Florida Senate - 2012                                     SB 758
       By Senator Jones
       13-00682A-12                                           2012758__
    1                        A bill to be entitled                      
    2         An act relating to beach management; amending s.
    3         161.041, F.S.; specifying that demonstration to the
    4         Department of Environmental Protection of the adequacy
    5         of a project’s design and construction is supported by
    6         certain evidence; requiring the permit applicant and
    7         the department to negotiate in good faith; authorizing
    8         the department to issue permits for an incidental take
    9         authorization under certain circumstances; requiring
   10         the department to adopt certain rules involving the
   11         excavation and placement of sediment; requiring the
   12         Department of Environmental Protection to justify
   13         items listed in a request for additional information;
   14         requiring the department to adopt guidelines by rule;
   15         creating s. 161.0413, F.S.; providing for joint
   16         coastal permits for certain beach-related projects;
   17         providing that certain previously permitted projects
   18         are presumed permittable; requiring the department to
   19         amend certain rules to facilitate the joint permitting
   20         process; providing for the permit life of joint
   21         permits; amending s. 161.101, F.S.; requiring the
   22         department to maintain certain beach management
   23         project information on its website; requiring the
   24         department to notify the Governor’s Office and the
   25         Legislature concerning any significant changes in
   26         project funding levels; amending s. 373.406, F.S.;
   27         providing a permit exemption for certain specified
   28         exploratory activities relating to beach restoration
   29         and nourishment; requiring a department determination
   30         of a de minimis permit exemption to be provided within
   31         a certain time; providing an effective date.
   33  Be It Enacted by the Legislature of the State of Florida:
   35         Section 1. Section 161.041, Florida Statutes, is amended to
   36  read:
   37         161.041 Permits required.—
   38         (1) If a any person, firm, corporation, county,
   39  municipality, township, special district, or any public agency
   40  desires to make any coastal construction or reconstruction or
   41  change of existing structures, or any construction or physical
   42  activity undertaken specifically for shore protection purposes,
   43  or other structures and physical activity including groins,
   44  jetties, moles, breakwaters, seawalls, revetments, artificial
   45  nourishment, inlet sediment bypassing, excavation or maintenance
   46  dredging of inlet channels, or other deposition or removal of
   47  beach material, or construction of other structures if of a
   48  solid or highly impermeable design, upon state sovereignty lands
   49  of Florida, below the mean high-water line of any tidal water of
   50  the state, a coastal construction permit must be obtained from
   51  the department before prior to the commencement of such work.
   52  The department may exempt interior tidal waters of the state
   53  from the permit requirements of this section. No such
   54  development shall interfere,
   55         (a) Except during construction, such development may not
   56  interfere with the public use by the public of any area of a
   57  beach seaward of the mean high-water line unless the department
   58  determines that the such interference is unavoidable for
   59  purposes of protecting the beach or an any endangered upland
   60  structure. The department may require, As a condition of to
   61  granting permits under this section, the department may require
   62  the provision of alternative access if when interference with
   63  public access along the beach is unavoidable. The width of such
   64  alternate access may not be required to exceed the width of the
   65  access that will be obstructed as a result of the permit being
   66  granted. Application for coastal construction permits as defined
   67  above shall be made to the department upon such terms and
   68  conditions as set forth by rule of the department.
   69         (b) Except for the deepwater ports identified in s.
   70  403.021(9)(b), the department may shall not issue a any permit
   71  for the construction of a coastal inlet jetty or the excavation
   72  or maintenance of such an inlet if the activity authorized by
   73  the permit will have a significant adverse impact on the sandy
   74  beaches of this state without a mitigation program approved by
   75  the department. In evaluating the mitigation program, the
   76  department shall consider take into consideration the benefits
   77  of the long-term sand management plan of the permittee and the
   78  overall public benefits of the inlet activity.
   79         (2) The department may authorize an excavation or erection
   80  of a structure at any coastal location upon receipt of an
   81  application from a property or riparian owner and upon
   82  consideration of facts and circumstances, including:
   83         (a) Adequate engineering data concerning inlet and
   84  shoreline stability and storm tides related to shoreline
   85  topography;
   86         (b) Design features of the proposed structures or
   87  activities; and
   88         (c) Potential effects impacts of the location of such
   89  structures or activities, including potential cumulative effects
   90  of any proposed structures or activities upon such beach-dune
   91  system or coastal inlet, which, in the opinion of the
   92  department, clearly justify such a permit.
   93         (3) The department may require such engineer certifications
   94  as necessary to assure the adequacy of the design and
   95  construction of permitted projects. Reasonable assurance is
   96  demonstrated if the permit applicant provides competent
   97  substantial evidence that is based on plans, studies, and
   98  credible expertise that accounts for naturally occurring
   99  variables that might reasonably be expected.
  100         (4) The department may, as a condition to the granting of a
  101  permit under this section, require mitigation, financial, or
  102  other assurances acceptable to the department as may be
  103  necessary to assure performance of the conditions of a permit or
  104  enter into contractual agreements to best assure compliance with
  105  any permit conditions. Biological and environmental monitoring
  106  conditions included in the permit must shall be based upon
  107  clearly defined scientific principles. The department may also
  108  require notice of the required permit conditions required and
  109  the contractual agreements entered into pursuant to the
  110  provisions of this subsection to be filed in the public records
  111  of the county in which the permitted activity is located.
