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Florida Coastal Construction Permitting

Florida Coastal Construction Permitting. By Andrew Baumann, Esq. Lewis, Longman & Walker, P.A. abaumann@llw-law.com. The State of Florida Protects its Beach and Dune System Fla . Stat. § 161.053 (2013). Beach and Dune System Protective Value.

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Florida Coastal Construction Permitting

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  1. Florida CoastalConstruction Permitting By Andrew Baumann, Esq. Lewis, Longman & Walker, P.A. abaumann@llw-law.com

  2. The State of Florida Protectsits Beach andDune SystemFla. Stat. § 161.053 (2013)

  3. Beach and Dune System Protective Value Natural buffer or barrier against coastal storms Reduces upland flooding Reduces undermining of structures from erosion Dissipates wave energy

  4. Coastal construction activities are regulated by the State to prevent imprudent construction to protect: • People who live there • Endangered species • Tourism • Public Access

  5. Coastal Permitting is “Regulation” • NOT • “Prohibition”!

  6. Mean High Water Line (MHWL) & 50-Foot Setback • Thirty-Year Erosion Projection Line • Coastal Construction Control Line (CCCL) LINES INTHE SAND:

  7. What is a CCCL? The Coastal Construction Control Line (CCCL) is the regulatory line established on a county by county basis …which defines “that portion of the beach-dune system subject to severe fluctuations based on a one-hundred-year storm surge, storm waves, or other predictable weather conditions.” (Fla. Stat. § 161.053 (2013)) Defines the jurisdictional limits for construction or excavation activities which require authorization from the DEP Established on a County-by-County basis Supersedes the 50-Foot Setback Line

  8. What Counties Have a CCCL?

  9. Mean High Water Line (MHWL) and 50-Foot Setback(Fla. Stat. § 161.052 (2013)) • 1970 • First Regulatory Control Line • Construction Along Florida’s Coast • Excludes Bays, Inlets, Rivers, etc. • Only Sandy Beaches • Adopted as Stop-Gap Program before CCCL Regulatory Program

  10. Proposed Construction – Seaward of the MHWL(Fla. Stat. § 161.041(1) (2013)) • Any coastal construction requires a permit from DEP • Also requires proprietary authorization for use of SSL • Note: Adjustment, Alteration or Removal of Existing Structures Ordered by DEP (Fla. Stat. § 161.061 (2013))

  11. Thirty-Year Erosion Projection Line Fla. Stat. § 161.053(5)(b) (2013)) • Forecast of Shoreline Recession • Based on Historical Measurements • Site Specific Basis • Several Factors Considered by DEP in Making Determination • (Fla. Admin. Code Ann. r. 62B-33.024(2) (2013))

  12. Proposed Construction – Seaward of the Thirty-Year Erosion Projection LineLine of Prohibition — Almost • Repairing, Rebuilding, Relocation of Existing Structure (Fla. Stat. § 161.053(12)(a) (2013)) • Single Family Homes (Fla. Stat. § 161.053(5)(c) (2013))

  13. Can One Build or Rebuild Seaward of the CCCL? YES Construction Activities are NOT prohibited seaward of the CCCL. However, “...(s)pecial siting and design considerations shall be necessary seaward of established coastal construction control lines to ensure the protection of the beach-dune system, proposed or existing structures, and adjacent properties and the preservation of public beach access.” (Fla. Stat. § 161.053(1)(a) (2013))

  14. Single Family Homes May Be Constructed Seaward of the Thirty-Year Erosion Line if: • Platted • No other adjacent/landward property • Landward of frontal dune • As far landward as possible

  15. Fla. Stat. § 161.053 (11)(c) (2013) Minor Activities with Minimal Impact • Boat moorings • Maintenance of vegetation • Bury seaweed/dead fish • Remove derelict structures • Emergency vehicle access • Remove upland structures or debris • Roof overhang • Repair utilities • Furniture and awnings • Minor structure tie-downs • Portable lifeguard stands • Mono-post structures • Minor recreational digging • Removal of windblown sand • Minor maintenance of bulkheads & seawalls

  16. Potential Issues • Beach and Dune System Impacts (siting, excavation and vegetation removal) • 30-year erosion projection of seasonal high water line (line of prohibition for major structures) • Impact to adjacent Properties • Public Beach Access • Line of Construction • Marine Turtles- designation of Critical Habitat

  17. Federal Designation of Critical Habitat (CH) for Loggerhead Marine Turtles • Terrestrial CH for the Northwest Atlantic Loggerhead discrete population segment • This designation includes 37 units of habitat in the Peninsular Florida Recovery Unit • Spans 226.7 miles on the Atlantic Ocean shoreline and 123.5 miles on the Gulf Coast shoreline • These miles account for 87% of documented nesting • No unoccupied habitat is being proposed as critical habitat.

  18. Loggerhead Terrestrial CH-Another Line in the Sand? • Each Recovery Unit described individually • Majority: “The unit includes land from the MHW line to the toe of the secondary dune or developed structures.” MHW CH

  19. Exclusions/Exemptions from Critical Habitat: • Department of Defense Installations : Marine Corps Base Camp Lejeune; Cape Canaveral Air Force Station; Patrick Air Force Base; Eglin Air Force Base. • Will not consider exclusions based on: economic, national security or other relevant impact but accepted public comment on those subjects and may make individual determinations based on public comment in the final rule.

  20. Methods of Minimization • Landward siting • Reducing proposed footprint size • Reducing excavation • Manage excavated material on site • Reducing vegetation disturbance • Eliminating unnecessary activities and structures • Follow Turtle Lighting Guidelines

  21. 62B-41 Rules and Procedures • Plan Strategy • Do you need or want a permit? (Exemptions) • Permitting Team • Pre-application meeting • Discuss approach to potential opposition • Development Agreements • Variances • Publish Notice

  22. Variances from Agency Rule – Requests Must Include: • Cite to rule- Fla. Stat. § 120.542 (2013) • Action requested • Justification/ Hardship • Consistent with statutory intent • Does not apply to SSL Approvals (See Board of Trustees v. Levy, 656 So.2d 1359 (Fla. 1st DCA 1995))

  23. Process for Challenge of Permits • Permits are Agency Action, Subject to Chapter 120 • ALWAYS Publish Notice!! • Standing Requirement

  24. Burden of Proof in 3rd Party Challenges • Fla. Stat. 120.569 (p) (2013) • Does Not Apply to Coastal Construction Permits • Traditional Rule Applies: • Burden is on the applicant to prove entitlement to permit!! • Permits for Coastal Construction only issued when an application is shown to be “clearly justified” by demonstrating all standards in rule and statute are met. 62B-33.005(4), F.A.C.

  25. Sample Case • Petrandis et al. v. DEP, Case No. 10-1137 (Fla. DOAH Aug. 22, 2011). • DEP denied application for CCCL permit to armor the beach seaward of CCCL • Waiver • “Close the Gap” Law

  26. THANK YOU Andrew Baumann, Esq. Lewis, Longman & Walker, P.A. slewis@llw-law.com

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