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2008 - Is Northwest Florida in a Severe Recession

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2008 - Is Northwest Florida in a Severe Recession Powered By Docstoc
					                                                                         DEP FO #10-0278

                             STATE OF FLORIDA
                  DEPARTMENT OF ENVIRONMENTAL PROTECTION

In re:

EMERGENCY AUTHORIZATION FOR                                            OGC NO. 10-1196
RESTORATION, AND CERTAIN
OTHER MEASURES MADE NECESSARY
BY TROPICAL STORM IDA

                                 EMERGENCY FINAL ORDER

                Under section 120.569(2)(n) of the Florida Statutes, Florida Administrative Code
Rule 62-110.107(2), Chapter 161, Florida Statutes, and the following findings of fact, the State of
Florida Department of Environmental Protection (the Department) enters this Emergency Final
Order (the Order), including Findings of Fact and Conclusions of Law, in response to the imminent
or immediate danger to the public health, safety, and welfare to citizens of the State of Florida
resulting from the severe coastal shoreline erosion impacts created by Tropical Storm Ida
(hereinafter “T.S. Ida”).
                                       FINDINGS OF FACT
         1.     On November 10, 2009, T.S. Ida tracked off the Florida Panhandle, with sustained
winds of 35 mph, and waves of approximately 10 feet. The wind and wave effects of the T.S. Ida
have caused severe coastal shoreline erosion between Department Monuments R-17 and R-20
minus 180 feet west, in Okaloosa County. This area shall be covered by the terms of this Order and
shall herein be referred to as the “Emergency Area.” The Emergency Area is bounded on the west
by Destin Pointe subdivision and on the east by the Holiday Surf and Racquet Club, and
comprises approximately 2,600 linear feet of shoreline fronting the Gulf of Mexico, including
approximately 350 feet of vacant lands to the west of Destin Pointe, to allow for a more gradual
transition of the western limits of sand placement. The Emergency Area is shown in Attachment
A. As a result of the severe coastal erosion, there exists an immediate danger to the safety and
property of persons within that segment of coastal shoreline. As further described below, both
public and private structures that are located on the coastal shoreline in the Emergency Area

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suffered or are at substantial risk of suffering physical damage as a result of continued storm events
and T.S. Ida.
Background Erosion Conditions Prior to Tropical Storm Ida
       2.       The Emergency Area has experienced considerable shoreline erosional stress for
the past several years. Between March 1996 and July 2007, the shoreline at R-18 has retreated
(moved landward) 282 feet. The Emergency Area sustained major impacts from Hurricane Ivan
in September 2004 [reference: Hurricane Ivan: Beach and Dune Erosion and Structural Damage
Assessment and Post-storm Recovery Plan for the Panhandle Coast of Florida
(http://bcs.dep.state.fl.us/reports/ivan.pdf)], Hurricane Dennis in July 2005, and Hurricane
Katrina in August 2005 [reference: Hurricane Dennis & Hurricane Katrina – Final Report on
2005 Hurricane Season Impacts to Northwest Florida
(http://bcs.dep.state.fl.us/reports/2005/2005hurr.pdf)]. Hurricanes Ivan and Dennis made
landfall to the west of Okaloosa County and caused major beach and dune erosion impacts to the
subject shoreline. Since the 2004-2005 hurricanes, the Emergency Area has continued to
experience severe erosional stress. Between July 2005 (post-Dennis) and July 2007, the
shoreline within the Emergency Area retreated approximately 55 feet.
Properties and Recent Storm Damage Within the Emergency Area
       3.       Ten of the twelve platted gulf-front lots in the Destin Pointe subdivision (which
extends from 300 ft west to 364 ft east of the Department’s Reference Monument R-18) are
developed (nine of which are single-family dwellings). The remaining developed parcel is a
common area which includes a storm-damaged community pool and bath house. The single-
family dwellings were all constructed in conformance with Florida Building Code standards;
however, in spite of this, the recession of the shoreline at this location and frequent inundation
and wave attack to the structures during the passage of storm fronts and/or tropical storms or
cyclones has resulted in understory damage. In addition, these storms caused damage to the
access roadway and utilities serving the buildings, particularly during T.S. Ida (see Attachments
B-D). Destin Pointe Property Owner’s Association recently made a management decision to
seek Department authorization to construct a new pool/bath house north of Lands End Drive and
not to rebuild the storm damaged facility, owing to their inability to sustain a viable development
on the gulf-front parcel.

