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MEMORANDUM OF AGREEMENTrjrj _ 6 p 1
THIJKEMORANDUM OF AGREEMENT (THIS AGREEMENT) is entered
into this day of PZb rvQ,r H . 2pUX by and between the Board of County
Commissioners of Indian River Ely, "Florida (THE COUNTY ) and the Florida
Department of Environmental Protection (THE DEPARTMENT).
WITNESSETH:
WHEREAS, THE COUNTY has applied to the U. S. Fish & Wildlife Service
(USFWS) for a Section 10 Incidental Take Permit (ITP) that will allow for the incidental
take of marine turtles causally related to THE COUNTY' s issuance of emergency permits
for shoreline protection; and
WHEREAS, a Habitat Conservation Plan (HCP) developed in support of the ITP
application describes the goals, policies, rules, regulations, procedures and supporting
programs that THE COUNTY will implement to minimize and mitigate impacts to
marine turtles potentially resulting from emergency shoreline protection activities; and
WHEREAS, THE DEPARTMENT has determined that the attached "Rules &
Regulations" [Attachment A] for issuance of emergency shoreline protection permits by
THE COUNTY conform to Section 161 , Florida Statutes, and Chapter 62B-33 of the
Florida Administrative Code (FAC), with the exception of provisions pertaining to the
protection of marine turtles; and
WHEREAS, regulations contained in Chapter 62B-33 , FAC, pertaining to the
siting of erosion control structures as well as the construction and/or removal of
structures during the sea turtle nesting season are intended, in part, to avoid impacts to
marine turtles and their nesting habitat and to ensure that shoreline protection measures
authorized under permits issued by TIDE DEPARTMENT do not cause the take of
threatened and endangered marine turtles, a prohibition under the U. S . Endangered
Species Act ( 1973), as amended, and
WHEREAS, Paragraph 33 . 0051 (5)(104 of 62B-33 , FAC, encourages local
governments to obtain Section 10 ITP authorization from the USFWS prior to issuing
emergency permits for shoreline protection; and
WHEREAS, THE COUNTY's ITP will explicitly authorize harm to marine
turtles, their eggs and hatchlings resulting from issuance of emergency permits, thereby
rendering inapplicable, under THIS AGREEMENT, those portions of the above
referenced FAC designed to prevent take; and
WHEREAS, by issuing an ITP, the USFWS will explicitly hold THE COUNTY
harmless for the take of marine turtles caused by emergency shoreline protection
measures initiated under THE COUNTY' s emergency authorization, as long as THE
COUNTY abides by all conditions set forth in its ITP; and
WHEREAS, Iocal. authorization for emergency shoreline protection is but an
initial step in providing for the longer-term protection of eligible structures from
unanticipated and acute erosion caused by major coastal storms; and
WHEREAS, it is desirable for THE COUNTY and affected property owners to
receive federal authorization for takes over the life of a shoreline protection project
initiated under an emergency permit.
NOW THEREFORE, the parties hereto commit to formalize the permitting
relationship between THE COUNTY and THE DEPARTMENT, through THIS
AGREEMENT, and agree to abide by the following conditions.
1 . THE DEPARTMENT acknowledges that pursuant to THIS AGREEMENT, all
federally-approved measures for marine turtle protection contained in THE
COUNTY' s HCP shall preempt and supersede those required by THE
DEPARTMENT as set forth in 6213-33 .0051 , FAC .
2 . Property owners authorized by THE COUNTY to implement emergency shoreline
protection measures shall be held harmless by THE DEPARTMENT for the take of
marine turtles as a result of their shoreline protection activities, as long as all
conditions of the emergency permit issued by THE COUNTY are abided by.
3 . THE COUNTY shall issue permits for emergency shoreline protection for structures
in accordance with the "Rules & Regulations" set forth in Attachment A. THIS
AGREEMENT shall serve as THE Department' s written determination that said
Rules & Regulations comply with state law, with the exception of provisions for
marine turtle protection contained in Chapter 6213-33 .0051 , FAC.
