FDEP EMERGENCY FINAL ORDER NO. 17-0989
The following is a summary of those portions of FDEP Emergency Final Order No. 17-0989 which are particularly relevant to owners of waterfront and near waterfront property. Note: Each local government may have their own emergency regulations that may be imposed in addition to those covered by the State’s Emergency Final Order. Before conducting any work, a telephone call to the local jurisdiction’s Building Department is highly recommended.
EMERGENCY FINAL ORDER
OGC NO. 17-0989
Excerpts (with annotations in bold italics):
C. WATER RESOURCE MANAGEMENT
EMERGENCY REGULATIONS RELATING TO DOCKS, PIERS, BOATLIFTS, SEAWALLS, AND COASTAL CONSTRUCTION.
Within the Emergency Area (entire State of Florida):
1. Definitions
The following definitions apply to activities authorized under Section C of this Order:
a. For purposes of subsection C.2. of this Order, the term "structures" includes:
(1) utility infrastructure, including wastewater treatment plants, substations, lift stations, solid and hazardous waste facilities, utility lines (including transmission and distribution), poles, towers, support structures, cables, conduits, outfalls, intake structures, and pipelines;
(2) roads, bridges, culverts, driveways, sidewalks, bike paths, and other similar public and private infrastructure;
(3) public, private, and commercial habitable and non-habitable buildings, and structures ancillary to these buildings, such as garages, cabanas, storage sheds, bath houses, pools, and decks;
(4) piers (including docks, boardwalks, observation platforms, boat houses, and gazebos), and pilings;
(5) shore-stabilization structures, such as seawalls, bulkheads, revetments, breakwaters, and groins;
(6) fences, signs and billboards; and
(7)buoys, navigational aids, and channel markers.
b. For purposes of subsection C.2. of this Order, the term "drainage systems" includes ditches, canals, ponds, swales, and other surface water conveyances; dams, weirs, dikes, and levees; underdrains, outfalls, and associated water control structures.
c. For purposes of subsections C.2, C.3, and C.4 of this Order, the term "water dependent activity" means an activity that can only be conducted in, on, over, or adjacent to water areas because the activity requires direct access to the waterbody or state owned submerged lands for transportation, recreation, energy production or transmission, or source of water, and where the use of the water or state owned submerged lands is an integral part of the activity.
d. For purposes of subsections C.2 and C.3 of this Order, the term "completely destroyed" means none of the structure that existed before the Hurricane remains standing. For example, if at least one piling of a dock or pier remains in place as constructed, then the structure has not been completely destroyed.
e. For purposes of this Order, the term "water management districts" shall mean the Northwest Florida, St. Johns River, Suwannee River, Southwest Florida, and South Florida Water Management Districts, as they are affected within the Emergency Area.
2. Environmental Resource, Dredge and Fill, and Surface Water Management Activities
This subsection applies to activities located in uplands and waters of the state, including wetlands, but excludes activities located along the sandy beaches or inlets fronting the Atlantic Ocean and the Gulf of Mexico seaward of the Coastal Construction Control Line (CCCL) in counties where a CCCL has been established (these activities are addressed in subsection C.3. of this Order). The public is advised that Sections 403.813(1)(b), (d), (e), (f), (g), (h), (j), (l), (n), (p) or (t), Florida Statutes, and the corresponding rule exemptions of the Department and water management districts authorize certain repair, restoration, and replacement activities, provided the terms, conditions, and limitations of the exemptions are followed. Such activities located in, on, or over state owned submerged lands that do not qualify for consent by rule under Rule 18-21.005(1)(b), Florida Administrative Code, are hereby granted a Letter of Consent under Rule 18-21.005(1)(c), Florida Administrative Code, provided all the terms and conditions of those rules are met (including certain restrictions for activities performed within aquatic preserves and Monroe County), and provided that activities that require an easement under Rule 18-21.005(1)(f), Florida Administrative Code, must obtain the applicable state owned submerged lands easement under Chapter 18-21, Florida Administrative Code, within one year of expiration of this Order. This Order does not limit the provisions of those statutory and rule provisions. The following activities are authorized to be undertaken in the Emergency Area to repair, restore, or replace structures, land, and submerged contours to the conditions that were authorized or otherwise legally existing immediately prior to the Hurricane, provided the repair and restoration activities do not result in any expansion, addition, or relocation of the existing structure or systems, subject to the limitations in this Order. However, this Order does not authorize the construction of structures that did not exist prior to the emergency, unless specifically authorized below.
a. No Notice Required
The following activities are authorized to be conducted under this Order without notification to the Department or a water management district: [NOTE: NOTIFICATION TO LOCAL GOVERNMENT BUILDING DEPARTMENTS MAY BE REQUIRED PRIOR TO ANY EMERGENCY WORK. OWNERS SHOULD CONTACT LOCAL (COUNTY/CITY) AGENCIES PRIOR TO COMMENCING ANY WORK]
(1) Temporary and permanent repair or restoration of structures and drainage systems that are not completely destroyed to the conditions, dimensions, and configurations that were authorized or otherwise legally existing immediately prior to the Hurricane, provided the repair and restoration activities do not result in any expansion, addition, or relocation of the existing structure or systems, and provided any such structures or drainage systems in, on or over state owned submerged lands are water dependent. This may include the use of different construction materials or minor deviations to allow upgrades to current structural and design standards, or to replace a seawall with a rip rap revetment…..
