New Florida law will require sea level studies for coastal construction projects

Thousands of residents living in U.S. coastal communities will be affected by sea rise by 2045 and Florida is in the crosshairs of climate change. In the Sunshine State, sea levels around the state are rising as much as one inch every three years, and tidal flooding in some areas of the state have increased 352 percent since 2000. Rising seas, a population crowded along the coast, porous bedrock, and the relatively common occurrence of tropical storms, hurricanes and storm surge put more real estate and people at risk from sea level rise in Florida, than any other state by far. Some 2.4 million people and 1.3 million homes — nearly half the risk nationwide — sit within 4 feet of the local high tide line and scientists forecast that in the next 15 years, Florida sea levels will rise six inches.

An important step in addressing the encroaching ocean in a state with more than 1,300 miles of shoreline and where two-thirds of the 22 million residents live along the coast has just occurred. Passed on June 30 and effective on July 1, 2021, the Florida Legislature enacted a new Public Financing of Construction Projects law that prohibits state-financed construction of certain structures in coastal areas after a specified date, without first taking certain steps regarding a sea-level impact projection study (coastal construction is limited to public projects that rely on state money). Contractors that move forward on publicly funded projects without performing an impact projection study could have to reimburse the state for all or part of the money spent on the project. Under the new law, public construction projects would have to take into account rising sea levels, flooding, and the potential for damage to increasingly fragile coasts. The bipartisan bill was signed into law by Governor Ron DeSantis June 29.

The new law creates a new term, the “SLIP study.” A SLIP study means a sea-level impact projection study. According to this new law, beginning one year after the date the rule developed by the state’s Department of Environmental Protection (DEP), a state-financed constructor may not commence construction of a coastal structure without:

• Conducting a SLIP study that meets the requirements established by the Department;
• Submitting the study to the Department;
• Receiving notification from the Department that the study was received and that it has been published on the Department’s website for at least 30 days.

The Slip Study rule must be effective one year after the date it is finalized and applies only to projects not yet commenced as of the date the rule is finalized. The rule may not apply retroactively to projects that commenced before the date the rule is finalized. According to the new law, Florida DEP would not be able to issue the new rule on sea-level rise studies until after July 1, 2021, and, the new law delays required compliance for one year after that.

The new SLIP study will require the constructor using state funds to:

• Use a systematic, interdisciplinary, and scientifically accepted approach in the natural sciences and construction design in conducting the study;
• Assess the flooding, inundation, and wave action damage risks relating to the coastal structure over its expected life or 50 years, whichever is less.

Furthermore, the SLIP assessment 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, and, to the extent possible, account for the contribution of sea-level rise versus land subsidence to the relative local sea-level rise. The assessment must also:

• Provide scientific and engineering evidence of the risk to the coastal structure and methods used to mitigate, adapt to, or reduce this risk;
• 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.
• Provide alternatives for the structure’s design and siting, and how such alternatives would impact the risks specified in the law, as well as the risk and cost associated with maintaining, repairing, and constructing the coastal structure.

Finally, the new Florida law admonishes that, if a state-financed constructor commences construction of a coastal structure but has not complied with the SLIP study requirement, the department may institute a civil action to:

• Seek injunctive relief to cease further construction of the coastal structure or enforce compliance;
• If the coastal structure has been completed or has been substantially completed, seek recovery of all or a portion of state funds expended on the coastal structure.