A new era of coastal construction in South Florida leads to new regulatory challenges and opportunities

The booming coastal construction market in South Florida means that buildings are being built bigger, taller, and deeper. What does that mean for the developer? When it comes to Coastal Construction Control Line (CCCL) permitting, it means new challenges - and some new opportunities.

I recently coauthored a new legal update with my colleagues at Stearns Weaver explaining the background to this new era and how regulators at the Florida Department of Environmental Protection (DEP) and within local governments are responding. We explained:

In the past, many projects could accommodate excavated sand onsite. When they could not, offsite placement on dry, sandy beaches was relatively easy. Oftentimes now, though, sites are too constrained, and offsite placement is becoming more challenging for two reasons. 

First, projects in some areas are not located near dry beaches that need sand. Traditionally, FDEP has only allowed excavated sand to be placed on the dry sandy beach nearby the development. Recently, we developed a new approach with FDEP on several projects to allow sand excavated from constrained development sites to be placed in eroded "hotspot" areas located within the wet sandy beach, below the mean high water line. Each project site must be evaluated independently to assess whether this approach will work from a timing and cost feasibility standpoint, keeping in mind the applicable regulations and permit conditions that will be applied to provide FDEP the assurances needed regarding the quality of sand. Since sand sources in Florida for local governments to maintain beaches are limited and costly, this approach should be viewed as a positive alternative for addressing targeted eroded beaches. 

The second reason offsite placement is becoming more challenging is due to some local governments regulating and controlling the quality and placement of sand despite FDEP's role and authority, and imposing more stringent requirements on this activity. We are seeing a variety of approaches by local governments, including: 

• Regulating when and how sand may be removed from or placed on coastal properties, using conditions that are stricter than FDEP's regulations;
• Providing for fines, penalties, or refusal to issue building permits if their sand management regulations are not met;
• Conditioning development approvals on sand quality, placement, and other actions;
• Requiring large bonds to be posted and/or agreements in order to assure future remediation of sand in the event the local government determines the sand quality does not meet their standards; and
• Seeking to have FDEP adopt more stringent testing requirements for excavated sand as a part of FDEP's ongoing CCCL program.

It will take time, but I predict that we will see these innovations spreading to Florida's other coasts in the near future. 

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