In Ultimatum, US Army Corps Tells Flagler It May Lose $17 Million for Now If Dunes Impasse Isn’t Resolved

One of the dunes remnants in play at the south end of Flagler Beach, near the Beachfront Grille. (© FlaglerLive)

Posted on January 13, 2022

Flagler County is again at risk of losing $17.5 million in federal funds earmarked for a 2.6-mile dunes restoration project in Flagler Beach if the county doesn’t show by early February that it has either acquired three remaining holdouts’ easements or that it will take the owners to court to acquire the easements. It is all but an ultimatum.

“If the County is unable to demonstrate that the needed real estate will be acquired within a reasonable amount of time, whether voluntarily or by eminent domain,” Col. James Booth, commander of the Jacksonville District of the U.S. Army Corps of Engineers wrote the county on Jan. 6, “the Corps may need to consider whether the project should be placed in a deferred status. While in a deferred status, the project would not be eligible to receive additional [federal] funds, with the possibility that such funds will be used for other projects with an immediate need for additional funds for construction.”

Booth is giving the county until Feb. 11 to provide a written update “explaining the status of completed work to acquire real estate and the tasks that still must be completed along with the associated timeline to accomplish those tasks.”

Congress earmarked the $17.5 million for the project in 2018. Flagler County’s Faith Al Khatib, the county engineer, secured an additional $7.5 million in state dollars required to complete the first phase of the project. The federal appropriation required a local match. Securing the state dollars meant the county didn’t have to put up a single dollar. But now the project is in jeopardy: deferred status is a form of limbo that, while not removing the appropriation from Flagler, removes it from its uses for an undetermined amount of time.

Since July 24, 2019, Flagler County government has been responsible for securing 141 easements along the 2.6 miles of beach so the Army Corps can go in and rebuild dunes with sand dredged from a borrow pit offshore. It’s been a slog. (See: “15 Years On, $25 Million In, Flagler Beach Dunes Project Near ‘Dead In the Water’ as 13 Property Owners Hold Out.”)

But by late last year, the county had secured 138 easements. Two owners are still refusing to sign easements on three properties.

The Corps has been patient. When the county’s acquisition of easements seemed to stall in the summer of 2020, it extended its deadline as a group of volunteers in Flagler Beach, led by Carla Cline and Craig Atack, raised over $60,000 as incentives to hold-outs to sign. At the time, 11 property owners were holding out. All but two have since signed. But there’s been no movement with those two for months, prompting the unease from the federal agency.

“I know your staff has been working diligently to get us across the finish line,” Jason Harrah, project manager on the Army Corps renourishment, wrote the county on Jan. 6, “however our senior leaders in Atlanta and Washington are growing more concerned about the delays in completing initial construction of the project.” Harrah attached the letter from Booth in a pdf (the Booth letter is undated). “Again, we appreciate your continued partnership with USACE and look forward to building this critical project!”

There is no panic in the county, but there is concern. “They are emphasizing to us that this is the last stretch of our ability to secure these easements,” County Attorney Al Hadeed said. Failing a resolution, “they have said unequivocally that they will move us to a deferred project status, obviously outcome we do not want. Our intent is to continue to vigorously pursue the easements both by court action as well as through voluntary means.”

The county has been threatening since October 2020 to take them to court to get the easements through eminent domain. But 15 months later, there’s not been a filing in court yet. (See: “County Authorizes Eminent Domain Action Against Second Property Owner in Quest for Dune Easements.”)

“We have to go through a process, so we’re taking all those steps to put together the information with the experts in order to present the case to court,” Hadeed said. “When we have all of that put together, then we’ll be filing and proceeding for a quick take of the easement right. I want to emphasize: we’re not trying to take anybody’s property, we’re trying to get the right actually to fix their property at no cost to them.”

Eminent domain is the legal term for a government taking of private property, which is legal when the purpose of the taking is a public benefit. In this case, the Corps will not proceed until all properties’ easements are secured because gaps in the 2.6-mile stretch of the project effectively render the project all but useless: in storm events, the gaps would funnel the ocean’s rush that the dunes are intended to block, outflanking and flooding the areas behind the dunes, and potentially damaging property. The two hold-outs have contended that the easements will allow a future local or federal government to do with the dunes that they please, whether it’s building them too high, planting plants that don’t belong, or building something there–all contentions the county has assured the property owners will not happen. The county formalized its assurances. (See: “With 99.05% of Dunes Project Shoreline Secured, Flagler Extends Hold Harmless Branch in Bid to Secure Last 3 Easements.”)

The dunes, in any case, remain the property of the owners, not of the Corps. The easements only grant the Corps access to repair the dunes, and to do so periodically every 10 to 11 years, another advantage of the federal project, as the county sees it, being its 50-yaer life. During that half century, any natural disaster that would destroy any portion of the 2.6 miles would be repaired by the federal government, on the federal government’s dime. In that sense, the beach would be federalized. Put another way, it would be federally insured. Mistrust from the two property owners, however, continues. (See: “Flagler About To Sign 50-Year, $100 Million Deal to Rebuild 2.6 Miles of Dunes in Flagler Beach. It Has Only a Fraction of the Money.”)

The county has never had to resort to eminent domain in its 104-year history. It would like to keep that streak alive. “We’re small enough that there’s not a reason that we can’t deal with our property owners and try to address all of their concerns,” Hadeed said. The attorney briefed the County Commission on the Corps’ letter at a meeting this morning.

The potential deferment of federal dollars isn’t merely a loss of money and time, but a risk to Flagler Beach. Since Hurricane Matthew, the shoreline, despite being rebuilt in large part by the county (but not to the colossal standards of the Corps of Engineers), has yet again been severely eroded, and not just by passing tropical storms: Noreasters and king tides are damaging the dunes, now that the oceans are rising and erosion’s effects accelerated in consequence. That means more sand will be required in projects ahead, than the sand needs estimated just a few years ago. (See: “Almost As Bad as Hurricane Matthew: Post-Storm Survey in Flagler Reveals Substantial Loss of Dunes.”)

“Therefore the vulnerability is greater,” Hadeed said. “A lesser storm coming our way if the beach is not renourished is going to be potentially more catastrophic than otherwise would have occurred had the dunes been restored.” But he could not say when the county’s work would be completed, even if eminent domain proceedings were to start immediately, as that would depend both on how the property owners respond and on the circuit court’s schedule. It is almost certain that when the next hurricane season begins in June, the project will not be done, even assuming that the Corps does not lock it into deferred status.

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