The rule amendments will refine the requirements for permit applications for coastal construction projects below the mean high water line, revise procedures for issuance of such permits, and clarify conditions to authorize use of experimental ...

 

DEPARTMENT OF ENVIRONMENTAL PROTECTION

Beaches and Coastal Systems

RULE NO.:RULE TITLE:

62B-41.002Definitions

62B-41.003General Prohibitions

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

62B-41.0055Protection of Marine Turtles

62B-41.007Design, Siting and Other Requirements

62B-41.0075Experimental Coastal Construction

62B-41.008Permit Application Requirements and Procedures

PURPOSE AND EFFECT: The rule amendments will refine the requirements for permit applications for coastal construction projects below the mean high water line, revise procedures for issuance of such permits, and clarify conditions to authorize use of experimental coastal construction involving new technologies. These changes will update the rule to implement statutory changes, conform the rule to existing statutes, and address comments raised by the Joint Administrative Procedures Committee.

SUMMARY: Chapter 62B-41, F.A.C., contains criteria and procedures for the coastal construction components of a Joint Coastal Permit. The proposed amendments will refine the requirements for permit applications for coastal construction below the mean high water line, including inlet construction and maintenance, and beach restoration and nourishment; eliminate duplicative language contained in 62B-49, F.A.C.; incorporate electronic submittal language; and update terminology. Additionally, the rule amendments will implement a 2012 amendment to Section 161.041, F.S.; and address comments raised by the Joint Administrative Procedures Committee (JAPC) during the period 2009 – 2014.

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: 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. Based on the Department’s economic review, neither a SERC nor legislative ratification is required because the adoption of the proposed rules does not increase costs to the regulated public. The proposed rule amendments would decrease permitting costs to the regulated public in that they provide expedited and longer-term permitting, and serve to clarify, simplify and expedite permitting. Any person who wishes to provide information regarding the statement of estimated regulatory costs, or to provide a proposal for a lower cost regulatory alternative, must do so in writing within 21 days of this notice.

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

RULEMAKING AUTHORITY: 20.255, 161.041(1), (5), 161.055(1), (2), 161.082(5), 161.085(5) FS

LAW IMPLEMENTED: 20.255, 161.021(1), (6), (7), (9), 161.041(1), (2), (3), (4), (5), (7)(b), (8), 161.042, 161.051, 161.055(1), (2), 161.061, 161.082, 161.085(1), (2), 161.091, 161.142, 161.142(1), (2), (4), (5), (6), (7), 161.143(1), 161.144, 161.151(3), 161.161, 161.161(1), 161.163, 379.2431(1) 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 6, 2016, at 9:30 a.m.

PLACE: Department of Environmental Protection, Bob Martinez Building, Room 618, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400

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: Greg Garis at [phone]. 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: Greg Garis, Florida Department of Environmental Protection, 2600 Blair Stone Road, Mail Station 2500, Tallahassee, FL 32399-2400, telephone: [phone], e-mail: [e-mail]. (OGC No. 16-0102)

 

THE FULL TEXT OF THE PROPOSED RULE IS:

62B-41.002 Definitions.

(1) through (3) No change.

(4) “Armoring” is a manmade structure designed to either prevent erosion of the upland property or protect eligible structures from the effects of coastal wave and current action. Armoring includes certain rigid coastal structures such as geotextile bags or tubes, seawalls, revetments, bulkheads, retaining walls, or similar structures but does not include jetties, groins or other construction whose purpose is to add sand to the coastal system, alter the natural coastal currents or stabilize the mouths of inlets.

(5) through (9) No change.

(10) “Comparable Aalternative Aaccess” is public access provided by the applicant that is similar in size and functionality to the public access being replaced. Such access proposed by the applicant shall be within walking distance from the public access that was permanently lost due to the coastal construction project. Comparable alternative access must not expose the user to unsafe conditions, must be clearly identified, and must include authorization from the upland property owner.

(11) “Critical Habitat” is an area used by a threatened or endangered species, which has been designated by the U.S. Department of the Interior, as defined in paragraph 5, section 1532, title 16 U.S. Code, of the federal Endangered Species Act (The Act), as follows:

(a) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of the Act, (section 1533, title 16, U.S. Code), on which are found those physical or biological features essential to the conservation of the species and which may require special management considerations or protection.

(b) Specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of the Act, (section 1533, title 16, U.S. Code), upon a determination by the Secretary of the Department of the Interior that such areas are essential for the conservation of the species.

