The Beach Management Funding Assistance Program works with local sponsors to achieve protection, restoration, and nourishment of the sandy beaches fronting the Atlantic Ocean, Gulf of Mexico, and Straits of Florida, and for the management of inlets ...

 

DEPARTMENT OF ENVIRONMENTAL PROTECTION

RULE NOS.:RULE TITLES:

62B-36.002Definitions

62B-36.005Annual Funding Requests

62B-36.006Project Ranking Procedure

PURPOSE AND EFFECT: The Beach Management Funding Assistance Program works with local sponsors to achieve protection, restoration, and nourishment of the sandy beaches fronting the Atlantic Ocean, Gulf of Mexico, and Straits of Florida, and for the management of inlets to replicate the natural drift of sand interrupted by improved, modified, or altered inlets. The Department requests funding from the Legislature to implement the program and this Rule Chapter establishes funding request procedures, project ranking criteria, cost sharing procedures, and project agreement requirements. The amendment revises the project ranking criteria that the Department must consider in determining and assigning annual funding priorities for beach management and erosion control projects and with respect to managing inlets.

SUMMARY: The amendment to this Rule Chapter is a result of changes made to the beaches funding program in 2019, as codified in Chapter 2019-122, Laws of Florida. The amendment revises the project ranking criteria that the Department must consider in determining and assigning annual funding priorities for beach management and erosion control projects and with respect to managing inlets. The changes are intended to conform with statutory authority under 161.101, F.S. for the Department to evaluate and distribute funds from the program to local governments and municipalities to restore and nourish critically eroded beaches.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The agency has determined that this rule will not have an impact on small business or likely increase directly or indirectly regulatory cost in excess of $200,000 in the aggregate within one year after 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: The proposed amendments are not regulatory in nature, and therefore do not impose any costs.

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: 161.101(21), 161.143(6) 161.161(7), F.S.

LAW IMPLEMENTED: 161.088, 161.091(1), 161.101(1),(2), (8), (9), (11), (12), (14), (15), (16), (17), (18), (19), (20), 161.142(1), (2), (4), (5), (6), (7), 161.143(1), (2), (3), (4), (5), 161.161(1), (2), (6), 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 24, 2020, beginning at 2:00 p.m. and ending no later than 5:00 p.m.

PLACE: Via webinar at https://attendee.gotowebinar.com/register/712939140094568717.

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: Hanna Tillotson at [phone].

If you are hearing or speech impaired, please contact the agency by 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: Hanna Tillotson, Environmental Administrator, [phone], [e-mail], 3900 Commonwealth Boulevard, MS 3601, Tallahassee, FL 32399-3000.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

62B-36.002 Definitions.

(1) No change.

(2) “Area of Inlet Influence” is the distance along the adjacent sandy shorelines where sediment transfer and shoreline location are is physically altered due to the presence of the inlet and any associated structures or improvements which alter the natural functioning of the inlet. The area of inlet influence will be determined using a feasibility or an inlet management study.

(3) through (11) No change.

(12) “Project Boundary” for ranking purposes, means the sandy shoreline fronting the Atlantic Ocean, Gulf of Mexico, or the Straits of Florida, of the beach management project and the first row of residential or commercial development immediately landward of the beach vegetation line or beach erosion control line (ECL), whichever is further landward.  The first row of development may be separated from the shoreline by recreational amenities, roadways or parking areas as long as there is dedicated public access. The area of inlet influence shall be the project boundary for inlet projects.

(13) “Project Length” is the along-shore length of shoreline in the project design, including tapers, or as otherwise delineated by the ECL.

(13) through (15) renumbered as (14) through (16) No change

(17) “Rank Score” is calculated by dividing a project’s rank (ni), or position of its value in a sequential list of all project values, by the total number of values included in the evaluation (N), then multiplying by the maximum points available for the metric, such that:

The list of values shall be in an order (e.g., ascending or descending, depending on the metric) that assigns the value worth the most points as N. If two or more projects have an equal value, these projects will receive the same score.

