Davis case study paper: to nourish or not to nourish our florida beaches?



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CASE STUDY PAPER:

TO NOURISH OR NOT TO NOURISH OUR FLORIDA BEACHES?

Ashley H. Davis

URP 5122: Planning Dispute Resolution

Spring 2009

Dr. Tom Taylor

Beach restoration and beach nourishment have been hotly contested issues in the Florida Panhandle over the last ten to fifteen years. Beach restoration is the initial restoration of a beach through dredging and pumping sand onto a beach. Beach nourishment is the addition of vegetation, sea oats, sand fencing, and more sand over time.



I.

A BRIEF HISTORY OF EROSION AND BEACH NOURISHMENT

EFFORTS IN THE FLORIDA PANHANDLE
A.

Erosion of Florida’s Beaches
Florida’s beaches have taken a beating from recent hurricane and storm activity. Since 1900, the Florida Panhandle alone has experienced 10 major storms (Category 3 on the Saffir-Simpson scale or higher), including a total of 35 hurricanes and 40 tropical storms. More recently, Florida Panhandle beaches have felt the direct or indirect destructive effects of hurricanes Opal (October 1995), George (September 1998), Ivan (September 2004), Dennis (July 2005), and Katrina (August 2005). In its 2008 annual report on critically eroded beaches, the Florida Department of Environmental Protection provided, in pertinent part:

The 2004 hurricane season was the most active storm season in Florida since weather records began in 1851. Hurricanes Charley, Frances, Ivan, and Jeanne, along with Tropical Storm Bonnie, damaged the beach and dune system, upland structures and properties and infrastructure in the majority of Florida’s coastal counties. The cumulative impact of these storms exacerbated erosion conditions throughout the state. … The 2005 hurricane season was a record breaking season with 27 named storms. Florida was impacted by Hurricanes Dennis, Katrina, Ophelia, Rita, and Wilma, and Tropical Storms Arlene and Tammy. The cumulative impact of these storms exacerbated erosion conditions in south and northwest Florida.


(Critically Eroded, 2008).
The Florida Legislature has recognized the importance of erosion on Florida’s coastline as a result of growth, natural disasters and man-made construction. In fact, the Legislature has declared its policy on beach erosion and its approval of beach restoration and nourishment projects, to wit:

161.088  Declaration of public policy respecting beach erosion control and beach restoration and nourishment projects.--Because beach erosion is a serious menace to the economy and general welfare of the people of this state and has advanced to emergency proportions, it is hereby declared to be a necessary governmental responsibility to properly manage and protect Florida beaches fronting on the Atlantic Ocean, Gulf of Mexico, and Straits of Florida from erosion and that the Legislature make provision for beach restoration and nourishment projects, including inlet management projects that cost-effectively provide beach-quality material for adjacent critically eroded beaches.

***


§161.088, Fla. Stat.

As part of its declaration of its policy on beach restoration, the Legislature identified the following restrictions on beach restoration projects: (1) they must only be conducted in a critically eroded shoreline area or benefit an adjacent critically eroded shoreline; (2) they must have a clearly identifiable beach management benefit consistent with the state’s beach management; and (3) they must be designed to reduce potential upland damage or mitigate adverse impacts caused by improved, modified, or altered inlets, coastal armoring, or existing upland development. §161.088, Fla. Stat.

Below are photographs taken in 1964 and 2004 that show the changes in both coastal construction and erosion on the Destin Harbor and Destin beaches in Okaloosa County, Florida, which has occurred over a 40-year period:

This photograph is taken from a film clip of Dr. Strangelove (1964), which depicts the Destin Harbor. (Jackson, 2004). The photograph below is an aerial photograph taken by Scott Jackson of Mindlace Media & Photography on January 13, 2004:



These photographs are very telling of what these coastlines have gone through from both man-made (i.e., coastal construction) and natural disasters (i.e., hurricanes). (Jackson, 2004).

Beach restoration is a multi-step process including (1) identifying critically eroded beaches through the Florida Department of Environmental Protection; (2) obtaining a technical beach management feasibility study to determine which areas are viable candidates for beach restoration; (3) complete a sand source investigation and locate a compatible sand source; (4) obtain local government approval to restore an area of beach; (5) finalize engineering and design of the project; (6) submit applications to state and federal agencies to obtain permits for the project; (7) obtain construction easements from beachfront landowners to go onto the land to complete the project; and (8) obtain funding. (Critically Eroded, 2008)
B.

