Beach Program Improvements: Florida Department of Environmental Protection—
September 2011
>>The Issue: Florida public beaches are an important part of our economy in the coastal area. The Gulf Coast is especially popular for the warmer water temperature, beautiful emerald/blue-green waters, and miles of pristine snow-white beaches lined with sea oats which separate the roads and the beaches, giving it even more of that vacation feel. However, the gulf coast is also prone to experience hurricanes and strong storms due to the warmer water temperature and currents that flow through the Gulf of Mexico. These storms, along with other natural causes, have over time produced cases of erosion in several areas along the gulf coast. Among many organizations working to restore the coast, the Florida Department of Environmental Protection is working to replace sand on critically eroded beaches in our area. However, there have recently been some changes to the regulation of sand used in this restoration project that are vague.
Background: In April 2010, the nation experienced one of the biggest disasters it has ever encountered when BP’s Deepwater Horizon oil well exploded, killing 11 people and releasing an estimated 250 million gallons of crude oil into the Gulf of Mexico. As the oil reached the beaches in the following days and weeks, BP had hired workers combing the beaches collecting tar balls and cleaning up the sand as much and as quickly as possible to get the beaches opened back up to the public.
This uptake of sand, along with our notorious track record of hurricanes and storm surges, has caused erosions in areas and are in need of replacement and restoration.
Edits to be implemented immediately by FDEP regarding the beach project are as follows:
Sand Rule Interpretation. This states that any particular provision such as the “sand rule†will prevail over the general rule regarding the minimization of impacts to the beach and dune system in cases where both are in jurisdiction. It also states that all applicants must demonstrate that their sand source is similar in grain size, distribution, etc. of the existing beach, and that contaminants listed under 62B-41.007(2)(j)1.-3. are not sand and should not be considered when evaluating the candidate sand source. Also, these criteria for sand sources may be reduced so long as the material does not result in cementation [62B-41.007(2)(j)5.].
Reasonable Assurance does not require the applicant to perform all of the tests and studies, nor eliminate contrary possibilities or theories regarding their sand source as long as it is backed by competent substantial evidence based upon detailed site plans and engineering studies, coupled with credible expert engineering testimony.
Avoidance and Minimization. This process must not be allowed to interfere with the project design. Only practicable modifications should be considered, which does not include modifications that result in a bad design.
Public Interest. Florida Legislature has declared that beach restoration and beach nourishment projects on critically eroded beaches are in the public interest [Section 161.088, Florida Statutes]. This legislative finding can only be overcome with significant evidence that is contrary to, or clearly not in, the public interest.
Conservation of Fish and Wildlife and their Habitats. While the potential for unintentional adverse impacts to existing wildlife and habitats exists, also keep in mind that the restoration of a critically eroded beach increases habitat availability and has been determined by the legislature to be in the public interest.
We SHOULD NOT require a Joint Coastal Permit (JCP) for work upland of the Mean High Water Line (MHWL). We should be in favor of the restoration of eroded beaches using beach compatible materials because it is often the best and least impactful way to place sand on the dry beach. Thus, only a Coastal Construction Control Line (CCCL) permit should be required. A JCP permit should only be required if information clearly indicates that the dune project will have an immediate impact below the MHWL.
Stay out of the Weeds. We should not need detailed planting plans or sections through planted areas to reach a decision on a project’s potential to impact the beach and dune system. Replace detailed application requirements with a simple performance condition for planted areas.
Reasonable monitoring. While post-project environmental monitoring is an important part of establishing that a project’s impacts have been properly offset through mitigation, any required monitoring must be meaningful and useful, or it must be eliminated. We must also have a legitimate use for the data gathered.
Request for Additional Information (RAI) Policy. Any item listed in an RAI must cite the specific rule authority for the information requested. At a minimum, staff will cite to the subsection of the rule that is the underlying basis for the question/information requested.
What we are asking of Florida Department of Environmental Protection: Emerald Coastkeeper is requesting written clarification to questions regarding these new implementations.
Sand Rule Interpretation
Why are we allowing the criteria to be reduced in FS 62B-41.007(2)(j)1.-3.?
What is to be considered as compatible sand?
What quality control standards are in place to ensure that the sand source is similar in grain size, distribution, etc. of the existing native beach?
What is the maximum percentage of non-sand components that will be allowed?
Reasonable Assurance
Why is an applicant allowed to submit a sand source for consideration without test results?
What is considered competent substantial evidence?
Stay Out of the Weeds
Why are detailed planning plans not required?
Why are they being replaced with simple performance conditions?
Reasonable Monitoring
What is considered meaningful and useful monitoring?
Why isn’t ALL data gathered considered legitimate?
We are asking for an expedited written response, and we will keep everyone updated on the progress.