Sovereignty Submerged Lands Management in the State of Florida

Sovereignty Submerged Lands Management in the State of Florida

What are Sovereign Submerged Lands? Lands that Florida took ownership to by virtue of its sovereignty upon becoming a state in 1845.

Through case law the definition has evolved to include all lands to which title has not been validly conveyed that

Lie below the ordinary high water line of navigable bodies of freshwater lakes, rivers and streams Lie below the mean high water line of tidally influenced bays, rivers and oceans Extend three miles into the Atlantic Ocean and three marine leagues (about 10.4 miles) into the Gulf of Mexico

A Short History of Sovereign Submerged Lands

Origins of The Public Trust Doctrine The Bedrock of Sovereignty Submerged Lands Management

Origins The Public Trust Doctrine dates back to the Sixth Century A.D. The Roman Emperor, Justinian, codified in his Institutes the idea that by the law of nature these things are common to all mankind: the air, running water, the sea, and consequently the shores of the sea.

Origins After the Magna Carta, the Doctrine along with much of Roman Law was adopted into English Common Law The English kings considered tidelands and waters subject to commerce the king s highways and part of the sovereign for the use of all the king s subjects

Origins As the kings of England granted charters to the American colonies, the Doctrine became a basic element of American civil law The ability to use sovereignty lands freely was imperative to the early colonists not only for commerce but for daily survival

Origins Such uses included hunting, fishing, bathing and washing clothes; mooring boats; collecting shellfish; cutting ice; watering cattle; preparing flax; as passage ways for pedestrians, horse back riders and carriages

Statehood The Equal Footing Doctrine So important were the sovereignty lands to the colonists, that when the thirteen colonies formed the Union, the 13 newly formed states gained sovereignty lands under their control. As the next 37 states entered the Union, they did so on an equal footing with the original 13 by also gaining control over their sovereignty lands.

Upon Florida becoming a state on March 3,1845, it acquired title to: 500,000 acres of land for internal improvement 2 sections of land, 1 each for a land grant college The 16 th Section in every Township for education purposes All navigable waterbodies in the state

1850 U.S. Swamp Lands Act Purpose was for the feds to identify for conveyance to each state lands that were unfit for cultivation because of their swampy character and to improve and reclaim them by means of levees and drains. More than 20,000,000 acres out of a total of 36,000,000 acres (the size of Florida not including submerged lands) were ultimately conveyed to the State of Florida.

U.S. Swamp Lands Act of 1850 On the condition that these lands be reclaimed, most were sold in large tracts to private railroad companies and other developers such as the 4,000,000 acres to Hamilton Disston of Philadelphia for $1 million. The Disston tract stretches from Pasco County to Collier County.

Public Lands Survey System Devised by Thomas Jefferson to be a consistent method for subdividing land into grids of sections, townships and ranges Became the basis for future public and private land surveys From 1819 to the 1880s surveyors under the direction of the U.S. General Land Office conducted surveys throughout the State

Generally conducted during the dry season Some surveyors were thorough and competent while others it is evident from their work may have simply connected the dots from the comfort of their tent

Survey lines were run mostly along section lines with notations made in the field books when a stream or other waterbody was crossed, e.g. 3 chains wide, 2 feet deep at center or differentiation was made between swamp land and fast land

Many navigable waterbodies and just about all tide lands were identified as sovereign by meandering which is a traverse run along the perimeter of a water body

Some fairly large waterbodies were not meandered because they were located on the interior of a section or in an area noted as Impracticable Swamp in the field notes Lake Surprise, north of Key Largo, thus aptly named, was one of those waterbodies

1855 Establishment of the Board of Trustees By act of the legislature the governor and four other state officers were vested with the authority in trust to oversee the sale of the remainder of the 500,000 acres that came to the state in 1845 and the 20,000,000 acres reserved for swamp and overflow grants

Proceeds from the sales were to go into a distinct and separate fund called the Internal Improvement Trust Fund The act also gave the Trustees the authority to dispose of lands underneath navigable waterbodies and tide lands.