  112         (5) Department-proposed permit conditions as well as
  113  specific provisions and requirements associated with requisite
  114  monitoring and mitigation plans must be negotiated in good faith
  115  by the agency and the applicant before the issuance of the
  116  notice of intent and transmittal of the permit. The subsequent
  117  time period between the applicant receiving a notice of intent
  118  and the final notice to proceed may not be used to circumvent
  119  the time limits in chapter 120 or the Legislature’s expressed
  120  intent to simplify and expedite the regulatory process for beach
  121  nourishment and inlet management projects pursuant to s.
  122  161.0413 when they are declared to be in the public interest
  123  pursuant to s. 161.088.
  124         (6) Notwithstanding any other provision of law, the
  125  department may issue permits pursuant to this part in advance of
  126  the issuance of an incidental take authorization provided under
  127  the Endangered Species Act and its implementing regulations if
  128  the permits and authorizations include a condition that requires
  129  that such authorized activities not begin until the incidental
  130  take authorization is issued.
  131         (7) The department shall adopt rules to address standard
  132  mixing zone criteria and antidegradation requirements for
  133  turbidity generation for permits that involve the excavation and
  134  placement of sediment in order to eliminate the need for
  135  variances, except within Outstanding Florida Waters and aquatic
  136  preserves, and to reduce the need for other variances issued
  137  pursuant to s. 373.414 or s. 403.201. In processing variance
  138  requests, the department must consider the legislative
  139  declaration that, pursuant to s. 161.088, beach nourishment
  140  projects are in the public interest.
  141         (8) Application for permits shall be made to the department
  142  upon such terms and conditions as set forth by rule.
  143         (a) If, as part of the permit process, the department
  144  requests additional information, it must cite applicable
  145  statutory and rule provisions that justify any item listed in a
  146  request for additional information.
  147         (b) The department may not issue guidelines that are
  148  enforceable as standards for beach management, inlet management,
  149  and other erosion control projects without adopting such
  150  guidelines by rule.
  151         Section 2. Section 161.0413, Florida Statutes, is created
  152  to read:
  153         161.0413Joint coastal permits.—The department is
  154  authorized to issue a joint coastal permit for activities
  155  falling under both s. 161.041 and part IV of chapter 373.
  156         (1) The Legislature intends to simplify the permitting
  157  process for the periodic maintenance of previously permitted and
  158  constructed beach nourishment and inlet management projects
  159  under the joint coastal permit process. To achieve that goal:
  160         (a) A detailed review of a previously permitted project is
  161  not required if there have been no substantial changes in
  162  project scope and past performance of the project indicates that
  163  it has performed according to design expectations. Such projects
  164  are hereby presumed permittable.
  165         (b) The department shall amend chapters 62B-41 and 62B-49
  166  of the Florida Administrative Code, relating to periodic beach
  167  maintenance projects and inlet sand bypassing activities.
  168         (2) Joint coastal permits must allow for two maintenance or
  169  dredging disposal events or a permit life of 15 years, whichever
  170  is greater.
  171         Section 3. Subsection (20) of section 161.101, Florida
  172  Statutes, is amended to read:
  173         161.101 State and local participation in authorized
  174  projects and studies relating to beach management and erosion
  175  control.—
  176         (20) The department shall maintain active a current project
  177  listings on its website by fiscal year in order to provide
  178  transparency regarding those projects receiving funding and the
  179  funding amounts, and to facilitate legislative reporting and
  180  oversight. In consideration of this intent: listing and may, in
  181  its discretion and dependent upon the availability of local
  182  resources and changes in the criteria listed in subsection (14),
  183  revise the project listing.
  184         (a) The department shall notify the Executive Office of the
  185  Governor and the Legislature regarding any significant changes
  186  in the funding levels of a given project as initially requested
  187  in the department’s budget submission and subsequently included
  188  in approved annual funding allocations. The term “significant”
  189  means those changes exceeding 25 percent of a project’s original
  190  allocation. If there is surplus funding, notification shall be
  191  provided to the Executive Office of the Governor and the
  192  Legislature to indicate whether additional dollars are intended
  193  to be used for inlet management pursuant to s. 161.143, offered
  194  for reversion as part of the next appropriations process, or
  195  used for other specified priority projects on active project
  196  lists.
  197         (b) A summary of specific project activities for the
  198  current fiscal year, funding status, and changes to annual
  199  project lists shall be prepared by the department and included
  200  with the department’s submission of its annual legislative
  201  budget request.
  202         (c) A local project sponsor may at any time release, in
  203  whole or in part, appropriated project dollars by formal
  204  notification to the department, which shall notify the Executive
  205  Office of the Governor and the Legislature. Notification must
  206  indicate how the project dollars are intended to be used.
  207         Section 4. Subsection (13) is added to section 373.406,
  208  Florida Statutes, to read:
  209         373.406 Exemptions.—The following exemptions shall apply:
  210         (13) Notwithstanding subsection (6) and s. 403.813, this
  211  section, and any rule or order adopted pursuant thereto, may not
  212  require a permit for the following de minimis exploratory
  213  activities associated with beach restoration and nourishment:
  214         (a) The collection of geotechnical and cultural resource
  215  data, including mapping, seismic and acoustic soundings, and
  216  benthic and other biologic sampling and coring.
  217         (b) Oceanographic instrument deployment, including
  218  temporary installation on the seabed of coastal and
  219  oceanographic data collection equipment.
  220         (c) Incidental excavation associated with any of the
  221  activities listed under paragraph (a) or paragraph (b).
  223  A determination of whether any other activity is de minimis and
  224  therefore exempt from the permitting process must be made by the
  225  department within 30 days after receipt of the request unless
  226  the applicant requests additional time.
  227         Section 5. This act shall take effect July 1, 2012.