4 , THE COUNTY shallimplement appropriate measures to minimize and mitigate
impacts to marine turtles associated with emergency shoreline protection activities as
set forth in its HCP. Furthermore, THE COUNTY shall abide by all conditions
contained or referenced in its Section 10 ITP issued by the USFWS .
5 . THE COUNTY shall notify THE DEPARTMENT in writing by the most expeditious
means available when it has declared an emergency pursuant to criteria and
conditions set forth in Attachment A. Notification of an emergency shall include
documentation from the County Commission authorizing the declaration of
emergency and shall provide the date and details of the storm event that created the
emergency.
6 . Upon determination that a structure is eligible for an emergency permit, THE
COUNTY shall notify THE DEPARTMENT in writing within 3 working days. This
notification shall provide the location of the affected property, characterize the
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Physical conditions at the site upon which the structure was determined to be eligible
and vulnerable, and describe the shoreline protection measures to be implemented.
7. Upon receipt of the notification described in Paragraph 6 above, THE
DEPARTMENT wffl assign an FDEP permit number to facilitate tracking of the
project from its inception through authorization of a permanent solution, as
applicable. THE COUNTY shall append this number to its emergency shoreline
protection permit issued for the project.
8 . THE COUNTY shall consult with THE DEPARTMENT whenever there is
uncertainty about the purpose or intern of any part of THIS AGREEMENT,
9. Within 60 days from the date that a temporary shoreline protection structure is
installed under an emergency permit from THE COUNTY, the property owner (or
legal agent) must comply with one of the following options:
a. Submit a complete application to THE DEPARTMENT for a state permit
authorizing retention of the temporary structure or allowing for alternative
protection, or
b. Remove the temporary structure.
10. THE COUNTY shall consult with affected property owners (or agents) to ensure that
the implications of Paragraph 9 above are fully understood and shall provide guidance
during the preparation of a DEPARTMENT permit application, as applicable. THE
DEPARTMENT shall provide THE COUNTY with a standard application package
for permanent shoreline protection measures. This packet will be made available to
property owners by THE COUNTY upon issuance of the emergency . shoreline
protection permit.
11 . Application for a permanent shoreline protection structure shall be denied by TBE
DEPARTMENT if the application is determined to be inconsistent with state laws
and rules, with the exception of those provisions pertaining to the take of marine
turtles. Applications shall also be denied if a beach nourishment, beach restoration,
sand transfer or other similar project that would provide protection for the vulnerable
structure is scheduled for construction within nine (9) months of receipt of the
application and all permits and funding for the project are available. THE COUNTY
shall periodically provide THE DEPARTMENT with a schedule and status report of
all pending County-sponsored beach projects.
12. THE COUNTY shall ensure that any structures removed pursuant to Paragraph 9
above are done so in accordance with provisions of its ITP and HCP.
13 . Sand placed on the beach as an emergency shoreline protection measure, when
performed in accordance with conditions set forth in Attachment A, shall not require
removal pursuant to Paragraph 9 above.
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14. Upon receipt of a complete application for the retention of a temporary emergency
structure or alternative protection as set forth in Paragraph 9 above, THE
DEPARTMENT shall expedite processing of the permit application and shall provide
immediate assistance to THE COUNTY and applicant. The review process shall
consider all applicable portions of Section 161 , Florida Statutes, and all rules
pertaining thereto, including adverse impacts of the proposed permanent structure on
the coastal system, downdrift properties and native vegetation. Insofar as THE
COUNTY will have an ITP authorizing take of marine turtles and agrees to abide by
all conditions relating to marine turtle protection contained in its HCP, adverse
impacts to marine turtles and/or their habitat shall not be used by THE
DEPARTMENT as a basis for denying a permit for a permanent structure. THE
COUNTY' s Coastal Engineer shall assist THE DEPARTMENT in obtaining site-
specific information germane to the review of permit applications for permanent
structures pursuant to this paragraph.
15 . Notwithstanding issues related to marine turtle protection, as described in Paragraph
14 above, THE DEPARTMENT shall exercise sole control over all aspects of the
permitting of permanent shoreline protection structures initiated under this
Agreement,
16. If THE DEPARTMENT issues a permit for the retention of a temporary structure or
alternative protection, removal of the temporary structure and/or construction of the
permanent structure shall occur outside of the sea turtle nesting season, unless
otherwise provided for in THE COUNTY' s HCP . If THE DEPARTMENT denies
the permit application, the temporary structure shall be removed at the direction of
THE COUNTY in accordance with provisions contained in the HCP.