Come on Down! For the next 115 years Florida s public trust lands were sold to encourage people to settle in Florida and reclaim uninhabitable swamp lands by dredging and filling them No one questioned during this era that development was the best way to serve the public trust

1962 Publication of Rachel Carson s The Silent Spring Dawn of the modern environmental movement There is a web of life that we must protect or risk irreparable harm to the living world Beginning of awareness that no longer would the public interest best be served by the sale of sovereign lands to promote development

The public interest test from hereon would best be served by balancing economics with the preservation of the public s sovereign lands so that its resources would be healthy and in abundance for future generations to use and enjoy

1968-69 A moratorium was placed on the filling of sovereign submerged lands due to the increasing awareness of the impacts to the entire food chain caused by filling in of marine habitat

1970 - Article 10, Section 11 of State Constitution Adopted The title to lands under navigable waters, within the boundaries of the state, which have been not alienated, including beaches below the mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people. Sale of such lands may be authorized by law, but only when in the public interest. Private uses of portions of such lands may be authorized by law, but only when not contrary to the public interest.

1970 Sales of sovereign submerged lands or authorization to fill them have been extremely rare since 1970 Generally, only public entities have been granted authorization to fill sovereign lands and only when the proposed projects will benefit the public at large

1970 First Licenses Required for Commercial Marinas Rate per square foot of preempted area caused by the docks and associated mooring areas was a whopping 2 cents

1974 Coastal Mapping Act Established a methodology for surveying the mean high water line along tidally influenced waterbodies based on the mean of the high tides over a nineteen year lunar cycle There is still no statutorily approved methodology for locating the ordinary high water line

1975 Creation of DNR and DER A chapter in the 120 year history of the Board of Trustees ended when staff in the Board of Trustees agency (about 105 employees) were transferred to the newly created Department of Natural Resources, Bureau of State Lands Management (later to become the Division of State Lands).

1978 Rule 16-21 of the Florida Administrative Code went into effect it provided the beginning framework for sovereign lands management Sovereignty submerged lands leases were required for commercial marinas still 2 cents per square foot those with licenses converted to leases when up for renewal

1982 Under the amended rules of 18-21, F.A.C., leases are required for larger multi-family docking facilities (condominiums and single-family residential common area docking facilities)

1983 Grandfather I Program begins Required commercial docking facilities built prior to March 10, 1970 and larger multi-family docking facilities built prior to March 27, 1982 to register as grandfathered structures prior to September 30, 1984

Grandfather I Allowed registrants to defer coming under a lease until January 1, 1998 Sale of the upland property and unauthorized expansion of the property were two of the provisions that could trigger forfeiture of the grandfathered status leading to an immediate requirement to obtain a lease

1990 Grandfather II Begins Due to complaints from many waterfront property owners that Grandfather I was not sufficiently publicized, a second grandfather program was established to allow those who would have qualified under Grandfather I to register by April 1, 1991, avoid lease fees in arrears, but enter a lease effective April 1, 1991.

1993 Merger of DER and DNR mainly to streamline permitting Consolidated reviews of applications for wetlands permitting and authorizations to use sovereign submerged lands

1998 Grandfather I Expires All docking facilities registered under Grandfather I (approximately 600 statewide) were required to come under a lease effective January 1)

Forms of Authorization See Section 18-21.005, F.A.C. Chapter 253.77 requires that authorization be obtained for any construction or activity proposed on sovereignty submerged lands With a few exceptions applicant must be the riparian upland owner

Consent of Use Letters (No Charge) are Required for: single-family and small multi-family docking facilities shoreline stabilization projects such as seawalls and riprap Artificial reefs Other projects of a minor nature

Leases Granting Exclusive Use are Required for: All commercial docking facilities including marinas and docks used as an accessory to an upland revenue generating activity,e.g. a restaurant larger multi-family docking facilities outside an aquatic preserve Multi-family docking facilities having more than two slips in an aquatic preserve

Leases Current rate per square foot is about $0.15 per year Most lease terms extend for 5 or 10 years Renewable if in compliance with the terms of the lease

Easements (Public or Private) are Required for: Utility crossings Bridges and roads New channels Borrow areas

So, You Always Wanted Your Own Marina!

