Senate Bill sb1472er
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2 An act relating to beaches and shores; amending
3 s. 161.021, F.S.; amending a definition;
4 amending s. 161.085, F.S.; restricting the use
5 of geotextile containers for emergency rigid
6 coastal armoring; providing permitting for
7 geotextile containers; providing conditions;
8 providing for evaluation by the Department of
9 Environmental Protection; amending s. 161.141,
10 F.S.; providing additional legislative intent;
11 creating s. 161.144, F.S.; providing for the
12 development and maintenance of an inventory of
13 identified offshore sand sources by the
14 department as part of its comprehensive
15 long-term beach management plan; providing for
16 public review of maps of offshore sand sources;
17 providing for boards of county commissioners of
18 coastal counties adjacent to sand sources
19 proposed for use outside of the region or
20 subregion to be notified and given adequate
21 opportunity to comment during a project's
22 planning and permitting stages; providing for
23 the inclusion of certain information in the
24 department's annual funding request; providing
25 an effective date.
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27 Be It Enacted by the Legislature of the State of Florida:
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29 Section 1. Subsection (1) of section 161.021, Florida
30 Statutes, is amended to read:
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1 161.021 Definitions.--In construing these statutes,
2 where the context does not clearly indicate otherwise, the
3 word, phrase, or term:
4 (1) "Access" or "public access" as used in ss.
5 161.041, 161.052, and 161.053 means the public's right to
6 laterally traverse the sandy beaches of this state where such
7 access exists on or after July 1, 1987, or where the public
8 has established an accessway through private lands to lands
9 seaward of the mean high tide or water line by prescription,
10 prescriptive easement, or any other legal means, development
11 or construction shall not interfere with such right of public
12 access unless a comparable alternative accessway is provided.
13 Section 2. Subsections (3), (5), and (9) of section
14 161.085, Florida Statutes, are amended to read:
15 161.085 Rigid coastal armoring structures.--
16 (3) If erosion occurs as a result of a storm event
17 which threatens private structures or public infrastructure
18 and a permit has not been issued pursuant to subsection (2),
19 unless the authority has been revoked by order of the
20 department pursuant to subsection (8), an agency, political
21 subdivision, or municipality having jurisdiction over the
22 impacted area may install or authorize installation of rigid
23 coastal armoring structures, exclusive of those authorized
24 under subsection (9), for the protection of private structures
25 or public infrastructure, or take other measures to relieve
26 the threat to private structures or public infrastructure as
27 long as the following items are considered and incorporated
28 into such emergency measures:
29 (a) Protection of the beach-dune system.
30 (b) Siting and design criteria for the protective
31 structure.
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1 (c) Impacts on adjacent properties.
2 (d) Preservation of public beach access.
3 (e) Protection of native coastal vegetation, nesting
4 state or federally threatened or endangered species, and
5 nesting marine turtles and their hatchlings.
6 (5) The department shall may adopt rules to implement
7 the provisions of this section.
8 (9) The department, or an agency, political
9 subdivision, or municipality described in subsection (3), may
10 authorize dune restoration incorporating sand-filled
11 geotextile containers tubes or similar structures proposed as
12 the core of a restored dune feature when the conditions of
13 paragraphs (a) through (c) and the requirements of s. 161.053
14 are met. if the applicant meets the requirements of this
15 section and:
16 (a) A permit may be granted by the department under
17 this subsection for dune restoration incorporating geotextile
18 containers or similar structures provided that such projects:
19 1. Provide for the protection of an existing major
20 structure or public infrastructure, and, notwithstanding any
21 definition in department rule to the contrary, that major
22 structure or public infrastructure is vulnerable to damage
23 from frequent coastal storms, or is upland of a beach-dune
24 system which has experienced significant beach erosion from
25 such storm events.
26 2. Are constructed using native or beach-quality sand
27 and native salt-tolerant vegetation suitable for dune
28 stabilization as approved by the department.
29 3. May include materials other than native or
30 beach-quality sand such as geotextile materials that are used
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1 to contain beach-quality sand for the purposes of maintaining
2 the stability and longevity of the dune core.
3 4. Are continuously covered with 3 feet of native or
4 beach-quality sand and stabilized with native salt-tolerant
5 vegetation.
6 5. Are sited as far landward as practicable, balancing
7 the need to minimize excavation of the beach-dune system,
8 impacts to nesting marine turtles and other nesting state or
9 federally threatened or endangered species, and impacts to
10 adjacent properties.
11 6. Are designed and sited in a manner that will
12 minimize the potential for erosion.
13 7. Do not materially impede access by the public.
14 8. Are designed to minimize adverse effects to nesting
15 marine turtles and turtle hatchlings, consistent with s.
16 370.12.
17 9. Are designed to facilitate easy removal of the
18 geotextile containers if needed.
19 10. The United States Fish and Wildlife Service has
20 approved an Incidental Take Permit for marine turtles and
21 other federally threatened or endangered species pursuant to
22 Section 7 or 10 of the Endangered Species Act for the
23 placement of the structure if an Incidental Take Permit is
24 required.
25 (b) The applicant or successive property owners shall
26 provide financial assurances in the form of surety or
27 performance bonds or other financial responsibility mechanisms
28 that the authorized geotextile containers will be removed if
29 the requirements of this subsection and the permit conditions
30 are not met. The permittee shall file a notice of formal
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1 permit conditions in the public records of the county where
2 the permitted activity is located.
3 (c) The department shall order removal of the
4 geotextile container if the conditions of subparagraph (a)4.
5 are not met, if the project ceases to function due to
6 irreparable damage, if the project is determined by the
7 department to have caused a significant adverse impact to the
8 beach-dune system, or if the United States Fish and Wildlife
9 Service revokes the Incidental Take Permit required in
10 subparagraph (a)10.