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       4.       East of Destin Pointe, the remainder of the Emergency Area consists of multi-
family dwellings: Jetty East Condominium Association, Inc. (approximately 690 ft of gulf
frontage), the Islander Condominium (which consists of an approximately 118 ft wide beach
access easement to the east of Jetty East), Inlet Reef Club Condominiums (354 ft of gulf frontage
commencing at approximately R-19), and Holiday Surf & Racquet Club, which comprises the
remaining approximately 420 ft of shoreline (see Attachments B-D).
Past Emergency and Other Measures
       5.       An Emergency Coastal Construction Control Line (CCCL) Permit was issued to
Jetty East Condominium in November 2005 to allow for reconstruction of the damaged
swimming pool, as the pool shell was compromised and pool deck pavers and sand were
deposited by storm surge and waves into the pool. In February 2006, an Emergency CCCL
Permit was issued to Holiday Surf and Racquet Club Condominium Association, Inc. to
undertake major reconstruction of their storm-damaged bulkhead on the property, and again on
October 27, 2009, Holiday Surf and Racquet Club submitted a CCCL application to reconstruct
their storm damaged bulkhead and deck. In February 2009, an After-The-Fact CCCL Permit was
issued to Jetty East for installation of a vinyl sheet pile bulkhead that was built to offer storm
damage protection to the non-conforming building on the property.
       6.       Each of these properties, most notably Jetty East, has sustained recent coastal
storm damage. The Inlet Reef Club has incurred damage to the property’s understructure parking
and swimming pool deck. The bulkhead fronting Jetty East, constructed following Hurricane
Dennis, incurred failure of several of the bulkhead panels over approximately 60 ft of the
structure owing to direct wave attack during the passage of T.S. Ida (see Attachments B-D). An
Emergency CCCL Permit was issued by the Department in December 2009, to allow repairs to
the bulkhead.
       7.       Two permits have also been issued by the Department to allow for sand
placement in the Emergency Area. In June 2007, Destin Pointe Owners Association was granted
a CCCL Permit to place approximately 1,850 cubic yards of sand along 1,000 ft of shoreline. In
May 2008, the City of Destin was issued a CCCL Permit to place up to 16,000 cubic yards of
sand along the Destin Pointe and Jetty East Condominium shorelines. While providing a
sacrificial buffer of sand between the upland development and the Gulf of Mexico, these limited-

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in-scope sand placement activities have not been sustainable, because of the constant erosional
stress to the shoreline. Substantial damages to the properties within the Emergency Area may be
expected to continue without providing storm damage reduction in the form of an adequate sand
placement project to alleviate the emergency conditions.
       8.      In order to provide for protection of the eroded shoreline, on February 25, 2008,
Okaloosa County applied for a Joint Coastal Permit (JCP) to conduct a beach restoration project
along the western shoreline of Destin. The application was assigned JCP application number
0286575-001-JC. The City of Destin and Okaloosa County accelerated their planning and design
efforts for the Western Destin Beach Restoration Project in response to the damaging storm
impacts, and on December 28, 2009, the application was determined to be complete. The
Department issued its Consolidated Notice of Intent to Issue Joint Coastal Permit, Variance, and
Authorization to Use Sovereign Submerged Lands on December 31, 2009, for the Western
Destin Beach Restoration Project. The Western Destin Project would restore 1.7 miles of
shoreline (approximately 9239 feet) from R-16.6 to R-25.5, which includes the Emergency Area.
On January 14, 2010, the Department received two petitions for formal hearing, challenging the
Department’s intent to issue JCP permit number 0286575-001-JC. The final hearing in that case
currently set for July 26 through August 4, 2010.
Current Emergency
       9.      The Department finds that the Storm has created a state of emergency threatening
the public health, safety, welfare, and property throughout the Emergency Area. As a result of the
emergency, immediate action by Florida’s citizens and government is necessary to alleviate the
emergency conditions created by Tropical Storm Ida.
       10.     The Department finds that an emergency authorization is required to address the
need for immediate action.
       11.     The Department finds that immediate, strict compliance with the applicable
provisions of Chapter 161 of the Florida Statutes and Florida Administrative Code Chapters 62B-
33, 62B-41, and 62B-49 would prevent, hinder, or delay necessary action in coping with the
emergency, and that the actions authorized under this order are narrowly tailored to address the
immediate need for action and are procedurally fair under the circumstances.



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                                    CONCLUSIONS OF LAW
        12.     Based on the findings recited above, it is hereby concluded that the emergency
caused by Tropical Storm Ida poses an immediate danger to the public health, safety, or welfare and
requires an immediate order of the Department.
        13.     Under section 120.569(2)(n) of the Florida Statutes and Florida Administrative Code
Rule 62-110.107(2), the Secretary of the Department is authorized to issue this Order.
        14.     Suspension of the rules as noted in the findings of fact above is required in order to
not prevent, hinder, or delay necessary action in coping with the emergency.
        THEREFORE, IT IS ORDERED:
        (1)     In order to alleviate hazardous conditions resulting from Tropical Storm Ida that
pose a threat to the public health, safety, welfare, or property and only to the extent that such
actions are needed to cope with the shore erosion emergency, the Department may issue
emergency permits to beach front property owners, or Federal, State or local governments within
the Emergency Area in accordance with the provisions of Florida Administrative Code Rule
62B-33.014.
        (2)     In order to alleviate hazardous conditions resulting from Tropical Storm Ida that
pose a threat to the public health, safety, welfare, or property and only to the extent that such
actions are needed to cope with this shore erosion emergency, the Department may issue
emergency permits to beach front property owners, or Federal, State or local governments within
the Emergency Area to take certain actions which would normally require a permit under the
Joint Coastal Permit (JCP) program pursuant to sections 161.041 and/or 161.055, Florida
Statutes.
                (a) Emergency JCP authorizations are limited to those described below, and any
        and all such actions shall meet the following criteria:
                        i. The hazardous conditions are a result of continued storm events and
                T.S. Ida, as identified in this Order;
                        ii. The proposed measures are limited to the amount necessary to alleviate
                the hazardous conditions;
                        iii. Reconstruction of structures on sovereign submerged lands is
                prohibited;

