IMPROVING COASTAL RESILIENCE & POLICY/TECHNICAL RESPONSES TO THE THREATS OF SEA LEVEL RISE AND CLIMATE CHANGE
SEPTEMBER 6, 2023
ERIN L. DEADY, AICP, ESQ., LORI LEHR CFM, ALANA TODD, DR. JENNIF ER
JURADO, CJ REYNOLDS
Intro- Tying it all together (Erin Deady, Erin L. Deady, P.A.)
Regional Case Studies and Broward County Leadership (Dr. Jennifer Jurado, Broward County)
Shoreline Policy (Alana Todd, TBRPC)
Specific case studies:
Housing Policy (C.J. Reynolds, Florida Housing Coalition)
Comprehensive Plans and the Community Rating System (Lori Lehr, Lori Lehr, Inc.)
Round Up! (Erin Deady, Erin L. Deady, P.A.)
Photo: Erin Deady, 2022• EO 07-127: Reduction of emissions to 2000 levels by 2017, to 1990 levels by 2025, and by 80% of 1990 levels by 2050& California vehicle emission standards reductions (22% by 2012 and 30% by 2016).
• Building Efficiencies/Energy Code, Chapter 553, F.S. increasing standards
• HB 7123: Model Green Building Code (2007)
• HB 697 (GHG reduction strategies in local government’s Comprehensive Plan). Some requirements later eliminated.
• HB 7135 (State and Local Government Buildings “greener” and FF landscaping) (Section 255.2575 & 255.259, F.S.)many don’t realize this is law
• HB 7179 (PACE)- financing wind resistance/energy efficiency initiatives
• Adaptation Action Areas (2011) for local government Comprehensive Plans
• 2015- 5 Bills Passing Related to flood insurance, wind insurance, construction standards/building codes, Citizen’s insurance, Peril of Flood (Section 163.3178, F.S.)
• 2020 & 2023 Section 161.551, F.S. Sea Level Impact Projection Studies for state-funded projects (Rule 62S-7, F.A.C.) and expansion of affected areas
• 2021 & 2022 & 2023 - Section 380.093, F.S. Always Ready and Resilient Florida program (Rule 62S-8, F.A.C. rulemaking 2022)
Section 163.3178(2), F.S.: Each coastal management element required by s. 163.3177(6)(g) shall be based on studies, surveys, and data; be consistent with coastal resource plans prepared and adopted pursuant to general or special law; and contain:
(f): A redevelopment component that outlines the principles that must be used to eliminate inappropriate and unsafe development in the coastal areas when opportunities arise. The component must:
1. Include development and redevelopment principles, strategies, and engineering solutions that reduce the flood risk in coastal areas which results from high-tide events, storm surge, flash floods, stormwater runoff, and the related impacts of sea-level rise.
Jennifer/Erin….
2. Encourage the use of best practices development and redevelopment principles, strategies, and engineering solutions that will result in the removal of coastal real property from flood zone designations established by the Federal Emergency Management Agency.
Jennifer/Erin….
3. Identify site development techniques and best practices that may reduce losses due to flooding and claims made under flood insurance policies issued in this state. Alana/Erin….
4. Be consistent with, or more stringent than, the flood-resistant construction requirements in the Florida Building Code and applicable flood plain management regulations set forth in 44 C.F.R. part 60. Lori/Alana/Erin….
5. Require that any construction activities seaward of the coastal construction control lines established pursuant to s. 161.053 be consistent with chapter 161.
6. Encourage local governments to participate in the National Flood Insurance Program Community Rating System administered by the Federal Emergency Management Agency to achieve flood insurance premium discounts for their residents. Lori….
Intent and definitions
• Coastal and inland communities can participate
• Critical assets defined
Resilient Florida Grant Program
• Items that can be funded (planning and projects)
• Standards for vulnerability assessments
Comprehensive Statewide Flood Vulnerability and Sea Level Rise Dataset and Assessment
Dataset to support a comprehensive statewide flood vulnerability and sea level rise assessment (inland and coastal infrastructure, geographic areas and vulnerable communities and their risk).
