Discussed at Public Workshops on
October 12, 13 and 14, 1988
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.
(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
(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
(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
(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
(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
(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;
(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.
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,
(5) Length of river to which navigational determination
(6) Approximate flow rate of water in river: maximum,
(7) Fall per mile;
(8) Nature and location of significant obstructions to
(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.
(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
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