By Andrew Baumann, Esq. Lewis, Longman & Walker, P.A.

The State of Florida Protects its Beach and Dune System Fla. Stat. § (2013)

Natural buffer or barrier against coastal storms Reduces upland flooding Reduces undermining of structures from erosion Dissipates wave energy

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

Coastal Permitting is “Regulation” NOT “Prohibition”!

LINES IN THE SAND: Mean High Water Line (MHWL) & 50-Foot Setback Thirty-Year Erosion Projection Line Coastal Construction Control Line (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. § (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

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

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. § (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 (2) (2013))

Repairing, Rebuilding, Relocation of Existing Structure (Fla. Stat. § (12)(a) (2013)) Single Family Homes (Fla. Stat. § (5)(c) (2013))

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. § (1)(a) (2013))

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

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

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

Terrestrial CH for the Northwest Atlantic Loggerhead discrete population segment This designation includes 37 units of habitat in the Peninsular Florida Recovery Unit Spans miles on the Atlantic Ocean shoreline and miles on the Gulf Coast shoreline These miles account for 87% of documented nesting No unoccupied habitat is being proposed as critical habitat.

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

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.

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

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

Cite to rule- Fla. Stat. § (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)) Variances from Agency Rule – Requests Must Include:

Permits are Agency Action, Subject to Chapter 120 ALWAYS Publish Notice!! Standing Requirement

Fla. Stat (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 (4), F.A.C.

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

Andrew Baumann, Esq. Lewis, Longman & Walker, P.A.