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HomeMy WebLinkAbout1999-06340 03/15/1599 16:11 850-4138977 FDEP PAGE 18 V INTERIM AGREEMENT WHEREAS the State of Florida Department of Environmental Protection (Department) has exclusive jurisdiction to issue coastal construction control line ('CCCL') permits under chapter 161 of the Florida Statutes to authorize permanent structures seaward of the CCCL In Indian River County, Florida; WHEREAS Dirk and Brenda Parvus, Anne E. Strand, Peter J. Trimarche, E. Bruce and Patricia N. King, Richard T. and Louise S. Simpson, and R. Seth McCoy ("She SummernIgce Petitioners') applied for permit number IR -512 ATF for an after-the- fact� Department permit to authorize an existing steel sheen pile bulkhead ('Bulkhead') seaward of the CCCL in Indian River County across six (6) adjacent and contiguous parcels owned by the Summemlace Petitioners, which application was denied by the Department in part because the Bulkhead was determined by the Department to cause a "take" of endangered marine turtles; WHEREAS the Bummerolece Petitioners have jointly filed a petition with the Department challenging the Department's denial of permit application number IR -512 ATF, which case is currently pending at the Division of Administrative Hearings ("DOAH") as DOAH Case Number 98-3501; WHEREAS Lanv C 92ratner and Cheryl I Gerstner ("the Gerstner Petitioners') =:pliad'eaOf in w-Lme-race modification to Departm2nt permit number IR -511 to awhirize an existin0 steel sheet vile bulkhead ("Bulkhead") placed further seaward of the CCCL in Indian River County on a parcel owned by the Gerstner Petitioners than was authorized In 18-511. whigh application for modification was denied by the 40 03/15/1959 36:11 850-4138977 FDEP PAGE 19 Deoartment in part because the Bulkhead was determined by the Department to cause a `take" of endangered marine turtles WHEREAS the Gerstner Petitioners have jointly filed a Petition with the Department challenging the Degertment's denial of an application for an after-tho-fact moddicedlon to Dwotment permit number IR -51 1. which rasa is currentiy pending at the Division of AdministrItive Hearings ('MH*) as DOAK Case Number 97-4262 and the Gerstner Petitioners have iointly tiled a reguest for review with the Florida Land and Water Adiudicatory Commission (FLAWAC) challenging that same Department denial which case is currently Dendino at FLAWAC as FLAWAC Case Number DEP RFR 97. MA WHEREAS Indian River County, Florida ("County) has jurisdiction to issue permits for temporary emergency armoring structures and other certain allowable emergency protection measures under section 161.085(3) of the Florida Statutes and Rule 628-33.0051(5), F.A.C., to authorize temporary armoring structures and other emergency protection measures seaward of the CCCL in Indian River County; WHEREAS the County issued a permit for a temporary emergency armoring structure to temporarily authorize the Summerolace Petitioners' Bulkhead for sixty (60) [''f[iLI a r�.. a ,� _�i►. structure to tam_+r_ ar;t.; ;;,+;; ;; iza ; a Garsiner Retitionare' Bulkhead for sixty (60) days: WHEREAS the Caribbean Conservation Corporation and its related entity Sea Turtle Survival League (hereafter referred to collectively as "CCC"), which is dedicated to the protection of endangered marine turtles, believes that the County has improperly 21116 El • 00/15/1999 16:11 850-4138977 FDEP P -GE 20 issued permits for temporary emergency armoring structures under section 161.085(3) of the Florida Statutes, such as the emergency permit issued to the Summerolace Petitioners and that the County's issuance of such permits has caused and will continue to cause a "take" of endangered marine turtles; WHEREAS the CCC has riled suit against the County in that certain case styled Sea Turtle Survival League. Inc v Indian River County, which is currently pending before the Circuit Court of the Nineteenth Judicial Circuit for Indian River County, Case Number 98 -171 -CA -05 (the "CCC Lawsuit"). In the CCC Lawsuit, CCC seeks, among other things, the entry of a permanent injunction ordering the County to change its temporary coastal emergency protection permit program to take additional steps to protect against any possible "take" of marine turtles In Indian River County. WHEREAS the CCC wants the County to develop a marine turtle habitat conservation plan ("HCP"), and apply for and obtain a section 10 permit from the United States Fish and Wildlife Service ("USFWS") under 16 United States Code 1539 that incorporates the County's proposed HCP; WHEREAS the benefits of suspending the uncertainty of pending litigation, having the County pursue an HCP and obtain a section 10 permit, and other good and valuable consideration has been exchanged by the parties to this agreement, and receipt of such consideration from the- other partle: to thl, sgre`viiidid is V*reby acknowledged; NOW THEREFORE the parties signing this agreement agree as follows. 