Statewide Flooding and Sea Level Rise Resilience Plan (local governments, flood control districts, regional resilience entities or WMDs).
Due to Legislature 12/1, 3-year planning horizon & ranked projects that address risks of flooding and sea level rise to coastal and inland communities. First one submitted for this year, December 1, 2021, will be a “preliminary plan” to address risks already identified in existing local government vulnerability assessment. 50% cost share unless disadvantaged community. Includes ranking criteria.
Regional Resilience Entities
(a) providing technical assistance to counties and municipalities, (b) coordinating multijurisdictional vulnerability assessments and (c) developing project proposals to be submitted for inclusion in the Statewide Flooding and Sea Level Rise Resilience Plan.
Lead institution and engage other academic and research institutions, private partners, and financial sponsors to coordinate efforts to support applied research and innovation to address the flooding and sea level rise challenges of the state Annual assessment of Florida’s water resources and conservation lands
Florida Flood Hub for Applied Research and Innovation (USF)
Expand the requirements of the existing annual assessment of Florida’s water resources and conservation lands (conducted by the Office of Economic and Demographic Research) to now include flooding information
• Required assets for evaluation prioritized by area or immediate need and identify the flood scenario impacting the assets (can be determined by local community because the flood scenarios may differ for inland v. coastal)
•
2040/2070 NOAA Intermediate Low and High Sea Level Rise
o Tidal flooding (+ future high tide)
o Current/future storm surge > or = to 100-year flood event,
o Rainfall for 100-year and 500-year + future conditions (to extent practicable) (required for non-coastal communities) (using spatiotemporal analysis or existing hydrologic and hydraulic modeling results)
o Combination flooding (to extent practicable)
• Compliance with FDEP Checklist is a requirements for VAs and Grant Agreements
Definition: “Critical asset” includes:
1. Transportation assets and evacuation routes, including airports, bridges, bus terminals, ports, major roadways , marinas, rail facilities, and railroad bridges.
2. Critical infrastructure, including wastewater treatment facilities and lift stations, stormwater treatment facilities and pump stations, drinking water facilities, water utility conveyance systems, electric production and supply facilities , solid and hazardous waste facilities, military installations, communications facilities, and disaster debris management sites.
3. Critical community and emergency facilities, including schools, colleges, universities, community centers, correctional facilities, disaster recovery centers, emergency medical service facilities , emergency operation centers, fire stations, health care facilities , hospitals, law enforcement facilities, local government facilities, logistical staging areas, affordable public housing, risk shelter inventory, and state government facilities.
4. Natural, cultural, and historical resources, including conservation lands, parks, shorelines, surface waters, wetlands , and historical and cultural assets.
Definition: "Regionally significant assets" means critical assets that support the needs of communities spanning multiple geopolitical jurisdictions , including, but not limited to, water resource facilities, regional medical centers, emergency operations centers, regional utilities, major transportation hubs and corridors, airports, and seaports.
Best available data on assets is important:
• GIS locations
• Top of structure elevations
• Invert elevations
• Locations of controls and supporting components
Severity of impacts to system
• How many structures?
• How many impacted v. overall total?
• What is the projected year of impact?
• How many days of flooding anticipated under what scenario/condition?
1. Position the community for future grant opportunities by having a plan of action (and its required in Section 380.093(5), F.S. to qualify for capital project funding after 2024)
2. Establish adaptation project priorities, examples:
• Road elevation, drainage and infrastructure
• Protection of shorelines and policies (natural and hardening)
3. Establish other implementing policies, examples:
• Addressing vulnerable neighborhoods
• Framing infrastructure LOS commitments (deficiencies, maintenance and enhancements/upgrades)
4. Priorities for land acquisition (not buying land going under water)
5. Flexibility in development/design criteria that better captures individualized risk of areas
6. Integration of adaptation response fully into Comprehensive Plan / Code (example infrastructure design criteria)
Overview of some of the big takings issues:
Liability for takings for failure to maintain with reasonable care (Jordan v. St. Johns County )
Local government denials for rebuilding in a flood-damaged area (flood ordinances ie; NFIP) (DM Arbor Court, Ltd. v. City of Houston)
Takings determinations factoring in benefits of “adaptation” (Borough of Havey Cedars v. Karan, 214 N.J. 384 (2013)).