(12) through (42) renumbered (11) through (41) No change.

(42)(43) “Staff” is the staff of the Division of Water Resource Management Bureau of Beaches and Coastal Systems.

(44) through (48) renumbered (43) through (47) No change.

Rulemaking Authority 161.041(1), 161.055(1), (2), 161.085(5) FS. Law Implemented 161.021(1), (6), (7), (9), 161.041(1), 161.051, 161.085(1), (2), 161.142(1), (2), (5), 161.143(1), 161.151(3), 161.161(1), 161.163, 379.2431(1) FS. History–New 8-23-92, Formerly 16B-41.002, Amended 10-23-01, 11-17-11,         .

 

62B-41.003 General Prohibitions.

(1) through (3) No change.

(4) The Department shall deny any application for a coastal construction project that would result in a take of marine turtles, as defined in subsection 62B-41.002(47), F.A.C., unless, as provided for by the provisions of Section 379.2431(1)(h), F.S., (incidental take). However, if the Department issues a permit pursuant to Section 161.041(5), F.S., in advance of the issuance of an incidental take authorization, construction of permitted activities shall not begin until an incidental take authorization, as provided for in the Endangered Species Act, is effective.

Rulemaking Authority 161.041(1), 161.055(1), (2) FS. Law Implemented 161.021(1), 161.041(1), (2), (5), 379.2431(1) FS. History–New 8-23-92, Formerly 16B-41.003, Amended 10-23-01, 11-17-11,          .

 

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

(1) through (2) No change.

(3) The Department will determine whether to authorize coastal construction at any coastal location upon receipt of an application, pursuant to Chapter 62B-49, F.A.C. DEP Form 73-500 (effective 12-06), entitled “Joint Application for a Joint Coastal Permit and Authorization to Use Sovereignty Submerged Lands,” which is hereby incorporated by reference, from a property or riparian owner and upon consideration of the facts or circumstances, including:

(a) through (b) No change.

(c) Such other specific information or calculations as are necessary for the evaluation of the application.

Copies of DEP Form 73-500 may be obtained by writing to Department of Environmental Protection, 2600 Blairstone Road, MS 3544, Tallahassee, Florida 32399-2400 or by downloading from the Bureau’s web page www.dep.state.fl.us/beaches/ or at http://www.flrules.org/Gateway/reference.asp?No=Ref-00715.

(4) through (12) No change.

(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.  Except for ports listed in Section 403.021(9)(b), F.S, which must comply with Section 161.142(4), F.S., maintenance of inlets shall require on an average annual basis, placement of a quantity of beach-quality sand on adjacent eroding beaches that is equal to natural net annual longshore sediment transport.

(14) through (18) No change.

Rulemaking Authority 161.041(1), 161.055(1), (2), 161.085(5) 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), 161.091, 161.142(1), (2), (4), (5), (6), (7), 161.143(1), 161.144, 161.163, 379.2431(1) FS. History–New 8-23-92, Formerly 16B-41.005, Amended 10-23-01, 11-17-11,         .

 

62B-41.0055 Protection of Marine Turtles.

(1) No change.

(2) Coastal construction that results in a take, pursuant to Section 379.2431, F.S., or does not comply with the other provisions of this rule shall not be permitted. The Department will evaluate the following when making a determination:

(a) The estimated number of marine turtles and nests in the project area that would be impacted as a result of the coastal construction;

(b) The potential impacts of disturbance to marine turtles and nests as a result of the coastal construction; and

(c) The quality and suitability of the existing beach, including beach profile and substrate characteristics, for nesting within the area of the coastal construction.

(3) renumbered (2) No change.

(4) Coastal armoring structures shall not be constructed in Federally-designated critical habitat for marine turtles or between the northernmost and southernmost boundaries of the Archie Carr National Wildlife Refuge.

(5) through (6) renumbered (3) through (4) No change.

(5) If the marine turtle protection conditions of an incidental take authorization granted after the issuance of a permit are inconsistent with the Department’s permit, the Department shall amend the permit to be consistent with the incidental take authorization and FWC’s authority under the Coastal Zone Management program.

(7) renumbered (6) No change.

Rulemaking Authority 161.041(1), 161.055(1), (2) FS. Law Implemented 161.041(1), (2), (4), (5), 161.163, 379.2431(1) FS. History–New 8-23-92, Formerly 16B-41.0055, Amended 10-23-01,         .