(16) through (18) renumbered as (18) through (20) No change.

(21) “Threatened or endangered species” is an animal species that is identified as threatened or endangered by the United States Fish and Wildlife Service or National Marine Fisheries Service.

Rulemaking Authority 161.101(21), 161.143(6), 161.161(7) FS. Law Implemented 161.088, 161.091(1), 161.101,(1), (2), (8), (9), (10), (11), (12), (14), (15), (16), (17), (18), (19), (20), 161.142(1), (2), (4), (5), (6), (7), 161.143(1), (2), (3), (4), (5), 161.161(1), (2), (6) FS. History–New 6-10-83, Formerly 16B-36.02, 16B-36.002, Amended 12-25-03, 8-5-13, __________.

 

62B-36.005 Annual Funding Requests.

(1) Annual funding requests for cost sharing of beach management projects shall be submitted by the local sponsor to the Department. Projects previously submitted, but not funded, and projects with cost overruns may be included. Local sponsors who have received funding for projects in past fiscal years and who anticipate requesting funding in subsequent years shall update the Local Long Range Budget Plan as to costs and scheduling. The Local Long Range Budget Plan shall be consistent with the Strategic Beach Management Plan and have a 10-year minimum time frame. The annual funding request submittal shall be in electronic format and include:

(a) A detailed project description, including project boundaries by Department range monuments, methods used in conducting the project, and data or analysis to apply the ranking criteria required by Rule 62B-36.006, F.A.C.

(b) A map of the project area depicting the public beach access, the public parking within one quarter mile of each beach access, public restroom facilities, the public lodging establishments, and comprehensive plan designations for current land use of commercial and recreational properties within the project boundary, and the one-quarter mile buffer and the values of properties that are enclosed or intersected by the buffer.

(c) Current license documentation on public lodging establishments within the project boundaries, including the number of units available, if used to document public access.

(d) A current or updated resolution from the local sponsor’s governing board which includes statements of their support of the project, willingness to serve as the local sponsor, and a statement of the extent of their ability and willingness to provide the necessary local funding share to implement the project. For projects proposing regionalization, local sponsors must provide an executed interlocal agreement, or comparable documentation, outlining the nature of regionalization.

(e) A schedule of activities by project phase.

(f) The annual project cost estimates indicating the federal, state, and local cost share, with sufficient supporting detail depicting costs of project phases. For projects with federal involvement, documentation to verify authorization, cost share, and funding status must be provided. For projects proposing cost-effectiveness, a project design analysis must be provided.

(g) The estimated volume of advanced nourishment lost since the last sand placement event of a beach restoration or nourishment project as measured above the Mean High Water Line, (MHWL), and for construction projects, the proposed volume of beach fill placement.

(2) Annual funding requests for cost sharing of inlet management projects shall be submitted by the local sponsor to the Department. Projects previously submitted, but not funded, and projects with cost overruns may be included. Local sponsors who have received funding for projects in past fiscal years and who anticipate requesting funding in subsequent years shall update the Local Long Range Budget Plan as to costs and scheduling. The Local Long Range Budget Plan shall be consistent with the Strategic Beach Management Plan and have a 10-year minimum time frame. The annual funding request submittal shall be in electronic format and include:

(a) A map depicting the inlet.;

(b) A description of the sediment budget and area of inlet influence from an adopted Inlet Management Plan or feasibility-level study.;

(c) A detailed project description, including project boundaries by Department range monuments, methods used in conducting the project, and data or analysis to apply the ranking criteria required by Rule 62B-36.006, F.A.C.;

(d) A current or updated resolution from the local sponsor’s governing board which includes statements of their support of the project, willingness to serve as the local sponsor, and a statement of the extent of their ability and willingness to provide the necessary local funding share to implement the project.;

(e) A schedule of activities by project phase.; and,

(f) The annual project cost estimates indicating the federal, state, and local cost share, with sufficient supporting detail depicting costs of project phases. For projects with federal involvement, documentation to verify funding status must be provided.