Walton County’s Beach Restoration Efforts
In 2000, Walton County, Florida commenced a comprehensive beach management feasibility study to analyze its beaches following hurricanes in 1995 (notably, Hurricane Opal) and 1998. The findings of the study concluded in 2003 that the western beaches of Walton County were ripe for a large scale beach restoration. In fact, several Florida Panhandle beaches were placed on a “critically-eroded” beaches list by the Florida Department of Environmental Protection (FDEP) following Hurricane Opal.

Under Florida’s Beach and Shore Preservation Act, codified in sections 161.011 through 161.45, Florida Statutes, the City of Destin and Walton County, Florida, which are adjacent to each other, undertook a beach nourishment project for critically eroded areas of beach (approximately 6.9 miles of beaches and dunes). (King, 2009). This project included a plan for offshore dredging of white sand near the East Pass by a dredging company and the transportation of such sand to the beaches. The sand is unloaded into pipes, which is then delivered to beaches where it is disbursed by heavy equipment in 1,000 foot sections.

After multiple hurricanes in 2004, 2005, and 2006, the local governments had to re-analyze the state of the beach and the need for restoration. On January 9, 2007, the Walton County Board of County Commissioners directed staff to finalize engineering and design for restoration of the beaches and continue through the permitting process. As discussed in more detail below, two beach restoration opposition groups filed a lawsuit against Walton County, Destin, and the State of Florida challenging the Erosion Control Line and the state’s permitting program. This caused delay in the project, but ultimately the project was upheld.

C.

The Florida Supreme Court: Restoration Efforts May Continue.
The Florida Supreme Court recently upheld the constitutionality of the Beach and Shore Preservation Act in Walton County v. Stop the Beach Renourishment, Inc., No. SC06-1449 (Fla. S.Ct. Sept. 29, 2008). As discussed above, Walton County began a beach nourishment project, which was challenged by Save Our Beaches and Stop the Beach Renourishment, Inc., which are two opposition groups. They argued that Walton County was placing sand on their property without their consent. In order to nourish the beaches, the County had to obtain a permit from FDEP. These two opposition groups filed petitions for formal administrative hearings challenging FDEP’s notice of intent to issue the permit.

In addition, petitioners also challenged the erosion control line (ECL), which was established by the Board of Trustees of the Internal Improvement Trust Fund. The ECL establishes the line between the state owned land seaward of the mean high water line and privately-owned landward of the mean high water line.

The administrative law judge (ALJ) found that the city and county did give reasonable assurances that the water quality standard would not be violated, and recommended that the Department of Environmental Protection issue the permit. FDEP subsequently issued the permit, but the opposition groups appealed to the First District Court of Appeal, which reversed the ALJ. The issued was certified to the Florida Supreme Court.

The Florida Supreme Court ruled that beach nourishment does not infringe on the rights of property owners along the beaches of Destin in Walton County. Since the high Court’s opinion on this critical issue, beachfront landowners are taking a different approach to their argument in opposition to beach restoration and beach nourishment. Owners are arguing that their properties do not meet eligibility requirements for “critically eroded beaches” and, therefore, restoration of their beaches is inappropriate under the statute. As discussed in greater detail below, this is the critical questions at the center of the current debate.



II.

THE STAKEHOLDERS:

SUPPORTERS AND OPPONENTS
There are many stakeholders actively involved in the beach restoration and nourishment dispute. Each of these stakeholders is discussed in greater detail below including their interests and positions.

A.

State and Local Governments
State and local governments are primarily interested in protecting the “beaches as a public asset” because Florida’s economy is based on tourism. (Gibson, 2005) Florida has more than 1260 miles of coastline, which represents more than any other state in the continental United States. (Florida, 2009). “This coastline includes world famous beaches as well as 25 percent of the country’s environmentally sensitive wetlands, all of which represents a major economic draw for the state’s tourist industry attracting over $35 [ ] billion in 1999.” (Florida, 2009)

State and local governments believe that beach nourishment is necessary to replace sand lost through erosion, especially from hurricanes, storm activity, and coastal construction.



B.

Federal Government
The United States Corps of Engineers manage beach restoration and nourishment projects, which are federally-funded. The Corps is interested in restoring beaches to reduce future hurricane and storm damage.

C.

Private Beachfront Landowners
Many private beachfront landowners support efforts to restore beaches for the simple fact that saving the beaches will ultimately result in saving their homes. (The Beach, 2008).
D.

Stop the Beach Renourishment, Inc.
Stop the Beach Renourishment, Inc. is a not-for-profit association of six beachfront property owners located in Walton County, Florida. There are many similar opposition beachfront landowner groups just like Stop the Beach. These groups oppose the restoration of beaches on the basis that any restoration efforts negatively impact their constitutional rights to be paid just compensation for government “takings.” These homeowners dispute that their property is “critically eroded” and, therefore, they contend the beach adjacent to their homes should not be restored. They contend that rebuilding the beaches will result in the “new” beach becoming public property and diminishing the value of their property which will go uncompensated. (Sherman, 2008).