 

62B-41.007 Design, Siting and Other Requirements.

(1) Permit applications for experimental coastal construction involving new technologies shall be reviewed in accordance with all applicable provisions of this chapter and the following special criteria:

(a) No change.

(b) New coastal armoring structures and major reconstruction of existing structures shall be sited and designed to:

1. Provide only that level of protection authorized herein. For nonconforming habitable major structures, protection may be provided for the erosion impacts of up to a 10-year return interval storm event. When closing the gap in a line of existing armoring of 250 500 feet or less, protection may be provided for the erosion impacts of the lesser of the strengths of the adjacent armoring structures or a 15-year event, whichever is less. For other eligible structures, protection may be provided from the erosion impacts of up to a 25-year return interval storm event. Designated hurricane evacuation routes, public safety facilities and historical sites of national significance may be provided protection of up to a 50-year return interval storm event, if feasible;

2. through 5. No change.

(2) The Department may confer with a special scientific third party consultant to assist in the review of such proposed projects, to oversee the experiments and to provide an assessment of results and appropriate recommendations.

(a) through (i) No change.

(j) To protect the environmental functions of Florida’s beaches, only beach compatible fill shall be placed on the beach or in any associated dune system. Beach compatible fill is material that maintains the general character and functionality of the material occurring on the beach and in the adjacent dune and coastal system. Where adequate geotechnical data is available to establish the characteristics of native beach sediment at the placement site, fill material shall be similar to the characteristics of native beach sediment. Native beach sediment refers to the material within the coastal system at the fill placement site prior to the original beach restoration. Such material shall be predominately of carbonate, quartz or similar material with a particle size distribution ranging between 0.062mm (4.0) and 4.76mm (-2.25) (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 native beach sediment or to the material in the existing coastal system at the disposal site and shall not contain:

1. through 5. No change.

(k) through (m) No change.

(n) The beach fill template shall be designed to account for naturally occurring variables that are reasonably expected to occur, such as the waves and tides of significant winter weather events and impacts to the beach fill from the occurrence of high frequency storm events at the project site. For safety, all coastal structures shall be marked in accordance with Section 327.40, F.S.

(3) No change.

(4) The applicant shall provide the Department with certification by a professional engineer registered in the State of Florida that the design plans and specifications, studies and other coastal process analyses submitted as part of the permit application are in compliance with the standards established in this chapter.

(5) For maintenance activities of previously permitted and constructed beach nourishment and inlet management projects for which there are no substantial changes in project scope, the applicant will submit monitoring data and analyses that demonstrate that the project has performed according to design expectations.

Rulemaking Authority 161.041(1), 161.055(1), (2), 161.085(5) FS. Law Implemented 161.041(1), (2), (3), (4), (7)(b), (8), 161.042, 161.051, 161.085(1), (2), 161.091, 161.142(1), (2), 161.163, 379.2431(1) FS. History–New 8-23-92, Formerly 16B-41.007, Amended 10-23-01,         .

 

62B-41.0075 Experimental Coastal Construction.

(1) No Change.

(2) The Department may confer with a special scientific third party consultant to assist in the review of such proposed projects, to oversee the experiments, ensure the adequacy of the experimental test plan, and to provide an assessment of results and appropriate recommendations, including the extent to which the experiment achieved the objectives of the test plan and the need for further tests of the technology. Once the performance of a new technology has been evaluated under an experimental coastal construction process, the technology would no longer be eligible for an experimental Joint Coastal Permit.

(3) No change.

(a) through (j) No change.

(k) An economic comparison (to include the costs of design, construction, monitoring, maintenance, and mitigation) of the experimental project to traditional projects with similar performance objectives.

(4) through (6) No change.

(7) If the experiment is determined to be ineffective in addressing a coastal erosion problem, or is expected to cause a significant adverse impact, all structures shall be removed. Removal or modification may also be ordered pursuant to Section 161.061, F.S., if the project becomes unnecessary or obsolete due to the scheduled construction of a beach nourishment, beach restoration, sand transfer, or other project, or interferes with such projects. paragraph 62B-41.015(1)(l), F.A.C.

(8) No change.

(9) All new technologies shall be designed to be stable and durable in the coastal environment when subject to the erosion, scour and loads accompanying a twenty (20) year return interval storm event. Should the experimental project become dislocated or in disrepair, during or after the initial three year period, it shall be the responsibility of the permittee to have the structures repaired or removed. If the permittee fails to repair or relocate the project within 90 days from receipt of notification of the need for such from the Department, the permittee shall be ordered to remove the project.

