Florida's Sea Level Impact Project Study Requirement Takes Effect July 1

Holland & Knight LLP

Highlights

  • The state of Florida will require that "state-financed constructors" conduct a sea level impact project (SLIP) study prior to commencing construction of a coastal structure effective July 1, 2022. The SLIP study must be submitted to the Department of Environmental Protection (DEP) and comply with the requirements of the DEP SLIP study rule, Chapter 62S-7.
  • The SLIP study must take into account potential relative local sea-level rise and increased storm risk during the expected life of the coastal structure or 50 years, whichever is less. The study may require sign-off by a professional engineer.
  • DEP may seek injunctive relief to cease construction or recover state funds expended on the coastal structure if SLIP requirements are not satisfied.

The Florida Legislature in 2020 enacted Florida Statute 161.551, which requires "state-financed constructors"1 – defined as public entities that commission or manage a construction project within the coastal building zone2 using funds appropriated from the state – to conduct a seal level impact project (SLIP) study effective July 1, 2022. The SLIP study must be conducted in accordance with Department of Environmental Protection (DEP) rules, submitted to the DEP and published on the DEP's website before construction can commence. DEP must maintain a copy of all SLIP studies on this website for 10 years after receipt.

Section 161.551 requires a SLIP study to include the following at a minimum:

  • a systematic, interdisciplinary and scientifically accepted approach in the natural sciences and construction design in conducting the study
  • an assessment of the flooding, inundation and wave action damage risks relating to the coastal structure over its expected life or 50 years, whichever is less; this assessment must:
    • take into account potential sea-level rise and increased storm risk during the expected life of the coastal structure or 50 years, whichever is less, and to the extent possible, account for the contribution of sea-level rise versus land subsidence to the relative local sea-level rise
    • provide scientific and engineering evidence of the risk to the coastal structure and methods used to mitigate, adapt to or reduce this risk
    • use and consider available scientific research and generally accepted industry practices
    • provide the mean average annual chance of substantial flood damage over the expected life of the coastal structure or 50 years, whichever is less
    • analyze potential public safety and environmental impacts resulting from damage to the coastal structure including, but not limited to, leakage of pollutants, electrocution and explosion hazards, and hazards resulting from floating or flying structural debris
  • alternatives for the coastal structure's design and siting, including discussion of how such alternatives would affect the potential public safety and environmental impacts assessed in the study, as well as the risks and costs associated with maintaining, repairing and constructing the coastal structure

The 2020 legislation required DEP to adopt by rule a standard by which a state-financed constructor must conduct a SLIP study. DEP has since adopted the required SLIP Rule, which is codified in Chapter 62S-7 of the Florida Administrative Code and provides for the requirements of state-financed constructors, SLIP study standards and the implementation and enforcement of SLIP study requirements.

The state-financed constructor is solely responsible for ensuring that the study submitted to DEP meets the established standards. If a state-financed constructor begins construction of a coastal structure without first submitting a SLIP study as required, then DEP is authorized to institute a civil action for injunctive relief to cease further construction on the coastal structure and seek recovery of all or a portion of state funds expended on the structure.

Potential Future Changes

During the recently concluded 2022 legislative session, two bills were filed to expand the SLIP requirement. Though these measures were not enacted, there is a possibility that similar legislation will be reintroduced during the next legislative session. Senate Bill 1434 and House Bill 1077 (Public Financing of Potentially At-Risk Infrastructure) would have:

  • expanded the geographic area covered by the requirement that constructors of publicly financed infrastructure in the coastal building zone must conduct a SLIP study
  • required preparation of a SLIP study to be submitted to DEP prior to construction of "potentially at-risk coastal structures or infrastructure" and defined this term in the proposed bill.
  • added a new SLIP study requirement to include a list of flood mitigation strategies evaluated as part of the design of the potentially at-risk structure or infrastructure and to identify the flood mitigation strategies that have been implemented or are being considered as part of the potentially at-risk structure or infrastructure design

Ultimately, the bills came close to passing – the Senate bill was reported favorably by two of the three committees of reference, and the House bill passed all three committees of reference and died on the House calendar. So, don't be surprised if these measures are considered again during the 2023 Regular Session.


Notes

1 As defined by Florida Statute Section 161.551(d).

2 As defined by Florida Statute Section 161.54(1).

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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