40 03/15/1999 16:11 850-4138977 FDEP PAVE 21 1. The County, through the Board of County Commissioners of Indian River County, Florida, will enter into the memorandum of agreement ("MOA') with the Department attached hereto as Exhibit A. 2. The County will develop a marine turtle habitat conservation plan ("HCP') for the Indian River County shoreline and submit such HCP to the United States Fish and Wildlife Service ("USFWS") as part of an application for a section 10 permit under the Endangered Spades Ad from USFWS. The goal of the HCP must be to improve the overall protection of sea turtles and their nesting habitat in Indian River County so as to offset the potential "take" of marine turtles or their nesting habitat caused by the construction of coastal armoring and other structures built to protect beachfront property from erosion and sand -loss in Indian River County. 3. The County will apply for the above-described section 10 permit from the USFWS within a reasonable time after signing this agreement 4. The County will respond to each request for information from the USFWS relating to the County's application for the above-described section 10 permit within a reasonable time after such request. 5. The County will provide to the Department periodic reports (which may address studies or monitoring) as may be required by any contract with the Department for beach renoiirishrnervi or restoration projects, which reports will be provided in the manner and time frame specified In such contract. The County will provide the Department and CCC with a copy of all correspondence between the County and 116 • • 03/15/1999 16:11 050-4130977 FDEP PACE 22 USFWS, relating to the County's application for the above-described section 10 permit, within ten (10) days after receiving or generating such correspondence. 6. If the County fails to respond within a reasonable time after a request for additional information from the USFWS relating to the County's application for the above-described section 10 permit or if the County otherwise fails to pursue obtaining the above-described section 10 permit in diligent good faith, then the Department may send a written letter to the County identifying such failure and request the County to cure such failure within twenty (20) days of the date of such letter (hereafter the "Trigger Letter'). 7. If the County falls to cure or explain each failure Identified in the Trigger Letter to the Department's satisfaction within twenty (20) days of the date of such letter, then the Department may revoke this agreement in writing. If the Department revokes this agreement, then this agreement will become unenforceable by any party to this agreement, except that the Department may sus the County for an accounting and return of any unused or misused monies contributed by the Department, and the Department will pursue litigation against the Summemlace Petitioners Ond the Gerstner ners. S. The County Agrsss to make its best efforts to complete Its HCP, apply for a *o0ion 10 p—ormit, and rdspond to requests for additional information by USFWS as soon as practicable. If the County fails to make such best efforts, taks required actions within a reasonable time in a000rdance with paragraphs 3 through 6 above, or otherwise fails to pursue obtaining the section 10 permit in diligent good faith, then N6 40 r] 0 03/15/1999 19:11 850-4138977 FDEP PACE 23 CCC may send s written letter to the Department identifying such failure and requesting the Department take action to cure such failure within twenty (20) days of the date of such letter. If the Department fails to cure or explain each failure identified in the letter to CCC's satisfaction within twenty (20) days of the data of such letter, then CCC may file a 60 -day notice letter and otherwise proceed with litigation under 16 U.S.C. § 1540(8) despite the prohibitions contained in paragraph 19 of this agreement. 9. If the USFWS denies the County's application for the above-described section 10 permit and all appeals have been exhausted, then this entire agreement will be void �d the Department will pursue litigation against tyle Summerplaoe Petitioners and the Gerstner petitioners. 10. The Department will contribute funding to the County that will only be used to develop the HCP and to obtain the above-described section 10 permit from the estimste from the subcorwaetor selected to develop the plan Future monitoring coats All be eligible for cost sharing by the Department's §ureau of Beaches and Coastal Systems in asaociatlon with State -funded beach restgodion proiects MonitQf1 outside of tho HCP pro!= MA; y.;" not be aiigibis for cost sherina by the Bureau. I B: -If the Department fails to contribute the amount of funding to which the Department has d in this , then the County may declare this bib do 40 03;15/1999 15:11 850-4138977 FDEP PAGE agreement void by sending a written letter expressly to stating to all signatories of this agreement. 