Title: Chapter 18-22B Procedures, Standard and Criteria for Determining the Ordinary High Water Line -DNR Draft
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Title: Chapter 18-22B Procedures, Standard and Criteria for Determining the Ordinary High Water Line -DNR Draft
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Chapter 18-22B Procedures, Standard and Criteria for Determining the Ordinary High Water Line -DNR Draft Discussed at Public Workshops on October 12, 13, and 14, 1988
General Note: Box 7, Folder 4 ( Vail Conference 1989 - 1989 ), Item 54
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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DNR Draft


Discussed at Public Workshops on
October 12, 13 and 14, 1988



CHAPTER 18-22B


PROCEDURES, STANDARDS AND CRITERIA
FOR DETERMINING THE
ORDINARY HIGH WATER LINE





18-22B.001 Purpose and Scope.

The State of Florida holds title to lands under navigable water

within the boundaries of the s-tate by virtue of its sovereignty,

in trust for all the people. Title to these lands is vested in

the Board of Trustees. The boundary between these sovereign

submerged lands and adjacent uplands on nontidal navigable

lakes and rivers is 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 the location or elevation of the ordinary high water

line.

18-22B.002 Definitions.

(1) "Accretion" means the gradual and imperceptible addition of

soil, sand, sediment or other material to riparian or littoral

lands that results in dry lands in areas formerly covered by

water.

(2) "Artificial accretion" means accretion caused by man-

made projects and operations.

(3) "Artificial erosion" means erosion caused by manmade pro-

jects and operations.
(4)'"Artificial reliction" means reliction caused by man-made

projects and operations.

(5) "Artificial submergence" means submergence caused by man-made
projects and operations.


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(6) "Avulsion* means the sudden and perceptible addition to or

loss of riparian or littoral land caused by the sudden and per-

ceptible natural action of water, change in the channel of a

river, or the removal or relocation of a large quantity of soil

from one parcel of land to another parcel of land.

(7) "Bar" means any of the various types of submerged or

emergent embankments of sand or gravel on a lake bed caused by

waves or currents. The bar may be emergent at low water levels.

(8) "Barrier Island" means elongated sand-ridges, generally

parallel to the shore of lakes which rise slightly above normal

water levels. They are separated from the uplands by a lagoon

which may be emergent at low lake levels.

(9) "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.

(10) "Dominant plant species" means those plant species contri-

buting more to the character of a plant community than other species

in the community as determined by parameters such as basal area

and percent real cover.

(11) "Erosion" means the gradual and imperceptible wearing away of

riparian or littoral lands due to natural causes.

(12) "Flood formed levees" means a raised berm or crest adja-

cent to the channel of a stream or river usually containing

coarser materials deposited as flood waters flow over the top of

the channel banks.

(13) "Hydrophytic plant species" means any plants that grow in

water or substrate that is at least periodically deficient in

oxygen as a result of excessive water content, i.e. plants typi-

cally found in wet habitats.

(14) "Hydrophytic plant community" means a plant community in

which the dominant plant species are hydrophytic plant species.




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(15) "Littoral ]ans" means those lands bordering inland, non-

tidal navigable lakes, that are also commonly referred to as

riparian lands.

(16) "OHWL" means ordinary high water line.

(17) "Ordinary High Water Line" means the boundary between

sovereign submerged lands owned by the State of Florida by vir-

tue of its sovereignty and adjacent riparian and littoral up-

lands. The OHWL is defined by the physical characteristics of

the shore and banks of the waterbody caused by the presence and

action of water. The OHWL corresponds to water levels frequently

and commonly sustained in the high water season during ordinary

years. It is an ambulatory line that shifts in response to long

term, gradual, natural changes in water levels or in the shore-

line. In general, accretion, erosion, reliction, and submergence

shift the OHWL, while avulsion and artificially created accre-

tions, erosions, relictions and submergence do not shift the

OHWL.

(18) "Reliction" means the gradual and imperceptible uncovering

of land, formerly submerged under waters of a river or lake, caused

by gradually falling water levels due to natural changes.

(19) "Riparian lands" means lands bordering nontidal navigable

rivers.

(20) "Spit" means a ridge or embankment of sediment attached to

uplands at one end and terminating in open water at the other

end.

(21) "Stage duration curve" is a graph of the percent of time

water levels exceed a specific elevation during a certain period

of time at a specific location on a given waterbody.

(22) "Submergence" means the gradual and imperceptible covering

of formerly riparian or littoral land caused by gradually rising

water levels due to natural causes.

(23) "Upland plant community" means a plant community dominated

by upland plant species.

(24) "Upland plant species" means any plant species in a habitat

in which an appreciable portion of the rooting medium dries at

frequent intervals, i.e. plants typically found in dry habitats.



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S18-22B.003 Physical factors indicating location or elevation of

the OHWL.