(g) For projects that propose cost-effectiveness for increased bypassing, a project design analysis to demonstrate the anticipated increase in bypassing must be provided. For projects that propose cost-effectiveness of using inlet sand, an opinion of probable cost per unit volume of the inlet and all other sand sources, certified by a licensed professional engineer must be provided.

(3) through (4) No change.

Rulemaking Authority 161.101(21), 161.143(6), 161.161(7) FS. Law Implemented 161.088, 161.091(1), 161.101(1), (2), (8), (9), (11), (12), (14), (15), (16), (17), (18), (19), (20), 161.142(1), (2), (4), (5), (6), (7), 161.143(1), (2), (3), (4), (5) 161.161(1), (2), (6) FS. History–New 6-10-83, Formerly 16B-36.05, Amended 4-27-86, Formerly 16B-36.005, Amended 12-25-03, 8-5-13, ______.

 

Substantial rewording of Rule 62B-36.006, F.A.C. follows. See Florida Administrative Code for present text

62B-36.006 Project Ranking Procedure.

(1) Beach Management Projects. Eligible projects will receive a total point score by the Department based on the following criteria, equally weighted within the following specified tiers:

(a) Tier 1 accounts for 20 percent of the total score and consists of the tourism-related return on investment and the economic impact of the project.

1. Return on investment. This criteria consists of the ratio of the sum of the county-wide tourist development tax and tourism-related sales tax revenue for the most recent calendar year to the amount of state funding requested for the proposed construction project. Tourist development tax and tourism-related sales tax data will be derived from the Department of Revenue for the county that has jurisdiction over the project area. Tourism-related sales tax revenue is defined as taxes on hotel/motel accommodations, rooming houses, camps, and other lodging places. The calculation includes the amount of state funds requested for the construction and first year post-construction monitoring phases of the project. If the proposed project does not request construction funds, then the project is not eligible for points. The rank score shall be calculated using the ratios of all projects, for a maximum score of 10 points, with greater return on investment ratios receiving a higher score.

2. Economic impact. This criteria consists of the ratio of the sum of the county-wide tourist development tax and tourism-related sales tax revenue for the most recent calendar year to all county-wide sales tax revenues for the most recent calendar year. Tax data will be derived from the Department of Revenue for the county that has jurisdiction over the project area. Tourism-related sales tax revenue is defined as the taxes on hotel/motel accommodations, rooming houses, camps, and other lodging places. The rank score shall be calculated using the ratios of all projects, for a maximum score of 10 points, with greater economic impact ratios receiving a higher score.

(b) Tier 2 accounts for 45 percent of the total score and consists of the following criteria:

1. The availability of federal matching dollars, considering federal authorization, the federal cost-share percentage, and the status of the funding award.

a. Federal authorization. Projects with a United States Army Corps of Engineers (USACE) Civil Works congressional authorization for the requested project phase shall receive five points. Projects with a signed USACE Chief’s report for authorization of the requested project phase shall receive three points.

b. Federal cost share. Projects with a federal cost share percentage by the USACE for the proposed project phase(s). The federal cost share percentage for each project shall be divided by the highest cost share percentage of all projects, and multiplied by five, for a maximum score of five points. Federal cost share percentages from the Flood Control and Coastal Emergency funds or Federal Emergency Management Agency (FEMA) funds are not included.

c. Federal funds available. Projects with a current USACE project agreement executed for the requested project phase, projects listed in a USACE work plan, or FEMA projects with an approved Project Worksheet shall receive five points. Projects that are included in the Congressional Appropriations Act shall receive two points.

