Erosion and Coastal Management in Florida

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This is the Executive Summary from "Eroding Long-Term Prospects for Florida’s Beaches: Florida’s Coastal Management Policy"[1] as provided by the authors at the Conservation Clinic at the University of Florida Levin College of Law. This provides an overview of erosion issues in Florida, their impacts on sea turtles and how these issues might be addressed. Please download and the read the full report for a thorough and well-referenced discussion. In addition, see the relevant pages of the Florida State Report in Surfrider's State of the Beach report.

Executive Summary

Florida's beaches-and the sea turtles that depend on them-are at risk. Ever-increasing erosion, coastal development, armoring, storms, and rising sea levels threaten to create the perfect storm capable of squeezing Florida's beaches until they disappear between armoring and a rising sea. In addition to other ecological functions, Florida's beaches host the densest sea turtle nesting in the United States, the largest aggregation of loggerhead nesting in the world, and the second highest density of green sea turtle nesting in the hemisphere. Florida's beaches also contribute to a multi-billion dollar tourism industry and provide storm protection for development near the coast. The ecological services provided by Florida's beaches makes protecting them imperative. The sea turtles' very survival-and our well-being as a state-depend on our success in protecting our beaches.

Beaches naturally move and represent a very dynamic system. Wind and waves constantly reshape beaches and dunes. Severe storms can move beaches significantly landward and eliminate entire dunes, while subsequent natural processes work to redeposit much of the lost sand back onto the beaches in the weeks after a storm. Artificial inlets, including dredging and jettying, contribute significantly to beach erosion as well. Dynamic, moving beaches are nothing new; beaches have moved for millennia due to sea level rise. Over geologic time beaches have ranged from hundreds of miles seaward to far inland of their present location. Sea turtles, which have survived millions of years, have weathered all these changes. The threat to dynamic beaches today, however, has one significant difference from the past: large-scale human development.

When development and a moving beach come into conflict, a limited number of options present themselves. We can "armor" the beach by constructing sea walls, bulkheads, revetments, or other structures designed to stop erosion. This protects the development in the short term but, without other action, leads to elimination of the beach. Armoring is also very costly, possibly not technically feasible for the long term, and may lead to the perverse result of more development.

Instead of armoring, the development could relocate back from the beach as the beach moves. This has only seldom been used as an approach in Florida, and for large structures is all but impossible. The third option, "nourishment," has been Florida's dominant approach since the 1980s. Nourishment consists of placing sand, usually dredged from an offshore site, on the beach to make the beach higher and wider. For many years nourishment has been presented as a panacea to the conflict between dynamic beaches and development, but it in some cases increases the conflict by promoting more development than otherwise might occur on the beach. In addition, it is increasingly understood that nourishment has severe limits as a general policy for managing beaches. The environmental impacts of beach nourishment on coastal resources may be greater than often realized. Some property owners now fight against beach nourishment as a violation of their property rights. Limited sand supplies and the energy-intensive nature of beach nourishment raise questions about the sustainability of nourishment as a "solution" to dynamic beach movement.

We have no power to stop storms and hurricanes, and they will continue to hit Florida as they have in the past, causing extensive damage and erosion. We also cannot stop the continuing trend of sea-level rise, which contributes to the landward movement of beaches. In 2007 47% of Florida's beaches qualified as critically eroding, a number which has only been growing. Since it appears unlikely that constant nourishment can hold back the rising waters and moving beaches, the long-term perspective requires us to focus on the factors that we can control. These factors include coastal development and armoring.

First, we should reconsider polices that subsidize development that will come into conflict with the movement of the beach-dune system. At the federal level, the Federal Emergency Management Agency (FEMA) contributes millions of dollars to beach nourishment. Instead of just protecting existing development, beach nourishment has then been used to allow even more development ever closer to the water. FEMA gives out millions of dollars in disaster aid to those that suffer loss from the foreseeable hazard posed by hurricanes in Florida. FEMA also administers the National Flood Insurance program, which subsidizes flood insurance that makes more feasible development in risk-prone coastal areas, including paying out 25-30% of payments to 1% of the properties due to repetitive rebuilding and loss. All this comes at great financial cost to the general public as FEMA in the past has "written off" (i.e.-paid through general tax revenues) multi-million dollar losses and FEMA currently has a $17 billion dollar debt.

At the state level, Florida also subsidizes property insurance for those living in risk-prone coastal areas by placing extra charges on almost all kinds of insurance sold in the state, regardless of whether the insurance relates to property and regardless of whether the purchaser lives in a coastal area. Thus, the state uses its power to force those that choose to live in less risk-prone areas to pay the additional costs incurred by those choosing to live in the most risk-prone areas. In addition to this, Florida has also created a reinsurance company-or insurer of insurance companies-to provide reinsurance to the state-run insurance company and private insurers in the state. Just as with the state insurance, this reinsurance fund is ultimately backed by the resources of the State of Florida. All this transfer of private risk taking onto the public coffers puts the long-term economic health of Florida at peril. In 2004 Florida's insured coastal exposure was estimated at close to $2 billion, and the state-run insurer has now become Florida's number one insurer of coastal property. According to a Towers Perrin study, a one-in-fifty probability hurricane would result in the average Florida household paying an extra $188 every year for thirty years to pay the loss insured by the state-run insurance program while a one-in-two-hundred-and-fifty year storm would cost about $450 per year per household for thirty years.