11. The Department will forego pursuing any enforcement action against 1jg SummeMIK Petifloners am the gMtner Petitioners while this agreement remains in effect. 12. The Department and the Sumnl=lace Petitioners will forego litigating DOM Case Number W3501 while this agreement remains in effect. The Department and the 92 tner Petitioners will forego litigating DOAH Cess Number -97-4262 and FLAWAC Case Number DEP RFR 97.008 while this agreement remains in effect 13. The Surnmerotace Petitioners acknowledge that the Department's agreement to forego any enforcement action against the ,§ummer2lace Petitioners or forego litigating DOAH Case Number 98-3501 while this agreement remains in effect does not form the basis for an estoppel or waiver against the Department._ The Gerstner Petitioners ag&m Aadge that the et'artment's agreement to foveae env enforg�ment adian against the Gertner Petitioners or forego litioatfng DOAH Case Number 97-42t32 anti FLAWAC Case Number DEP RFR 97-008 while this agreement remains in effect does not form the basis for an est000el or waiver against the Department 14. This agreement may not be offered into evidence In any enforcement action by the Department against the Summerplace Petitionbrs, in any litigation relating to DOM Case Number 98-3501, or in any other litigation arising out of or related to any matters at issue in DOM Case Number 98.3501, except that the Department may offer this agreement into evidence If the the Summerplaca Petitioners argue that the 716 40 03/15/1999 16:11 050-4138977 FDEP PAGE :5 Department's actions in foregoing the pursuit of an enforcement action or litigating DOM Case Number 98-3501 during the time while this agreement remained in effect should act as a waiver of any rights of the Department or estop the Department from taking any acOw. This Agreement may ntube offered into evidence in am enforcement a dion bj the Depilt rtt against the Gerstner Patitionars in any litigation relating to DOAH Case Number 97-4282 or FLAWAC Case Number DEP RFR 97-008 or in any Mer litigation arising out of or related to any matter at issue in DOAH Gase Number 97-4262 or F Cage Number DEP RFR 97-008 except that the Departfnent may offer this aomement into evidence if the Gerstner Petitioners argue that the Department's actions in foregoing the pursuit of an enforcement action or li 'gating DOAH Case Number 97-4282 or FLAWAC Case Number DEP RFR 97-008 during the time while this agreement remained in effect should a as a waiver of anv rights of the Department or estop the Daoartmant from taking anv action 15. The Summerolace Petitioners acknowledge that even if the above-described section 10 permit Is issued to the County by the USFWS, the Summerolace Petitioners must 9011 provide a vulnerability study to the Department which provides the Department with reasonable assurance that the Summerplace Petitioners are eligible to receive Department permit IR -512 ATF. If the Surnmerolace Petitioners fail to provide the Department with the above-described vulnerability study by the time the above- described section 10 permit Is issued or if that vulnerability study shows that the SumMig.W,Petitioners are ineligible to receive Department permit IR -512 ATF, then sig 40 03/15/1999 16:11 858-4138977 FDEP p4GE _6 the Department will resume litigating DOM Case Number 98-3501 and may take enforcement action ageinstthe Summerplace Petitioners. -. 11 — — ao ~ I 1v put mit is iesuaa w ine "unly ana M2 SWUM Dlace Petitioners have submitted the above-described vulnerability study to the Department, than the Department will issue permit IR -512 ATF, as mended, to Petitioner after:3W �imer6laCe Petitioners dismiss with prejudice DOM Case Number 9"501. If the abcsve:described section 10 permit is issued 121M County t`*n the Departmenf will Issue parmit IR -511 M1 ATF to the Gerstner Petitioners M C7 4b 03;15/1999 16:11 850-4138977 FDEP P"GE 117. While this agreement remains In effect, the Summerolace Petitioners may backfill behind tttejr existing Bulkhead with beach -compatible sand, provided that sucli backfilling of sand either does not destroy existing vegetation or that -the Summerolaoa Petitioners offset the impacts of such vegetation destruction by replacing the destroyed vegetation with an equivalent number and quality of salt -tolerant native vegetation that is appropriate for the location, provided any such activity does not occur seaward of the existing Bulkhead during the marine turtle nesting season (March 1 through October 31). 