Discussed at Public Workshops on
October 12, 13 and 14, 1988
PUBLIC TRUST CONSIDERATIONS FOR DETERMINING CONTINUED
BOARD OP TRUSTEE INTEREST IN CERTAIN SOVEREIGNTY LANDS
18-22C.001 Purpose and Scope.
The navigability of a fresh water waterbody and whether it is
subject to ownership by the State of Florida is determined pur-
suant to Rule 18-22A, F.A.C. The boundaries of the state's
ownership for these navigable waterbodies is determined pursuant
to Rule 18-22B. F;A.C. This rule establishes the standards, cri-
teria and procedures the Board of Trustees may use to determine
whether it is in the public interest to relinquish its ownership
of certain sovereign submerged lands that have been exposed and
are now uplands due to recession of the waterbody caused by state
sponsored, federally authorized and funded, navigation and flood
control projects, and to certain homestead property.
This rule applies only to'those sovereign submerged lands that
were waterward of the OHWL as it existed before a state sponsored,
federally authorized and funded, navigation or flood control pro-
ject, but are now exposed due to recession of the waterbody
caused by the navigation and control project, and to certain
homestead property. This rule does not apply to shoreline or
water level changes that have occurred in response to other arti-
fical accretion, erosion or reliction, including but not limited
to dredge and fill activities, channelization, groundwater, sur-
face water withdrawals and reclamation projects.
(1) "Accretion" means the gradual and imperceptible addition of
soil, sand, sediment or other material to riparian or littoral
lands that results A dry lands in areas formerly co% :d by
(2) "Artificial reliction" means reliction caused by man-made
projects and operations.
(3) "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.
(4) "Department" means the Department of Natural Resources.
(5) "Exposed lands. means sovereign submerged lands waterward
of the OHWL that have been uncovered by reliction caused by
a state sponsored, federally authorized and funded navigation or
flood control project.
(6) "Homestead" means property of one (1) acre or less which
has been occupied, in good faith, as a permanent residence by a
person who is a resident of this State or by others legally or
naturally dependent upon such person. Homestead does not include
rental property. Any property claimed as homestead must also be
listed as such at the local property appraiser's office for
ad valorem tax purposes prior to (DATE).
(7) "OHWL" means ordinary high water line as defined in Rule
(8) "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.
(9) "Water management districts" means the water management
districts.created pursuant to Chapter 373, Florida Statutes.
18-22C.004 Standards and Criteria for Exposed Lands.
The Board of Trustees holds title to the submerged lands below
the navigable waters of the state in trust for the use and bene-
fit of the people of the state. The uses include fishing,
hunting, bathing, boating, water skiing, anchoring, enjoyment of
scenic vistas, and other recreational uses and environmental and
natural resource conservation and protection. While artificially
created reliction or avulsion does not ordinarily shift the ele-
vation or location of the OHWL and thus state ownership of the
affected submerged lands, it may adversely impact public use of
the underlying submerged lands, especially where the artificial
changes expose the submerged land. Public projects undertaken
for navigation and flood control purposes by the state and
federal government .have adversely impacted the public use of cer-
tain navigable waters.. The impacts of these public projects are
extensive enough in some circumstances so that there is no longer
a public benefit or interest in the exposed submerged lands to be
protected by the Board of Trustees under their trust respon-
sibilities. In such cases, it may not detract from the Board of
Trustees' legitimate interests to relinquish its claim of
ownership to these submerged lands exposed by public projects.
In determining whether to relinquish ownership to those sovereign
lands that are subject to this rule, the Board of Trustees will
consider the following:
(1) Property use.
Any economically beneficial or profitable uses of the property,
or any reasonably likely use. The burden is on the person
requesting that the Board of Trustees relinquish its claim to the
land to prove that such economically beneficial or profitable
uses are not contrary to the public interest.
(2) Public Trust interests.
The effect of continuing or not continuing to claim ownership of
the exposed submerged lands depends on the following public
(a) Public use:
(1) Boating, sailing, and canoeing;
*12) Swimming, bathing and water skiing;
(3) Hunting and fishing;
(4) Sightseeing and aesthetic enjoyment; and
(5) Other recreational uses.
(b) Natural resource conservation and environmental protection:
(1) Water quality and quantity, including instream flow;
(2) Fish and shellfish;
(4) Endangered and threatened species;
(5) Critical wildlife habitat, including spawning,
breeding, nesting areas and protective cover;
(6) Shorelines and shore erosion;
(7) Biological and physical integrity of the waterbody;
(8) Special aquatic sites and sensitive ecosystems;
(9) Ecosystem diversity, productivity and stability;
(11) Flood hazards and floodplain values;
(12) Water level fluctuation; and
(13) Parks, preserves, sanctuaries, wilderness areas, wild
and scenic rivers, refuges, historical resources, and similar
(c) Physical features:
(1) Whether :th exposed lands are separated or isolated
from the waterbody by existing artificial dikes, levees, berms or
water control structures; and
(2) Current and potential use of the exposed lands and
the incompatibility of such uses with the public interest and
(d) The cost of maintaining Board of Trustees' claims of
ownership; and the cost of litigation as compared to the public
interest and the public benefits of maintaining such claims.