In addition, opponents of beach nourishment argue that the ecosystem can actually be damaged as a result of a poorly designed or poorly executed beach nourishment project. For example, sea floor habitats such as sea turtle nests may be damaged by dredging eroded sand. Beaches may become unstable and erosion can take place quickly if beach nourishment is not completed properly. (Gibson, 2005)


E.

The Public
Generally, the public’s interests are aligned with those of the state and local governments – the beaches drive the tourism-based economy of Florida and all efforts of preservation must be made. However, the public is also interested in retaining access to the beaches for the public. To that end, restoration by local governments will effectively turn private beaches into widened public beaches.

In an interview with Jennifer A. Sullivan, a local Tallahassee land use attorney, Ms. Sullivan captured the essence of the beach access debate, which parallels the beach restoration debate. Ms. Sullivan quoted a section of her recent article, “Laying Out an ‘Unwelcome’ Mat to Public Beach Access”:

The battle over beach access concerns two rights – the right of the public to use the beach, and the right of the private landowner to exclude. The concept of private land ownership is deeply embedded in U.S. property law. However, the importance of protecting the public interest in the beaches and oceans weighs strongly against this concept. The increasing development of condominiums and mega-resorts in small beach towns is eroding the character for which tourists seek out Florida’s beaches, especially the quiet and undeveloped character of the Emerald Coast.
(Sullivan, 2003, 323-333) (citations omitted).
III.

THE ISSUES
There have been numerous editorials, letters to the editor, local government meetings, administrative hearings, and lawsuits regarding the proposed beach restoration and nourishment on the Florida Panhandle beaches. Questions and concerns have been raised regarding a host of issues: Will the new sand become public beach and be accessible? What type of restoration efforts will be used? Will there be an impact on the environment and marine life, including biological diversity and abundance? Will there be an impact on outdoor recreation (i.e., boating, fishing, diving)? Will beach restoration speed up or slow down erosion? What type of sand is going to be used? What is the sand source? Who is going to pay for the beach restoration? How much is this restoration going to cost? (Powers, 2005)

Although the questions are abundant, the debate appears to be centered on three primary issues going forward in the wake of the Florida Supreme Court’s decision on the constitutionality of the Beach Renourishment Act: (1) What areas are critically eroded?; (2) What sand is going to be used?; and (3) Who is going to pay for the beach restoration and how much is it going to cost?

For an area to be eligible for state funding, it must be deemed critically eroded. This is obviously important when planning beach restoration projects because they can cost as must as $4 million per mile. Once an area is deemed “critically eroded” by the state, it is eligible for up to 50% cost sharing, but must include restroom facilities and 100 parking spaces per mile of beach. (Critically Eroded, 2008).

After a disaster, Federal Emergency Management Agency (FEMA) will pay for up to 75% of recovery efforts to restore an engineered beach (which is what the beach will be after the restoration project); however, on non-engineered beaches, only emergency protection (about 10% of a beach restoration project) is eligible for FEMA reimbursement. (Critically Eroded, 2008; Sherman, 2008).


A.

Issue #1 – Areas of critical erosion
The various options for the parties with regard to areas of critical erosion are: (1) continue to study the DEP-designated critically-eroded areas; (2) continue to study the DEP-designated critically-eroded areas and remove any contested areas from the proposed project; (3) commence restoration and nourishment of only critically-eroded areas; and, (4) commence restoration and nourishment of critically-eroded areas and noncritical areas adjacent to critically-eroded areas.
B.

Issue #2 – Sand
Borrow sand, or sand to be used in these restoration projects, must match the native beach sand characteristics in size, composition, and color. The various options for the sand to be used in these projects are: (1) use white sand that will be dredged from near the East Pass; (2) use sand dredged offshore 1 to 5 miles; (3) use sand dredged offshore of the East Pass approximately 7 miles; or (4) use sand that has dark yellow, red, and brown tones that is identical to the dunes and peat deposits, but that does not match the beach.

C.

Issue #3 – Cost of Restoration
In addition to the determination of critically eroded areas and the sand source investigation, the stakeholder must also consider the cost of restoration – how much and who is going to pay for it? The various options for the cost of restoration are: (1) Tourist Development Council bed taxes; (2) state grants, which will require bathrooms and parking; (3) federal grants; (4) MSBU levy on beachfront property owners; (5) a mixture of various funding sources.

IV.

