Waterfront properties in the Keys and on both sides of South Florida coast were hit hard when Hurricane Irma began its assault on the state on September 10. The devastation included massive damage to the docks, boat-lifts, piers, and seawalls (“bulkheads”) that offer moorings to boats along waterfront properties. More than 2,000 vessels of all types were ripped from their moorings during the storm and cast all over the coast like toys. It’s been a little over 100 days since Irma pummeled Florida but many docks, piers, and seawalls are still in need of repair.
Obtaining an Environmental Resource Permit (ERP) under Florida law to construct a new dock or modify an existing dock in state waters can be complicated and involve multiple government agencies including your local government, the Florida Department of Environmental Protection (DEP), one of the five water management districts (WMD’s), and even the U.S. Army Corps of Engineers (ACOE). In many situations, the established legal jurisdictions of DEP and the WMD’s actually overlap with regards to processing an application to construct a dock and as a former Assistant General Counsel for the St. Johns River Water Management District, this writer has personally witnessed the confusion that property owners and their consultants have faced when submitting an application to construct a dock. Depending on the type of construction activity on sovereign submerged land, the design and size of the dock, how the dock will be utilized (for commercial purposes or only for single-family residential purposes, for example), different types of legal authority from Florida’s state agencies may be required.
However, if a dock, pier, or seawall was damaged during Hurricane Irma and is in need of repair, getting approval for repair is now far simpler and in some circumstances already approved through Emergency Final Orders (EFO’s) issued by the Governor and DEP. In the days leading up to Hurricane Irma’s landfall, Florida’s Governor issued a pre-emptive, state-wide emergency order that gave state agencies the legal authority to suspend the strict compliance with certain statutes and regulations. The Governor’s emergency order (currently in effect “Executive Order 17-287” available here) specifically allowed DEP to issue its own emergency order (currently in effect is DEP’s “Fifth Amended and Restated Emergency Final Order” available here) detailing what local governments and property owners can do with their docks, piers, and bulkheads without having to first obtain permits or approvals. The intent of DEP’s emergency order is to allow local governments and property owners the flexibility needed to deal with the emergency situations caused by Irma and the subsequent need for fast repair. In short, part of the stated intent of DEP’s emergency order is to allow waterfront property owners to repair their docks, boat-lifts, and seawalls back to the condition they were in before the storm caused damage, but no more. DEP’s order also allows boat owners to remove trash, debris, and sunken vessels as long as no dredging or filling occurs.
As a result, if waterfront property owners are repairing their previously permitted and approved docks, piers, and seawalls to the condition they were in prior to being damaged by Irma, it is very possible that DEP’s most recent emergency order already allows such a repair. However, each repair project is unique and waterfront property owners should consult their attorney as well as the emergency order itself (or DEP) to ensure they do not run afoul of this temporary relaxation of rules and regulations. Using a repair project to expand on what was already approved through the permitting process would not be permitted under DEP’s emergency order and in some instances, depending on the type of dock or location of the dock (if in statutorily identified “Outstanding Florida Waters”) some exemptions may not apply. A very helpful guidance document has been produced by DEP entitled ERP-PostStormGuidance and includes contact information for DEP’s regional offices.