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        iv. All fill material shall be sand that is similar to the pre-storm beach
sand in both coloration and grain size and be free of debris, rocks, clay or other
foreign matter, in accordance with Florida Administrative Code Rule 62B-
41.007(2)(j).
        v. The proposed measures shall not adversely affect hardbottom
communities, seagrass communities or functional marine turtle nesting habitat,
and shall not contribute to erosion of adjacent properties.
(b) Applications for Emergency JCP authorization shall contain, at a minimum:
        i. Plan and Cross Section drawings of the area(s) to be restored;
        ii. A detailed description or drawing of equipment ingress/egress
location(s) and pipeline corridor(s) proposed to convey sand from the sand source
to the restoration area;
        iii. Supporting information pertaining to the sand source to be utilized,
including:
              a. Cumulative frequency distribution curves of material tested in
                 accordance with ASTM Standard Methods Designation D 422-63,
                 and utilizing nested sieve series pursuant to Florida Administrative
                 Code Rule 62B-41.007(2)(j);
              b. Grain size data sheets;
              c. % carbonate and % shell
              d. Moist Munsell color; and
              e. A summary tabulation of the above data, including mean, median,
                 sorting, Munsell color, silt content, fine gravel content, shell
                 content and carbonate content;
        iv.      Quality Control Procedures to be followed during construction to
ensure water quality standards are met; and
        v.       An Anticipated Construction Schedule.
(c) Any Emergency JCP authorization issued pursuant to this Order shall also
constitute authorization to use Board of Trustees owned sovereign submerged
lands. In accordance with section 253.03(1) of the Florida Statutes, any

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               emergency JCP authorization shall contain conditions necessary to assure that
               sovereign submerged lands are conserved and protected.
       (3)     The Department shall place conditions in any emergency authorization to ensure
that the nature, timing, and sequence of construction authorized under this Order and the
emergency authorization shall be conducted in such a manner as to avoid impacts to the greatest
extent practicable to native salt-resistant vegetation and listed species and their habitat, including
threatened or endangered sea turtles, endangered manatees, endangered beach mice, endangered
plant communities, and migratory shorebirds.
       (4)     Application fees and noticing requirements shall be waived for projects that are
eligible for an emergency authorization.
       (5)     This Order does not negate the need to obtain any other required permits or
authorizations from other federal, state, water management districts, and local agencies, nor from
the need to comply with any applicable requirements of those agencies.
       (6)     This Order does not authorize the construction of permanent structures that did
not exist prior to the emergency, nor does it authorize beach scraping performed by itself or in
association with any other activities.
       (7)     This Order does not provide relief from any of the requirements of Chapter 471,
Florida Statutes regarding professional engineering.
       (8)     Any application for emergency authorization in the Emergency Area submitted prior
to the expiration of this Order shall be considered under this Order. This Order shall take effect
immediately upon execution by the Secretary of the Department and shall expire within 60 days
from the date of the Executive Order, unless modified or extended by further order.
       (9)     Failure to comply with any condition set forth in this Order shall constitute a
violation of a Department Final Order under Chapter 161 of the Florida Statutes, and
enforcement proceedings may be brought in any appropriate administrative or judicial forum.
                                         NOTICE OF RIGHTS
       Pursuant to section 120.569(2)(n) of the Florida Statutes, any party substantially affected
by this Order has the right to seek an injunction of this Order in circuit court or judicial review of
it under section 120.68 of the Florida Statutes. Judicial review must be sought by filing a notice
of appeal under Rule 9.110 of the Florida Rules of Appellate Procedure, with the Clerk of the

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Department in the Office of General Counsel, Mail Station 35, 3900 Commonwealth Boulevard,
Tallahassee, Florida 32399-3000, and by filing a copy of the notice of appeal accompanied by
the applicable filing fees with the appropriate district court of appeal. The notice of appeal must
be filed within thirty days after this Order is filed with the Clerk of the Department.
       DONE AND ORDERED on this                day of March 2010, in Tallahassee, Florida.

                                              FLORIDA DEPARTMENT OF
                                              ENVIRONMENTAL PROTECTION




                                              MICHAEL W. SOLE, Secretary
                                              3900 Commonwealth Blvd
                                              Tallahassee, FL 32399-3000

FILED on this date, pursuant to
§120.52 Florida Statutes, with the
designated Department Clerk, receipt
of which is hereby acknowledged.




       CLERK                                                          DATE




       Please see pdf version for exhibits.




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