(3) Removal of debris, including sunken or grounded vessels, vegetation, and structural remains that have been deposited into waters, wetlands, or uplands by the Hurricane, where such removal does not result in filling of wetlands or other surface waters, or dredging that creates or expands surface waters. All removed materials must be deposited on self-contained uplands and must be managed in accordance with Department rules or provisions of this Order.
b. Field and Individual Authorization Required
(1) Field authorizations may be issued following a site inspection by Department or water management district personnel to restore structures and property to authorized or otherwise legally existing conditions that existed immediately prior to the Hurricane, to recover property, to protect property from further damage, to maintain navigation, or to protect public health, safety and welfare, when such activities are not otherwise authorized by statutory or rule exemptions or under paragraph C.2.a of this Order. Specifically, field authorizations may be issued for:
(a) Activities including the replacement of structures that are completely destroyed;
(b) Activities on state owned submerged lands that are not water dependent, except as provided in Rule 18-21.00405(6), Florida Administrative Code;
(c) Restoration (regrading, dredging, or filling) of the contours of uplands, wetlands, and submerged bottoms by parties other than local, regional, or state governments;
(d) Trimming or alteration of mangroves that threaten public health, safety, welfare, or property, or that currently interfere with navigation;
(e) Removal of debris, including sunken or grounded vessels, vegetation and structural remains, that has been deposited into waters, wetlands, or uplands by the Hurricane, the removal of which requires filling of wetlands or other surface waters, or dredging that creates or expands wetlands or other surface waters. Any wetlands or other surface waters that are dredged or filled to affect such removal must be restored to the contours and conditions that existed before the Hurricane; and
(f) Other activities determined by Department or water management district personnel as having the potential to result in only minimal adverse individual or cumulative impact on water resources and water quality.
(2)Field authorizations to replace structures shall not preclude the use of different construction materials or minor deviations to allow upgrades to current structural and design standards, including building codes, or to a more environmentally compatible design, as determined by the Department or water management district, than existed immediately prior to the Hurricane.
(3) Field authorizations may be requested by providing a notice to the local office of the Department or water management district containing a description of the work requested, the location of the work, and the name, address, and telephone number of the owner or representative of the owner who may be contacted concerning the work. Field authorizations also may be issued by Department or water management district staff without prior notice. Field authorizations may not be issued unless requested on or before October 4, 2017. Written records of all field authorizations shall be created and maintained by Department and water management district staff. Field authorizations may include specific conditions for the construction, operation, and maintenance of the authorized activities. Field authorizations issued prior to the effective date of this Order remain in effect for the duration specified in the field authorization, but may be extended through written modification by the Department or water management district in accordance with the provisions of paragraph C.6.h. of this Order. Failure to comply with the conditions of the field authorization may result in enforcement actions by the Department or water management district.
3. Coastal Construction Control Line Activities
This section applies to activities conducted within the Emergency Area seaward of the CCCL as established by Chapter 62B-26, Florida Administrative Code. Emergency Permits may be issued by the Division of Water Resource Management (Division) pursuant to Rule 62B-33.014, Florida Administrative Code. A list of activities seaward of the CCCL that are exempt from CCCL permitting requirements is contained in Rule 62B-33.004, Florida Administrative Code, and Section 161.053(11), Florida Statute….
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. In addition, activities that extend onto state owned lands of Florida seaward of the mean high-water line that would typically require a permit pursuant to Sections 161.041 and/or 161.055, Florida Statutes, (i.e., regulated under the Joint Coastal Permit program (JCP) are not authorized under this Subsection. JCP activities are addressed separately in Subsection C.4. of this Order.
a. Activities Undertaken by Local Governments……
b. Activities Requiring Local Authorization
Local governments are authorized to issue permits in lieu of Department permits to private and public property owners for the activities listed below. Local governments shall notify the Department in writing within three (3) working days of permits issued under this section. Work authorized by the local government must be complete within 90 days of the expiration of this Order.
(1) Temporary or remedial activities that are necessary to secure structures to remove safety hazards and prevent further damage or collapse of foundations.