11 (d) The department may require any engineering
12 certifications that are necessary to ensure the adequacy of
13 the design and construction of the permitted project.
14 (e) Upon receipt of a permit application, the
15 department must notify the applicant and agent of all the
16 statutory provisions of this subsection.
17 (f) The department shall review, with third-party
18 expert involvement, the performance of dune restoration
19 incorporating geotextile sand-filled containers to determine
20 whether such structures provide upland protection and to
21 determine their impact on the beach-dune system and adjacent
22 properties. Such structures shall continue to be evaluated to
23 determine if they are a more effective form of dune
24 restoration than beach-compatible sand and native vegetation.
25 Based on such analysis and peer review, the department shall
26 recommend to the Governor, the President of the Senate, and
27 the Speaker of the House of Representatives if the provisions
28 of this subsection should be modified. It is the intent of the
29 Legislature that until such recommendations are transmitted
30 and considered by the Legislature, there shall be no changes
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1 in the requirements or conditions contained in this
2 subsection.
3 (g) The department shall not include structures
4 authorized under this subsection in the statewide
5 comprehensive beach management plan or the annual list of
6 local government funding requests submitted to the Legislature
7 pursuant to ss. 161.091 and 161.161.
8 (a) Demonstrates that the United States Fish and
9 Wildlife Service has approved a habitat conservation plan that
10 includes the shoreline where each structure will be placed;
11 (b) Provides reasonable assurance that adequate sand
12 cover will be maintained over the structure such that the
13 structure will not interact with the beach dune system as
14 rigid coastal armoring or adversely affect marine turtle
15 nesting and provides for a responsible entity to conduct such
16 maintenance; and
17 (c) Provides reasonable assurance that each structure
18 will be removed if the maintenance required by paragraph (b)
19 proves to be not feasible.
20 Section 3. Section 161.141, Florida Statutes, is
21 amended to read:
22 161.141 Property rights of state and private upland
23 owners in beach restoration project areas.--The Legislature
24 declares that it is the public policy of the state to cause to
25 be fixed and determined, pursuant to beach restoration, beach
26 nourishment, and erosion control projects, the boundary line
27 between sovereignty lands of the state bordering on the
28 Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida,
29 and the bays, lagoons, and other tidal reaches thereof, and
30 the upland properties adjacent thereto; except that such
31 boundary line shall not be fixed for beach restoration
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1 projects that result from inlet or navigation channel
2 maintenance dredging projects unless such projects involve the
3 construction of authorized beach restoration projects.
4 However, prior to construction of such a beach restoration
5 project, the board of trustees must establish the line of mean
6 high water for the area to be restored; and any additions to
7 the upland property landward of the established line of mean
8 high water which result from the restoration project remain
9 the property of the upland owner subject to all governmental
10 regulations and are not to be used to justify increased
11 density or the relocation of the coastal construction control
12 line as may be in effect for such upland property. The
13 resulting additions to upland property are also subject to a
14 public easement for traditional uses of the sandy beach
15 consistent with uses that would have been allowed prior to the
16 need for the restoration project. It is further declared that
17 there is no intention on the part of the state to extend its
18 claims to lands not already held by it or to deprive any
19 upland or submerged land owner of the legitimate and
20 constitutional use and enjoyment of his or her property. If an
21 authorized beach restoration, beach nourishment, and erosion
22 control project cannot reasonably be accomplished without the
23 taking of private property, the taking must be made by the
24 requesting authority by eminent domain proceedings. In any
25 action alleging a taking of all or part of a property or
26 property right as a result of a beach restoration project, in
27 determining whether such taking has occurred or the value of
28 any damage alleged with respect to the owner's remaining
29 upland property adjoining the beach restoration project, the
30 enhancement, if any, in value of the owner's remaining
31 adjoining property of the upland property owner by reason of
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1 the beach restoration project shall be considered. If a taking
2 is judicially determined to have occurred as a result of a
3 beach restoration project, the enhancement in value to the
4 owner's remaining adjoining property by reason of the beach
5 restoration project shall be offset against the value of the
6 damage, if any, resulting to such remaining adjoining property
7 of the upland property owner by reason of the beach
8 restoration project, but such enhancement in the value shall
9 not be offset against the value of the property or property
10 right alleged to have been taken. If the enhancement in value
11 shall exceed the value of the damage, if any, to the remaining
12 adjoining property, there shall be no recovery over against
13 the property owner for such excess.
14 Section 4. Section 161.144, Florida Statutes, is
15 created to read:
16 161.144 Policy guidance related to sand source
17 management.--The Legislature recognizes that beach-quality
18 sand for the nourishment of the state's critically eroded
19 beaches is an exhaustible resource, in ever-decreasing supply,
20 and must be carefully managed for the systemwide benefit of
21 the state's beaches. Therefore, the Department of
22 Environmental Protection, pursuant to s. 161.161 and in
23 cooperation with federal and local government agencies, shall
24 develop and maintain an inventory of identified offshore sand
25 sources as part of the regional elements of its comprehensive
26 long-term beach management plan. Offshore sand sources in
27 state or federal waters which are identified for potential,
28 proposed, or permitted use shall be clearly mapped or
29 otherwise noted and readily available for public review. In
30 addition, boards of county commissioners of coastal counties
31 adjacent to sand sources proposed for use outside of the
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1 region or subregion shall be provided written notice by the
2 department and an opportunity to comment during a specific
3 project's planning and permitting stages. The department shall
4 identify in its annual list of local government funding
5 requests submitted to the Legislature, pursuant to s. 161.091,
6 those projects that propose to use sand sources from another
7 region or subregion at the time the list is submitted.
8 Section 5. This act shall take effect July 1, 2007.
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