2. The storm damage reduction benefits of the project based on the following considerations:

a. Current conditions. Projects where the volume of advanced nourishment lost since the most recent beach nourishment, as measured above the mean high water elevation, shall receive a score equal to the following: , where L = the fraction of advance fill loss, for a maximum score of eight points. If the project area has not been restored, the Department will use historical mean high water data files contained in the Department’s Historic Shoreline Database to calculate the average rate of erosion during a representative period after 1972, but prior to any beach fill placement in the project area. Projects shall receive four points for one foot-per-year of erosion and one point for each additional half-foot of annual erosion up to a maximum score of eight points.

b. Threat to upland development. Projects where existing upland development is at or seaward of the projected erosion limit of a 25-year return interval storm event shall receive points based on the percentage of threatened properties within the project boundaries, multiplied by 10, for a maximum score of two points. Upland development on properties where the mean high water shoreline is seaward of the project design template, or where coastal armoring exists on a property, shall not be deemed threatened.

c. Value of upland property. The total value of all upland properties within one-quarter mile landward of the project’s ECL or, if not available, the MHWL, or a proposed project boundary alternative. The values of properties that are enclosed or intersected by the one-quarter mile buffer shall be retrieved from the Department of Revenue’s most current statewide database and the total value will be calculated in ArcGIS. Property values to be used are established by the property appraiser for ad valorem purposes (i.e., market value). The rank score shall be calculated using the total values of all projects, for a maximum score of five points, with greater total property value receiving a higher score.

3. The cost-effectiveness of the project based on the following considerations:

a. Cost-effectiveness as a function of cost per volume per mile per year. Cost calculations for the proposed construction event will include the construction phase costs of beach restoration or beach nourishment. Associated project mitigation and post-construction monitoring costs will not be included. The rank score shall be calculated using the costs for all projects requesting construction funds for the current funding year, for a maximum score of 10 points, with lower costs receiving a higher score.

b. Cost-effectiveness as a function of enhanced longevity; dune addition; innovative technology; and regionalization. Projects that have one of the following shall receive three points and projects that have two or more of the following shall receive five points: 1. propose structural or design components that could extend the beach nourishment interval; 2. incorporate new or enhanced dune structures or new or existing dune restoration and revegetation projects that reduce upland storm damage costs; 3. propose innovative technologies designed to reduce project costs; or 4. two or more local sponsors manage their projects together to conserve sand resources or reduce contracting cost, or projects that propose regional sediment management strategies and coordinate to conserve sand source resources and reduce project costs for scheduled beach nourishment purposes. Projects permitted under Rule 62B-41.0075, F.A.C., for Experimental Coastal Construction will qualify for innovative technology points.

(c) Tier 3 accounts for 20 percent of the total score and consists of the following criteria:

1. Previous state commitment and involvement in the project:

a. Previously funded phases. Projects where the Department has previously cost shared, reviewed, and approved a feasibility or design phase shall receive one point.

b. Total amount of previous funding. The total amount of state funding appropriated for projects from the Department’s Beach Management Funding Assistance Program through annual legislative and hurricane appropriations shall be summed for the previous 10 years. The rank score shall be calculated using the total amounts for all projects, for a maximum score of three points, with greater amounts of previous funding receiving a higher score.

c. Previous partial appropriation. Projects that have received a partial appropriation for the proposed project phase(s) within three years of completion shall receive one point.

2. The recreational benefits of the project based on the accessible beach area added by the project and public accessibility:

a. Accessible beach area. The accessible beach area (square feet) added or maintained by the project shall be defined as the alongshore length and cross-shore width, which are bound by the ECL along the landward edge and the MHWL contour along the seaward edge of the design profile. If the project does not incorporate a design profile, then the cross-shore width of accessible beach area shall be bound by the ECL along the landward edge and the historic pre-construction MHWL contour along the seaward edge. If an ECL does not exist, the pre-project MHWL used in the engineering and design of the beach restoration will be used as an alternative. Project area shall be divided by the average for all projects in their region (Gulf coast or Atlantic coast), multiplied by two, for a maximum score of two points.

b. Recreational benefits. The percentage of linear footage of property within the total project boundary that is zoned as recreational or open space, for commercial use, or to allow for public lodging establishment, or the equivalent, in the current local government land use map. Only properties fronting the project shoreline will be considered. Un-designated properties will be considered designated or zoned the same as the adjacent property designations. Street ends will be considered recreational if they provide access to the beach, in accordance with Rule 62B-36.002(15), F.A.C. The percentage shall be multiplied by three, for a maximum score of three points.

