1. (1) The Department shall issue a permit for a reconstructed dune after it determines the applicant meets the following conditions:

   1. (a) The proposed reconstructed dune must provide for the protection of an existing vulnerable structure or a structure that is upland of a beach-dune system that has experienced significant beach erosion.

      1. (i) The report entitled “Erosion Due to High Frequency Storm Events,” by the University of Florida, dated November 22, 1995, which is incorporated herein by reference. A copy of this document may be obtained by writing to the Department of Environmental Protection, 2600 Blairstone Road, MS 3522, Tallahassee, Florida 32399-2400; or at the following web site: www.dep.state.fl.us/beaches, or

      2. (ii) Application of the SBEACH (Storm-induced BEAch CHange), a numerical simulation model for predicting dune erosion or other similar models recognized by the coastal engineering profession, using the storm surge elevations of a 25-year storm event, as determined by the Department and provided in the above referenced report entitled “Erosion Due to High Frequency Storm Events.”

         b. Geotechnical analysis: The applicant may provide the Department an appropriate geotechnical analysis demonstrating that the major structure’s foundation will be subject to damage from a frequent coastal storm.

         c. Adjacent structure vulnerability test: The applicant may demonstrate that its major structure or public infrastructure is in close proximity to a vulnerable major structure or public infrastructure and the neighboring property’s proposed reconstructed dune would cause the applicant’s major structure or public infrastructure to become vulnerable. The demonstration shall be provided by a professional engineer and must be based on the results of numerical modeling and engineering analysis that clearly demonstrate to the Department that the proposed reconstructed dune would cause the applicant’s adjacent major structure or public infrastructure to become vulnerable.

         d. Site specific vulnerability analysis: The applicant can demonstrate to the Department, through engineering analysis, that another site specific circumstance exists which makes the structure to be protected vulnerable as defined in subsection 62B-56.020(49), F.A.C.

         2. If vulnerability cannot be established then the proposed reconstructed dune shall protect an existing major structure or public infrastructure located seaward of the Coastal Construction Control Line (CCCL) that is upland of a beach-dune system that has experienced significant beach erosion from a frequent coastal storm. The applicant may provide the Department for consideration an analysis certified by a professional engineer licensed in the State of Florida demonstrating that the beach-dune system has experienced significant beach erosion. The analysis and supporting data shall be based upon a detailed assessment of the impact of storm events along the subject shoreline. The applicant may provide the following types of quantitative data and analyses for consideration by the Department: beach and offshore profiles, upland topography, nearshore and offshore bathymetry, historical shoreline position changes, storm tide frequency, beach and dune erosion, the effectiveness of previous or existing sand placement efforts in preventing a recurrence of significant beach erosion, post storm assessments of the beach and dune systems, and similar coastal scientific data necessary to demonstrate significant beach erosion. In the event a beach-dune system does not currently experience significant beach erosion, but sand has been placed at the site within five years of the Department’s receipt of a permit application for a reconstructed dune under this rule, then the requirements of this paragraph are met provided that:

         a. The sand placement was designed solely for that portion of the beach-dune system that is landward of the shoreline that existed at the time of commencement of the sand placement; and,

         b. The beach-dune system experienced significant beach erosion immediately prior to the commencement of the sand placement.

         3. Alternatively, if the applicant would otherwise meet the requirements of subparagraph 62B-56.030(1)(a)1. or 62B-56.030(1)(a)2., F.A.C., but the existing major structure or public infrastructure to be protected is not located seaward of the CCCL, the applicant may provide engineering data that shows the existing major structure or public infrastructure in need of protection will be impacted by the storm surge with dynamic wave setup of a one-hundred-year storm or the anticipated erosion of a one-hundred-year storm.

      1. Vulnerability shall be certified by a professional engineer licensed in the State of Florida through one of the following methods:

      a. Frequent coastal storm vulnerability test using:

   2. (b) Siting and design requirements:

      1. The reconstructed dune shall be sited as far landward as practicable, balancing the need to minimize excavation of the beach-dune system, impacts to nesting marine turtles and other nesting state or federally threatened or endangered species, and impacts to adjacent properties.

      2. The reconstructed dune shall be sited in a sustainable location so that the core of the reconstructed dune is located no farther seaward than the frontal dune that existed prior to recent storm events or that would naturally develop under similar shoreline locations and conditions, whichever is farther landward.

      3. The reconstructed dune core shall be designed, sited, and placed at an elevation so that the dune core is continuously covered with a minimum of three feet of native or beach-quality sand and shall be stabilized with native beach-dune vegetation.

      4. The reconstructed dune core shall be designed, sited and elevated to minimize interference with movement of sediment along the beach.

