The Permitting and Pitfalls of Coastal Armoring in Florida

According to NOAA, Florida has over 8,400 hundred miles of coastline.  That is second only to Alaska.  Since 2000, 79 tropical or subtropical storms have impacted the state of Florida.  Many of us cringe when we hear the names Floyd, Bonnie, Florence, Ivan, Dennis, Irma, Matthew and Michael.  Collectively, these coastal storms have caused multi-billions of dollars in damage to public infrastructure and private property.  If you happen to own or operate a business on coastal property, you are well aware of the impacts.  If you are a local government that operates and maintains vital infrastructure and utilities that serve coastal communities, you too are well aware of the impacts of these coastal storms.  And these are just a handful of the “named” storms that have recently impacted Florida.  There are also hundreds of Nor’easters and tropical depressions that regularly pound Florida’s coasts.

While Florida has a robust beach nourishment program that is funded through the Florida Shore and Beach Preservation Act, the reality is that many coastal property owners simply cannot wait the years it takes to study, develop, fund, permit and ultimately implement large-scale beach nourishment projects that involve local, state and federal agencies.  When a storm impacts an area and tens, if not hundreds, of feet of beach disappear overnight, property owners need immediate protection.  This protection often must come in the form of “rigid coastal armoring” or what most people know as seawalls.

Florida and Rigid Coastal Armoring

While not always the preferred method of protection, Florida statutes and rules clearly authorize the installation of seawalls to protect upland structures and other types of infrastructure.  Whether it be a single-family beach house, a multi-unit condominium, or a portion of A1A or Highway 30A, property owners have a proven mechanism to protect their property.

Section 161.085, F.S., and Rule 62B-33, F.A.C., each contain detailed and specific definitions and criteria directed at to seawall installation.  However, by no means is the permitting process cheap and easy.  There are many pitfalls that a land owner, whether private or public, should understand.

This blog will address the following four main components of permitting rigid coastal armoring in Florida:

1. Eligibility
2. Vulnerability
3. Local Government Authority or Temporary Coastal Armoring
4. Species Impacts or “Takes”

For each element, I will describe the definitions, criteria and standards as well as some anecdotes and an exemption that give a glimpse at how to overcome certain inevitable hurdles.  I will also discuss how to best prepare for possible challenges by surrounding property owners given the (real or perceived) perception that seawalls cause more harm than good.

Florida Law

As mentioned above, both the Florida Statutes and the Florida Administrative Code provide the governing authority for rigid coastal armoring structures on Florida’s beaches.  First, the jurisdiction of the Florida Department of Environmental Protection (FDEP) is triggered if a property is located seaward of what is known as the Coastal Construction Control Line (CCCL).  The CCCL is a regulatory line that is administered by a FDEP program of the same name. (https://floridadep.gov/water/coastal-construction-control-line)  The program regulates structures and activities which can cause impacts or erosion to the beach-dune system, upland properties or public access.  The program also is charged with protecting beach species (mainly marine turtles) and habitat (dune vegetation).

As part of the CCCL program, FDEP regulates the installation of rigid coastal armoring structures, whether they are traditional sheet-pile seawalls or the more complicated and controversial geotubes.

Section 161.085(1), Florida Statutes, states that the “state recognizes the need to protect private structures and public infrastructure from damage or destruction caused by coastal erosion.”  This language is the underlying intent of FDEP’s coastal armoring regulatory scheme.  The statute also refers to FDEP’s efforts to reduce erosion on a “regional basis” as a factor it must consider in allowing coastal armoring.  Meaning, if the state has identified a certain shoreline as “critically eroded” and has established permitting and funding to nourish that shoreline, it is unlikely that coastal armoring will be approved.  Simply put, the state prefers regional nourishment projects over parcel-by-parcel seawalls – and it has the data to support this preference.

The next key provision of Chapter 161 comes in section 161.085(2)(a), Florida Statutes.  That section states:

Permits for present installations may be issued if it is determined that private structures or public infrastructure is vulnerable to damage from frequent coastal storms.

The key words in this section are underlined above: structures, vulnerable and frequent coastal storms.  Armoring is not available merely to protect real property – there must be a structure on the property to satisfy this statutory language.  Further, that structure must be vulnerable and that vulnerability must stem from a frequent coastal storm.  What does this actually mean?

Eligible Structures

While the word “eligible” is not in the statutory language listed above, we’re going to examine it first, because it directly relates to what constitutes a “structure” is in the eyes of FDEP.