THE CURRENT SITUATION
Critically eroded beaches are a designation that is determined by the Florida Department of Environmental Protection (DEP), which conducts an assessment of the entire shoreline of Florida to determine which stretches of beach need management action via beach restoration, dune reconstruction, or other management strategies. An updated report is produced annually and, as shown in its last report dated June 2008, DEP recently identified additional areas in Walton County and Okaloosa County that are considered critically eroded.

Since the publication of the last report, beachfront property owners of local condominiums and their respective homeowner associations have filed suit to stop Okaloosa County’s $25.9 million plan to rebuild the beaches. The lawsuit alleges that (1) the sand to be used is poor quality; (2) most of the added beach would become public property; (3) the beach in front of the plaintiffs’ condos isn’t significantly eroded; and the Municipal Services Benefit Unit (MSBU) assessment, which is a special tax on beachfront owners for the restoration, is calculated unfairly. (Sherman, 2008).

While local governments, Okaloosa and Walton counties in particular, attempt to structure their beach restoration and nourishment projects in light of the Florida Supreme Court’s recent ruling, they also must consider whether to keep undesignated areas of part of their projects. In addition, these local governments must come up with creative ways to fund these projects. At a January 2009 Okaloosa County Commission meeting, commissioners discussed the trial date for this case involving funding for beach restoration. (Okaloosa, 2009, Jan.) At its February 2009 meeting, commissioners discussed that local government officials met with federal officials in Washington, D.C. to discuss funding for beach restoration. (Okaloosa, 2009, Feb.). Local governments are presenting solutions to split fund these restoration projects through a combination of federal funding, special assessments, and possible fees.
V.

CONCLUSION
As discussed above, the fight over our Florida beaches continues. State and local governments will strive to commence restoration and nourishment of critically-eroded areas an noncritical areas adjacent to critically-eroded areas; use white sand that is most like the native sand; and attempt to fund these projects using a mixture of various funds including state grants, bed taxes on tourists, special assessments, and federal grants. The federal government will require that local governments comply with strict conditions to obtain grant money; however, the federal government will not likely be concerned about the sand quality. If they are funding the project, the cheapest sand is the best. Private beachfront landowners and opposition groups will continue to argue that the areas of beach, especially the area in their backyard, needs to be studied more and will insist on the highest quality and matching sand out there. They will also insist that beach restoration not get funded through special assessments, but rather should be had through bed taxes and grants. The public will likely insist that grant money which requires parking and bathrooms pay for the beach restoration as well as special assessments on beachfront landowners, who chose to build on the coast. The public will also insist on the highest quality sand.

Bibliography

Critically Eroded Beaches in Florida. (2008, June). Florida Department of Environmental Protection, Bureau of Beaches and Coastal Systems, Division of Water Resource Management. Retrieved April 23, 2009, from http://www.dep.state.fl.us

Florida Geological Survey. Electronic reference. Retrieved March 12, 2009, from http://www.floridadep.org

Gibson, T. (2005, April). Excessive Dredging Threatens Florida Marine Line. Florida Sportsman. Electronic reference. Retrieved April 20, 2009, from http://floridasportsman.com

Gibson, T. (2005, May). Addicted to Sand Pumping. Florida Sportsman. Electronic reference. Retrieved April 20, 2009, from http://floridasportsman.com

Gibson, T. (2005, June). Poor Results Prove Need for Overhaul of Beach-Fill Policy. Florida Sportsman. Electronic reference. Retrieved April 20, 2009, from http://floridasportsman.com

Jackson, S. (2004). Photographs of Destin Harbor. Electronic reference. Retrieved February 11, 2009, from http://mindlace.com/strangelove

King, M. (2009, Jan.). Florida’s Beach Renourishment Act Upheld. SandBar 7:4. Retrieved April 14, 2009, from http://www.olemiss.edu/orgs

Okaloosa County Commission Meeting Minutes (2009, Jan.)

Okaloosa County Commission Meeting Minutes (2009, Feb.)

Powers, M. (2005, Aug.) Florida Beach Restoration: Work to Restore Beaches Hurt by Past Storms, Prevent Further Erosion. Southeast Construction. Electronic reference. Retrieved by April 1, 2009, from http://southeast.construction.com

Sherman, F. (2008, Oct. 11) Beach Restoration Lawsuit Not Going Away. Destin Log. Retrieved February 14, 2009, from http://www.destin.com



Sullivan, J. (2003). Laying Out an “Unwelcome” Mat to Public Beach Access. 18 Journal of Land Use and Environmental Law 331.

The Beach is Falling! The Beach is Falling! (2008, April 8). First Coast Chapter of the Surfrider Foundation. Electronic reference. Retrieved January 20, 2009, from http://www.firstcoastsurfrider.com


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