The OHWL shall be determined by identifying the physical charac-

teristics of the shore or banks that are caused by the presence

and action of water. The primary physical characteristics that

shall be used to determine the OHWL fall into three broad cate-

gories: vegetation [to locate the plant community boundaries

that indicate the presence or absence of water]; soils [soil ana-

lyses that reveal perceptible shifts. in the hydrologic regime]; and

geomorphology [the physcial configuration of the stream, bed and

channel]. Within each of these broad categories are a number of

physical characteristics that may indicate the location or level

of the OHWL, including the following:

(1) Vegetation:

(a) Vegetative association, abundance, density, distribution

and successional trends.

(b) Dominance of upland and hydrophytic species;
(c) Usefulness of land to support production or ordinary agri-

cultural crops. Grazing, aquaculture, and hydrophytic agri-

cultural species do not constitute ordinary agricultural crops

for the purposes of this rule.

(d) Plant type (woody, herbaceous), age and growth patterns;
and

(e) Destruction of upland species.

The analysis of the vegetative indicators shall include careful

consideration of plant communities and dominant plant species.

Emphasis should be placed on the dominant plant species rather

than an indicator species. For example, the presence of scat-

tered upland species in a plant community dominated by hydrophy-

tic species would not support a finding that the area is above

the OHWL. Likewise, the presence of scattered hydrophytic spe-
cies in a plant community dominated by upland species would not

support a finding that the area is below the OHWL. The landward


//.59














extent of the hydrophytic plant community and the waterward

extent of the upland plant community indicates the range within

which the OHWL is located.

(2) Soils:

(a) Chemical composition;

(b) Stratification;

(c) pH;

(d) Color;

.. .(e) Mottling;

(f) Pinch outs:

(g) Oxidation; and

(h) Particle size distribution, composition and sorting.


(3) Geomorphology:

(a) Escarpments;

(b) Terraces;

(c) Beaches;

(d) Shelving;

(e) Erosion and deposition; and

(f) Litter deposits.



18-22B.004 Methodology for OBHWL determinations.

(1) Test sites.

(a) The number of test sites required depends on the length,

complexity and size of the waterbody;

(b) A transect shall be established at each test site.

Transects shall be located on alternate sides of rivers and

streams, whenever practical, and shall run from the edge of the

water into a clearly identifiable upland plant community.

(c) Transects shall be located in natural, undisturbed areas

that have not been graded or have not experienced other earth

moving activities and should not be located near rapids or

restrictions such as culverts and dams.




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(d) Selection.of.transect locations shall take into account the

character of the bank or shore in order to best collect important

vegetation, soil, geomorphologic and corroborative data set forth

in section 18-22B.005 of this chapter. To illustrate, transects

should be located in open water areas subject to maximum wave

attack to show geomorphic features such as terraces, scarps

and beaches; in areas with sufficient relief to show long term

changes in water level; in quiet low energy areas where organic

material has accumulated; and an areas where there is a noti-

ceable transition-of vegetation from hydrophytic to upland plant

communities.

(2) Collection of OHWL indicator data.

(a) Data regarding the soil, vegetation and geomorphologic

factors or corroborative data shall be collected along each tran-

sect.

(b) The location and ground elevation shall be observed at

each point along the transect where vegetation, soil, geomorpho-

logic indicators or corroborative data are found.

(c) Profiles shall be plotted for each transect and shall be

based on a field survey. The profiles shall show the elevation

cf tne data collection points, where the physical indicators

establish the elevation of the OEWL.

(3) Data analyses, interpretation and correlation of OHWL data.

The physical factors indicating the OHWL and the profiles pre-

pared pursuant to subsection 2 of this section shall be analyzed

and correlated to determine the elevation of the OHWL of the lake

or river. The analysis shall include qualitative and quantative

descriptions of the character of all physical fact evidence that

support such elevation.

Furthermore, if any of the indicators are an anomaly or are

inexplicitly inconsistent with the other indicators, they may

be disregarded.














(4) Flood formed natural levees on rivers (levees) and wave

formed bars, barrier islands and spits on lakes (barrier islands).

If there are sufficient physical indicators on a levee or barrier

island to determine the elevation of the OHWL and there are

natural breaks or drainage blow-outs in such levee or barrier

island, the elevation of the OHWL may be established based on

those indicators. The elevation of the OHWL shall be projected

through or beyond the levee or barrier island to include lands

behind the levee or barrier island that fall below the elevation

of the OHWL.

(5) The elevation of the OHWL shall be determined with

reference to National Geodetic Vertical Datum, as established by

the National Ocean Survey.

18-22B.005 Corroborative Data.

(1) The following data may be used to corroborate the deter-

mination of the elevation or location of the OHWL:

(a) Aerial photography showing, among other things, important

geologic features, evidence of former water levels, and current

vegetation lines;

(b) Dendrochronology;

(c) Survey reports and field notes;

(d) Hydrologic data, water levels, stage duration;

(e) Piacs;

(f) Maps, including topographic and survey maps;

(g) Photographs;

(h) History of water regulation;

(i) Topographic cross sections;

(j) Testimony;

(k) Other information determined relevant to the ORWL deter-

mination; and






//-7-
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(1) Other studies determining the OHWL of the same river or

lake.