To do that, we must shift our attention to Rule 62B-33, Florida Administrative Code.  As you may know, most state agencies set forth the details and technical language of their regulatory authority via the administrative code.  In this instance, Chapter 62B-33 governs coastal construction and excavation.  More specifically, 62B-33.0051, F.A.C., governs coastal armoring and even more specifically, 62B-33.0051(1)(a)1 and 62B-33.002(12), F.A.C., pertain to “Eligible Structures.”  By now, you can visualize the maze-like complexities of this particular permitting scheme.

According to 62B-33.0051(1)(a)1., F.A.C., the proposed armoring or seawall must be “for the protection of an eligible structure.”  So what is an eligible structure?  Generally speaking, eligible structures are those structures that are “non-conforming” or that were constructed prior to FDEP’s coastal construction control line regulatory scheme.  In other words, eligible structures are most often older homes and buildings that were constructed before coastal construction permits were required – meaning they were not constructed according to current elevation, wind-load, siting, and similar such criteria.  Adversely, a conforming structure would be one that has been designed and constructed according to FDEP’s program so that it can, theoretically, withstand the impacts of large coastal storms, and thus, should not need the protection afforded by coastal armoring.

A general example of an eligible (or non-conforming) structure would be an ocean or gulf front home that is slab-on-grade.  A general example of conforming structure (or what the CCCL program calls a “permitted structure”) would be one that is sited landward of the frontal dune (if there is one) and is pile supported or elevated.  There are also other structures that may be considered eligible beyond a typical ocean front home such as public roads, utilities, bridges, hospitals and other similar public facilities.

To recap what can sometimes be as clear as a foamy tide pool, an eligible structure is most often one that was not originally permitted by FDEP to withstand the impacts of coastal storms.  And this initial threshold must be met to trigger FDEP’s seawall permitting authority.  But of course, it’s not the only threshold that must be satisfied.

Vulnerable Structures

Going back to section 161.085(2)(a), F.S., the next set of requirements to be met center around “vulnerability”.  According to the statute, a structure (what we now know as an eligible structure) must also be “vulnerable” to damage from “frequent coastal storms”.  This is a multi-faceted analysis that involves some very technical information developed decades ago by some of the state’s preeminent coastal engineers.  And like eligibility, vulnerability is further explained in the Florida Administrative Code, specifically, 62B-33.0051(1)(a)2, F.A.C.

The code states that vulnerability is determined “utilizing the dune erosion model” contained in the report on “Erosion due to High Frequency Storm Events” issued by the University of Florida in 1995.  In layman’s terms, coastal engineers input certain data into a computer model that then forecasts whether an existing structure will be adversely impacted by certain storm frequencies (15-year or 25-year).  Various data points, coastal conditions, structure types and locations, and other factors are all included in this analysis – which ultimately results in a model prediction on vulnerability.  The sometimes frustrating part of this process is that the analysis can oftentimes seem overly objective and not inclusive of on-the-ground, real-world considerations.

However, the rule does allow for consideration of additional criteria such as “shoreline change rates”, natural physical features and existing manmade structures.  The rule also contemplates what has become known as a “futures permit” – which is when an eligible structure, while not vulnerable at the time of application submittal, will inevitably become vulnerable at some point in the future.  Further, the rule addresses how a traditionally non-vulnerable structure may be rendered vulnerable by the presence of adjacent armoring along the shoreline.  This is an indication that the presence of armoring may have adverse impacts to neighboring property that are not armored – which is discussed further below.

Lastly, the rule also addresses structures that may be in danger of imminent collapse following the occurrence of a 15-year storm event.  However, this threshold requires geotechnical analysis by a qualified engineer specialized in geotechnical and foundation engineering that shows structural damage will occur due to the associated storm erosion.  This is a highly technical review process that can involve weeks, if not months, of information exchange with FDEP staff.

This blog could contain another 5 to 10 pages of discussion on vulnerability, coastal engineering and coastal modeling.  The true point of this section is to demonstrate the highly technical nature of the vulnerability threshold.  If you are seeking a permit for coastal armoring, it is imperative to have a specialized and well respected coastal engineer on your team.  An engineer that has worked on multiple armoring projects of various sizes and in various locations, that has an existing relationship with FDEP staff and that can be creative in their analytical approach, often proves invaluable.