3. The extent to which the project mitigates the adverse impact of improved, modified, or altered inlets on adjacent beaches: Projects that provide supplemental nourishment to adjacent beaches needed to mitigate deficiencies in the annual target inlet sand bypassing quantity supplied by inlet management activities shall receive points based on the percent of the target quantity to be achieved by the supplemental nourishment, multiplied by five, for a maximum score of five points.

4. The degree to which the project addresses the state’s most significant beach erosion problems as a function of the linear footage of the project shoreline and the cubic yards of sand placed per mile per year: The volume per mile per year for projects requesting construction funds in a given year shall be compared by project region (Gulf coast or Atlantic coast). The calculation includes the volume of sand placement for the proposed project, the project length, and nourishment interval. The rank score shall be calculated using all project values within a given region, for a maximum score of five points, with greater volume per mile per year receiving a higher score.

(d) Tier 4 accounts for 15 percent of the total score and consists of the following criteria:

1. Increased prioritization of projects that have been on the Department’s ranked project list for successive years and that have not previously secured state funding for project implementation: Projects requesting funds for the same project phase(s) as the previous year, in which the request did not secure state funding, shall be awarded three points for the first successive request and five points for two or more years of successive requests, respectively. If the successive request adds the construction phase, then only one point shall be awarded.

2. Environmental habitat enhancement: Projects within designated critical habitat areas for threatened or endangered species that are subject to extensive shoreline armoring or non-designated areas where extensive armoring threatens the habitat of such species shall receive three points. Critical habitat areas shall include Endangered Species Act federally-designated critical habitat (including critical habitat units excluded from federal designation due to inclusion in a Habitat Conservation Plan) for threatened and endangered species pursuant to Rule 62B-36.002(21), F.A.C. Armoring along projects within designated critical habitat areas shall be considered extensive if existing armoring and shoreline that is subject to armoring based on a 25-year storm threat is at least 30 percent of the project’s length. Armoring along projects within non-designated areas shall be considered extensive if at least 50 percent of the project’s length has existing armoring that threatens the habitat of such species. Projects that are eligible for three points as defined above may be eligible for an additional two points if the project exceeds best management practices to incorporate turtle-friendly designs and management strategies to protect resources or benefit critical habitat preservation.

3. The overall readiness of the project to proceed in a timely manner based on the following considerations:

a. Readiness to construct. Projects that have all of the following shall receive one point: active state and federal permits, acquired necessary easements, secured local funding, and an established ECL.

b. Active permits. Projects that have active state and federal permits as required for the proposed project phase(s) shall receive one point.

c. Easements acquired. Projects that have acquired all necessary easements for construction of the project shall receive one point.

d. Secured local funds. Projects that have secured the local funding necessary for the project shall receive one point.

e. Established ECL. Projects that have an established ECL shall receive one point.

If more than one project qualifies equally under the provisions of this subsection, the Department shall assign funding priority to those projects shown to be most ready to proceed.