17. Permanent structures permitted by THE DEPARTMENT shall not be located farther
seaward than the temporary structures authorized by THE COUNTY under
emergency permit unless there are no reasonable alternatives that would provide for
the adequate protection of an eligible stricture and a more seaward placement is not
contrary to state rules and regulations.
18 . This Agreement shall become effective on the date that the USFWS issues THE
COUNTY an ITP for the take of marine turtles causally related to shoreline
protection measures initiated under an emergency permit issued by THE COUNTY.
THE COUNTY shall provide THE DEPARTMENT with a copy of the ITP and HCP
within five (5) working days of receipt of the ITP. In the event that THE COUNTY
does not receive an ITP from the USFWS, this Agreement shall be rendered null and
void.
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19. All correspondence between THE COUNTY and THE DEPARTMENT pursuant to
THIS AGREEMENT shall be addressed to the following Points of Contact:
THE COUNTY THE DEPARTMENT
Coastal Resource Manager Program Administrator
Indian River County Public Works Dept. Florida Department of Environmental Protection
1850 25" Street Office of Beaches and Coastal Systems
Vero Beach, Florida 32960 3900 Commonwealth Blvd. , Mail Station 300
Tallahassee, Florida 32399-3000
ENTERED INTO this (� da of
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INDIAN RIVER COUNTY, FLORIDA
Att By its Board of County Commissioners
B �a .c�
Thomas S . Lowther , Chairperson
PATRICIA M . RIDGELY DEPUTY CLERK
p blame and Title
STATE OF FLORIDA DEPARTMENT
ounty dministrator OF ENVIRONMENTAL PRO I' TION
APPROVED AS TO FOR
AND EGAL LIFF Bvj -j�
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Colleen astille, Secretary
WILLIAM K . DEBRAAL
FEL ; slsWcT MYEDGED on this date, under Section 120. 52 of the Florida
Statutes, with the designated Department Clerk, receipt of which is hereby
acknowledged.
S
LERK DATE
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ATTACHMENT A
INDIAN RIVER COUNTY RULES & REGULATIONS FOR
ISSUANCE OF EMERGENCY PERMITS FOR SHORELINE PROTECTION
Definitions :
Adverse Impacts — Impacts to the coastal system that may cause a measurable
interference with the natural functioning of the system.
Beach — A zone of consolidated material that extends landward from the mean low water
line to the place where there is a marked change in material or physiographic form, or
to the line of permanent vegetation.
Declaration of Emergency - A resolution passed by the Indian River County Board of
County Commissioners declaring a state of emergency due to the approach or passage
of a coastal storm, as authorized by Chapter 252 .38, Florida Statutes. If the State of
Florida issues a declaration of emergency that includes Indian River County in its
scope, a local declaration is not required.
Coastal Engineer — The position of Coastal Engineer for Indian River County.
Dune — A mound, bluff or ridge of loose sediment, usually sand-sized sediment, lying
upland of the beach and deposited by any natural or artificial mechanism, which may
be bare or covered with vegetation and is subject to fluctuations in configuration and
location.
Eligible Structure — private structures or public infrastructure as follows.
• Private structures include non-conforming habitable major structures and non-
habitable major structures attached to non conforming habitable major structures
whose failure would cause the adjoining eligible structure to become vulnerable.
• Public infrastructure includes those roads designated as public evacuation routes,
public emergency facilities, bridges, power facilities, water or wastewater
facilities, other utilities, hospitals, or structures of local governmental, state, or
national significance.
Erosion — The wearing away of land or the removal of consolidated or unconsolidated
material from the beach and dune system by wind, water or wave action. Erosion
includes the landward horizontal movement of the mean high-water line or beach and
dune system profile and the vertical lowering or volumetric loss of sediment from the
beach and dune system
Escarpment — A vertical or near-vertical slope occurring between the beach and dune .
