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The Troubled Future of Lateral Beach Access in Florida from the Chair

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The Troubled Future of Lateral Beach Access in Florida from the Chair Vol. XXXV, No. 3 THE REPORTER March 2014 THE ENVIRONMENTAL AND LAND USE LAW SECTION Nicole C. Kibert, Chair • Jeffrey A. Collier, Co-Editor • Christopher E. Cheek, Co-Editor www.eluls.org Feeling the Squeeze: The Troubled Future of Lateral Beach Access In Florida by Carly Grimm, Amanda Broadwell & Thomas T. Ankersen1 “No part of Florida is more exclusively condominium. Faced with the chal- and coastal armoring interrupt public hers, nor more properly utilized by her lenge of wading through the turbid access along Florida’s shores. Of the people than her beaches.”2 ocean surf, the beachgoer instead state’s 825 miles of sandy beaches, works her way up a dune at the edge over 485 miles, nearly 60 percent, are Introduction of the revetment and begins walking experiencing erosion.3 Absent human A beachgoer strolling down the along the narrow cap of the seawall, interference, beaches tend to natu- beach spots a large obstruction in anxious to return to the sandy beach rally migrate inland as higher water the distance. As she nears the barrier, several hundred feet away. Midway levels erode the shoreline.4 Intensive it takes the shape of a large rocky through her journey, a man who has development along Florida’s coasts outcropping protruding into the tide, been relaxing by the condominium’s and the construction of seawalls and waves crashing against it in a con- pool shouts at her to get off the prop- revetments has arrested this process, fused swirl of shallow whitewater. The erty. She is trespassing, he screams. resulting in a phenomenon ecologists obstacle is a revetment, engineered This is a true story, at least in its have termed “coastal squeeze.” Now, to absorb and deflect wave energy essential facts, and is one likely to be met with an increasingly immobile before it hits an adjacent seawall, increasingly reenacted over the com- shoreline, rising seas are gradually which dutifully protects a multistory ing decades as rising tides, erosion, swallowing up the beaches that have See “Feeling the Squeeze,” page 18 From the Chair by Nicole C. Kibert Hello ELULS Members and wel- will be available soon! Following the come to 2014! It’s only February and CLE, your hardworking Executive INSIDE: ELULS has already had a busy year! Council members spent the weekend On January 30, 2014, we had an Ex- engaged in long range planning led DEP Update ................................................. 3 ecutive Council Meeting in conjunc- by Chair Elect, Kelly Samek. We thor- tion with a packed networking recep- oughly reviewed section activities The New Phase I ESA Standard: When tion at Tampa Bay Brewing Company. and programs including a complete Can a Historical REC be a REC? ............ 6 The next day on January 31, 2014, the review of the section’s Treatise with Florida Case Law Update ............................ 7 section hosted a CLE program with Treatise Chair, Janet Bowman, to be RPPTL, “Emerging Trends on the De- sure we are keeping up to date and On Appeal ...................................................11 velopment Front for Environmental, adding timely articles. Brochure - Environmental and Land Use Land Use and Real Estate Practi- We are pleased to announce that Law Audio Webcast Series .................... 13 tioners” at Tampa Airport Marriott. our Environmental and Land Use Chaired by Vinette D. Godelia, this Law Audio Webcast Series begins Law School Liaisons year’s program featured an updated February 18, 2014. You can register A Spring 2014 Update from the Florida State University College of Law ......... 15 format for this popular program and for a single program or the whole UF Law Update ...................................... 16 the recorded version of the program series. Here’s the schedule of events: See “Chair’s Message,” page 2 CHAIR’S MESSAGE - Peter Anderson, Geosyntec information. There are some sponsor- from page 1 Consultants ship opportunities available for our next networking reception in South Note: All webinar presentations are Florida in March 2014. Please contact scheduled to occur between 12:00 noon Calbrail Bennett at CBennett@flabar. • February 18, 2014 - Update on and 1:00 p.m. Eastern. For more in- org for more information. Water Use Issues from Around formation, please review the program You are welcome to attend meet- Florida information sheet at: http://eluls.org/ ings of the Executive Council. The - Timothy J. Perry, Oertel, Fernan- wp-content/uploads/2013/12/1626- remaining 2013-2014 meeting dates dez, Bryant & Atkinson, P.A. Webseries.pdf. for the ELULS Executive Council are - David Macintyre, PB Water listed below: As always special thanks to our • March 20, 2014 - Managing Large 2013-2014 ELULS sponsors for their • April 2014 (date to be deter- Scale Development for the Long support this year. mined) – Orlando, FL Term -- Sector Planning in Osceola • June 