(2) Inlet Management Projects. Local sponsors requesting funding for inlet management projects for the upcoming fiscal year will be ranked in priority order for the Department’s Local Government Funding Request. Eligible projects will be assigned a total point score by the Department based on the following criteria:

a. Sand reaching the inlet. Estimate of the annual quantity of beach-compatible sand reaching the updrift boundary of the improved jetty or inlet channel, quantified at the rate of one point per 20,000 cubic yards per year for the Atlantic coast inlets and one point per 10,000 cubic yards per year for the Gulf coast inlets, for a maximum score of 10 points.

b. Severity of erosion. The target inlet sand bypassing quantity, as adopted in an Inlet Management Plan (IMP) or an inlet component of the statewide Strategic Beach Management Plan, is a volumetric estimate of the severity of erosion to the adjacent beaches caused by the inlet. Projects shall receive one point per 10,000 cubic yards per year of the target inlet sand bypassing quantity for Atlantic coast inlets and one point per 5,000 cubic yards for Gulf coast inlets, for a maximum score of 10 points.

c. Balancing the sediment budget. Annual average bypassing volume to be placed on the adjacent eroding shorelines, divided by the annual bypassing objective, as determined by the IMP or a Department-approved study, will be multiplied by 10, for a maximum score of 10 points.

d. Increased bypassing improvements. The proposed annualized increase in bypassing of material from within the inlet system divided by the unmet annual bypassing objective, will be multiplied by 10, for a maximum score of 10 points. The unmet annual bypassing objective is equal to the volume of the annual bypassing objective less the current annualized bypassing volume using material from within the inlet system. Projects requesting construction phase funds for modest, cost-effective improvements are eligible for points in this category.

e. Cost-effectiveness of a proposed project using inlet sand. Cost-effectiveness is the difference in the cost per unit volume of sand made available by a proposed inlet management project versus an alternative source (such as an offshore source, or an inland source, whichever costs less). The cost-effectiveness is equal to one minus the unit cost of the proposed project divided by the alternate source, multiplied by 15, for a maximum score of 10 points. Projects requesting construction phase funds for a major inlet management project component are eligible for points in this category.

f. Inlet Management Plan.

1. Existing IMP. Projects that have an existing IMP or a Department-approved local-government-sponsored inlet study addressing the mitigation of an inlet's erosive effects on adjacent beaches shall receive five points.

2. Updated IMP. Projects that have an updated IMP or Department-approved local-government-sponsored inlet study addressing the mitigation of an inlet's erosive effects on adjacent beaches within the last five years shall receive five points.

3. New IMP. Projects proposing to develop a new inlet management study to be submitted to the Department for adoption of an IMP shall receive 10 points.

g. Enhanced longevity of proximate beach projects. Projects that enhance and maintain the performance and longevity of proximate beach nourishment projects within the area of inlet influence shall receive points based on the percentage of the annualized beach nourishment volume supplied by the average annual volume of inlet sand bypassing, multiplied by 10, for a maximum score of 10 points.

h. Criteria in 161.101(14) applicable to inlets.

1. Projects that have active state and federal permits as required for the proposed project activity shall receive one point.

2. Projects that have federal funds available for the proposed activities pursuant to the IMP shall receive three points.

3. The total amount of state funding appropriated for projects from the Department’s Beach Management Funding Assistance Program through annual legislative appropriations shall be summed for the previous 10 years. The rank score shall be calculated using the total amounts for all projects, for a maximum score of four points, with greater amounts of previous funding receiving a higher score.

4. Projects that have secured the local funding necessary for the project shall receive two points.

i. Inlet management studies will be ranked using only the criteria listed in subsections (a), (f), and (h). Ranking of inlet management studies will be a normalization based on the total point value of the above referenced criteria.

Rulemaking Authority 161.101(21), 161.143(6), 161.161(7) FS. Law Implemented 161.088, 161.091(1), 161.101(1), (2), (8), (9), (11), (12), (14), (15), (16), (17), (18), (19), (20), 161.142(1), (2), (4), (5), (6), (7), 161.143(1), (2), (3), (4), (5), 161.161(1), (2), (6) FS. History–New 6-10-83, Formerly 16B-36.06, 16B-36.006, Amended 12-25-03, 8-5-13, _________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Alex Reed, Director, Office of Resilience and Coastal Protection

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Noah Valenstein, Secretary, Department of Environmental Protection

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 22, 2020

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: October 14, 2019