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 16th 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.