128. While this agreement remains in'effect, the Summerolace Petitioners may place a temporary wooden cap on their Bulkhead. The Summerolace Petitioners will forego making any modifications to their Bulkhead that are not expressly allowed in this agreement, except that.the Summerolace Petitioners may remove their Bulkhead at any time so long as they do not cause a "take" of marine turtles in the process and no construction activity or heavy equipment usage occurs seaward of the existing Bulkhead during the marine turtle nesting season (March 1 through October 31). 2418. While this agreement remains pending, CCC will forgo taking any step to commence any form of litigation against any of the other parties to this agreement regarding matters that would be mitigated for by the proposed NCP, and will abate the CCC lawsuit pending the completion of the HCP and issuance of the above-described section 10 permit, Upon the completion of the HCP and Issuance of the section 10 permit, CCC will dismiss the CCC lawsuit. lou 40 do 23x15/1999 16:11 850-4138977 FDEP PAGE 2E 210. If the USFWS issues the above-described section 10 permit to the County and CCC challenges that section 10 permit, then the Department will not issue permit numbers IR -511 M1 ATF and IR -512 ATF until that lawsuit or proceeding is resolved. If CCC prevails in such lawsuit or proceeding, then the Department will not Issue permit numbers IR S11 M1 ATF and IR -512 ATF. If CCC dogs not prevail in such lawsuit or prooseding, then the Department will Issue permit numbers IR -511 M1 ATF and IR -512 ATF and CCC will not challenge the issuance of permit numbed, 1& !$11 M1 ATF and IR -512 ATF and will not encourage any other entity to challenge the issuance of either such permit. 224. This agreement will have no effect on any cases or parties not specifically mentioned herein. Nothing in this agreement shall be construed to make any other person or entity not executing this agreement a third party beneficiary to this agreement 238. All parties agree that they will bear their own costs and attorney's fees and no party will seek attorney's fees and costs from any other party to this agreement, except to the extent allowed In a lawsuit as described In paragraph S above. Notwithstanding the above, CCC does not waive its rights to seek attorney's Pees and costs from the United States of America or its agendas. 213. This agreement shall terminate under the terms of paragraphs 6, 7, and 8, 2, and 10, or once the USFWS has issued a section 10 ("incidental take") permit to the County, except that after USFWS has issued such permit to the County, DEP shall still be required to comply wtth paragraph 176. 1114 11111111 s 83;15/:999 16:11 858-4138977 FDEP 264. This agreement will be effective as of the dote first executed below. PAGE 29 25. The DEP shall raise no objection in the application process for a Section 10 permit to the request by the County to be granted mitigation credit for past purchases of beach land in the county. 25. The NCP shall cover all the beach land in Indian River County, regardless of the ownership. EXECUTED this 15th day of March, 1999, by Att s K arto C1 By v P . ... F r) T") F!�^'•A \SLC_ INDIAN RIVE'L22 COUNTY, FLORIDA By Its 'ard of County Co issioners By V r 1216 'Kefineth R. //Machh/t, Chairman y/ 40 40 03;15/1999 16:11 850-4138977 FDEP PAGE ?0 -I$iw 114 '+k a • *a Lem C. Gerstner Cho rvl I G!gatner 1116 0W15/1999 16:11 850-4138977 FDEP PAGE 31 EXECUTED on this _ day of , 1999. CARIBBEAN CONSERVATION CORPORATION By David Godfrey, as Executive Director of Caribbean Conservation Corporation 1416 40 40 03/15/1999 16:11 850-4130977 FUEP PAGE 32 EXECUTED on this day of , 1999. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION By David S. Struhs Secretary FILED AND ACKNOWLEDGED on this date, under section 120.52 of the Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged CLERK 1216 DATE 4w El 83/15/1999 16:11 858-413617 FDEP PAGE 33 EXECUTED on this _ day of , 1999. Dirk and Brenda Pervus, Anne E. Strand, Peter J. Trimarche, E. Bruce and Patricia N. Knq, Richard T. and Louise S. Simpson, and R. Seth McCoy (the Summerolace Petitioners) By Thomas G. Tomesello, as attorney and authorized representative for the Summer Ip ace Petitioners 1616 40 J4-1�9 MEMORANDUM OF AGREEMENT THIS MEMORANDUM OF AGREEMENT (MOA) is entered into this _ day of , 1999, by and between the Florida Department of Environmental Protection ("the Department") and the Board of County Commissioners of Indian River County, Florida, ("the Commission"). WITNESSETH: WHEREAS, the Florida Legislature has provided guidance concerning the matter of emergency coastal protection through Section 161.085(3), Florida Statutes, which statute provides, in part, that local governments "may install or authorize installation of rigid coastal armoring structures for the protection of private structures or public infrastructures, or take other measures ..." under certain circumstances; and WHEREAS, the Florida Legislature has also provided guidance to the Florida Department of Environmental Protection concerning the matter of protection of nesting