      5. The reconstructed dune shall be designed to facilitate easy removal of the geotextile containers.

      6. The reconstructed dune shall be designed as a frontal dune having similar crest elevations, side slopes, configuration and continuity to the frontal dune that existed prior to recent storm events or that would occur under similar shoreline locations and conditions.

      7. The proposed reconstructed dune shall not result in removal or disturbance of sandy soils of the beach-dune system to such a degree that a significant adverse impact to the beach-dune system would result from either reducing the existing ability of the system to resist erosion during a storm or lowering existing levels of storm protection to upland properties and structures.

      8. The proposed reconstructed dune shall minimize impacts to adjacent properties.

      9. The proposed reconstructed dune shall not cause an increase in structure-induced scour of such magnitude during a storm that the structure-induced scour would result in a significant adverse impact.

      10. The proposed reconstructed dune shall be sited and constructed in a manner to minimize removal or destruction of native vegetation.

      11. The proposed reconstructed dune shall not direct discharges of fluids that would result in significant adverse impact.

      12. The proposed reconstructed dune shall not cause a significant adverse impact to nesting state or federally threatened or endangered species, and nesting marine turtles; and,

      13. The proposed reconstructed dune shall not interfere with public access as defined in section 161.021, F.S.

   3. (c) All fill shall be beach quality sand. Sand excavated seaward of the CCCL shall be the minimum amount required to fill the core of the reconstructed dune and shall be obtained from the footprint of the core of the reconstructed dune, not from beach scraping. Any additional sand necessary to construct the project shall come from upland of the CCCL. Organic or peat material shall not be considered beach compatible material suitable for placement atop the reconstructed dune.
   4. (d) Sandy material excavated seaward of the CCCL shall be maintained on-site seaward of the CCCL and be placed in the immediate area of construction unless otherwise specifically authorized by the Department based upon sediment suitability, site constraints, and construction practices.

   5. (e) In considering project impacts to native beach-dune vegetation, the Department shall evaluate the following:

      1. Type and extent of native beach-dune vegetation.

      2. The degree and extent of disturbance by invasive nuisance species.

      3. The degree and extent of disturbance by other construction activities; and,

      4. The protection afforded by natural plant communities.

   6. (f) In considering project impacts, the Department shall evaluate and minimize the impacts to nesting state or federally threatened or endangered species, including nesting marine turtles and hatchlings. A list of the nesting state species that may be affected by activities regulated under the CCCL Program in the State of Florida are provided in Table 1, below. For a list of federally threatened or endangered species visit the U.S. Fish and Wildlife Service web site at: http://www.fws.gov/endangered/policy/index.html.

1. (g) The Department shall restrict activities that lower the protective value of natural and intact beach-dune, coastal strand, and maritime hammock plant communities. Activities that result in the removal of protective root systems or reduce the vegetation’s sand trapping and stabilizing properties of native beach-dune vegetation are considered to lower its protective value. Any such vegetation removal must be temporary in nature and must be replaced with native dune vegetation that will result in an overall increase in the protective value of the root system or the sand trapping and stabilization properties of the existing native beach vegetation. Construction activities shall be located, where practicable, in previously disturbed areas or areas with nonnative vegetation in lieu of areas of native plant communities when the placement does not increase adverse impacts to the beach-dune system; and,
2. (h) Special conditions relative to the nature, timing, and sequence of construction shall be placed on permitted activities when necessary to protect nesting state or federally threatened or endangered species and marine turtles, their nests and nesting habitat. Sand placement must be undertaken in conformity with a federal incidental take authorization, if an Incidental Take Permit is required.

3. (2) After reviewing all information required pursuant to this chapter, the Department shall:

   1. (a) Grant the permit provided the applicant has demonstrated the project will comply with the requirements of this chapter. A decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell.
   2. (b) Deny any application for an activity that either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell, or
   3. (c) Deny any application for an activity where the project has not met the requirements of this chapter.
4. (3) No permit shall be issued under this rule where all permit criteria have been met, but a publicly funded beach nourishment, beach restoration, sand transfer, or other project which would provide protection to the structure is scheduled for construction within nine months, all permits have been issued, and funding for the project is available.
5. (4) The requirements set forth in chapter 62B-56, F.A.C., and the permit shall be controlling, unless a more stringent requirement is contained in an associated Incidental Take Permit, in which case the more stringent requirements shall be controlling.

Rulemaking Authority 161.053(20), 161.085(5) FS. Law Implemented 120.60, 161.053(2), (4), 161.085(9), 379.2431(1)(h) FS. History–New 6-22-09.