Title: Chapter 18-22A Standards and Criteria for Determining Sovereign Ownership of Freshwater Waterbodies -DNR Draft
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Title: Chapter 18-22A Standards and Criteria for Determining Sovereign Ownership of Freshwater Waterbodies -DNR Draft
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Standards and Criteria for Determining Sovereign Ownership of Freshwater Waterbodies -DNR Draft Discussed at Public Workshops on October 12, 13, and 14, 1988 Chapter 18-22A
General Note: Box 7, Folder 4 ( Vail Conference 1989 - 1989 ), Item 53
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00000954
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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DNR Draft


Discussed at Public Workshops on
October 12, 13 and 14, 1988
CHAPTER 18-22A


STANDARDS AND CRITERIA FOR DETERMINING
SOVEREIGN OWNERSHIP OF FRESHWATER WATERBODIES


18-22A.001 Purpose and Scope.


The State of Florida holds title to lands under navigable

freshwater waterbodies within the boundaries of the State,

by virtue of its sovereignty, in trust for all of the

people. If a freshwater waterbody in Florida meets the

Federal Bed Title Test criteria of being "navigable-in-fact"

on March 3, 1845 (the date of Florida's statehood) then that

waterbody and the lands lying beneath it are owned by the

State out to the ordinary high water line. This rule

chapter establishes the procedures, standards, criteria, and

general methodology that is used by the Board of Trustees to

determine whether or not a waterbody was "navigable-in-fact"

in 1845 and therefore is sovereign land, title to which is

neld cy zhe osard of Trustees.



16-22A.002 Definitions.

(1) "Board of Trustees" means the Board of Trustees of

the Internal Improvement Trust Fund created by Chapter 253,

Florida Statutes, which consists of the Governor, the

Secretary of State, the Attorney General, the Comptroller,

the State Treasurer, the Commissioner of Agriculture and the

Commissioner of Education.

(2) "Commerce" means profitable trade of transportation.

The particular items of commerce may vary widely depending

on the region and period, and might include grains, furs,














supplies, transportation of logs or other items of trade and

commerce.

(3) "Customary mode of transportation" means steamboats,

sailboats, flatboats, barges, bateaux, johnboats, dugouts or

other frontier craft as long as that type of boat was common

or well-suited to the region and period. Current

recreational watercraft may be used as evidence of

susceptibility for past commercial use by watercraft of

similar size and design.

(4) "Department" means the Department of Natural

Resources.

(5) "Federal Bed Title Test" means that test whereby it

is determined whether a waterbody is navigable-in-fact by

determining whether it was used or was susceptible of being

used in its ordinary condition as a highway of commerce over

which trade and travel were or may have been conducted by

the customary modes of transportation on water. This

criteria is applied to the waterbody as of the date of

statehood (March 3, 1845).

(i) "Meandered" means during the public lands survey

conducted by the federal government, a waterbody was

traversed, and its sinuousizies delivered. The purpose of

meandering was to exclude lands beneath those waterbodies

from sale to the public.

(7) "Ordinary condition" means the flow and volume of

water without artificial improvements.

(8) "Ordinary high water line" means that line as

determined pursuant to Rule Chapter 18-22B, F.A.C., which

defines the boundary between sovereignty submerged lands and

the adjacent uplands.













18-22A.003 reactors for determining navigability.

(1) The navigability of a waterbody in Florida shall be

determined by applying the Federal Bed Title Test to said

waterbody through examination of both historic and modern

data, including, but not limited to:
(a) Historic records such as Official U.S.

Government Surveys, correspondence of the U.S. Deputy

Surveyors, newspapers, military records, Corps of Engineers

reports, census data, journals and diaries, archeological

and ethnological studies, maps, photographs, and personal

accounts; and

(b) Modern records and data such as permitting

requests, environmental studies performed by the Department

of Environmental Regulation, the Department of

Transportation, and the Department, resurveys, photographs,

maps, United States Geologic Survey records, and personal

accounts.

(2) The records reviewed pursuant to this section shall

be used to determine the type of commerce, the customary

mode of travel on the water in the region during the

relevant time period and the capability of the waterbody to

support said commerce and transportation, and may include

investigation into:

(a) Prehistoric and historic use of dugouts for

trade by Indians with other Indians and with settlers;

(b) Military use for reconnaissance and for

transportation of troops and supplies by steamboats;

(c) Settler use of steamboats, sailboats, flatboats,

barges, bateaux, pirogues, rafts, johnboats, dugouts, or the

frontier craft commonly used or well suited to the region

and period for commerce;

3


//.53
















(d) Modern day use for recreational or commercial

purposes if watercraft used are similar in design to

historic craft capable of commercial use, and if the

waterbody's current ordinary condition is similar to its

condition on March 3, 1845.

(e) Presence of docks, pilings, moorings and

settlements or forts on the waterbody trading posts.



18-22A.004 -Documentation.

A determination of navigability shall be provided in

writing using the following format and findings:

(1) Name of waterbody;

(2) Map of waterbody;

(3) Whether it is a tributary to another waterbody;

(4) Type of waterbody (lake, river, slough, stream,

etc.);

(5) Length of river to which navigational determination

applies;

(6) Approximate flow rate of water in river: maximum,

minimum, mean;

(7) Fall per mile;

(8) Nature and location of significant obstructions to

navigation;

(9) Any state or federal court decisions relating to

navigability of waterbody; and

(10) Detailed findings regarding navigability of the

waterbody or any portion of a river, stream, or slough.



18-22A.005 Procedures.

(1) The determination of the navigability of a waterbody

shall be made by the Board of Trustees. The determination

















shall apply to the entirety of any lake, pond, or spring

investigated. The character of a river or stream will vary
from its mouth along its length, and at some point the river

will likely change from navigable to non-navigable where

there is a marked decrease in the navigable capacity of the

river, which is recognized as the head of navigation.

(2) The determination of navigability shall be based on a

thorough investigation of the factors set forth in section

18-22A.003, F.A.C.. a field inspection, and an investigation

of the physical characteristics of the waterbody.

(3) After making a preliminary determination of

navigability in accordance with this chapter, staff of the

Board of Trustees shall provide notice to affected

landowners who shall be given 30 days in which to submit

written comments to the Board of Trustees.

(4) After receipt of those written comments submitted in
accordance with the provisions of subsection (3), the

navigability determination shall be presented to the Board

of Trustees at a regularly scheduled meeting. Affected

landowners shall be notified of the time and place of the

meeting.


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