Title: Ordinary High Water Line
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Permanent Link: http://ufdc.ufl.edu/WL00000896/00001
 Material Information
Title: Ordinary High Water Line
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Ordinary High Water Line By: Alan Cummings February 28, 1986
General Note: Box 7, Folder 3 ( Vail Conference 1988 - 1988 ), Item 67
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00000896
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

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ORDINARY HIGH WATER LINE


Alan Cummings
Holland and Knight

In Florida, the boundary between riparian uplands, or
privately owned lands, and the bed or lands beneath inland
or non-tidal waters is the ordinary high water line (OHWL).
The concept of the OHWL as the legal boundary of streams and
lakes is judicial rather than statutory. Although the
concept is not new, its application in recent years has been
fought with great difficulty and controversy.

The necessity to locate the OHWL arises most frequently
when the State contends that the subject water body is
navigable. Generally, the State claims ownership to the
beds of streams and lakes that it contends were navigable,
or were reasonably capable of being made so, at the time of
statehood, 1845. Thus, where there are or were bottomlands,
swamps, overflowed lands, wetlands, or drained lands that
border or are associated with a navigable water body, the
determination of who owns the lands might be made by locat-
ing the OHWL, or boundary, of the navigable water body.

Historically, professional land surveyors determined the
boundaries of water bodies. More recently, an inter-
disciplinary approach has been used where geologists, soil
scientists, botanists; ecologists, and geomorphologists have
been employed to assist the surveyor. The objective of the
multi-discipline approach is to locate the OHWL with a
greater degree of scientific certainty. Nevertheless, liti-
gation over the past several years between the State and
private parties has demonstrated that there can be miles
between where these various parties contend is located the
OHWL.

Although the controversy over the methodology to be used
in locating the OHWL continues unabated, there are certain
principles' that have been set forth in judicial cases that
have broad application. These principles should apply in
all instances and guide the survey team in its efforts to
determine the OHWL.

The first principle is that the OHWL is a physical fact;
it is a natural characteristic placed upon the lands by the
action of the river, stream or lake itself. The bed of a
water body is a natural object which lies below the OHWL.
It is to be distinguished from the banks of the water body,
which are the physical features upon which the OHWL is
located.

The word "ordinary" is not to be seized upon to extend
the OHWL to the limits of annual peak flows or elevations of


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February 28, 1986
Page 2


the water. The OHWL is a water mark on the banks "where the
presence and action are so common and usual and so long con-
tinued in all ordinary years, as to mark upon the soil of
the bed a character distinct from that of the banks, in
respect to vegetation, as well as respects the nature of the
soil itself." Tilden v. V. Smith, 94 Fla. 502, 113 So. 708,
712 (1927).

Unlike the "mean" high water line, which defines the
boundary of sovereignty lands in tidal waters, the OHWL is
an actual physical mark. Thus, while the "mean" high water
line is determined by a statistical average of the tides
over a period of many years, the OHWL of a non-tidal water
body is not to be determined by arithmetical calculation,
but by inspection of the banks themselves.

The principal reasons why an "averaging" approach cannot
be used for non-tidal waters are three-fold. First, any
standard based on measurements is inherently arbitrary, in
that it will produce a result that varies according to the
particular period of time and frequency of occurrence
selected. Second, such a method would, by averaging in oc-
casional floods, invariably yield a line above the usual
level of the water body, and would thereby impermissibly de-
prive the upland owner of riparian rights during most of the
year. Riparian rights are valuable property rights which
cannot be taken without compensation. Finally, an artifi-
cially "averaged" line would not promote the most advantag-
ous use of the land, because areas that are valuable for
agriculture or grazing, but not for navigation, would be
beyond beneficial use.

Thus, the bed of the river within the OHWL does not in-
clude swamps, floodplains, overflowed lands and other low-
lying areas adjacent to a water body which are periodically
inundated by freshets, floods, and other annual periods of
high water. The OHWL neither takes in overflowed land
beyond the banks, -nor includes swamps or low grounds liable
to be overflowed, but reclaimable for meadows or
agriculture. Courts presented with the issue have firmly
rejected the contention that the OHWL means the extreme line
which the water reaches during annual periods of high water.

Various indicia are used in determining the location of
the OHWL. The mark on the soil at that point where the soil
of the bed differs in character from that of the banks is
complemented by the mark upon the vegetation. The vegeta-
tion mark is the line where the water stands sufficiently
(^ long to destroy vegetation below it.




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February 28, 1986
Page 3


If there is no line below which all vegetation ceases to
grow, the OHWL is the point where the action of the water
prevents the growth of "terrestrial" vegetation. Although
"aquatic" vegetation may be found above the OHWL, the OHWL
test requires the absence of all terrestrial vegetation
below the mark.

In addition to the vegetation mark, the OHWL may be
identified by geomorphological surface features, such as
natural levees, escarpments, erosion lines, and lines of
litter or debris, or by subsurface features, such as changes
in the organic composition or particle size of the soil, and
the existence of soil horizons that develop only if there
are substantial, recurring dry periods.

The interdisciplinary approach has seemingly made deter-
mination of the OHWL vastly more difficult and complicated.
While recent cases certainly have supported this conclusion,
the location of the boundary of a navigable water body would
be less subject to dispute and controversy if these prin-
ciples were kept in mind. The paramount consideration in
defining the boundary between privately owned lands border-
ing navigable waters and the public navigable servitude over
them, is the convenience and advantage to both parties. The
purpose of the navigable servitude is to preserve as a high-
way for commerce that portion of the watercourse that is in
fact navigable. Manifestly, the navigable servitude does
not extend beyond the limit of the usefulness of the water
body for navigable purposes. Where the navigable servitude
reaches that point where the land is no longer capable of
being put to ordinary and private uses, the OHWL defines and
locates the boundary, thus promoting the greatest advantage
to each respective interest. Therefore, lands that are
useful for agriculture or other private purposes, though
periodically inundated by floods or other high waters,
should be above the OHWL.





OHWL2/28M: 68









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