Title: Ordinary High Water Mark Rules
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Permanent Link: http://ufdc.ufl.edu/WL00000949/00001
 Material Information
Title: Ordinary High Water Mark Rules
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Ordinary High Water Mark Rules September 19, 1988 To: Mr. Peter Dunbar -General Counsel Office of the Governor of Florida From: Wings S. Benton
General Note: Box 7, Folder 4 ( Vail Conference 1989 - 1989 ), Item 48
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00000949
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.

Full Text







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September 19, 1988
BY HAND DELIVERY


Mr. Peter M. Dunbar
General Counsel
Office of the Governor
Plaza Level, The Capitol
Tallahassee, FL 32301

RE: Ordinary High Water Mark Rules

Dear Mr. Dunbar:

You have asked me, as special counsel to the Board of
Professional Land surveyors, whether the Board has authority to
promulgate the rules it has proposed regarding minimum technical
standards for ordinary high water mark surveys. I am satisfied
that the Board does have the necessary authority.

The ordinary high water mark is the boundary between
privately-owned riparian uplands and publicly-owned sovereignty
lands beneath non-tidal navigable waters. Maloney, The Ordinary
High Water Mark: Attempts at Settlina an Unsettled Boundary
Line, 13 U.WYO.LAND AND WATER L.REV. 465 (1978). Land surveyors
have historically been involved in establishing the ordinary high
water mark as a real property boundary.

The Board's general authority to adopt rules is found in
Section 472.008, Florida Statutes, which provides:

The board shall adopt such rules not
inconsistent with law as may be necessary to
carry out the duties and authority conferred
upon the board by this chapter.

More specifically, the legislature has directed the Board to
adopt rules on minimum technical standards for surveying.
Section 472.027, Florida Statutes provides:

The board shall adopt rules relating to the
practice of land surveying which establish
minimum technical standards to assure the
/ 130


ATTORNEYS


RANSON & WIGGINS, P.A.




I .... -..


Mr. Peter M. Dunbar
September 19, 1988
Page 2




achievement of no less than minimum degrees
of accuracy, completeness, and quality in
order to assure adequate and defensible real
property boundary locations and :other
pertinent information provided by land
surveyors under the authority of ss. 472.001-
472.039. (emphasis supplied)

This mandate is without limitation as to types of surveys land
surveyors perform.

In 1981, the Board adopted Chapter 21HH-6, Florida
Administrative Code, establishing minimum technical standards as
mandated by Section 472.027, Florida Statutes. (See attached
copy of existing Chapter 21HH-6.)

On September 2, 1988, the Board published notice of proposed
amendments to the minimum technical standards. (See attached
copy of proposed rules.) These proposed rules include a new
section 21HH-6.0052, on Ordinary High Water Mark (OHWM) Surveys.
The terms "ordinary high water mark" and "ordinary high water
line" are synonymous. The proposed amendment prescribes
technical standards, procedures, criteria and general methodology
to be applied by land surveyors in determining the location of
the ordinary high water mark. These proposed OHWM rules should
help "assure the achievement of no less than minimum degrees of
accuracy, completeness and quality in order to assure adequate
and defensible real property boundary locations and other
pertinent information." Section 472.027, Florida Statutes.

The definition of the "practice of land surveying" set forth
in Section 472.005(4), Florida Statutes, includes the elements
necessary to ascertain the various physical factors used to
determine the location of the ordinary high water mark:
(a) 'Practice of land surveying' means,
among other things, any professional service
or work, the adequate performance of which
involves the aDDlication of special knowledge
of the principles of mathematics, the related
physical and applied sciences, and the
relevant requirements of a = for adequate
Evidence of the act of measuring, locating,
establishing, or reestablishing lines,
angles, elevations, natural and manmade
features in -the air, on the surface and
//.3/








Mr. Peter M. Dunbar
September 19, 1988
Page 3




innediate subsurface of the earth, within
underground workings, and on the beds or
surface of bodies of water. for the purpose
of determining or establishing the facts of
size. ahaDe. topoDraphy, tidal datum planes,
leoal or geodetic location or relocation, and
orientation fa improved or unimproved real
property and appurtenances thereto, including
acreage and condominiums. (emphasis
supplied)
Although land surveyors may sometimes, at their discretion, call
upon experts in other fields to assist them, they are responsible
for the location of the line. The location of the ordinary high
water mark is within the realm of experience and practice of
land surveyors.

Although the courts have defined the ordinary high water
mark and specified the factors to be used in locating it, and
many surveyors are aware of these and apply them in their
practice, it will be helpful to surveyors and to property owners,
both private and public, to have the standards set forth in rules
readily available to all. The proposed amendment will encourage
use of the same standards throughout the state by all surveyors
engaged in performing ordinary high water mark surveys.

If I can be of further assistance, please let me know.

Sincerely,


Wings S. Benton

WSB/cd
Enclosures:
(1) Existing Chapter 21HH-6, F.A.C.
(2) Proposed amendments to Chapter 21HH-6.
cc: All Board Members
Mr. Larry Gonzalez
Mr. Allen R. Smith, Jr.




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