marine turtles and their habitat through Sections 161.053(5)(c) and 370.12(1), Florida Statutes, which statutes require, in part, that the Department shall condition permits to protect marine turtles and that no harm or injury that could be classified as a "take" be allowed by the Department unless authorized under the Federal Endangered Species Act; and WHEREAS, certain questions have been raised concerning the manner in which Indian River County, through its Board of County Commissioners, has exercised its authority to issue emergency authorizations for emergency coastal protection; and WHEREAS, the Commission has issued permits for the installation of certain temporary emergency structures and those structures, upon review by the Department, were found not to be in compliance with state statutes and administrative rules; and WHEREAS, litigation is pending concerning the Department's decisions in the matter of these permits for emergency coastal protection within Indian River County, and the possibility of additional litigation has been raised by other parties; and WHEREAS, both the Department and the Commission wish to proceed in a manner which is consistent with the requirements of all applicable Florida Statutes and which affords timely and appropriate remedies to the citizens living along the Atlantic Coiastline of Indian River County. 40 NOW THEREFORE, the parties hereto commit, through this Memorandum of Agreement, to conduct themselves in accordance with the attachment hereto. Specifically, the Commission agrees that the Board of County Commissioners of Indian River County, Florida, and its agents and employees, will cooperate with the Department in accordance with the attached protocols for issuance of emergency protection permits, and the additional requirements for the protection of marine turtles and their habitat. The Florida Department of Environmental Protection agrees that favorable recommendations as to issuance of Departmental permits will be given to those applicants that have conducted their activities in accordance with the authorizations issued by Indian River County and that meet all applicable requirements of law. The parties agree that this Memorandum of Agreement will remain in effect until a Habitat Conservation Plan addressing the issues contained herein incorporates or supersedes this Memorandum of Agreement. ENTERED INTO this day of , 1999. Attest: J. K. Barton, Clerk INDIAN R=fCounty LINTY, FLORIDA y its Boar Commissi' s By epu y Ctcrk (,1CBy �--r, �— AWneth R. Mac t, Chairman 4 , 3/1./919 t !1 LOU, ..USTATE OF FLORIDA DEPARTMENT OF L , ENVIRONMENTAL PROTECTION L " Com•, . By David B. Struhs Secretary PILED AND ACKNOWLEDGED on this date, under section 120.52 of the Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged. CLERK DATE do g INDIAN RIVER COUNTY MEMORANDUM OF AGREEMENT ATTACHMENT (1) The County will fully comply with Chapter 6213-33, F.A.C., and consult with the Department when it is uncertain about the purpose or intent of any part of the rule prior to taking action pursuant to section 161.085, F.S. (2) The County agrees that if, during a consultation process undertaken pursuant to paragraph (1) above, a proposed action is determined by the Department (in writing) to be inconsistent with the rule or statute, then it will not take action on the matter until the inconsistency is removed, another acceptable option is chosen, or the issue is resolved by the Secretary and a representative of the County Commission. (3) The Department agrees to provide immediate priority assistance to the County when requested, to include technical support, consultation, and, if given adequate notice, a site visit by qualified personnel authorized by the Department to act on its behalf. Further, the Department agrees to expeditiously process any permit application for armoring or other emergency measures in areas designated as being under an emergency condition by the County. (4) In accordance with section 161.085, F.S., rule 6213-33.0051, F.A.C., and rule 6213- 33.014, F.A.C., a shoreline emergency is any unusual incident resulting from a hurricane, storm, or other violent coastal disturbance that resulted in erosion, beach or coastal damage, or damage to upland structures that endangers the coastal system or the health, safety, welfare, or resources of citizens of the state. Only such events qualify as emergencies enabling the County to authorize temporary emergency protection for eligible structures pursuant to section 161.085, F.S. Emergency protection may be provided when such a coastal storm threatens upland structures, damages them, or makes them susceptible to damage from a subsequent high frequency storm. (5) The County will notify the Department in writing by the most expeditious means available when it has declared an emergency under section 161.085, F.S. Notification of an emergency shall include