First Step in Application Process Before the Department begins conducting a review of the application, the DEP Title and Land Records Section must determine whether the submerged lands underneath the proposed marina are state-owned

What are not Sovereign Lands Those previously conveyed by Trustees Deed or legislative grant Privately owned uplands that were excavated to create submerged lands Non-tidal lands that are not navigable

Examples of Trustees Deeds Trustees Deed for submerged lands of Boca Ciega Bay purchased by Mr. Connolly as a tax deed Tierra Verde was created by dredge and fill pursuant to conveyance of a Trustees Deed Some Trustees deeds were conveyed back to the state the Brighwater Drive area in Clearwater Beach

DEP Application Review Criteria Current and Proposed Upland Uses Current and Proposed Submerged Land Uses Density of Submerged Land Use in the vicinity if located in an aquatic preserve

Review Criteria Navigation related data such as water depths, width of affected waterbody, proximity of inlets and proximity to navigation channels Location and densities of benthic resources such as sea grasses, oysters, etc. Ambient water depths for mooring, ingress and egress

Review Criteria Size, types and drafts of boats anticipated Affect on adjoining property owners riparian rights (25 foot setback requirement) Comments or objections from property owners within a 500 foot radius of the proposed lease area

Review Criteria Special management area designations such as aquatic preserve, manatee sanctuary, approved shellfish harvesting waters Comments from other agencies having purview Florida Fish and Wildlife Conservation Commission, U.S. Fish and Wildlife, Department of Community Affairs, local government (comp plan consistency), etc.

Approval or Denial? Project modifications may be necessary based on an analysis of whether the project meets the aforementioned review criteria Examples of modifications to make a project approvable are:

Modifications Reduction in preempted area or number of slips (usually in an environmentally sensitive area) Elimination of mooring in areas having resources or insufficient water depths or conversion of a proposed docking structure to a fishing pier Elevation of docks to allow more sunlight Relocation of dock or mooring piling to meet 25-foot setback requirement

Who Has Final Say? DEP District Director approves or denies application for facilities having less than 50 slips or 50,000 square feet Board of Trustees approves or denies if over above thresholds or if project has or is expected to elicit heightened public concern

If Denied? Applicant has option of pursuing an administrative appeal through the Division of Administrative Hearings in accordance with Chapter 120, Florida Statutes

Some Common Misconceptions Meander lines are boundaries between private and state land Spanish land grants, U.S. Patents, swamp and overflowed deeds and Murphy Act tax deeds conveyed sovereignty submerged lands Riparian rights provide a proprietary interest in the submerged lands

Some Common Misconceptions Submerged lands located between waterfront property and an offshore bulkhead line are mine I ve been paying taxes on this land for years

Conclusions

The Public Trust Doctrine Today obligates the states to act as trustees of all public lands and waters to ensure that the uses of those lands are at the least not contrary to the public interest has been expanded to include the protection of living resources on sovereignty lands

Conclusions The management of sovereign lands is a balancing act between the rights of waterfront property owners to gain ingress and egress to navigable water by construction of a dock and the public s entitlement to use to the greatest extent possible their lands for the traditional uses of commerce, fishing, swimming and other kinds of recreation

Conclusions The rules are set to manage sovereign submerged lands so as to give consent for minimal or reasonable use at no charge and charge compensation for preemption that is more intensive or when the use will result in profit gained

When to Think DEP If you wish to construct on sovereign submerged lands, wetlands or any surface waters, you should inquire at the DEP Southwest District Office regarding whether a permit and/or sovereign lands authorization is required (Phone (813) 744-6100)

When to Think DEP To obtain a determination whether an existing or proposed structure or activity is located on sovereignty lands, contact the DEP Title and Land Records Section at (850) 245-2788

When to Think DEP For information regarding sovereignty lands issues, feel free to contact Harry Michaels at (813) 744-6100, extension 337.