(2) Temporary armoring such as wooden retaining walls, cantilever sheetpile walls (without concrete caps, tiebacks, or other reinforcement), sandbags less than 100 lbs. filled bag, or similar structures. Temporary armoring must be removed within 60 days of installation or the individual must seek authorization from the Department to keep the temporary armoring in place. No sand may be obtained from the beach, near shore, or below mean high water seaward of the CCCL to fill sandbags without specific written authorization from the Department.
Pursuant to Section 161.085(3), Florida Statutes, this Order does not authorize local governments to permit geotextile containers as the core of a reconstructed dune for the purposes of temporary armoring.
(3) Repair or replacement of minor ancillary structures (such as stairs, landings, and HVAC platforms) and service utilities that are associated with the existing habitable structure. The repair of minor ancillary structures or service utilities shall not exceed the size of the original structure or service utility damaged or destroyed by the Hurricane. Repair of surviving beach/dune walkovers is authorized provided the structure is substantially intact and the repair adjusts the seaward terminus of the walkover to accommodate changes in the shoreline topography and native salt-resistant vegetation patterns. Viewing platforms as part of the walkovers may not be included seaward of the surviving or post-Hurricane rebuilt dune system or sandy beach, as specified in paragraph C.3.c.(2)(d) of this section.
(4) Permanent repair of foundations for buildings that have not been substantially damaged.
(5)The replacement or repair of caps and anchoring systems (or tiebacks), for seawalls or bulkheads.
(6) Restoration of a damaged dune system using beach compatible sand from an upland source. All fill material shall be sand that is similar to the pre-Hurricane beach sand in both coloration and grain size and be free of debris, rocks, clay, organic matter or other foreign matter. In general, beach-compatible fill material will be predominately quartz sand of a mean grain size diameter greater than 0.25 mm and a moist Munsell color-value/chroma of 8/1 or lighter with only trace amounts of shell. No sand may be obtained from the beach, near shore, or below mean high water seaward of the CCCL without specific written authorization from the Department.
(7) Return of sand to the beach dune system which has been deposited upland by the Hurricane. The recovered fill material shall be free of debris and other foreign matter, and shall not cover any Hurricane-generated debris or construction debris….
7. Authorization to Use State Owned Submerged Lands
The Department has been delegated by the Board of Trustees of the Internal Improvement Trust Fund the authority to grant the following authorizations to use state owned submerged lands, that is, lands lying waterward of the line of mean high water, erosion control line or ordinary high water line, in association with the structure or activity subject to repair, restoration, removal, or replacement authorized in this section.
a. Except as provided in paragraphs C.6.b., c., and d., and subsection D.1. of this Order, activities authorized under this Order involving the repair, replacement, or restoration of the activities and structures, and the removal of debris located on submerged lands owned by the state that do not qualify for consent by rule under Section 18-21.005(1)(b), Florida Administrative Code, are hereby granted a Letter of Consent under Section 18-21.005(1)(c), Florida Administrative Code, provided:
(1)Such repair, restoration, or replacement or removal is conducted in accordance with the terms, conditions, and limitations of this Order;
(2)The structure or activity subject to repair, restoration, or replacement was authorized by the Board of Trustees of the Internal Improvement Trust Fund prior to the Hurricane, or was otherwise legally existing immediately prior to the Hurricane;
(3) The activities are conducted solely to repair, restore, or replace structures or land that was damaged by the Hurricane, or to remove debris resulting solely from the Hurricane; and
(4) The structures and activities are repaired, restored, or replaced in the same location and configuration as was authorized by the Board of Trustees of the Internal Improvement Trust Fund or which otherwise legally existed immediately prior to the Hurricane.
(5)All the terms and conditions of Rule 18-21.005(1)(b) or 18-21.005(1)(c), Florida Administrative Code, as applicable, are met (including certain restrictions for activities performed within aquatic preserves and Monroe County), and provided that activities that require an easement under Rule 18-21.005(1)(f), Florida Administrative Code, must obtain the applicable state owned submerged lands easement under Chapter 18-21, Florida Administrative Code, within one year of expiration of this Order. This Order does not limit the provisions of those statutory and rule provisions.
b. Non-water dependent structures, grandfathered pursuant to former Rule 18-21.00405, Florida Administrative Code, are not authorized to be repaired, restored, or replaced when more than 50% of the structure or activity is lost (based on the cost to repair, restore, or replace the structure or activity);
c. Water-dependent structures that were legally existing immediately before the Hurricane but not in conformance with the current criteria of Chapters 18-18, 18-20 or 1821, Florida Administrative Code, as applicable, may be repaired, restored, or replaced to the footprint that existed immediately before the Hurricane, but shall, to the greatest extent practicable, be repaired, restored, or replaced to meet the current criteria of Chapters 1818, 18-20 and 18-21, Florida Administrative Code, as applicable, with respect to design features such as the elevation of decking surfaces and the spacing of deck planking.
This Order does not authorize the reconstruction or repair of unauthorized structures.