(10) If the Department issues a notice under paragraphs (7), (8), or (9), the Department will provide the permit holder with notice of the agency action and rights under Sections 120.569 and 120.57, F.S.

Rulemaking Authority 161.041(1), 161.055(1), (2) FS. Law Implemented 161.041(1), (2), (3), (4), 161.042, 161.051, 161.061(1), (2), 161.082, 161.161, 161.163, 379.2431(1) FS. History–New 8-23-92, Formerly 16B-41.0075, Amended 10-23-01,         .

 

62B-41.008 Information Regarding Permit Application Requirements and Procedures.

(1) A Joint Coastal Permit, pursuant to 62B-49, F.A.C., is required in order to conduct any coastal construction activities in Florida. A person required to obtain a joint coastal permit shall submit an application to the Department of Environmental Protection, 2600 Blairstone Road, MS 3544, Tallahassee, Florida 32399-2400. The permit application form, entitled “Joint Application for Joint Coastal Permit, Authorization to Use Sovereign Submerged Lands, Federal Dredge and Fill Permit” (DEP Form 73-500, effective 6-95), is hereby incorporated by reference. Copies of the form may be obtained on the Department internet site, by writing to the Department of Environmental Protection, at the above address or by telephoning the Department at [phone]. All information in conjunction with an application shall only be submitted by the applicant or the duly authorized agent. The information listed below provides specific details for application requirements related to this chapter: The application shall contain the following specific information:

(a) Name, mailing address and telephone number of the applicant and any duly authorized agent, and the signature of the applicant.

(b) A list of the names and addresses of owners of all riparian property within 1,000 feet of the proposed coastal construction, from the latest county tax roll. If the property is under cooperative or condominium ownership, the name and mailing address of the cooperative or condominium association will be adequate.

(c) Written evidence of ownership of any property which will be used in carrying out the project, or authorization for such use from the property owner which is upland of mean high-water, or below mean high-water but not sovereign land of the State of Florida.

(d) A legal description of all property involved including sovereign submerged land used in carrying out the project.

(e) If the permit is requested by an agent for the applicant, authorization from the applicant for the agent to act on their behalf.

(f) A description of the proposed coastal construction and an analysis of its expected effect on the coastal system.

(g) Written evidence, provided by the appropriate governmental agency having jurisdiction over the coastal construction, that the proposed coastal construction, as submitted to the Department, is consistent with the state-approved Local Comprehensive Plan.

(a)(h) A Two copies of a topographic and bathymetric survey drawing of the proposed project site. The drawing shall be submitted in a Geographical Information System format (.shp, .dwg, .dxf., or other GIS compatible format) using layers for the specific information listed below. The topographic and bathymetric information depicted in the drawing shall be from a survey performed within six months prior to the date of application. A more recent survey will be required in the event conditions have significantly changed. The survey drawings shall include the following specific information:

1. Topographic and bathymetric data, which shall be provided as offshore and onshore cross-sectional profiles in ASCII files containing raw x, y, and z profile data points, and as a contour map. Profiles shall extend from the crest of the first dune, dune escarpment or rigid coastal structure to at least 1000 feet seaward of the seaward extent of the proposed project or to the distance of the depth of closure, whichever is more seaward, unless a more seaward limit is specified by the Department to determine the active zone of influence of the proposed project. Profiles shall be taken at least every 500 feet along the proposed project site and for a distance up to at least 1000 feet laterally along the shoreline adjacent to both ends of the proposed project site. If the topography and bathymetry are varied and complex, profile lines of a higher density, or which are longer than otherwise required shall be provided. The contour map shall include 1 foot contour intervals. A bathymetric survey including a one foot contour map or a contour map of sufficient resolution to adequately describe the area shall be provided for all borrow sources or areas to be excavated with profiles every fifty feet or greater and extending at least one hundred feet beyond the limits of the area to be excavated.

2. All elevations, referenced to N.G.V.D. and, when available, N.A.V.D.

3. through 13. No change.

14. Any other site-specific information required by the staff under paragraph (o) below.

(i) For rigid coastal structures, flexible coastal structures and inlet-related structures, the information required under paragraphs 62B-41.008(1)(h), (j) and (k), F.A.C., shall be provided on 8 1/2-inch by 14-inch paper.

