Recent mediation efforts between legal counsel for Deerfield Beach and Hillsboro Beach regarding beach erosion/beach management have resulted in a proposed Settlement Agreement. That proposal was reviewed by the Commission on Friday, October 4, at a Special Public Meeting. Thank you very much to those of you who attended that meeting.
Coastal Science Basics
In order to understand the content of the proposed settlement, it is first necessary to have a basic understanding of coastal science. Back in the ’60s, Deerfield was granted permits to install 53 sand-catching structures/groins. Today, it is an undisputed fact that this type of structure provides a benefit for beaches updrift of the structures (Deerfield) while causing erosion to beaches downdrift of the structures (Hillsboro Beach.) On our section of the Atlantic Coast, sand moves from north to south for a majority of the year (debatably about eight months), with a shift in sand-flow for a lesser portion of the year (debatably about four months). The sand loss incurred downdrift of the structures is partially reversed when the direction of the sand-flow shifts. However, as history has shown time and again, the recovery time for beaches that are downdrift for most of the year is not sufficient to restore the beach completely. Scientifically speaking, there are only two ways to negate the impact of a sand-catching structure: 1) remove the obstacle, or 2) make sure the obstacle stays covered with sand and literally disappears from the equation by becoming part of the beach itself. The proposed settlement approaches the problem using the latter strategy.
Proposed Settlement Recap
It was determined at Friday’s meeting that while the proposed settlement may theoretically address the issue, there are a number of points in the documents that must be clarified. In addition, the Commission was given just over 48 hours to absorb the contents of the documents before being asked for a vote. As a result, the Commission voted to table the proposal for 30 days in order to address points needing clarification. There are several areas in the documents where dollar amounts for cost caps were left blank and several areas where the language was vague or contradictory, however, the three major points needing to be addressed are:
- Public access is critical to receiving funding from entities other than our taxpayers. Deerfield has agreed to grant Hillsboro Beach a 15’ easement to be used as public access and as the access point for beach maintenance for Hillsboro Beach, however, the placement of this easement was not identified in the document.
- One of the major purposes for agreeing to Regional Sand Management as a partner with Deerfield is to be able to qualify for third-party funding when a nourishment is necessary. Third-party funding can come from Broward County, the State DEP (Department of Environmental Protection), or the Federal government (U.S. Army Corps of Engineers). The importance of third-party funding cannot be stressed enough. While the legal teams for Deerfield and Hillsboro believe the agreement they drafted will allow the two municipalities to qualify for third-party funding, at this point, there has been no buy-in to the proposed arrangement by the third-parties from whom we would be seeking funding. Obviously, this is a critical piece to the success of the agreement.
- Semi-annual monitoring of the shoreline is included in the agreement, however, the specifics relating to the semi-annual monitoring are vague, and in one case contradictory. This monitoring is necessary so nourishments can be planned BEFORE the groins/rock piles become exposed (both above and below water) since it is the exposure of the rocks that exacerbates erosion and makes the beach disappear so quickly.
How Third-Party Funding Works
To drive home the importance of third-party funding, consider these scenarios as they relate to a $10 million nourishment:
Scenario 1 – $10 million – The full $10 million must be paid by Hillsboro Beach taxpayers if qualifications for third-party funding are not met.
Scenario 2 – $2.5 million – The State pays 50% of a $10 million project (this is the State’s typical contribution for a regular beach nourishment), bringing the remaining amount down to $5 million. The County typically pays 50% of whatever remains after the State contribution. This brings the remaining amount down to $2.5 million.
Scenario 3 – $1.25 million – In an effort to encourage Regional Sand Management, the State pays 75% of nourishment costs if the sand comes from a regional inlet (such as Boca Inlet or Hillsboro Inlet), as opposed to off-shore borrow sites or inland sand mines. For a $10 million project, this leaves $2.5 million remaining. If the County pays 50% of the remaining amount, that leaves $1.25 million.
Scenario 4 – $650,000 – If the combined efforts of Deerfield and Hillsboro together can result in being recognized by the USACE (Corps) as a Regional Sand Management project, the Corps pays 75% of a $10 million project using Federal dollars, leaving $2.5 million. The State then pays 50% of that, leaving $1.25 million. The County then pays 50% of that, leaving $650,000.As you can see, third-party funds can take a $10 million sand project and reduce the cost to Hillsboro Beach taxpayers from $10 million to $2.5 million, $1.25 million, or $650,000, depending on the amount and source of third-party funding.
What About the Lawsuit?
It is the general consensus of the Commission that for a number of reasons, agreeing on a settlement is preferable to duking it out in court. That said, the terms of any agreement obviously need to be acceptable to both parties, or the lawsuit will proceed. Currently, we are on Broward County Judge David Haimes’ docket for a calendar call on November 1st. The trial would likely be scheduled for mid-November based on that calendar call date. In an effort to work with the settlement proposal, the Commission voted to table the proposal for 30 days so that questions can be answered and clarifications made. This means the trial date will have to be moved back on the Judge’s docket to the next available time slot. At this point, it’s not clear exactly when that would be.
Another Important Consideration
If accepted, the Settlement Agreement is an actual contract. The semi-annual monitoring laid out in the contract will provide hard data that can be used in a courtroom should litigation again become necessary. According to the legal team, enforcing a contract from 2019 will be much easier than enforcing 50-year-old permits.
Hopefully, this information is helpful. As always, I will keep you apprised of the situation as it unfolds.