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HomeMy WebLinkAbout2005-001 (2)MEMORANDUM OF AGREEMENT �i5 /_ hoc 6v- 6 o THIS EMORANDUM OF AGREEMEEIT (THIS AGREEMENT) is entered into this 9�''�`" day of Ft b ryas `f , 200r, by and between the Board of County Commissioners of Indian River County, 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, m part, to avoid impacts to marine turtles and their nesting habitat and to ensure that shoreline protection measures authorized under permits issued by THE 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)(k)4 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, localauthorization 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 marme turtle protection contamed in THE COUNTY s HCP shall preempt and supersede those required by THE DEPARTMENT as set forth m 62B-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 accordancewith 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 62B-33.0051, FAC. 4. THE COUNTY shall implement appropriate measures to minimise 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 2 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 will 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 intent 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 TIIE 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 THE DEPARTMENT if the apphcation is determined to be inconsistent with state laws and rules, with the exception of those provisions pertaining to the take of marine turtles. Apphcations 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 HCR 13. Sand placed on the beach as an emergency shoreline protection measure, when performed m accordance with conditions set forth in Attachment A, shall not require removal pursuant to Paragraph 9 above. 14. Upon receipt of a complete application for the retention of a temporary emergency structure or alternative protection as set forth m Paragraph 9 above, THE DEPARTMENT shall expedite processing of the permit apphcation 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 structure 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 imtiated 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. 4 19. All correspondence between THE COUNTY and THE DEPARTMENT pursuant to THIS AGREEMENT shall be addressed to the following Points of Contact: THE COUNTY Coastal Resource Manager Indian River County Public Works Dept. 1850 25th Street Vero Beach, Florida 32960 ENTERED INTO this 9' day of THE DEPARTMENT Program Administrator Florida Department of Environmental Protection Office of Beaches and Coastal Systems 3900 Commonwealth Blvd., Mail Station 300 Tallahassee, Florida 32399-3000 rechrikettl PATRICIA-M. RIDGELY;DEPUTY CLERK Ppsis &die *I Title �Q..� n(�Jrnnoeh untyministrator APPROVED AS TO FORM AND LEGAL SUFF. 1 WILLIAM K. DEBRAAL FilIslsADc. oACKNO ,EDGED on this date, under Section 120.52 of the Florida Statutes with the designated Department Clerk, receipt of which is hereby acknowledged. INDIAN RIVER COUNTY, FLORIDA By its Board of County Commissioners By ,Th'omas hairperson STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION By 4 Colleen Castile, Secretary LERK� �•C��-l-�-��J (J4 &--5 DATE ATTACHMENT A. INDIAN RIVER COUNTY RULES & REGULATIONS FOR ISSUANCE OF EMERGENCY PERMITS FOR SHORELINE PROTECTION Defmitions: 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 hne 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- habitablemajor 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 permitissued by FDEP pursuant to Section 161.052 or 161.053, Flonda 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, mcluding 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 emergmg from their nests. • 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 mterfering 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 & Regulations: 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. Creatinga 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 retaming walls, cantilever sheetpile walls (without concrete caps, tie -backs, or other reinforcement), or similar structures seaward of the vulnerable structure. 5. 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 3 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 downdrift properties resultmg 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, in both coloration and grain -size, to that already existing at natural (Le., 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 retamed by a No. 4 standard sieve), exclusive of shell material. 8. All protective measures shall be implemented in a manner that minimises 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. Construction 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 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 m 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 durmg 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 m Indian River County's HCP and the ITP issued by the USFWS. 5