(j) An engineering description or as-built drawings, if available, of any existing structures on the project site which may be directly or indirectly affected by, or which may directly or indirectly affect, the proposed project.

(k) Two complete sets of construction plans and specifications for the proposed coastal construction, certified by an engineer duly registered pursuant to Chapter 471, F.S. The plans shall include the following:

1. A plan view of the proposed coastal construction with the mean high-water line, and the erosion control line, if established pursuant to Sections 161.141-.211, F.S., extending at least 100 feet on each side of the proposed coastal construction, and a plan view of any area of proposed excavation with inlet shorelines indicated.

2. A sufficient number of elevation views of the proposed coastal construction to adequately describe the project, with the mean high-water line and the erosion control line (if one is established) indicated.

3. Details of construction, including materials and general construction procedures and equipment to be used.

4. Permit applications for inlet excavation, beach restoration, or nourishment shall include:

a. An analysis of the native sediment and the sediment at the proposed borrow site(s). The analysis shall demonstrate the nature of the material, quantities available, and its compatibility with the naturally occurring beach sediment pursuant to paragraph 62B-41.007(2)(j), F.A.C. The sediment analysis and volume calculations shall be performed using established industry standards and be certified by a Professional Engineer or a Professional Geologist registered in the State of Florida. Certification shall verify that a quantity of material sufficient to construct the project is available at the borrow site(s) which meets the standard in paragraph 62B-41.007(2)(j), F.A.C., and

b. Quality / control/assurance plan that will ensure that the sediment from the borrow sites to be used in the project will meet the standard in paragraph 62B-41.007(2)(j), F.A.C.

(l) An anticipated construction schedule.

(b)(m) Demonstration of consistency with the adopted statewide strategic beach management plan, an inlet management plan, or a proposed draft inlet management plan in accordance with subsection 62B-41.005(16), F.A.C. If not included in the inlet management plan the applicant will provide the following:

1. No Change.

2. A sediment budget for the inlet; and an inlet sand bypassing objective that balances the sediment budget between the inlet and the adjacent eroding beaches within the area of inlet influence;

3. through 5. No change.

6. The influence of existing manmade structures on coastal littoral processes;

7. through 9. No change.

10. A description demonstration of the anticipated public benefits of the coastal construction.

(n) Written authorization for any duly-authorized member of the Department staff to enter upon any property to be used in carrying out the project, for the purpose of evaluating site conditions prior to final processing of the permit application.

(o) Information required to assess potential impacts to marine turtles, nests and their habitat.

(p) A written statement providing the need and justification for the potential impacts to the coastal system which may be caused by the proposed coastal construction.

(q) renumbered (c) No change.

(2) Any of the requirements contained in paragraph 62B-41.008(1)(a) or (b) 62B-41.008(1)(f), (h), (i), (j), (k), (l) or (m), F.A.C., will be waived if, the Department determines that the information is unnecessary for a proper evaluation of the proposed work.

(3) Applications for permits, permit modifications or long-term maintenance renewals shall be accompanied by a fee, as set forth in Rule 62B-41.0085, F.A.C.

(3)(4) If the processing of the application is prolonged, or if a storm event is known to have altered the shoreline such that the staff determines that the topographic and bathymetric survey data is no longer adequate to complete its analysis, then an updated survey shall be required as specified in paragraph (1)(h) above. In the event that an updated survey is required, the application shall be treated as an amended application pursuant to subsection 62B-41.0085(3), F.A.C., and as a substantial revision, pursuant to subsection 62B-49.005(5), F.A.C.

(5) Prior to completing the application, the applicant must obtain any easements or other authorizations necessary to conduct the coastal construction from the Department of Environmental Protection, Division of State Lands; however, for permits which must be approved by the Board of Trustees of the Internal Improvement Trust Fund, the application will be considered complete when all required information has been provided and the Division of State Lands’ proposed staff recommendation to the Trustees has been provided to the Office.

Rulemaking Authority 20.255, 161.041(1), 161.055(1), (2) FS. Law Implemented 20.255, 161.041(1), (2), (3), (4), (7)(b), 161.042, 161.051, 161.055(1), (2), 161.142, 379.2431(1) FS. History–New 8-23-92, Formerly 16B-41.008, Amended 10-23-01,                             .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: John A. Coates, P.E., Director, Division of Water Resource Management

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Jonathan P. Steverson, Secretary

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 22, 2016

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: May 16, 2016