Florida Property Owners Must Allow Beach Nourishment

The Florida Supreme Court decided Monday that the state's Beach and Shore Preservation Act is constitutional, a ruling that also will affect other Florida beaches with renourishment plans.

Florida Department of Environmental Protection Secretary Michael Sole said, "We are pleased with today's opinion from the Florida Supreme Court which upholds the constitutionality of the Beach and Shore Preservation Act. The court's opinion reflects that the Beach and Shore Preservation Act implements the state's constitutional duty to protect Florida's beaches, and achieves a reasonable balance between public and private interests in the shore."

Beach nourishment is used to replace sand lost through erosion, usually as part of a coastal defense plan. A poorly designed or poorly executed beach nourishment project can result in a damaged ecosystem. Sea floor habitats can be damaged by dredging of eroded sand. In the case of Walton County, concerns were raised about the destruction of sea turtle nests by the dredging and replacement of sand.

If beach nourishment only occurs on the upper visible beach above the waterline, then the beach becomes unstable and the sand is quickly eroded again.

The beach at Destin, Florida (Photo by Jennifer Lee)

Once a beach is nourished, it is often necessary to regularly renourish it since nourished beaches tend to erode faster than natural beaches.

Walton County began beach nourishment projects in 1995 over 6.9 miles of beach, but the projects were challenged by two groups, Save Our Beaches and Stop the Beach Renourishment Inc. They felt the state was placing renourishment sand on their property without their consent.

In January 2004 and February 2004, the two groups filed petitions for a formal administrative hearing challenging a notice of intent to issue a permit by the Florida Department of Environmental Protection for the beach renourishment. The petitions were consolidated for administrative hearing later that year.

Stop the Beach Renourishment also filed a petition challenging the erosion control line established by the Board of Trustees of the Internal Improvement Trust Fund, in conjunction with the proposed beach restoration project. The erosion control line established the line between state owned land below mean high water and privately owned land above mean high water.

In June 2005, the administrative hearing addressed whether the city of Destin and Walton County gave reasonable assurances that applicable water quality standards would not be violated.

The administrative law judge found that the city and county did give reasonable assurances that the water quality standard would not be violated, and recommended that the Department of Environmental Protection issue the permit.

In July 2005, the department issued the permit, but the petitioning groups appealed.

In April 2006, the First District Court of Appeals issued an opinion disagreeing with the department's decision and siding with the petitioners. The appeals court stated that the permit and erosion control line were invalid and that a taking of riparian rights had occurred.

The First District Court of Appeal denied the Department of Environmental Protection's motion for rehearing, but certified the case as "a question of great public importance" to the Florida Supreme Court.

In April 2007, the Florida Supreme Court accepted discretionary review of the district court's decision, and the case was fully briefed, complete with oral argument.

On Monday, the Florida Supreme Court issued an opinion holding that the Beach and Shore Preservation Act achieves a reasonable balance between public and private interests.

Further, the court ruled that the Act does not unconstitutionally deprive upland owners of property rights without just compensation when the state is restoring beaches under the Act.

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