Levels of service/torts:
Duty to maintain v. upgrade infrastructure: what is “maintenance” with continued tidal inundation and flooding impacts?
Apportioning costs: who pays for what level of service when everyone is not receiving the same?
Varcamp requests court to declare City’s actions related road elevation a taking under U.S. Constitution, determine value of taking and grant plaintiff’s claims for inverse condemnation + attorney’s fees. Parties in discussions, service extended to 4/2/22.
Varcamp arguments
1. Properties drain onto 14th Street and West Avenue
2. City elevated road
3. Property owners allege they now flood violating Article X, §6 of the Florida Constitution among other laws
Issue Disposition or Status
Complaint filed
Case filed 8/5/21. Amended Complaint filed 4/4/22 raising federal takings issues. City of Miami Beach files Notice of Removal to the Southern District of Florida (Federal).
Alleged Actions by City Cause “permanent” flooding on plaintiff’s properties eliminating long held drainage rights without compensation and have deprived plaintiff’s of “all” beneficial use of property
Status of Case Case removed to Federal court 5/3/22. Motion to Dismiss by City. Order on Motion and Report of Magistrate Judge 5/3/23. Interlocutory Appeal by City to 11th Circuit Court of Appeals on issues related to sovereign immunity 5/11/23.
A government entity must maintain its roads and maintaining a road means doing so “as it exists.” Fla.Dept.of Transp.v.Neilson
A government entity “…does not have a duty to upgrade roadways to prevent obsolescence, even if newer designs or features would make that road safer.” Fla.Dept. of Transp.v.Neilson
Stormwater management for roads: A government entity cannot divert flood waters onto private property such that an involuntary servitude arises (taking private property for managing flooding from its roads). Permits will require stormwater features to manage the road’s drainage for most road improvements.
What we don’t know from the courts: Does addressing sea level rise inundation and flooding constitute something within the scope of “maintenance”? All things being = the road is in good condition and its being maintained, it just floods periodically.
What seems most likely: It is most likely that the road adaptation projects contemplated for sea level rise are “upgrades or improvements” and the decision to undertake them (or not) is planning conduct protected by sovereign immunity.
1. Analysis of public facilities policies where level of service standards are adopted within the Comprehensive Plan
2. Analysis of locations and elevations of government owned parcels, their elevations and if flooding impacts are occurring or are anticipated to occur on them, adjacent rights-of-way or parcels.
3. Develop policy approaches and address policy conflicts for property owners that want to adapt their private properties vs those that do not, for example:
• Existing shoreline policies that prioritize environmental goals by limiting hardening in certain areas with the desire of a property owner to protect their property;
• Fill shoreline policy (must consider these together);
• Fill onsite stormwater management considering future conditions (not just pre- and post- project), ramifications of fill in floodplains and desire of private property owner to “elevate” property v. traditional floodplain management concepts that discourage such activity in floodplains; and
• Property owner to property owner impacts with onsite retention fill (such as berms and retention walls)
SB 170: Changes procedures for local government (Chapter 166/Chapter 125, F.S.) adoption of ordinances; changes legal challenge process by an individual to a local government ordinance; award of attorney’s fees; requires business impact estimates (and public posting of estimate)
(c) Does not apply to Ordinances enacted to implement the following: a. Part II of chapter 163, relating to growth policy, county and municipal planning, and land development regulation, including zoning, development orders, development agreements, and development permits…
Example: A local government shoreline ordinance may be exempt if it is contained within land development regulations (some are under General Code); if they are in another section of your Code, consider moving them to LDRs.
