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( THE ORIGIN AND EVOLUTION OF THE SAFE UPLAND LINE
A new term has crept into Florida's regulatory arena and is taking a mighty swipe at
private property. The term is "Safe Upland Line." With no legislative authorization, it is being
used today by state agency and water management district officials as an arbitrary line to mark
the boundary between state-owned submerged lands and privately owned property.
According to well established law, the boundary between state-owned submerged lands
and private land is the ordinary high water line in nontidal areas and the mean high water line
in tidal areas. Instead of determining the boundary by the established legal method, the state
relies on the less expensive, less accurate safe upland line method which can result in giving the
state credit for owning more land than it would if the established boundary method were used.
Today the state is using the safe upland line to justify less than a full market price offer
for the purchase of land by the state and to coerce individuals to pay lease fees on land the state
claims, but has not proven it owns.
Where Did The Term Come From?
The term originated with the Department of Natural Resources as a mechanism to ensure
that the State collect full lease fees and to save money for applicants seeking permits to use state-
owned submerged lands. According to Kirby Green, he coined the term in 1983 while working
as Chief of the DNR Bureau of Survey & Mapping.
As Green explains, the Bureau was reviewing all survey information presented on
applications for use of submerged lands. Applicants who wished to use state land were required
to submit an application to DNR. The application required a statement of the location of the
ordinary high water line (OHWL) for non-tidal areas or the mean high water line MHWL for
tidal areas. Often, Green said, the measurements were presented in the application as
approximations or estimates. The lease fee charged was based on the number of acres to be used
waterward of the OHWL or the MHWL. Since the measurements were used to calculate the
amount of lease fees the state could collect, the Bureau asked for an exact rather than an
Surveyors hired by the applicant to provide the survey information complained that the
cost of performing a survey to obtain a more exact measurement would be too expensive for the
applicant. In addition, the Bureau started requiring surveyor to spend more time and evaluate
many new factors.
As a compromise to allow the applicant to obtain a state lands use permit without having
to bear the expense of a full survey, Green recalls, the bureau allowed surveyors to locate a line
"safely upland" from the OHWL or MHWL. According to Green, the safe upland line was a
line that could be established by a quick visual inspection. The surveyor need only identify a
line of mature vegetation known to grow in upland areas. This limited methodology allows the
surveyor to spend less time in identifying a boundary line.
The applicant and the DNR agreed to calculate the lease fee based on the acreage below the
line "safely upland" from the OHWL or MHWL. Thus, the term "Safe Upland Line" was born.
Where Has It Gone?
Today, according to Rod Maddux of the DNR Bureau of Survey & Mapping, the safe
upland line is used in all state land acquisition programs as well as in lease and easement
arrangements. An example of how the state uses safe upland line for acquisition is its purchases
under the Conservation and Recreation Lands (CARL) program. Under CARL, the State
purchases land from private owners to create parks and to restore and protect environmentally
endangered areas. Often the land to be purchased is adjacent to state-owned submerged lands.
A critical question then arises: where does the line for the private property end and the property
the state already owns begin?
The state contracts with surveyors to determine where the safe upland line occurred
defining the boundary of the land the state is willing to purchase. Once the safe upland line is
established. The state pays the land owner a set price per acre for the parcel minus the acreage
waterward of the safe upland line.
Owners can contract to have their own surveys done. In some cases, the state has agreed
to reimburse owners for the cost of the survey. However, the amount the state will pay is
limited and usually does not cover the full cost of an OHWL or MHWL survey. The state may
reimburse the land owner for the full cost of a safe upland line survey. The question then
becomes one of economics: is the value of the property between the safe upland line and the
potential OHWL greater than the difference in the cost of an OHWL survey and a safe upland
But What Does It Mean?
The term "Safe Upland Line" does not appear anywhere in the Florida Statutes. It is
only used one place in the Florida Adminsitrative Code and there is no definition or set of
instructions within the Code for locating it. Furthermore, there have been no court cases on the
subject. It appears clear that the State has manufactured an arbitrary method to grab private
property, forcing owners to disprove the state's claim.