Exemption

There is a key, and often used, exemption to the above vulnerability requirement.  It is known as the “close the gap” exemption.  If a gap of 250 or less exists between a line of seawalls, the gap may be closed without having to prove vulnerability.  Simply put, a property that is book-ended by seawalls may fill in the gap provided certain criteria have been met.  This exemption exists because a property situated between seawalls will certainly take the brunt of the wave action associated with any storm event that strikes the area.

The reality of this exemption is that property owners often collaborate and apply as co-applicants for seawall projects that span multiple properties.  The armoring must be in line and must share the same level of protection.  And, of course, impacts to marine turtles and the beach dune system must be avoided.

Sand-filled Geo-tubes

 There are occasions where site conditions, emergency circumstances, project scope and costs may dictate that property owners consider an alternative to rigid coastal armoring such as seawalls.  One of those options may be sand-filled geotextile tubes – which can be described in lay terms as giant sand-filled socks that are placed seaward of vulnerable structures.  In the past, geo-tubes, as they are more commonly known, have proved both unreliable and controversial due to their tendency to burst or fail when exposed to wave action.

In 2009, FDEP developed an entirely separate chapter in the Florida Administrative Code to address the use and installation of “Sand-Filled Geotextile Dune Cores”.  Chapter 62B-56, F.A.C., contains the detailed regulations and criteria for the use of geo-tubes.  Most importantly for this discussion is that geo-tubes must be part of a larger dune reconstruction project for the protection of existing vulnerable structures that are located upland of a “beach-dune system that has experienced significant beach erosion.”

Some of the same coastal engineering criteria apply to the permitting of geo-tubes as to seawalls, but the main difference is that geo-tubes can only be installed for the purpose of creating a dune system core.  Which means that geo-tubes must be appropriately located relative to the existing, damaged dune system, they must be fully covered with beach compatible sand, and the sand must be secured by appropriate native, salt-tolerant vegetation.  Also of note, any geo-tube project will require the posting of a bond to cover the potential cost of removing the geo-tube should it fail to perform its specific function in the future.  More information regarding the permitting of geo-tubes can be found in Chapter 62B-56, F.A.C.

A Lesson From Hurricane Dennis

 In 2005, Hurricane Dennis made landfall near Walton County, Florida.  Dennis’ impacts were severe and they came just ten days into the 2005 hurricane season and less than one year after Hurricane Ivan also made devastating landfall in the area.  Needless to say, the businesses, residents and government officials in the area were panicked.  As a result, officials in Walton County decided to take advantage of Section 161.085(3), F.S., which gives local governments the emergency power to either install seawalls themselves, or authorize the installation of seawalls without direct oversight by FDEP.  While the statute requires that certain standard factors be considered by the local government in issuing such authorization (such as notice to FDEP, protection of the beach dune system, impacts on adjacent properties, preservation of beach access, and protection of species and habitat), the most impactful qualifier comes in section 161.085(6), F.S.

Any coastal armoring installed pursuant to the local government’s exercise of its statutory authority is deemed to be temporary.  Whichever entity, public or private, that installs coastal armoring pursuant to a declaration of local authority (161.085(3), F.S.), either has to remove the structure or apply for a permit within 60 days.

Thinking back to Walton County in 2005, hundreds of “temporary” permits were issued by the County for seawalls up and down the Gulf Coast – as much as four miles worth of seawalls.  Almost none of the seawalls were designed or sited according to any coastal engineering standards.  Nor were many of them constructed with appropriate materials.  What resulted was a hodge-podge of seawalls that were installed indiscriminately along the beach.  Some were steel sheet pile, some were wooden, some were vinyl, and some were made out of whatever a homeowner or contractor could get their hands on in the weeks following landfall of a major coastal storm.  Some seawalls stuck way out on the beach offering little to no actual protection.  Some seawalls crossed property lines, encroaching onto neighboring public and private land.  Some seawalls were installed in front of structures that were neither eligible, nor vulnerable.

This left both Walton County and FDEP with an absolute mess on their hands.  The 60-day temporary period came and went with nary a “temporary” wall removed.  Applications trickled in, but it was clear to FDEP that most of them were not permittable under the rule criteria and some litigation ensued.  Most property owners just ignored FDEP.  Years later, special legislation was passed specifically allowing almost every post-Dennis seawall to remain.  Additionally, Walton County was forced to develop and adopt what is known as a Habitat Conservation Plan for marine turtles because the U.S. Fish & Wildlife Service (USFWS) determined their emergency action in 2005 likely caused a “take” of protected species (more below on Section 10 “takes”).