Effective date 10/1/23 (enactment is prospective for new ordinances)
Photo: Erin Deady, Crystal River 2023 Litigation:
Among property owners individually on flooding and its source
State is getting more active in planning, funding, legislation and leadership (ie; roll out of Resilient Florida)
Pressure to legislate:
Solutions, funding sources
More comprehensive flood disclosures (Bipartisan)?
Local government response:
Planning and changing regulations
More mapping of risk and SLR available
Funding capital improvements is likely to require debt financing / special assessments, etc.
o Assessment structures
More takings litigation in terms of impacts on private properties and/or against government to compel or prevent actions
Against realtors by aggrieved property owners
What are some of the statutory interpretation issues as applied to VAs?
1. What is meant by “ critical assets ” - does that mean all?
2. Security concerns related to asset data provided to the Florida Flood Hub.
3. How many scenarios are required to meet the criteria (tidal, storm surge, rainfall (non - coastal), compound)? (347 total possible scenarios)
4. Metadata from existing data v. new maps / GIS created for the project ?
5. Timing of projects for inclusion in the next Statewide Flooding and Sea Level Rise Resilience Plan (by 2024) that must be identified in vulnerability assessments that meet the requirements of Subsection 380.093(3), F.S.
* Questions? DEP has been great about answering these and other questions.
• Noticing to the public:
• Road design can contemplate a periodic flooding condition but lessens the extent of it, the GE may have a duty to warn the public of those flooding conditions. This could be accomplished through signage indicating periodic flooding conditions.
• Another way to warn the public may be through some type of designation and publication of a map series that indicates those areas may be subject to periodic tidal flooding from sea level rise, and as such, may not receive the same level of flood service for flood mitigation as in other locations in the County. AAAs?
• Prudent measures:
• What is clear is that takings cases are heavily fact-specific and this lends value to planning efforts for sea level rise adaptation including acknowledging the existing known seasonal or tidal flooding impacts already occurring during King Tides and normal high tides and incorporating “prudent measures” into the design process or features that will mitigate or avoid impacts to adjacent property owners.
• Look at Abandonment Procedures:
• Review your abandonment procedures to include provisions allowing abandonment in the interest of public health and safety due to tidal flooding and sea level rise or default to state statute.
• Modify Infrastructure Design, Example FDOT Greenbook:
• Consider a provision within the Code of Ordinances that specifically acknowledges Design Exceptions as authorized by the Greenbook.
• Beyond that, pass an ordinance articulating the parameters of Design Exceptions such as the approach taken by St. Johns County.
• Manage Expectations by Establishing Flooding Levels of Service:
• Flooding LOS response to sea level rise for roadways and drainage beyond just transportation capacity.
• Comp Plan and Code language to reflect what you are and are not going to do (for instance consistency in Comp Plan with road abandonment rationale)
Photo: Rhonda Haag
Scope Entity
Issues
Road abandonment Sections 336.09 and 336.125, F.S.
Is local procedure in Code same as statutory requirements or does it require more?
Greenbook Standards
FDOT- Section 336.045, F.S.
Minimum standards for design, construction, and maintenance of roads, which are published in the “Manual of Uniform Minimum Standards for Design, Construction, and Maintenance for Streets and Highways”. The Greenbook is intended for all projects not on the state and national highway systems (+ design exceptions).
Road/Drai nage permitting WMD- ERP Criteria
WMD does not DIRECTLY regulate sea level rise in design, but applicant may need to respond to functionality questions during permitting process (can address quality and management of quantity).
Scope Entity
Stormwater
Criteria (Rule 62-330, F.A.C.)
SLIP (Rule 62S-7, F.A.C.)
Resilient Florida (Rule 62S-8, F.A.C.)
DEP/WMDs
Issues
Tidal flooding and sea level rise issues? Increased Rainfall? Quantity = quality. How will this play out in the new rules?
DEP
Sea Level Impact Projection (SLIP) rulemaking completed and require seas level analysis for projects receiving ANY state funds. Local government use of tool (for design standards in Code?)
DEP
Addresses ranking criteria in Section 380.093(5), F.S. for the Statewide Funding and SLR Resilience Plan. More rulemaking to come?