Indian River County Page 2
Emergency Permitting Rules & Regulations
FDEP/THE DEPARTMENT - Florida Department of Environmental Protection, Office
of Beaches and Coastal Systems.
Frontal Dune — The first natural or man-made mound or bluff of sand which is located
landward of the beach and which has sufficient vegetation, height, continuity, and
configuration to offer protective value.
Habitable Major Structure — A structure designed primarily for human occupancy,
including residences, hotels, and restaurants.
HCP (Habitat Conservation Plan) — A comprehensive program developed by Indian .River
County and approved by the U. S . Fish and Wildlife Service to minimize and mitigate
impacts to sea turtles potentially resulting from shoreline protection measures
initiated under emergency authorization from Indian River County.
Hatchling — Any species of sea turtle, within or outside of a nest, that has recently
hatched from an egg.
Minor Structure — Structures designed to be expendable and whose loss will not preclude
the occupancy of major habitable structures on the same property, including but not
limited to storage sheds, gazebos, decks, walkways and dune crossovers.
Nest — An area where sea turtle eggs have been naturally deposited or subsequently
relocated.
Non-Conforming Structure — Any habitable major structure which was not constructed
under a permit . issued by FDEP pursuant to Section 161 .052 or 161 . 053, Florida
Statutes, on or after March 17, 1985 .
Non-Habitable Major Structure — Structures designed primarily for uses other than
human occupancy, including but not limited to roads, bridges, storm water outfalls,
bathhouses, cabanas, swimming pools and garages.
Public Infrastructure — Roads designated as public evacuation routes, public emergency
facilities, bridges, power facilities, water or wastewater facilities, other utilities,
hospitals, or structures of local governmental, state or national significance.
Sea Turtle — Any turtle of the families Cheloniidae or Dermochelyidae, including all life
stages from egg to adult, of the species: Caretta caretta (loggerhead), Chelonia
mydas (green), Dermochelys coriacea (leatherback), Eretmochelys imbricata
(hawksbill), and Lepidochelys kempii (Kemp ' s ridley) .
Sea Turtle Nesting Season — That period each year from March 1 through October 31
when sea turtles are emerging onto sandy beaches in Indian River County to nest
and/or hatchlings are emerging from their nests.
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Indian River County
Page 3
Emergency Permitting Rules & Regulations
Significant Adverse Impact — Adverse impacts of such magnitude that they may alter the
coastal system by (a) measurably affecting the existing shoreline change rate, (b)
significantly interfering with its ability to recover from a coastal storm, or (c)
disturbing topography or vegetation such that the system becomes unstable; or suffers
catastrophic failure.
Vulnerable Structure — An eligible structure which, as a result of erosion from a storm
event that has been declared an emergency by Indian River County, has fewer than
twenty (20) feet of property (buffer zone) between the seaward most edge of the
eligible structure and the dune escarpment. The width of the buffer zone shall be
subject to change and shall be updated by Indian River County at intervals specified
in the HCP. The width of the buffer zone shall be determined using FDEP's High
Frequency Dune Erosion Model that calculates dune recession rates based on a 15-
year return interval storm. Vulnerable structures also include eligible structures
whose structural foundations have been exposed, as well as eligible structures where
shoreline protection measures were initiated under emergency authorization from
Indian River County on or before March 30, 1999, but those measures could not be
completed due to legal challenges.
Rules & Reeulations:
1 . Permits for emergency shoreline protection shall only be issued to eligible and
vulnerable structures.
2. Permits shall not be issued for temporary shoreline protection measures that, in the
judgment of the Coastal Engineer, are likely to cause significant adverse impacts nor
shall permits be issued when a proposed shoreline protection measure is not for the
purpose of alleviating conditions resulting from the shoreline emergency.
3 . Protective measures must be limited to one or a combination of the following:
a. Placing beach-compatible sand from upland sources on the beach,
b. Creating a temporary barrier seaward of the structure using sand bags and/or
geotextile fabrics filled with sand,
c . Shoring up (reinforcing) foundations,
d. Installing temporary wooden retaining walls, cantilever sheetpile walls (without
concrete caps, tie-backs, or other reinforcement), or similar structures seaward of
the vulnerable structure.
