identified.

(3) through (4) No change.

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

(6)(a) through (b) No change.

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

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

(e) It is demonstrated that after considering any proposed mitigation plan, the proposed project as a whole there will not cause a be no significant adverse impact.

(7) through (10) No change.

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

(a) All impacts are avoided or minimized to the greatest extent practicable, including consideration of less impactive alternatives Significant adverse impacts will not occur as a result of the activity; and

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

(b) A less impactive alternative to achieve the proposed project purpose is not practicable; and

(c) The project will provide public benefits including:

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

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

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

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

5. Being consistent with an adopted inlet management plan and the statewide strategic beach management plan, where applicable.; or

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

(d) The project is required to relieve severe public hardship caused by a major natural disaster.

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

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

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

(c) Restore water quality in disturbed coastal ecosystems to acceptable Department of Environmental Protection Water Quality Standards;

(d) Not result in a significant adverse impact; and

(e) Provide public benefits as described in paragraph 62B-41.005(12)(c), F.A.C.

(13) Maintenance of existing altered inlets and modification of existing unstabilized altered inlets are not subject to the requirements of subsections 62B-41.005(11) and 62B-41.005(12), F.A.C. shall be permitted in accordance with this chapter.

(14) through (16) No change.

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

(18) No change.

Rulemaking Specific Authority 161.041(1), 161.055(1), (2), 161.085(5) 379.407 FS. Law Implemented 161.041(1), (2), (3), (4), 161.042, 161.051, 161.055(1),(2), 161.061(1),(2), 161.085(1),(2), 161.088, 161.091, 161.142(1), (2), (5), (6), (7), 161.143(1), 161.144, 161.163, 379.2431(1) 379.407 FS. History–New 8-23-92, Formerly 16B-41.005, Amended 10-23-01,________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Mimi Drew, Deputy Secretary
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Michael Sole
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 11, 2010
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: May 22, 2009