In addition to removing subsidies for coastal development, design and siting of coastal construction need reform to promote dynamic beaches for sea-turtle nesting. Defects in the current permitting program prevent the program from effectively siting new development or rebuilding of development sufficiently landward to adequately protect the beach-dune system. The current system lacks an effective setback line; allows construction closer to critically-eroding beaches if there is beach nourishment; permits local governments to issue emergency armoring permits which have resulted in "take" of sea turtles; promotes erosion through allowance of armoring; and generally suffers from a lack of effective and transparent criteria. The program needs reforms including greater transparency; accounting for sea-level rise in all aspects of the program; requirement of deed restrictions against armoring for all permits for major habitable structures; elimination or reform of the provision allowing new construction up to the "existing line of construction"; changes to the 30-year erosion projection line to ensure it is effective in protecting the beach-dune system; additional limitations on development in areas with little or no development; tighter requirements for eligibility for coastal armoring; adjustment of the geographical area subject to coastal permitting; limited rebuilding of destroyed structures and infrastructure; and narrowing of the exception allowing armoring to bridge a gap between existing armoring structures.

The state's coastal construction permitting process alone cannot and should not have to shoulder the entire burden of protecting the state's beaches. Local governments share the responsibility to protect resources under their jurisdiction and plan for future changes. The comprehensive planning process of local governments can serve as a very flexible and effective tool for guiding development to preserve dynamic beaches and sea turtle nesting. Few local governments have even begun to plan for sea-level rise; Florida should require local comprehensive plans to address sea-level rise, dynamic beaches, and sea turtle nesting. For example, local comprehensive plans could be required to assess coastal areas for the risks they face from erosion, storm surge, and sea-level rise. Areas should be and categorized according to their density levels, giving each density level differing treatment. These two sets of information could then be combined to create a zoning overlay area where policies for new construction, rebuilding, and coastal protection would vary depending on existing development density and risk. Local plans could prohibit or limit publicly-funded infrastructure in areas at risk for flooding, erosion, or storm surge. When permitted, coastal development should be required to record a deed restriction that the property will never be allowed to armor.

Creative zoning and permitting measures could also help promote more orderly movement back from the beach where development already exists and steer new development away from areas at risk from erosion, flooding, or storm surges. Zoning could promote uses that more easily give way to moving beaches, such as parks and golf courses. Local governments could purchase at-risk properties in fee simple, purchase "rolling easements" or purchase the right to significant development on land not yet developed. Permitting criteria could in some cases also exact a "rolling easement" that would allow the beach to move unimpeded by human development. Redevelopment or rebuilding, if not entirely prohibited, could serve as the time to exact a rolling easement. Policies promoting movement of development back from the beach may not receive local support until nourishment-funded in large part by the state and federal governments-is no longer an option and state and federal subsidies for local development are curtailed. During the interim period, it is at least important to stop, limit, or place conditions on new development in areas threatened by erosion or sea-level rise.

A significant part of any effort to protect Florida's dynamic beaches and the sea turtles that depend on them must begin with an effort to inform the public about beach dynamics, the feasibility and costs and benefits of policies such as nourishment, armoring, and promoting dynamic beaches. Particular attention should be given to increase notice requirements to potential purchasers of coastal properties that the property may be threatened by erosion, storm surge, or sea-level rise. In addition, mapping, modeling, and other resources should be promoted to the public and available via the internet and fact sheets.

The Endangered Species Act (ESA) presents another possible tool for protection of dynamic beaches for sea turtle nesting. The coastal construction permitting process currently is limited by the ESA only when a proposed project is considered to "take" sea turtles by modifying their nesting habitat. Florida has recently begun a process to evaluate the possibility of developing a "habitat conservation plan" under the ESA to protect sea turtles across the state. Such a plan could allow the federal government to give Florida a permit that would allow Florida to "take" a certain number of sea turtles each year. Florida's coastal construction permitting program would be the permit holder, but that program alone may not be capable of implementing all measures that would be appropriate in a plan to protect sea turtles. Thus, the process to establish a habitat conservation plan could serve as the unifying force and principle tying together the myriad statutory and regulatory reforms that could protect dynamic beaches as sea turtle nesting habitat even as the waters rise around Florida.

Many of the suggestions contained here may lead to claims that the regulatory action has caused a "taking" of private property in contravention of constitutional protections and state statutory provisions. Constitutional takings law has few hard and fast rules. This makes it difficult, if not impossible, to assure that policies to discourage inappropriate coastal development may not rise to a constitutional taking on a case-by-case basis. Overall, however, careful, integrated policies combined with incentive and payment programs can minimize the number of constitutional takings claims and usually avoid a judgment that a taking has occurred. In addition, the state law known as the Bert J. Harris, Jr., Private Property Rights Protection Act creates an additional cause of action for regulatory takings. While the Act's threshold for a taking-an "inordinate burden"-has not been clarified by case law, the Act may pose greater challenges than constitutional takings law on the policies included here.

References

  1. http://www.law.ufl.edu/conservation/projects/dynamic_habitat.shtml