documentation from the County Commission authorizing the declaration of emergency and the date and details of the storm event that created the emergency. Notice of such declarations will be forwarded to the Bureau of Beaches and Coastal Systems (BBCS), Mail Station 4 300, with a copy to the Bureau of Protected Species Management (BPSM) or other state governmental unit hereafter designated in writing by the Department, Mail Station it 245, at 3900 Commonwealth Blvd., Tallahassee FL 32399. (6) The County agrees that emergency protection will be limited to one or a combination of the following options: placement of beach -compatible fill, placement cf sand bags and/or geotextile fabrics that can be removed easily, shoring up of foundations, and constniction of temporary wooden retaining walls, cantilever sheetpile walls or 40 similar structures. The following temporary armoring structures will not be used unless approved in advance by the Department in writing: concrete -capped steel sheet piles with or without tie -backs or other reinforcement; concrete seawalls; rock revetments; concrete debris or rubble; or any structure that cannot be easily removed. Authorization of temporary armoring structures shall include an assessment of the threat to or a damage assessment of the eligible structures. (7) The County agrees that it will not employ a beach scraping option in any area designated as critically eroding by the Department, unless separate prior written authorization is granted by the Department. (8) All temporary armoring structures should be located as far landward as practicable to minimize excavation of the beach and frontal dune, impacts to existing native coastal vegetation, marine turtles and adjacent properties, and encroachment onto the beach, while providing protection to the eligible structure. In thg event that the alignment proposed for a temporary armoring structure or other measures would be more than 15 feet seaward of the eligible structure or any distance seaward of the crest of the escarpment on the active beach, the County will coordinate with the Department concerning alignment through the Bureau of Beaches and Coastal Systems, who will coordinate with the Bureau of Protected Species Management or other state governmental unit hereafter designated in writing by the Department. (9) Authorization for emergency protection shall be limited to 30 days after the initial erosion event that resulted in the declaration of the emergency. The declaration of the emergency shall occur as soon as possible after the storm event or other circumstance which caused the emergency. If the permittee demonstrates that the emergency conditions still exist after the initial 30 day time period then the County may authorize a 30 -day extension. The County agrees to forward copies of all emergency permits issued and notify the Department of any time extension granted. (10) The County will limit the time of construction in its permit to 30 days, with 30 days additional time available, pursuant to 62B -33.0051(5)(b), F.A.C. Once a local permit has been issued the Department will monitor construction progress and expedite review of any application received. Failure to complete construction within sixty i (60) days shall render the emergency declaration and any local pen -nits for temporary I measures issued under it invalid. (11) The County will condition any permit issued for armoring or other emergency protection to require that any temporary structure be removed within 60 days of installation, so long as such removal would not be detrimental to marine turtle nesting, unless a complete application for a permit seeking authorization to retain the temporary structure or to provide alternative protection has been provided to the Department pursuant to sections 161.053 and 161.085, Florida Statutes. Unless the permittee complies with the conditions of the County permit, upon expiration of the County permit after 30 days, or 60 days if extended, the structure or measure shall be deemed to be without benefit of a permit and subject to enforcement and immediate 40 J removal at the expense of the permittee. Removal which would take place during marine turtle nesting season shall be subject to the approval of the Bureau of Protected Species Management or other state governmental unit hereafter designated in writing by the Department. SPECIAL REQUIREMENTS AND GUIDELINES FOR PROTECTION OF MARINE TURTLES Marine turtle nesting season in Indian River County begins on March 1 of each year and ends on October 31 of each year. Construction of temporary emergency protection structures on the beach after March 1 could result in the take of marine turtles, their nests or hatchlings pursuant to F.S. 370.12. The County therefore agrees not to authorize construction of temporary emergency armoring structures, beach scraping, or any other actions that could adversely