| (3) Mitigation. Mitigation means repairing, rehabilitating,
or restoring affected dunes and dune vegetation. Local governments
shall require permittees, as a condition of the permit, to mitigate
all adverse effects to dunes and dune vegetation which will occur
after a permittee has avoided and minimized such adverse effects to
the greatest extent practicable. Local governments shall require the
permittee to mitigate damage to dunes and dune vegetation so as to
provide, when compared to the pre-existing dunes and dune vegetation,
an equal or greater area of vegetative cover and dune volume, an equal
or greater degree of protection against damage to natural resources,
and an equal or greater degree of protection against flood and erosion
damage and other nuisance conditions to adjacent properties. When
determining the appropriate mitigation method, local governments shall
consider the recommendations of the General Land Office, federal and
state natural resource agencies, and dune vegetation experts.
(A) Mitigation standards for dunes. Local governments
may allow a permittee to mitigate adverse effects on dunes using vegetative
or mechanical means. Local governments shall require that a permittee
proposing to restore dunes and dune vegetation as provided in §15.7(e)
of this title (relating to Local Government Management of the Public
Beach) use the following techniques:
(i) restore dunes to approximate the naturally formed
dune position or location, contour, volume, elevation, vegetative
cover, and sediment content in the area;
(ii) allow for the natural dynamics and migration of
dunes;
(iii) use discontinuous temporary sand fences or an
approved method of dune restoration, where appropriate, considering
the characteristics of the site; and
(iv) restore or repair dunes using indigenous vegetation
that will achieve the same protective capability or greater capability
as the surrounding natural dunes.
(B) Stabilization of critical dune areas. Local governments
shall give priority for stabilization to blowouts and breaches when
permitting restoration of dunes. Before permitting stabilization of
washover areas, local governments shall:
(i) assess the overall impact of the project on the
beach/dune system;
(ii) consider any adverse effects on hydrology and
drainage which will result from the project; and
(iii) require that equal or better public beach access
be provided to compensate for impairment of any public beach access
previously provided by the washover area.
(4) Compensation. Compensation means compensating for
effects on dunes and dune vegetation by replacing or providing substitute
dunes and dune vegetation. Local governments shall require the permit
holder to compensate for the adverse effects to dunes and dune vegetation
at a 1:1 ratio. Compensation may be undertaken both on-site and off-site;
however, off-site compensation may only be allowed as provided in
subparagraph (B) of this paragraph.
(A) On-site compensation. On-site compensation consists
of replacement of the affected dunes or dune vegetation on the property
where the damage to dunes and dune vegetation occurred and seaward
of the local dune protection line. A local government shall require
permittees to undertake compensation on the construction site, where
practicable. A local government shall require a permittee to follow
the requirements provided in paragraph (3)(A) of this subsection and
paragraph (4)(C)(iii) - (iv) of this subsection when replacing dunes
or dune vegetation.
(B) Off-site compensation. Off-site compensation consists
of replacement of the affected dunes or dune vegetation in a location
outside the boundary of the property where the damage to dunes and
dune vegetation occurred. The landward limit of allowable off-site
mitigation is the local dune protection line. Local governments shall
require that a permittee's compensation efforts take place on the
construction site unless the permittee demonstrates the following
facts to the local government:
(i) on-site compensation is not practicable;
(ii) the off-site compensation will be located as close
to the construction site as practicable;
(iii) the proffered off-site compensation has achieved
a 1:1 ratio of proposed adverse effects on successful, completed,
and stabilized restoration prior to beginning construction;
(iv) the permittee has notified FEMA, Region 6, Risk
Analysis Branch, of the proposed off-site compensation.
(C) Information required for off-site compensation.
Local governments shall require permittees to provide the following
information when proposing off-site compensation:
(i) the name, address, phone number, and electronic
mail address, if applicable, of the owner of the property where the
off-site compensation will be located;
(ii) a legal description of property intended to be
used for the proposed off-site compensation;
(iii) the source of sand and the dune vegetation;
(iv) all information regarding permits and certificates
issued for the restoration of dunes on the compensation site;
(v) all relevant information regarding the success,
current status, and stabilization of the dune restoration efforts
on the compensation site;
(vi) any increase in potential flood damage to the
site where the adverse effects on dunes and dune vegetation will occur
and to the public and private property adjacent to that site; and
(vii) the proposed date of initiation of the compensation.
Local governments shall include a condition in each permit authorizing
off-site compensation which requires permittees to notify local governments
in writing of the actual date of initiation within 10 working days
after compensation is initiated. If the permittee fails to begin compensation
on the date proposed in the application, the permittee shall provide
the local government with the reason for the delay. Local governments
shall take this reason into account when determining whether a permittee
has violated the compensation deadline.
(5) Compensation for adverse effects on dune vegetation.
Local governments shall require that permittees compensate for adverse
effects on dune vegetation by planting indigenous vegetation on the
affected dunes and shall consider the recommendations of the General
Land Office, federal and state natural resource agencies, and dune
vegetation experts. Local governments may allow a permittees to use
temporary sand fencing or another approved method of dune restoration.
Local governments shall prohibit a permittee from compensating for
adverse effects on dune vegetation by removing existing vegetation
from private or state-owned property unless the permittee has received
prior written permission from the property owner or the state. In
addition to the requirement that permission be obtained from the property
owner, all persons are prohibited from removing vegetation from a
critical dune area or seaward of a dune protection line unless specifically
authorized to do so in a dune protection permit. Local governments
shall include conditions in such permits requiring the permittee to
provide a copy of the written permission for vegetation removal and
to identify the source of any sand and vegetation which will be used
to compensate for adverse effects on dunes and dune vegetation in
the mitigation plan contained in the permit application.
(g) Mitigation or compensation deadline.
(1) Initiation of mitigation or compensation. Local
governments shall require permittees to begin mitigation or compensation
for any adverse effect(s) to dunes and dune vegetation prior to or
concurrent with the commencement of construction. If mitigation or
compensation is not completed in accordance with the mitigation or
compensation plan prior to commencement of construction of any structure,
the local government shall require that the permittee provide the
local government with proof of financial responsibility in an amount
equal to that necessary to complete the mitigation or compensation.
This can be done in the form of an irrevocable letter of credit, performance
bond, or any other instrument acceptable to the local government.
(2) Completion of mitigation or compensation. Local
governments shall require permittees to conduct compensation efforts
continuously until the repaired, rehabilitated, and restored dunes
and dune vegetation are equal or superior to the pre-existing dunes
and dune vegetation. These efforts shall include preservation and
maintenance pending completion of mitigation or compensation.
(3) Local government determination of completion of
mitigation or compensation. Local governments shall determine a mitigation
or compensation project is complete when the dune restoration project's
position, contour, volume, elevation, and vegetative cover matches
or exceeds the surrounding naturally formed dunes.
Cont'd... |