The lessons learned at both the local and state levels is that rigid coastal armoring is almost never temporary in nature no matter what the statute says and that coastal engineering, design and siting are an absolute necessity when installing effective coastal armoring.

Don’t Forget About Turtles

Speaking of turtles, one critical criteria that has only been mentioned briefly so far is that of marine turtles and their habitat.  As we all know, sea turtles love Florida’s beaches just as much as we do.  Annually, thousands of marine turtles visit Florida’s coasts to dig their nests and lay their eggs.  These reptiles, along with their habitat, are all federally protected.  So even if you are able to meet the stringent eligibility and vulnerability requirements discussed above, you must also prove to FDEP and the USFWS that your proposed coastal armoring is not likely to “take” turtles or their habitat.

A “Take” Pursuant to Section 10

Section 10 of the Endangered Species Act is designed to regulate a wide range of activities that may impact plants and species (and their habitat) designated as endangered or threatened.  The Act prohibits activities impacting protected species and habitat without authorization from USFWS.

https://www.fws.gov/endangered/permits/index.html

An entirely separate blog could be written about the Endangered Species Act and Section 10 “takes” (stay tuned!), but for purposes of this blog, what it means is that the USFWS, through the Florida Wildlife Commission (FWC), will review an application for coastal armoring and will provide comments, including a determination if the proposed project is “likely” to result in the take of a protected species and/or its habitat.  If FWC issues what is known as a “take letter”, your application will be denied, unless the concerns of FWC can be appropriately addressed.

Even further complicating the “take letter” process, is that there is no hard and fast rule as to what actually constitutes a take.  The examination of a proposed seawall’s impacts on nesting turtles and their habitat involves a myriad of considerations, including historic marine turtle activity, the historic condition of the beach-dune system, administrative policies in place at the time of the review, extreme vulnerability of upland structures, the requisite design and siting of proposed seawalls based on FDEP’s coastal engineering analysis, and so on.

But rest assured, if you are proposing to install a seawall in Florida, you most certainly will have to address turtles and their habitat.  You may have to re-design or re-locate your proposed seawall.  You may have to cover your proposed seawall with beach compatible sand and plant it with salt-tolerant and native vegetation.  You may have to create a more detailed mitigation plan that involves a turtle watch or turtle lighting program.  And you may have to appease your neighbors to assure them that marine turtles and their eggs will not be endangered by your project.

Speaking of “Neighbors”

 Briefly, when considering an application for rigid coastal armoring, all applicants should take stock of the adjacent properties and owners.  Have your neighbors also been severely impacted by a storm?  Are their structures eligible and/or vulnerable?  Are there gaps nearby that are less than 250 feet?

Seawalls can be controversial solutions to drastic conditions.  Opinions vary on the effectiveness of seawalls, their visual impacts to the beach, their impacts to public access, their impacts to non-armored adjacent properties and as just mentioned, their impacts to beloved marine turtles.

This means that applicants for seawalls should compile an expert team to not only design and engineer a structure that will offer the protection desired, but a team that will also ensure that all appropriate review and considerations are made by the regulating agencies.  With this team, an applicant can have confidence that its submission is complete, thorough, well supported and defensible to challenge.  As with any type of regulatory authorization granted by a state agency, permits for rigid coastal armoring are susceptible to administrative challenge by neighboring property owners, environmental groups and local governments.  The last thing FDEP will do is issue a permit for a seawall that it is not absolutely certain is statutorily warranted.  And as a property owner seeking such authorization, the last thing you want is a permit that is not as water-tight as you hope your seawall will be.

The Maze of Coastal Armoring Permitting

When it comes to seeking a permit for coastal armoring in Florida, I warn all of my clients that it can be an expensive and time consuming process.  The criteria are highly technical and multi-faceted which requires a specialized team approach.  The statutory and rule language seemingly provide many options, alternatives and contingencies.  The application review by FDEP is detailed and comprehensive and involves consultation with sister agencies.

But when your coastal property is under constant threat of damage and destruction due to frequent coastal storms, a well-designed and well sited seawall may not only be your only hope, but it may be entirely justified.  Whether you sit on the board of a condominium association, you own a single-family beach front home, or you are responsible for the safe and effective management of public infrastructure located on the coast, you are entitled to protection from the erosive impacts of frequent coastal storms provided you adequately demonstrate adherence to the multitude of criteria set forth in Florida law.  Your most important decision, however, may be the team you align yourself with to make such demonstrations.