affect marine turtles or their nesting habitat during the marine turtle nesting season. The 'County further agrees to require that property owners operating under an emergency permit issued pursuant to Section 161.085, F.S., and Rule 62B-33.0051(5), F.A.C., comply with these guidelines prior to and during construction of temporary emergency protection. (1) The placement of sand bags is not subject to consultation with the Bureau of Protected Species Management or other state governmental unit hereafter designated in writing by the Department, provided such placement is as landward as practicable and not during the marine turtle nesting season. Placement of sand bags during nesting season will be in accordance with these guidelines. Any sand bags placed within marine turtle nesting habitat outside the marine turtle nesting season or in accordance with these guidelines will be removed prior to the beginning of the following nesting season (March 1), unless authorized by Department permit. (2) The County agrees to coordinate with the Department's Bureau of Protected Species Management or other state governmental unit hereafter designated in writing by the Department to determine if a particular project site contains viable marine turtle nesting habitat prior to issuance of the emergency authorization. (3) Propeiiy owners requesting construction of temporary armoring structures during the marine turtle nesting season (March 1 through October 31) will be advised that marine turtle nesting surveys as outlined below shall be Initiated immediately upon issuance of the emergency permit and will proceed through completion of the construction activity. a) A daily marine turtle nest survey of the nesting beach in the vicinity of the project (including areas of beach access) will be conducted starting March 1 and continue through October 31. i) Nests deposited within the construction site will be left in siru unless other factors threaten the success of the nest. ii) If any nests are determined to have been deposited within the project area and are not relocated due to conditions unrelated to the El - 40 project, such nests will be marked and the actual location of the clutch determined. iii) A circle with a radius of ten (10) feet, centered at the clutch, will be marked by stake and survey tape or string. No construction activities will enter this circle and no adjacent construction will be allowed which might directly or indirectly disturb the area within the staked circle. iv) If the nest cannot be avoided by ten (10) feet due to the scope of the project, all work near the nest will be postponed until the nest has completed incubation and all hatchlings have emerged. b) It is the responsibility of the permittee to ensure that the project area and access sites are surveyed for marine turtle nesting activity. All nesting surveys, nest relocations, screening or caging activities etc. will be conducted only by persons who are duly authorized to conduct such activities through a valid permit issued by the Department's Division of Marine Resources or othei state governmental unit hereafter designated in writing by the Department, pursuant to Rule 62R-1, F.A.C. C) Construction at night cannot be authorized. Nighttime storage of equipment or materials on the nesting beach is also prohibited. d) All excavations and temporary alteration of beach topography will be filled or leveled to the natural beach profile prior to 9:00 p.m. each day. (4) Temporary lighting of the construction area cannot be authorized at anytime during the marine turtle nesting season (March 1 through October 31). No additional permanent exterior lighting is authorized. (5) Marine turtle nests may not be relocated for the construction of temporary emergency protection structures, including the placement of beach fill, unless such relocation is authorized in an Incidental Take Permit issued pursuant to the Federal Endangered Species Act. (6) Tracked equipment, or equipment with ground pressure greater than 10 PSI, will not be allowed to access the site seaward of the proposed emergency protection structure or along the nesting beach during marine turtle nesting season unless such access has been reviewed and approved by the Bureau of Protected Species Management or other state governmental unit hereafter designated in writing by the Department. (7) In the event the temporary emergency structure fails, the County will require the permittee to remove all debris and structural material from the nesting beach area and deposit it offsite, landward of the coastal construction control line, within 20 days of the structural failure so long as such removal activity does not cause a "take" of marine turtles in the process and no removal activity or heavy equipment usage occurs seaward of the temporary emergency structure during marine turtle nesting season (March 1 through October 31).