The Board of Trustees will continue to claim ownership in the
exposed sovereign lands if, after considering and balancing the
above factors, it determines that the exposed lands still serve
the public interest and the Board of Trustees trust respon-
sibility for the navigable waterbodies and submerged lands.
18-22C.005 Standards and Criteria for Homestead -,operty.
(1) It may not detract from the Board of Trustees legitimate
interests not to continue to claim ownership to submerged lands
occupied by a homestead. In determining whether to continue to
claim ownership to such lands, the Board of Trustees will consider
and balance the following:
(a) Whether the subject property is or includes a homestead;
(b) The length of time the property has been a homestead;
(c) Other uses of the property; and
(d) The costs of maintaining Board of Trustees' claims of
ownership as compared to the public interests and the public
benefits of maintaining such claims.
(2) Homestead status must have been acquired prior to any
notice provided pursuant to Rule 18-22A or 18-22B, F.A.C.
18-22C.006 Save Our Rivers Land Acquisition Program.
The water management districts are authorized to acquire lands to
conserve and protect the state's water resources. This land
acquisition program is referred to as the Save Our Rivers
Program. The lands to be purchased are included in 5 year
acquisition Flans approved pursuant to section 373.59, F.S.
Land acquisition projects identified in the 5 year acquisition
plans may include exposed submerged lands that are subject to
The purpose of acquiring these exposed lands may be consistent
with the public trust and the public interest because acquisition
would help to conserve and protect navigable waterbodies.
However, the possibility that the Board of Trustees may hold
title to the exposed lands complicates such acquisition.
The Board of Trustees may relinquish its claim to ownership of
exposed lands slated for acquisition under the Save Our Rivers
program provided that:
(1) The lands fell within the boundaries of an acquisition pro-
ject identified in an approved 5 year acquisition plan of a water
(2) The water management district provides adequate assurances
that it has entered into an option contract or purchase agreement
to acquire the exposed land;
(3) The Board of Trustees determine that acquisition of the
exposed lands is in the public interest and is consistent with
the Board's public trust responsibilities following consideration
of and balancing the factors set forth in section 18-22C.004(3)
of this Chapter;
(4) The Board of Trustees determines that the purchase price
to be paid by the water management district adequately reflects
the Board of Trustees interest in the land to be acquired.
(5) The Board of Trustees has the opportunity to review and
approve a management plan prepared by the water management
district for the exposed lands;
(6) The water management district agrees to execute a conser-
vation easement over those lands determined by the Board of
Trustees to be necessary to protect the public interest and to
fulfill the Board of Trustees' public trust responsibilities;
(7) The Board of Trustees determine that the costs of main-
taining its claims of ownership is significant enough that it
is in the public interest to avoid that cost through acquisi-
tion by the water management district; and
(8) The Board of Trustees determines that its claim of
ownership would unreasonably delay the long term conservation
and protection of a significant state water resource through the
Save Our Rivers program.
18-22C.007 Buffers and Conservation Easements.
Before relinquishing its claim to ownership of any exposed lands
pursuant to this Chapter, the Board of Trustees shall determine
whether it is necessary to establish a buffer zone on the exposed
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lands and to require a conservation easement over thebe lands to
protect the public interest and to fulfill the Board of Trustees'
public trust responsibilities in the adjacent navigable water-
body. This determination shall be based on consideration of the
factors set forth in section 18-22C.004(3) of this Chapter. If
it determines that a buffer or conservation easement are
necessary, the Board of Trustees shall specify the width of the
buffer and specify the scope, and terms and conditions of the conser-
vation easement. The buffer zone and conservation easement shall
provide satisfactory assurances that the public's right to use
and enjoy the waterbody will be protected and that the natural
and environmental resources of the waterbody will be adequately
conserved and protected.
It will only be in highly unusual circumstances that the Board of
Trustees will not impose a buffer and require a conservation
The Board of Trustees will not relinquish its claims to any
exposed lands under this chapter if:
(1) It would not be in the public interest;
(2) It would be contrary to the Board of Trustees' public
(3) It would result in serious impediment to navigation;
(4) It would interfere with the conservation of fish, marine
and other wildlife, or natural or environmental resources;
(5) The exposed lands may be required for restoration of a
significant waterbody except as provided in section 18-22C.006 of
this Chapter; and
(6) If it would be contrary to or inconsistent with the pur-
pose or operations of the navigation or flood control project,
except as provided in section 18-22C.006 of this Chapter.
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(1) Determinations under this rule shall be made by the Board
of Trustees in writing and include a detailed biological survey
and ecological study of the exposed lands.
(2) Upon making a preliminary determination whether it is in
the public interest not to continue to assert their ownership to
exposed submerged lands in accordance with this Chapter, staff of
the Board of Trustees shall provide notification to affected
landowners. The landowner shall be given 30 days to submit
written comments to the Board of Trustees on the determination.
(3) After receipt of written comments submitted in accordance
with subsection (2), the ownership determination may be placed
before the Board of Trustees at one of its regularly scheduled
meetings. Affected landowners shall be notified of the time
and place of the meeting.
(4) Upon the Board of Trustees determining that it will not
continue to assert ownership to exposed submerged lands, the
Department shall cause the determination, including a specific
delineation of the exposed lands, to be recorded in any and all
counties in which the subject lands are located.
Specific Authority: .Law Implemented
History: New 4- -88.