18-22B.006 Stage Duration Curves.

Stage duration records shall be analyzed as part of each OHWL

determination for those waterbodies with long-term (at least 15

continuous years) stage duration records. A stage duration curve

for such a waterbody shall be determined and plotted. Stage

duration data has been collected over varying periods of time for

different waterbodies. In selecting the time periods used to

establish the stage'duration curve beyond 15 years, the following

factors, at a minimum, shall be considered:

(1) identifiable natural cycles in the level of the waterbody;

(2) artificial influence on the water levels;

(3) dates of commencement or abatement of artificial influen-

ces; and

(4) adequate statistical base.

Once the stage duration curve is plotted, the exceedence fre-

quency of the OHWL shall be determined. If the exceedence fre-

quency for the OHWL is greater than 25%, it is presumed that the
actual OHK is at a higher elevation than found and further ana-

lysis of the OHWL must be conducted. Similarly, if the

exceedence frequency of the OHWL is less than 10%, then further

analysis is necessary to determine if the actual OHWL is at a

lower elevation.

18-22B.007 Establishing the OBWL by photogrammetry or
stage duration curves.

If the Board of Trustees determine that:

(1) :Aerial photography of a waterbody can be used to accura-

tely determine the OHWL and the ORWL depicted by the aerial

photography is field verified, the OHWL may be determined using

such photography, provided that the affected landowner agrees to

establishing the OHWL in this manner.




S-8-













(2) There is sufficient stage duration data for a waterbody,

pursuant to section 18-22B.006 of this chapter, to accurately

determine the OHWL and the OHWL determined using stage dura-

tion data is field verified, the OHWL may be determined using

such data, provided that the affected landowner agrees to

establishing the OHWL in this manner. The exceedence frequency

selected for determining the OHWL shall not be greater than 25%,

nor less than 10%.

'18-22B.008 Documenting the'-OBWL.

Once the OHWL elevation or gradient has been determined, it shall

be documented through the following forms:

(1) Aerial photos with the OHWL superimposed on them shall be

prepared. The OHWL may be represented as a true constantly

curving line or in straight line form, provided that the straight

line form represents accurately all the breaks in the actual

curving line;

- (2) A signed and sealed survey drawing certified by a Florida

professional land surveyor or meeting the requirements of Chapter

21HH-6, F.A.C., Minimum Technical Standards for Surveys in

Florida and the requirements of this rule;

(3) OHWL coordinates provided in computer compatible format

for Department of Natural Resources State Lands Inventory; and

(4) A report explaining the physical fact evidence, correla-

tions, and interpretations used to determine the location, eleva-

tion or gradient of the OHWL, including the transects, test sites,

and profiles required in section 18-22B.004 of this Chapter.

(5) The exceedence frequency for the OHWL shall also be deter-

mined'when sufficient data is available.


18-22B.009 Shoreline Changes.

The ORWL is an ambulatory line that shifts in response to gradual

natural shoreline and water level changes. In general, the boun-

dary between sovereign lands and riparian or littoral lands

(I shifts in response to these changes. However, certain shoreline

or water level changes that occur in response to avulsion or



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artificial acoretion, erosion, or reliction do not alter the

boundary between sovereign lands and riparian or littoral lands.

Thus, an OHWL determination must include a comprehensive histori-

cal review of human activities that may have affected the shore-

line or water level, including but not limited to dredge and fil'

activities, channelization, water or flood control structures,

weirs, levees, groundwater or surface water withdrawals, and

reclamation projects. The historical review shall also determine

whether the changes were caused by a governmental entity, and the

participation or involvement of the riparian or littoral land

owner. The need for such an historical review is especially

required where the physical evidence reveals a possible OHWL

line at a higher location than the present water level and there

is some evidence of artificial reliction, since the actual OHWL

may be at the higher location.


18-22B.010 Wetlands and shallow margins.

(1) The OHWL may be located in wetlands adjacent to navigable

lakes and rivers, and in such cases the wetlands waterward of the

OHWL are sovereign lands. Placement of the OHWL in wetland areas

requires a close analysis of the three principal OHWL

indicators and utilization of the best.methods available to deter-

mine the OHWL.

(2) The OHWL may be located at the far margins of a lake or

river no matter how shallow the water, if the water is in fact

part of the navigable lake or river.


18-228.011 Procedures.

(1) OHWL determinations shall be made by the Board of

Trustees.

(2) After making a preliminary determination of the OHWL 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.



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(3) After receipt of any comments submitted in accordance with

the -rovisions of subsection (2), the OHWL determination may be

presented to the Board of Trustees at a regularly scheduled

meeting. Affected landowners shall be noticed of the time and

place of the meeting.

(4) Upon approval of the OHWL determination by the Board of

Trustees, the Department shall cause the determination to be

recorded in any and all counties in which the subject OHWL deter-

mination is located.
o..


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