Title: Chapter 18-22C Public Trust Considerations for Determining Continued Board of Trustee Interest in Certain Sovereignty Lands -DNR Draft
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Title: Chapter 18-22C Public Trust Considerations for Determining Continued Board of Trustee Interest in Certain Sovereignty Lands -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: Chapter 18-22C Public Trust Considerations for Determining Continued Board of Trustee Interest in Certain Sovereignty Lands -DNR Draft Discussed at Public Workshops on October 12, 13, and 14, 1988
General Note: Box 7, Folder 4 ( Vail Conference 1989 - 1989 ), Item 55
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00000956
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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DNR Draft


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



CHAPTER 18-22C


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.


18-22C.002 Applicability.

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.


18-22C.003 Definitions.

(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

water.

(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

1-22B.002(11).

(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,



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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

interest factors:

(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;
(3) Wildlife;

(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;

(10) Wetlands;

(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

resources.

(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

public trust.

(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.


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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

this rule.


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:



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(1) The lands fell within the boundaries of an acquisition pro-

ject identified in an approved 5 year acquisition plan of a water

management district;

(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
easement.

18-22C.008 Prohibitions.
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
trust responsibilities;

(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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18-22C.009 Procedures.

(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.

















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