S . Temporary structures constructed for emergency protection shall be :
a. Designed and sited to minimize excavation of the beach and frontal dune as well
as impacts to native vegetation, marine turtles and adjacent properties, and
b. Designed and sited to facilitate removal.
6. The Coastal Engineer will make a determination as to the most appropriate protective
measure(s) for the site, with the goal of providing adequate temporary protection for
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Indian River County
Page 4
Emergency Permitting Rules & Regulations
the vulnerable structure while minimizing impacts to sea turtle nesting habitat and the
coastal system. Because each site is unique, it is not possible to establish a matrix to
identify the appropriate protection measure for all possible scenarios. The Coastal
Engineer will use his/her best professional judgment when deciding the most
appropriate shoreline protection measure for a specific site. This assessment will be
based upon careful consideration of factors such as:
a. Potential for physical damage to the structure because of erosion;
b. Extent of storm damage to the beach/dune system;
c. Distance of the structure from the dune escarpment;
d. Pre-storm conditions at the site (i.e., critically eroding, eroding, accreting,
etc.) ;
e . Potential consequences to coastal processes and downdraft properties
resulting from various shoreline protection options;
f. Time of year when the emergency occurs (e.g. , during or outside of the
nesting season, likelihood for additional storm activity, etc.) ; and
g. Construction schedules for permitted beach nourishment projects at the
site.
7. Any fill material placed on the beach shall be sand that is similar, an both coloration
and grain-size, to that already existing at natural (i.e. , never before nourished) beach
sites in the County. All such fill material shall be free of construction debris, rocks,
or other foreign material and shall not contain, on average, greater than 10 percent
silts and clays (i.e. , sediments passing through a No . 200 standard sieve) and/or
greater than 5 percent coarse gravel or cobbles (sediments retained by a No . 4
standard sieve), exclusive of shell material.
8 . All protective measures shall beimplemented in a manner that minimizes adverse
impacts to the coastal system, native vegetation and adjacent properties, while still
providing adequate protection for the vulnerable structure. If a temporary structure is
permitted, it shall be sited at or landward of the dune escarpment and as close to the
vulnerable structure as practicable to provide sufficient protection. The Coastal
Engineer shall use his/her best professional judgment in determining the appropriate
location of protective structures. Information that will influence the location
includes:
a. The type of protective material(s) to be used, .
b. Constriction methods,
c. Site topography,
d. Distance between the vulnerable structure and dune escarpment,
e. Extent of erosional threat to the vulnerable structure,
f. Presence/absence of sea turtle nesting habitat and/or marked nests, and
g. Other site-specific conditions.
9. There shall be no implementation of shoreline protection measures until an
emergency permit is obtained from Indian River County. Written application for an
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Indian River County Page 5
Emergency Permitting Rules & Regulations
emergency shoreline protection permit must be made to the Coastal Engineer as soon
as possible following an erosion event associated with a declared emergency.
10. If an emergency permit is issued by Indian River County, the permittee has a
maximum of 30 days from the date of the initial erosion event to complete
implementation of emergency measures. Indian River County may authorize a 30.
day extension to complete emergency protection measures provided the applicant can
demonstrate that emergency conditions still exist.
11 . If construction occurs or is scheduled to occur during any portion of the sea turtle
nesting season, the permittee must abide by all conditions for sea turtle protection
contained in Indian River County' s HCP and the ITP issued by the USFWS .
12. Within 60 days of completion of shoreline protection measures, the permittee must
either remove any temporary structures constructed as a result of the emergency
permit or provide a complete application to FDEP for a permit to retain the temporary
structure or implement alternative protection. If the temporary structure must be
removed during any portion of the sea turtle nesting season, the permittee must abide
by all conditions for sea turtle protection contained in Indian River County's HCP
and the ITP issued by the USFWS .
13 . If a temporary structure fails, all debris and structural material shall be removed from
the beach within 20 days of the structure failure. If removal of a failed structure is to
occur during any portion of the sea turtle nesting season, the permittee must abide by
all conditions for sea turtle protection contained in Indian River County' s HCP and
the ITP issued by the USFWS .
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