26, 2014 – Gaylord Palms County Platinum Level Resort, Orlando (in conjunction - Vivien J. Monaco, Burr & For- ARCADIS with The Florida Bar Annual man LLP Geosyntec Consultants Convention) - Jeff Jones, Osceola County Golder Associates, Inc. • August 6, 2014 (4:00 p.m.) – Omni Amelia Island Plantation • April 17, 2014 - Everyday Eth- Gold Level ics: The Most Common Errors At- Breedlove, Dennis & Associates, Inc. Also, feel free to visit the section web- torneys Make (and how to avoid Cardno TBE site http://eluls.org at anytime for them) Carlton Fields, P.A. information about section events and - Elizabeth Clark Tarbert, Ethics E Sciences, Inc. committee activities. Did you know Counsel, The Florida Bar Environmental Consulting & Tech- the section has several committees nology, Inc. focused on substantive areas of envi- • May 20, 2014 - Annual Legislative GrayRobinson, P.A. ronmental and land use law? You can Wrap Up HSW Engineering, Inc. read all about each committee and - Janet E. Bowman, Nature Lewis, Longman & Walker, P.A. their activities on our website. Conservancy Robert N. Hartsell, P.A. Finally, be sure to add August 7-9, - Gary K. Hunter, Jr., Hopping 2014 to your calendar for the ELULS Green & Sams Silver Level Annual Update’s return to Amelia The Byrd Law Group Island Plantation. We have some • June 19, 2014 - Air Law Hot Topics: Water and Air Research, Inc. unique events planned for this spe- Fine Particulate Emission Limits, cial occasion that you will not want NSR Enforcement and More If you are interested in sponsor- to miss! More to come on that in the - Dorothy E. Watson, Foley & ing the section, please visit http:// next issue of the Reporter and also Lardner LLP eluls.org/our-sponsors/ for more via the member e-newsletter. This newsletter is prepared and published by the Environmental and Land Use Law Section of The Florida Bar. Nicole C. Kibert, Tampa. Chair Kelly K. Samek, Tallahassee ...................Chair-elect Carl Eldred, Tallahassee . Secretary Vivien J. Monaco, Orlando. Treasurer Jeffrey A. Collier, West Palm Beach. Co-Editor Visit the Christopher E. Cheek, Miami . Co-Editor Environmental and Colleen Bellia, Tallahassee. .Production Artist Calbrail L. Bennett, Tallahassee . .Section Administrator Land Use Law Section’s website at: Statements or expressions of opinion or comments appearing herein are those of the contributors and not of The Florida Bar or the Section. http://eluls.org 2 DEP Update by Randy J. Miller, II, Senior Assistant General Counsel Rulemaking Update: has been established at http://www. not become effective until ratified by Chapter 62-780, F.A.C., AIF Peti- dep.state.fl.us/water/wetlands/miti- the legislature. tion Rulemaking: The DEP’s Divi- gation/umam/rule.htm. sion of Waste Management recently Chapter 62-771 and 62-772, Petro- Numeric Nutrient Criteria: completed Phase 2 of the Chapter leum Restoration Program: On May As a result of a federal lawsuit, 62-780 Rulemaking (Phase 1 was the 30, 2013, the Division published a EPA made a necessity determina- “merger” of the four contaminated Notice of Rule Development to amend tion in 2009 that numeric nutrient site cleanup rule chapters into one). Chapter 62-771, F.A.C., and to cre- criteria are necessary for the major- Phase 2 rulemaking for Chapter ate a new Chapter 62-772, F.A.C., in ity of surface waters in Florida, and 62-780, F.A.C., involved proposed the Florida Administrative Register. entered into a consent decree under changes in response to a Petition Chapter 62-771, F.A.C., related to which it set a schedule to establish filed by the Associated Industries the priority ranking of petroleum such criteria. Since that time, the of Florida (AIF) relating primarily contaminated sites, was amended Department has adopted numeric to probabilistic risk assessments for development of a definition of nutrient criteria (NNC) for lakes, and the criteria for establishing al- “Imminent Threat”; and to establish springs, estuaries, coastal waters, ternative cleanup target levels at procedures to re-score a petroleum and a majority of its streams. EPA contaminated sites. The Notice of contaminated site based on site spe- has approved these criteria as being Proposed Rule (NPR) was published cific data. Chapter 62-772, F.A.C., consistent with the Clean Water Act. in the FAR in September 2013, and was created to codify procedures On November 30, 2012 and June no one requested a hearing; however, for the competitive procurement of 28, 2013, EPA signed revised deter- the Joint Administrative Procedures contractual services for the cleanup minations that removed a limited Committee (JAPC) requested sev- of state-funded petroleum contami- subset of waters from its original eral changes. All JAPC issues were nated sites, including the establish- determination. It then filed with the resolved, and the DEP published ment of: minimum qualifications for court a motion to modify the consent its Notice of Change in December contractors to perform rehabilitation decree to make the decree consistent 2013.
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